Lecture summary: Public and non-public business companies. Non-public companies: innovations in the Civil Code of the Russian Federation

A public joint stock company is a new term in Russian civil law. At first glance, it may seem that non-public and public joint-stock companies are just new names for CJSC and OJSC. But is it really so?

What does a public joint stock company mean?

Federal Law No. 99-FZ of May 5, 2014 (hereinafter referred to as Law No. 99-FZ) supplemented the Civil Code of the Russian Federation with a number of new articles. One of them, Art. 66.3 of the Civil Code of the Russian Federation introduces a new classification of joint-stock companies. The already familiar CJSC and OJSC have now been replaced by NAO and PJSC - non-public and. This is not the only change. In particular, the concept of an additional liability company (ALC) has now disappeared from the Civil Code of the Russian Federation. However, they were not very popular anyway: according to the Unified State Register of Legal Entities as of July 2014, in Russia there were only about 1,000 of them - with 124,000 CJSCs and 31,000 OJSCs.

What does public joint stock company mean? In the current version of the Civil Code of the Russian Federation, this is a joint-stock company in which shares and other securities can be freely sold on the market.

The rules on a public joint-stock company apply to a joint-stock company whose charter and name indicate that the joint-stock company is public. For PJSCs established before 09/01/2014, whose company name contains an indication of publicity, the rule established by paragraph 7 of Art. 27 of the law "On amendments ..." dated June 29, 2015 No. 210-FZ. Such a PJSC that does not have public issues of shares before 07/01/2020 must:

• apply to the Central Bank with an application for registration of a share prospectus,
• remove the word "public" from its name.

In addition to shares, a joint-stock company may also issue other securities. However, Art. 66.3 of the Civil Code of the Russian Federation provides for the status of publicity only for those securities that are convertible into shares. As a result not public societies may introduce securities into public circulation, with the exception of shares and securities convertible in them.

What is the difference between a public joint stock company and an open

Consider different from JSC. Although the changes are not fundamental, their ignorance can seriously complicate the life of the management and shareholders of PJSC.

Disclosure

If earlier the obligation to disclose information about the activities of an OJSC was unconditional, now a public company has the right to apply to the Central Bank of the Russian Federation with an application for exemption from it. This opportunity can be used public and non-public companies, however, it is for public release that is much more relevant.

In addition, for an OJSC, it was previously required to include information about the sole shareholder in the charter, as well as publish this information. Now it is enough to enter data into the Unified State Register of Legal Entities.

Preemptive right to purchase shares and securities

An open joint-stock company was entitled to provide in its charter cases when additional shares and securities are subject to preferential purchase by existing shareholders and holders of securities. Public Joint Stock Company is obliged in all cases to be guided only by the Federal Law "On Joint Stock Companies" dated December 26, 1995 No. 208-FZ (hereinafter - Law No. 208-FZ). References to the articles of association are no longer valid.

Register keeping, counting commission

If in some cases it was allowed for an OJSC to maintain a register of shareholders on its own, then public and non-public joint-stock companies are always required to delegate this task to specialized licensed organizations. At the same time, for a PJSC, the registrar must be independent.

The same applies to the counting commission. Now, issues related to its competence should be decided by an independent organization that has a license for the corresponding type of activity.

Society management

Public and non-public JSCs: what are the differences?

1. By by and large PJSCs are subject to the rules previously applied to OJSCs. NAO, on the other hand, is mainly former ZAO.
2. The main feature of a PJSC is an open list of potential buyers of shares. NAO, on the other hand, is not entitled to offer its shares at public auction: such a step, by virtue of the law, automatically turns them into PJSC even without amending the charter.
3. For PJSCs, the management procedure is rigidly enshrined in law. For example, the rule is still preserved, according to which the competence of the board of directors or the executive body cannot include issues that are subject to consideration by the general meeting. A non-public company, on the other hand, can transfer some of these issues to a collegiate body.
4. The status of participants and the decision of the general meeting in PJSC must be confirmed by a representative of the organization-registrant. The NAO has a choice: you can use the same mechanism or contact a notary.
5. Non-public joint stock company still have the right to provide in the charter or corporate agreement between shareholders the right to preemptive purchase of shares. For public joint stock company such an order is absolutely unacceptable.
6. Corporate agreements concluded in PJSC should be disclosed. For the NAO, it is sufficient to notify the company about the fact of concluding such an agreement.
7. The procedures provided for by Chapter XI.1 of Law No. 208-FZ, concerning offers and notices of securities repurchase, after September 1, 2014, do not apply to JSCs that, through changes in the charter, have officially fixed their status as non-public.

