12.10.2019

Authorized capital. Legal regime of the authorized capital of business companies

Authorized capital is funds or property contributed by the founders when registering an LLC. In accordance with paragraph 1 of Art. 14 Federal Law No. 14-FZ “On LLC”, the authorized capital of an LLC determines the minimum amount of its property, guaranteeing the interests of its creditors, and is made up of the nominal value of the shares of its participants.

Functions of authorized capital

1) Distributive - the share of participation of each shareholder in the company and its profit is determined through the authorized capital

2) Material security – the property contributed to pay for the contribution constitutes the material basis for the activities of the company upon its establishment and during its further functioning.

3) The guarantee company is liable to creditors to the extent of its property, which cannot be less than the authorized capital.

Warranty function. Essentially, share capital is a part of the corporation’s property intended for paying off creditors; it is, as it were, the minimum of funds, the availability of which is always guaranteed by the corporation. On a corporation's balance sheet, equity is always treated as a liability item. Only balance sheet (net) profit is subject to distribution as a dividend, which is the difference between the asset and debt obligations of the company plus share capital

Amount of authorized capital. Contributions to the authorized capital. The procedure for forming the authorized capital. Consequences of late payment of authorized capital.

The minimum amount of the authorized capital of a public joint-stock company is 100 thousand rubles. non-public JSC and LLC 10 thousand rubles.

The minimum authorized capital of a business company must be paid in cash

Authorized capital of LLC

When creating a limited liability company, the founders pay at least half of the authorized capital before state registration of the organization.

It should be noted that since it is impossible to open a current account before state registration, they first open a special savings account, to which they deposit at least half of the authorized capital. After state registration, the bank transfers the money of the founders from the savings account to the current account of the organization. The remaining part of the authorized capital is contributed within a year after state registration; if the founders wish, this period can be reduced by an agreement (decision) on the establishment of the organization

Authorized capital of CJSC, OJSC

When creating a joint stock company, the founders pay half (50%) of the authorized capital within 3 (three) months after state registration.

It should be noted that until the founders contribute 50% of the authorized capital of the joint-stock company, the organization does not have the right to commit civil acts. For example, enter into agreements with suppliers, customers, etc.

The founders pay the remaining part of the authorized capital within a year after state registration, and this period can be reduced by an agreement on the creation of a joint-stock company.

Procedure for making contributions to the authorized capital

Contributions to the authorized capital can be made:

With money - transfer of funds to the settlement (special savings) account of the organization;

Property (fixed assets, intangible assets, materials, etc.).

Consequences of late payment of authorized capital.

LEGAL CONSEQUENCES OF INFULL PAYMENT OF THE SHARE IN THE AUTHORIZED CAPITAL OF A JSC

In a joint stock company in case of incomplete payment of shares within a specified period, ownership of the shares, the placement price of which corresponds to the unpaid amount (the value of the property not transferred as payment for the shares), passes to the company. Shares, the ownership of which has been transferred to the company, do not provide voting rights, are not taken into account when counting votes, and dividends are not accrued on them. These shares must be sold by the company within one year from the date of their acquisition, otherwise the company is obliged to make a decision within a reasonable time to reduce its authorized capital by redeeming such shares.

Incomplete payment of shares of a company upon its establishment entails a limitation of its legal capacity. Until payment of 50% of the company's shares distributed among its founders, the company has no right to enter into transactions not related to the establishment of the company

The most important function of the authorized capital of a joint-stock company is guarantee. The authorized capital, as already mentioned, expresses only part of the value of the property of the joint-stock company, but this is the minimum amount of funds that the company should always have available.

Art. 25 of the Law on JSC establishes that the authorized capital determines the minimum amount of the company’s property that guarantees the interests of its creditors. Other federal laws and acts of law enforcement agencies also emphasize the guarantee function of the authorized capital.

Since the amount of the authorized capital is fixed in the company’s charter, counterparties have the opportunity to decide on the advisability of entering into business relations with a given legal entity based on an assessment of its solvency. “Due to the limited liability of shareholders, this capital is one
the main object of satisfaction of its creditors, the only basis for its credit... A joint-stock company is a union not of persons, but of capital; its credit does not depend on the personal credit of one or another participant, but on the pooled capital.” Current legislation establishes that shareholders risk losing invested funds, but are not liable for the debts of the joint-stock company with personal property.

V.V. Dolinskaya identifies two main measures aimed at fulfilling the guarantee function of the authorized capital of a joint-stock company, and enshrined in the legislation of almost all states. These are: a) the actual creation of share capital (rules on the initial placement and payment of shares); b) retention of property at least at the level of the amount of capital provided for in the charter (requirement for the ratio of the values of the company’s net assets and its authorized capital, distribution of only the company’s net profit as a dividend). E.A. Sukhanov, in addition, emphasizes the importance of establishing in law the minimum amount of the company's authorized capital.

It seems necessary to highlight five main areas of influence of the norms of the Civil Code of the Russian Federation and the Law on JSC in the field of fulfillment of the guarantee function by the authorized capital:

1) establishing the minimum size of the authorized capital of a joint-stock company at the legislative level;

2) ensuring the actual formation of the authorized capital stated in the constituent document of the company;

3) ensuring that the real value of contributions to the authorized capital corresponds to their nominal value;

4) maintaining the value of the company’s property at a level not lower than the amount of the authorized capital;

5) providing creditors with additional rights in the event of a change in the amount of the authorized capital.

Establishment of the minimum size of the authorized capital of a joint-stock company at the legislative level. The JSC Law establishes the minimum amount of authorized capital of joint stock companies. For an open joint-stock company, a minimum of no less than a thousand times the minimum wage is established, for a closed joint-stock company - no less than a hundred times the amount. In this case, the minimum wage established by federal law on the date of state registration of the company is taken into account (Article 99 of the Civil Code of the Russian Federation and Article 26 of the Law on JSC). Consequently, given the constant change in the minimum wage, for societies created in different periods of time, these may be different values. The law does not establish the obligation of a company to increase its authorized capital following an increase in the minimum wage. However, if the company wishes to reduce its authorized capital, the minimum wage existing on the date of registration of such changes is taken into account, and not on the date of registration of the joint-stock company as a legal entity. But if a company is obliged to reduce its authorized capital, the minimum amount that existed on the date of state registration of the company will be taken into account.

The Russian legislator in relation to a number of joint-stock companies in special regulations establishes a different size of the authorized capital. For joint-stock companies wishing to carry out activities in banking, insurance, investment and some other areas, a higher minimum amount of authorized capital is established in order to obtain the appropriate license. This exception to the general rule is due to the peculiarities inherent in these types of activities. As a rule, this is due to the fact that these organizations are engaged in attracting significant funds from consumers of their services who are not professional entrepreneurs, therefore the risk of their losses should be kept to a minimum.

The guarantee function is also performed by the share capital of business partnerships: general partnerships and limited partnerships. However, its significance for these organizational and legal forms of a legal entity is manifested to a lesser extent. Since general partners jointly and severally bear subsidiary liability for the debts of the partnership, creditors evaluate not only the property of the partnership, but also the personal property of its participants. Therefore, the law does not impose requirements for the minimum amount of share capital of a general partnership and a limited partnership.
re. The minimum size of the mutual fund of a production cooperative is also not fixed either in the Civil Code of the Russian Federation or in special laws when establishing additional liability of its members. The same approach is used by the legislator in relation to state-owned enterprises. An exception to the general rule is a company with additional liability: its participants bear subsidiary liability for its debts, despite the minimum amount of its authorized capital established by law.

The establishment at the legislative level of the minimum size of the authorized capital of a joint-stock company, as a legal entity, which is a “liability ceiling” bearing “independent and exclusive property liability”, is also typical for foreign legislation.

The second EU Directive on trading partnerships 72∖91 of December 13, 1976 established the obligation to establish in national legislation the minimum authorized capital of a joint-stock company in the amount of at least 25 thousand euros. In accordance with this, for example, a joint stock company, according to German law, must have an authorized capital of at least 50 thousand euros (par. 7 of the German Joint Stock Law).