Corporate agreement in joint-stock companies

An innovation that largely concerns PJSCs and NAOs is also a corporate agreement. Under this agreement between shareholders, all or some of them undertake to use their rights only in a certain way:

• take a unified position in voting;
• establish a common price for all participants for their shares;
• allow or prohibit their acquisition in certain circumstances.

However, the agreement also has its limitations: it cannot oblige shareholders to always agree with the position of the JSC's governing bodies.

In fact, there have always been ways to establish a unified position for all or part of the shareholders. However, now changes in civil law have transferred them from the category of "gentleman's agreements" to the official plane. Now the violation of a corporate agreement may even become a reason to recognize the decisions of the general meeting as illegal.

For non-public companies, such an agreement may be additional means management. If all shareholders (participants) participate in the corporate agreement, then many issues related to the management of the company can be resolved through changes not in the charter, but in the content of the agreement.

In addition, a duty has been introduced for non-public companies to enter information on corporate agreements into the Unified State Register of Legal Entities if the powers of shareholders (participants) under these agreements seriously change.

Renaming JSC into a public joint stock company

For those JSCs that have decided to continue working in the status public joint stock company required to amend the articles of incorporation. The deadline for this is not established by law, but it is better not to delay it. Otherwise, problems may arise in relations with counterparties, as well as ambiguity about which norms of the law should be applied in relation to PJSC. Law No. 99-FZ establishes that the unchanged charter will be applied to the extent that it does not contradict the new norms of the law. However, what exactly contradicts and what does not is a moot point.

Renaming can be done in the following ways:

1. At a specially convened extraordinary meeting of shareholders.
2. At a shareholder meeting that decides other current issues. In this case, the change in the name of the JSC will be highlighted as additional question on the agenda.
3. At the mandatory annual meeting.

Re-registration of old organizations into new public and non-public legal entities

The changes themselves can only concern the name - it is enough to exclude the words “open joint stock company” from the name, replacing them with the words “ public joint stock company". However, at the same time, it should be checked whether the provisions of the previously existing charter contradict the norms of the law. In particular, special attention should be paid to the rules regarding:

• board of directors;
• pre-emptive right of shareholders to purchase shares.

In accordance with Part 12 of Art. 3 of Law No. 99-FZ, a company will not need to pay a state duty if the changes relate to bringing the name in line with the law.

In addition to joint-stock companies, signs of publicity and non-publicity now apply to other organizational forms legal entities. In particular, the law now directly classifies LLC as a non-public entity. For a public joint stock company, amendments to the charter must be made. But is it necessary to do this for those companies that, by virtue of the new law, should be considered as non-public?

In fact, for non-public companies, changes are not necessary. Nevertheless, it is still desirable to make such changes. This is especially important for the former ZAO. Otherwise, such a name would be a defiant anachronism.

Sample charter of a public joint stock company: what to look for?

During the time that has elapsed since the adoption of Law No. 99-FZ, many companies have already passed the procedure for registering amendments to the charter. Those who are just about to do this can use the sample PJSC charter.

However, when using the sample, it is necessary, first of all, to pay attention to the following:

• The articles of association must contain an indication of publicity. Without this, society becomes non-public.
• It is obligatory to involve an appraiser in order to make a property contribution to the authorized capital. At the same time, in the event of an incorrect assessment, both the shareholder and the appraiser must respond subsidiarily within the amount of the overstatement.
• If there is only one shareholder, it may not be indicated in the charter, even if such a clause is contained in the sample.
• It is possible to include in the charter provisions on the audit procedure at the request of shareholders owning at least 10% of the shares.
• Convert to non-profit organization is no longer allowed, and there should not be such norms in the charter.

This list is far from complete, so when using samples, you should carefully check them with current legislation.

The term "public joint stock company": translation into English

Since many Russian PJSCs carry out foreign trade operations, the question arises: what should they be officially called in English now?

Previously, in relation to OJSC, it was used English term open joint stock company. By analogy with it, the current public joint stock companies may be called a public joint-stock company. This conclusion is also confirmed by the practice of using this term in relation to companies from Ukraine, where PJSCs have existed for a long time.

In addition, one should take into account the difference in the legal terminology of English-speaking countries. So, by analogy with UK law, the term “public limited company” is theoretically acceptable, and with US law - “public corporation”.

The latter, however, is undesirable, since it can mislead foreign contractors. Apparently, the public joint-stock company option is optimal:

• it is mainly used only for organizations from post-Soviet countries;
• quite clearly marks the organizational and legal form of society.