Ensuring the actual formation of the authorized capital stated in the constituent document of the company, In order to ensure the actual creation of the authorized capital of the joint-stock company, clause 3 of Art. 99 of the Civil Code of the Russian Federation prohibits open subscription to shares of a company until the authorized capital is fully paid. The Civil Code of the Russian Federation and the Law on JSC establish a rule according to which all shares when establishing a joint-stock company must be distributed among the founders (clause 2 of Article 25 of the Law on JSC and clause 3 of Article 99 of the Civil Code of the Russian Federation).

It is interesting that in the first stages of the development of joint stock companies as an independent organizational and legal form of a legal entity, legislation requiring or allowing the distribution of all shares of the future company among the founders was criticized in the domestic legal literature. Such a foundation by I.T. Tarasov called it “inflated” and advocated banning this method of distribution.
shares. The reasons for this are the promotion of the stock exchange game, the possibility of abuse when founders make non-monetary contributions, the injustice of monopolizing the benefits of a successful enterprise, etc. He considered a public and equal subscription for shares to be the only correct way to form the capital of a joint-stock company (of course, in the presence of a complete and reliable prospectus). The participation of the general public in the benefits of the activities of a joint stock company is indeed justified in cases where the state grants certain privileges to a specific legal entity, which took place under the concession system of establishing companies under pre-revolutionary legislation.

The rule on the need to distribute all shares when creating a joint stock company among the founders is not typical for the joint stock legislation of other legal systems.

Many foreign legislations allow open subscription for shares when establishing a joint stock company, or establish two methods of establishment - with and without public subscription. The Hungarian Law on Business Companies allows for subscription (public sale of shares) or private establishment (the founders agree that they will purchase all the shares themselves). The French law on commercial partnerships allows, when creating a company, an appeal to a public subscription, or the distribution of shares among the founders. Public subscription upon establishment is also possible under Bulgarian law.

In some cases, foreign legislators require that the founders retain a certain minimum portion of the issued shares. For example, the Law of the People's Republic of China on Companies in Art. 74 provides that the creation of a joint stock company can be carried out in the following forms: by initiators (initiators who create a company subscribe to all shares to be issued by the company) or by raising funds (initiators
subscribe for part of the shares, but not less than 3 5 percent of the total number, and they do not have the right to sell them for three years from the time of formation of the company. The rest of the shares are distributed through open subscription, including abroad).

Russian legislation in its historical development also knew similar examples. Thus, the Civil Code of the RSFSR of 1922 allowed the distribution of shares of the company being created not only between the founders, but also among persons invited by them to participate in the joint-stock company, and such an invitation could be made through a public announcement (Article 326). However, the founders were required to retain at least 10 percent of the issued shares and were not entitled to alienate them until the report for the second operating year was approved (Article 326).

Thus, the prohibition of public subscription when establishing a joint stock company is not a characteristic tendency of joint stock law. There are other mechanisms for monitoring the legality of establishing a joint stock company, provided for in the norms of not only civil, but also administrative and criminal law. The Russian legislator, apparently, by establishing these rules, pursues the goal of additional protection of the property rights of subscriber shareholders. In addition, the problem of so-called “failed” companies due to non-distribution of all declared shares of companies is eliminated. However, there are proposals in the literature to introduce public subscription when establishing a company. For example, M. Antokolskaya proposes that while the founders retain a fairly large stake (up to 50 percent), for a certain number of years, allow the distribution of the remaining shares among an indefinite number of persons.

It is not advisable to change the rules for the distribution of shares under the Law on JSC at the present time. However, this is possible as the participation of banking organizations in the placement of shares upon the establishment of a company develops.

Formation of the authorized capital is possible if the size of the authorized capital corresponds to the value of the shares representing it. In this regard, Art. 36 of the Law on JSC establishes that payment for company shares placed upon its establishment, as well as additional shares, is made at a price not lower than the par value of these shares. At least 50 percent of the company's shares must be paid for within
three months from the date of registration of the company, the rest - within the period established by the charter, but not more than a year. Additional shares must be paid for in full (Article 34 of the JSC Law). Shareholders who have not fully paid for the shares bear joint liability for the obligations of the company within the limits of the unpaid portion of the value of the shares they own (Article 2 of the Law on JSC).

Ensuring that the real value of contributions to the authorized capital corresponds to their nominal value. It is equally important that the authorized capital of a joint-stock company is not only formally fixed and shares are placed, it is necessary that the capital is actually filled with liquid assets. For this purpose, the legislator establishes rules for assessing non-monetary (in-kind) contributions made by participants to the authorized capital. In addition, it is prohibited to release a shareholder from the obligation to pay for the company’s shares, including by offsetting claims against the company (Clause 2 of Article 99 of the Civil Code of the Russian Federation).

When establishing a company, the valuation of property contributed as payment for shares is carried out by unanimous decision of the founders. When paying for additional shares, the value of the property is determined by the board of directors (supervisory board) of the company in accordance with Art. 77 of the Law on JSC. But in any case, the monetary value of such property cannot be higher than the value of the valuation made by an independent appraiser, who must be involved to determine the market value of non-monetary contributions, unless otherwise established by federal law (Article 34 of the JSC Law).

The new version of the Law on JSC obliges to involve an appraiser regardless of the amount of deposits, in contrast to the previous rule, according to which the involvement of an independent appraiser was necessary in cases where the par value of shares paid in kind was more than 200 times the minimum wage.

The procedure for assessing contributions has always caused serious disagreement. The very possibility and expediency of contributing, for example, intellectual property as a contribution to the authorized capital is often questioned. “These objects can be of great importance for scientific activity, but in business activity their “usefulness” is conditional” ■ writes E.I. Goryaynova, Nevertheless,
the author further acknowledges that even if the authorized capital is paid entirely in cash, in a market economy and inflation this does not fully guarantee the protection of creditors’ rights, and proposes to establish a certain ratio of the monetary and non-monetary parts of the authorized capital.

V.V. Dolinskaya suggests using the experience of developed countries, where approximate procedures for assessing property, intellectual property, etc. exist and are successfully applied. In her opinion, and in the conditions of our reality, this would contribute to objectivity and uniformity in the assessment of non-monetary contributions of participants.

B.V. Dolinskaya proposes to limit for a certain period the right to alienate shares received in exchange for tangible assets. Moreover, the original owners of shares issued in exchange for a contribution in the form of intellectual property are allowed to alienate their shares only after they prove to the general meeting the real economic efficiency of their intellectual contribution. At the same time, a reservation is certainly made that such a restriction of rights must be based on the law, and above all, on the Constitution of the Russian Federation. We should support the proposal to develop and introduce into legislation general principles and procedures for assessing non-monetary contributions. It should be noted that currently professional appraisers offer rules for determining the value of intellectual property objects, for example, Standards of the Russian Society of Appraisers, Standards of the Association of Intellectual Property Appraisers ІREA, etc.

Don't forget about shareholders - you can't not only overestimate the cost of deposits, but also underestimate them. For example, Chinese legislation pays attention to this.

Maintaining the value of the company's property at a level not lower than the amount of the authorized capital. Maintaining the value of the company's property at a level not lower than the size of the authorized capital is ensured by rules establishing requirements for the ratio of the value of the company's net assets to the size of its authorized capital.

The rules governing the payment procedure are also aimed at achieving this goal.
you dividends, rules prohibiting the acquisition by the company of its own shares, or the return of the contribution made to the shareholder on other grounds.

The value of the net assets of a joint stock company is understood as a value determined by subtracting the amount of its liabilities accepted for calculation from the amount of the assets of the joint stock company accepted for calculation. The procedure for calculating net assets is determined jointly by the Ministry of Finance and the Federal Securities Commission.

If the value of the company's net assets at the end of the second and each subsequent financial year is less than its authorized capital, the company is obliged to announce a reduction in its authorized capital to an amount not exceeding the value of its net assets. If the value of net assets is less than the minimum authorized capital, the company is obliged to make a decision on its liquidation. If the company does not make an appropriate decision within a reasonable time, its creditors have the right to demand from the company early termination or fulfillment of obligations and compensation for losses.