So, in the end, what can be said about the innovations in civil law relating to public and non-public legal entities? In general, they make the system of organizational and legal forms for commercial organizations in Russia more logical and harmonious.

Making changes to the bylaws is easy. It is enough to rename the company according to the new rules of the Civil Code of the Russian Federation. A step forward can be considered the legalization of agreements between shareholders (a corporate agreement in accordance with Article 67.2 of the Civil Code of the Russian Federation).

On September 1, 2014, some changes in the Civil Code came into force Russian Federation. There was a division of joint-stock companies into two types, according to the principle of the possession of certain characteristics by organizations. The first type is public joint-stock companies. Such organizations are more open. The second type is non-public joint-stock companies, they are more closed, but at the same time the management system in them is less strict. Instead of the usual abbreviations, new ones appeared, such as NAO and PAO. You can read more about public and non-public joint-stock companies in this article.

Public Joint Stock Company

This is the name of those enterprises whose shares have a public circulation in accordance with the legislative acts on securities. This may be access to stock exchanges, emission for the purpose of generating income, etc. Also, the publicity of a joint-stock company is determined by the fact that the statutory documents state that the organization is open in one form or another. The control of such firms is more stringent due to the fact that they may affect the interests of third parties, because citizens can purchase shares in these organizations. For example, a supervisory board of five people must be present as a supervisory body. It should also be noted that all United Joint Stock Companies (OJSC), based on the new legislation, become public. Moreover, new changes in the legislation provide for openness and transparency of data related to the owners of securities issued by PJSC. They also have a number additional nuances and innovations, for example, a society will be considered public, provided that the number of its members exceeds five hundred. More detailed information set out in the first paragraph of Article 66.3 of the Civil Code of the Russian Federation.

Non-public joint stock company

This is an enterprise whose participants are strictly defined, information about these persons is recorded at the time of the organization's creation. The innovation allows you to correct and amend the charter of the organization, form management bodies, influence the board of directors and the meeting of shareholders on various issues through voting. All CJSCs, as well as some LLCs, will now be called non-public.

It is important to note the lower obligations in relation to the owners of securities, which are borne by a non-public joint-stock company. Responsibility to depositors is less than in the case of open organizations. This is due to the fact that a non-public joint stock company has a limited number of owners of securities, strictly limited by the statutory documents. Speaking more plain language, participants are initially warned of all risks and possible losses. Often shares in such companies are not issued at all, and such enterprises are partly the result of privatization or the consequence of a peculiar model of management with equity participation to delegate responsibility.

Terminology changes in accordance with legislation

As mentioned above, all enterprises referred to as JSCs are now called public joint stock companies. The changes also apply to other organizational and legal forms. CJSC is a non-public joint-stock company. The latter will also include some LLCs, but subject to the availability of the necessary features.

In addition, all firms established before the legislation was updated do not have to undergo any re-registration procedures. This rule only applies if there is no need to make any adjustments to the registration data. For example, the relocation of companies to another office or a change in the type of activity may be the basis for a change in legal form. It should be noted that it may be necessary to change the articles of association in accordance with the new legislation, if necessary. As for the new abbreviations in the names, the non-public joint-stock company is abbreviated - NAO, public - PJSC.

Information about the owners of securities

Both in the case of a public and in the case of a non-public company, the register of shareholders must be maintained by an independent competent organization. Otherwise, there is a risk of getting a fine and bringing additional checks on your company. This rule was introduced in October 2013. The choice of a registrar company that will maintain the register of shareholders is a very responsible decision. Before accepting it, you should make sure that the company to which you entrust this task is fairly conscientious, has good experience in this area and has been working for a long time. Otherwise, there is a risk of various problems and additional litigation. It is also recommended to look at the clients of such companies. The more serious these firms, the better for you. The decisions of all meetings must be included in the register by the company that takes responsibility for maintaining it.

Nominal Capital

These are the funds of the enterprise formed by issuing securities. They are also called authorized or share capital due to the fact that their size is specified in the charter of the organization. This is the amount invested by the participants to ensure the statutory activities of the company. The amount of these funds is fixed in the constituent documents of the organization in accordance with applicable laws. According to the Civil Code, share capital- the smallest amount of funds that guarantee solvency to creditors. The law provides for the possibility of increasing the nominal capital. This is possible if for similar solution not less than two-thirds of the participants will vote and subject to the laws provided for in specific cases. As funds in the share capital, property can be contributed in the form of Money and their in-kind equivalents, such as property. In the case of depositing funds in another form or in the form of a property right, they are evaluated using an independent examination.

Statutory document of the NAO

When creating a non-public JSC, you must have various papers and completed forms with you. The charter of a non-public joint-stock company is a key document. It contains all the information about the organization, it tells about its property, participants and their rights, about the activities of the formed enterprise, etc. In case of problems and disputes, the Charter will be the supporting document in legal proceedings. Therefore, it must be written in such a way that it does not contain loopholes and flaws that can be used in court against the organization. When drawing up the Charter, it is recommended to study in detail all the legislative acts, one way or another related to the activities of the organization, or contact lawyers who have experience in this area or specialize in the development of such documents.

Statutory document of PJSC

The charter in such enterprises is in many respects similar to a similar document of a non-public joint-stock company. Exception - it must state that the organization is open. For example, the procedure for issuing shares, their circulation, entering the stock exchanges is indicated, the dividend payment policy is prescribed. It may also prescribe the procedure for the circulation and issue of other securities, but it must be possible to convert such bills into shares. In general, the Charter of a public joint stock company should be developed even more responsibly than in the case of the NAO. This is due to the high potential liability and obligations to shareholders, which, in fact, can be anyone. This means that the risk of claims from various individuals and legal entities and representatives of the state in the case of PJSC is much higher. The development of documentation requires a responsible approach and the work of specialists.

Authorized capital of NAO

When forming the authorized capital, the basic legal acts will be the Civil Code of the Russian Federation and Federal Law 208 “On Joint Stock Companies”.

According to the Civil Code of the Russian Federation, these include organizations whose nominal capital is divided into a certain number of securities. Members of the company cannot incur losses or liabilities in excess of the value of the securities they own.

In this case, when the authorized capital of a non-public joint-stock company is considered, securities cannot be placed openly. The share of promissory notes owned by the owner may be limited by statutory documents. The number of votes granted to one bearer of securities may also be indicated. In this case, the minimum authorized capital of a joint-stock company must be equal to at least one hundred minimum wages (minimum wages).

Authorized capital of a public joint stock company

In the situation with PAO, the rules similar to the previous case apply. Key acts will be latest editions Civil Code of the Russian Federation and Federal Law 208 “On Joint Stock Companies”.

The authorized capital of a public company consists of shares acquired by the owners at their original cost at the time of issue. The par value of the securities must be the same. Just like the rights of shareholders, which should be equal. The size of the authorized capital can either increase or decrease in accordance with the current market situation. This happens through the issuance of additional securities or through the purchase of own shares from large investors. The authorized capital must include at least 1000 minimum wages.

PAO members

In this case, the participants will be all the owners of the shares of the company. Any citizen of the Russian Federation who has reached the age of 18 can become a PJSC participant. Shareholders are not legally and financially responsible for the actions of the company, but only have certain rights. For example, they can take part in the general meeting and vote. The only possible losses for the owners of securities are associated with the value of shares or dividends.

NAO members

The procedure for membership in organizations of this type is different from PJSC. Only participants in a non-public joint-stock company will be founders. This is due to the peculiarities of the regulation of such firms. The founders will also be shareholders, and their bonds do not extend beyond this organization. Participants cannot be more than fifty people, otherwise NAO must be reorganized into a public joint stock company.

Reorganization from one form to another

The legislation provides for the possibility of changing one legal form to another. On the example of the transformation of NJSC into PJSC, the following obligations that arise before the organization can be distinguished:

• Increase in the authorized capital to the required minimum (1000 minimum wages).
• Development of documents confirming the change in the rights of shareholders.
• Issue of shares.
• Complete inventory.
• Involvement of an auditor.
• Development of a new charter and related documentation.
• Re-registration in the Unified State Register of Legal Entities.
• Transfer of property to a new legal entity.

Registration: public and non-public joint-stock companies

The first step is to choose the legal form, public joint stock company or another type, in accordance with the needs of the organization being created. Next, you need to prepare everything Required documents: an agreement between the founders, if there is more than one person, then - documents on the types and types of shares, their value and quantity. After that, a charter is developed, which includes:

• The name of the organization in full and in the form of abbreviations, in the case of a public company, this should be reflected in the name.
• Legal address.
• Number and price of shares at par.
• Types of issued shares.
• The rights of shareholders owning one or another category of shares.
• The cost of the authorized capital.
• The procedure for holding various meetings, voting and decision-making.
• The powers and decision-making algorithm of the governing bodies - in accordance with applicable law.

Now you need to register the company with the local tax authority, which one depends on the city and region in which the registration is made. It is necessary to fill in and provide all the required documents, certify them with a notary and pay a fee. Registration will be done within 5 working days. Then you will have exactly 30 days to issue and register shares, and you will also need to choose a company to hold the register of shareholders.

It should be noted that the process of registration and creation of joint-stock companies is a very responsible decision. Problems with documentation and various forms can arise even when registering an individual entrepreneur, so you should not save on creating a future organization; if you encounter any difficulties, it is recommended to contact competent specialists in the tax, legal and financial spheres. The right organizational and legal form is the first step on the way to successful business, and this choice should be made as deliberately as possible.

Paragraph 2 of Chapter 4 of the Civil Code contains general rules about economic partnerships and societies. 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 a close or 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 constituent 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.

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 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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The abbreviations CJSC and OJSC are familiar even to those who are not related to business, so their decoding is not difficult. it different forms joint-stock companies (JSC) - closed and open, differing from each other in the possibility of selling shares and managing the company. A few years ago, a legislative reform was carried out, giving more correct names these business entities.

What is NAO

In 2014, the definitions regarding the organizational and legal forms of legal entities were revised. Federal Law No. 99 dated May 5, 2014 amended the legislation and abolished the concept of CJSC. At the same time, a new division was introduced for business entities, distinguishing them according to the criterion of openness to third parties and the possibility of third-party participation.

Article 63.3 of the Civil Code (CC) defines new concepts. According to the article, business companies are:

• Public (PO). These are companies whose shares are freely traded in accordance with the Law No. 39 of April 22, 1996 “On the Securities Market”. An alternative requirement to classify an organization as a software entity is to indicate its public nature in the name.
• Non-public (NO). All others that are not public.

The legislative wording does not give a clear definition of a non-public company, and relies on the exclusionary principle (everything that is not software is NO). Legally, this is not very convenient, because it creates a pile of wording when trying to define terms. The situation is similar with the establishment of the value of a non-public joint-stock company (NJSC). It can be determined only by analogy (NAO is an AO with signs of OI), which is also uncomfortable.

But the legal procedure for the transition to new definitions is simple. Law No. 99-FZ recognizes as public joint-stock companies all JSCs established before September 1, 2014 and meeting the qualification criteria. And if such a company, as of July 1, 2015, has an indication of publicity in the charter or name, but in fact, it is not a PJSC, then it is given five years to start an open circulation of securities or re-register the name. This means that July 1, 2020 is the deadline when, according to the law, the transition to new wordings should be completed.

Organizational and legal form

Public and non-public joint-stock companies are distinguished according to Article 63.3 of the Civil Code. The defining feature is the free circulation of the company's shares, so it would be a mistake to mechanically translate the old definitions into new ones (for example, assume that all OJSCs automatically become PJSCs). According to the law:

• Public joint-stock companies include not only OJSCs, but also CJSCs that have openly placed bonds or other securities.
• The category of non-public JSC includes joint-stock companies closed type, plus - OJSCs that do not have shares in circulation. At the same time, the category of NO will be even wider - in addition to NAO, this includes LLC (limited liability companies).

Given the specific nature of a CJSC, which simplifies the task of concentrating assets in the hands of a group of persons, it is quite logical to combine it into one group with an LLC. The legislative necessity of creating a category of HO becomes extremely clear - this is the unification into one group of business entities that exclude third-party influence. At the same time, a non-public limited liability company can be transformed into a NJSC without much difficulty (the reverse process is also possible).

The difference between a public joint-stock company and a non-public one

When comparing PAO and NAO, it is important to understand that each of them has its own advantages and disadvantages, depending on specific situation. For example, public joint-stock companies provide more opportunities for attracting investments, but at the same time they are less resistant to corporate conflicts than non-public joint-stock companies. The table shows the main differences between the two types of economic entities:

Characteristics and distinctive features

From the point of view of legislation, a non-public joint-stock company is a special category of business entities. The main distinguishing features include:

• Membership restrictions. It can only be founders. They act as the sole shareholders, as the company's shares are distributed only among them.
• The authorized capital has a lower limit of 100 minimum wages, which is formed by contributing property or cash.
• The registration of a non-public JSC is preceded by the preparation of not only the charter of the company, but also a corporate agreement between the founders.
• The management of the NAO is carried out with the help of a general meeting of shareholders with a notarized decision.
• The amount of information that a non-public JSC must make publicly available is much less than that of other types of JSC. For example, non-public joint-stock companies, with a few exceptions, are exempted from the obligation to publish annual and accounting reports.

Disclosure of information about activities to third parties

The principle of publicity implies the placement of information about the activities of the company in the public domain. Information that a public company must publish in print (or on the Internet) includes:

• Company's annual report.
• Annual accounting reports.
• List of affiliated persons.
• Statutory documentation of a joint stock company.
• The decision to issue shares.
• Notice of the meeting of shareholders.

Non-public corporations are subject to these disclosure obligations in a reduced form and apply only to entities with more than 50 shareholders. In this case, the following is published in publicly available sources:

• Annual report;
• Annual financial statements.

Certain information about a non-public JSC is entered into the Unified State Register of Legal Entities (EGRLE). These data include:

• information on the value of assets as of the last reporting date;
• information on licensing (including suspension, reissuance and termination of a license);
• notification of the introduction of supervision as determined by the arbitration court;
• subject to publication in accordance with Articles 60 and 63 of the Civil Code of the Russian Federation (notifications on the reorganization or liquidation of a legal entity).

Charter

In connection with legislative changes caused by the emergence of new organizational and legal forms (public and non-public joint-stock companies), JSCs must carry out a reorganization procedure with amendments to the charter. To do this, a board of shareholders is convened. It is important that the changes made do not conflict with federal law No. 146 dated July 27, 2006 and necessarily contained a mention of the non-publicity of the organization.

The standard structure of the charter of a non-public JSC is determined by Articles 52 and 98 of the Civil Code of the Russian Federation, as well as Law No. 208 of December 26, 1995 "On Joint Stock Companies". Mandatory information that must be included in this document includes:

• name of the company, its location;
• information about placed shares;
• information about the authorized capital;
• the amount of dividends;
• procedure for holding a general meeting of shareholders.

Organization management and governing bodies

In accordance with applicable law, the charter of a joint stock company must contain a description organizational structure companies. The same document should consider the powers of the governing bodies and determine the procedure for making decisions. The organization of management depends on the size of the company, it can be multi-level and has different types:

• General Meeting of Shareholders;
• supervisory board (board of directors);
• collegial or sole executive body (board or director);
• audit committee.

Law No. 208-FZ defines the general meeting as the supreme governing body. With its help, shareholders exercise their right to manage a joint-stock company by participating in this event and voting on agenda items. Such a meeting may be annual or extraordinary. The charter of the company will determine the boundaries of the competence of this body (for example, some issues can be resolved at the level of the supervisory board).

Due to organizational difficulties, the general meeting cannot resolve operational issues - a supervisory board is elected for this. The issues addressed by this structure include:

• determination of priorities for the activities of a non-public joint-stock company;
• recommendations on the amount and procedure for paying dividends;
• increase in the authorized capital of the joint-stock company through the placement of additional shares;
• approval of major financial transactions;
• convening a general meeting of shareholders.

The executive body may be sole or collegial. This structure is accountable to the general meeting and is responsible for the improper performance of its duties. At the same time, the competence of this body (especially in a collegiate form) includes the most difficult questions current activities of a non-public joint stock company:

• development of a financial and economic plan;
• approval of documentation on the activities of the company;
• consideration and decision-making on the conclusion of collective agreements and agreements;
• harmonization of internal labor regulations.

Issue and placement of shares

The process of registering a joint-stock company is accompanied by the issuance of special securities. They are called shares, and according to Law No. 39-FZ, they give the owner the right to:

• receive dividends - part of the company's profits;
• participate in the process of managing a joint-stock company (if the security is a voting one);
• possession of a part of the property after liquidation.

The introduction of securities into circulation is called an issue. In this case, the shares may have:

• documentary form, confirming ownership rights with the help of a certificate;
• non-documentary, when an entry about the owner is made in a special register (in this case, the concepts of "securities" and "issue shares" are conditional).

After the issue, the distribution (placement) of shares among the owners follows. The process is fundamentally different for PJSC and NAO, implementing different ways profit from these companies. A wide distribution channel for securities in the first case implies a more thorough control of activities by government agencies. The table shows the differences between public and non-public joint-stock companies in the placement of shares:

Certification of JSC decisions and maintenance of the register of shareholders

The General Meeting of Shareholders is the highest governing body of the company, which determines further development organizations. At the same time, legally correct drawing up of the protocol and certification of decisions taken, relieving participants, members of the board and the head of mutual claims and disputes about forgery. According to Law No. 208-FZ, protocol documentation must contain:

• the time and place of the general meeting of shareholders of the non-public JSC;
• the number of votes held by the owners of voting shares;
• the total number of votes of shareholders who participate;
• indication of the chairman, presidium, secretary, agenda.

Contacting the services of a notary will make the protocol more secure and increase the level of reliability of this document. This specialist must personally attend the meeting, and record:

• the fact of adoption of specific decisions specified in the minutes of the meeting;
• the number of present shareholders of a non-public JSC.

An alternative to contacting a notary will be the services of a registrar who maintains a register of shareholders. The procedure and procedure for confirmation in this case will be similar. According to the legislation, since October 1, 2014, the register of shareholders has become possible only on a professional basis. To do this, joint-stock companies must turn to the services of companies that have a specialized license. Independent maintenance of the register is punishable by a fine of up to 50,000 rubles for management, and up to 1,000,000 rubles for legal entities.

Change of organizational form

The reform of joint-stock companies, begun in 2014-2015 by Law No. 99-FZ, should be completed in 2020. By this time, all official company names must be re-registered in the form prescribed by law. Depending on the availability of publicity, the former CJSC and OJSC are transformed into PJSC and JSC. The indication of non-publicity is not mandatory by law, so the abbreviation NAO may not be used in the official details of the company, and the presence of shares in free circulation allows you to do without the reduction of PAO.

The legislation allows changing the form of ownership from PJSC to NAO and vice versa. For example, in order to convert a Non-Public JSC, you need to:

• Increase the authorized capital if it is less than 1000 minimum wages.
• Conduct inventory and audit.
• Develop and approve an amended version of the charter and related documents. If necessary, the legal form is renamed to PJSC (according to the law, this is not mandatory, if there are shares in free float).
• Re-register.
• Transfer property to a new legal entity.

Preparation of constituent documents

Special attention When re-registering NAO, attention should be paid to the correct preparation of documentation. Organizationally, this process is divided into two stages:

• Preparatory part. It involves filling out an application in the form P13001, holding a meeting of shareholders and preparing a new charter.
• Registration. At this stage, the details of the company change (a new seal and forms will be required), which counterparties should be warned about.

Advantages and disadvantages

If we compare the capabilities of PAO and NAO, then each of them has its pros and cons. But, depending on the specific business situation, one or another option will be suitable. Non-public joint-stock companies have the following advantages:

• The minimum amount of the authorized capital is 100 minimum wages for the NAO (for the Public JSC this figure is 10 times higher). But this plus immediately becomes a minus when compared with the same indicator for an LLC - 10,000 rubles, which makes the form of a limited liability company more accessible to small businesses.
• Simplified form of share acquisition. State registration of the contract of sale is not required, it is only necessary to make changes to the register.
• Greater freedom in the management of the company. This is a consequence of a limited circle of shareholders.
• Disclosure restrictions. Not all shareholders want information about their share in the authorized capital or the number of shares to be available to a wide range of people.
• Less risky investments for investors than in the case of a public company. Absence open auction shares is good protection from the undesirable possibility of a third party buying a controlling stake.
• Lower office costs than PAO. The requirements for non-public documentation are not as stringent as for the one to be made public.

If we compare with a public JSC, then non-public joint-stock companies have a number of disadvantages. These include:

• The closed nature greatly limits the ability to attract outside investment.
• The process of creating a company is complicated by the need for state registration of the issue of shares (in addition, this leads to an increase in the authorized capital).
• The decision-making process can be in the hands of a small group of people.
• Limits on the number of shareholders to 50 people compared to an unlimited number for a public JSC.
• Difficulties with withdrawal from the membership and the sale of their shares.

Video

A new criterion for the classification of companies in the Civil Code of the Russian Federation is the criterion of their publicity. According to paragraph 1 of Art. 66.3 A public corporation 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 charter and company name of which contain an indication that the company is public. Accordingly, a company that does not meet the above criteria is recognized as non-public.

Although in law it refers to public companies in general, but in reality we can only talk about the application of this classification to joint-stock companies. It is correctly noted in the literature that only joint-stock companies can be subjected to such a classification, meaning the establishment of more stringent requirements for the status of public JSCs, whose shares are listed on stock exchanges, and whose participants (shareholders) need increased protection from various abuses. But in relation to limited liability companies, it loses its meaning, since under no circumstances can LLCs become public business companies - they have nothing to quote on stock exchanges *(23) .

A public joint-stock company may, by terminating the circulation of shares on the market, become non-public and vice versa. Therefore, the adoption by the majority of shareholders at the general meeting of the decision to change the name of the joint-stock company, namely the inclusion of an indication of its public nature, as well as the decision to make appropriate changes to the charter, allows changing the status of this joint-stock company. paragraph 11 of Art. 3 of Law N 99-FZ, joint-stock companies established before the date of entry into force of this Law and meeting the criteria of public "joint-stock companies" are recognized as public, regardless of the indication. At the same time, joint-stock companies established before September 1, 2014 ) and meeting the criteria of public joint-stock companies ( paragraph 1 of article 66.3 Civil Code of the Russian Federation) are recognized as public joint-stock companies, regardless of whether their company name indicates that the company is public.

Information about the public status of a joint-stock company must be known to all third parties directly from the name of this legal entity. Thus, a public joint-stock company is obliged to submit, for inclusion in the Unified State Register of Legal Entities, information about the company's company name, containing an indication of its public status. Also, this status should be reflected in the charter approved by the decision of the meeting of shareholders.

The following features of public companies can be distinguished:

First, the responsibility for maintaining the register of shareholders of a public company and performing the functions of its counting commission should be assigned to a professional independent organization. The same organization will have to confirm the authenticity of the minutes of general meetings of public joint-stock companies.

Secondly, in a public joint stock company, the number of shares owned by one shareholder, their total nominal value, as well as the maximum number of votes granted to one shareholder cannot be limited.

Thirdly, public companies have a duty of public accountability.

As for non-public joint-stock companies, their activities are less regulated by law. Yes, according to paragraph 3 of Art. 66.3 The Civil Code, 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 transfer for consideration by the collegial management body of the company ( paragraph 4 of article 65.3) or the collegial executive body of the company on issues referred by law to the competence of the general meeting of participants in a business company, with the exception of issues:

amending the charter of a business company, approving the charter in a new edition;

reorganization or liquidation of a business company;

determination of the quantitative composition of the collegiate management body of the company ( paragraph 4 of article 65.3) and the collegial executive body (if its formation is referred to the competence of the general meeting of participants of the economic company), 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 a limited liability company disproportionately to the shares of its participants or by accepting a third person as a participant in such a company;

approval of internal regulations or other internal documents that are not constituent documents ( article 52, paragraph 5) economic company;

2) on assigning the functions of the collegial executive body of the company to the collegial management body of the company ( paragraph 4 of article 65.3) in whole or in part, or on the refusal to create a collegial executive body, if its functions are carried out by the specified 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) on the absence of an audit commission in the company or on its creation only in cases provided for by the charter of the company;

5) on a procedure different from the procedure established by laws and other legal acts for convening, preparing and holding general meetings of participants in a business company, making decisions by them, provided that such changes do not deprive its participants of the right to participate in the general meeting of a non-public company and to receive information about him;

6) on requirements that are different from those established by laws and other legal acts of the requirements for the quantitative composition, the procedure for the formation and holding of meetings of the collegial management body of the company ( paragraph 4 of article 65.3) or collegial executive body of the company;

7) on the procedure for exercising the pre-emptive right to purchase a share or part of a share in the authorized capital of a limited liability company 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 participant in a limited liability company in the authorized the 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 this Code or law about joint-stock companies;

9) other provisions in cases provided for by laws on business companies.

The question of the need to separate business entities into public and non-public arose quite a long time ago. In fact, such a division existed before, but it was not legally formalized.

This is due to the fact that the vast majority of open joint-stock companies, despite their organizational and legal form, have always been non-public companies in their essence. They did not publicly subscribe to securities, and their securities were not traded on stock exchanges. However, the largest joint-stock companies could be attributed to public companies, since their shares were publicly subscribed and they were traded on the stock exchange.

However, due to the fact that at one time, as part of the privatization of state and municipal property, the organizational and legal form of an open joint-stock company was essentially imposed on most of them, they were forced to comply with the requirements of the legislation on disclosure of information, while incurring various kinds of costs. . Over many joint-stock companies, there was a threat of penalties for violation or improper fulfillment of these requirements by the regulator. And this despite the fact that the information coming from such joint-stock companies in the information field of the securities market was of little interest to its participants, thereby clogging it.

The fundamental difference between public and non-public companies lies in the fact that mandatory regulation is applied to public companies to a greater extent, which excludes discretion for companies that raise funds from an indefinite number of investors. Whereas in relation to non-public companies GC RF, taking into account the changes made law N 99-FZ, allows for dispositive (permissible) regulation, which provides the opportunity to choose one or another option.

There are few public companies in Russia, the vast majority of joint-stock companies are non-public. Together with the legal form of a limited liability company prevailing in Russia (94% of the total number of commercial organizations *(24) ) non-public companies make up the vast majority of legal entities in the business sector. The application of dispositive regulation to all these subjects allows us to conclude that Russian legislation in the field of entrepreneurial activity has been liberalized.