In addition, if these decisions have not been made, the body carrying out state registration of legal entities, or other state bodies or local government bodies, which are granted the right to make such a claim by federal law, have the right to submit to the court a demand for the liquidation of the company (Article 35 of the Law about JSC).

As noted by S.K. Elkin, the size of the net assets of a joint stock company in the first two years of its existence may be less than the authorized capital. This is not a violation of any regulatory requirements, since the authorized capital must not be paid immediately, but within a year; moreover, no sanctions are provided if in the second year of its existence the company has not yet managed to generate net assets exceeding the amount of the authorized capital . This situation may arise if the participants did not pay for the shares they owned within a year (or another period provided for by the charter) and the ownership of these shares transferred to the company in accordance with Art. 34 of the Law on JSC. It should be noted that
in practice, the authorized capital is often not paid in full for many years. In this regard, M.G. Iontsev, for example, proposes to establish the obligation of a joint-stock company, after a year from the date of its creation, to provide the body that carried out state registration with evidence of full payment of the authorized capital or a decision of the board of directors (supervisory board) of the company to withdraw unpaid shares and a corresponding extract from the register of shareholders.

It should be noted that according to the new edition of Order No. Yun, OZ-6/pz, the assessment of the value of net assets is carried out by the company not only at the end of the year, but quarterly, and the relevant information is disclosed in annual as well as interim financial statements. But a decrease in net assets to a value less than the amount of the authorized capital at the end of the quarter does not entail the company’s obligation to reduce the authorized capital, since Art. 35 of the Law on JSC establishes such a requirement only in relation to the financial indicators of the company at the end of the reporting year.

One should also agree with the opinion of V.A. Belov that if, after approval of the “passive balance sheet” (that is, a balance sheet with a negative net asset value), the company operated for at least another year and approved the annual balance sheet, according to which net assets exceed the amount of the authorized capital, a claim for forced liquidation must be filed society is no longer possible. However, there is no doubt that creditors have the right to take advantage of the provisions provided for in paragraph 6 of Art. 35 of the Law on JSC the opportunity to protect one’s interests within the general three-year limitation period, even if a positive balance is approved based on the results of further activities of the joint-stock company.

Not all authors consider it justified to establish in law a requirement for the ratio of the authorized capital and the size of the company's net assets. V. Rutgaiser, speaking against such strict legislative regulation, cites, in particular, the following as arguments: the incomparability of the valuation of property acquired in different periods, the specifics of industry activities, exchange rate differences, etc. It should be noted that the development of Russian legislation towards bringing it closer with international standards allows you to eliminate or minimize some of the negative aspects of accounting cited by the author.

M.G. Iontsev also believes that provided for in paragraph 6 of Art. 35 Law on JSC, the possibility of liquidating a joint stock company due to the excess of the authorized capital over the amount of net assets is unjustified. According to him, this rule, firstly, duplicates bankruptcy legislation: a decrease in the value of net assets indicates ineffective management of the entity, which results in its recognition as insolvent. But as part of the bankruptcy procedure, the company’s property is sold under the control of the arbitration court; moreover, the debtor has the opportunity to restore solvency, which is in the interests of economic turnover. Upon liquidation in accordance with Art. 35 of the Law on JSC there are no such positive aspects. In essence, the liquidation of a legal entity due to a decrease in the value of net assets is an accelerated bankruptcy procedure. Secondly, as the author notes, the possibility of such liquidation can be used by shareholders to “sort out relations”, and, therefore, as a tool of shareholder

It is characteristic that Art. 35 of the Law on JSC became the subject of consideration at a meeting of the Constitutional Court. The complaint of ZAO Media-Most challenged the constitutional
No. 5 and 6 art. 35 of the Law on JSC (as well as some other articles of the Civil Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation). According to the applicant, the contested legal provisions providing for the possibility of liquidating the company at the request of the tax authority due to the fact that the value of the company’s net assets after the second and each subsequent financial year turned out to be less than the minimum authorized capital provided for by law (while the company itself did not make a decision on their liquidation) do not comply with the Constitution of the Russian Federation. Similar demands were made by CJSC Moscow Independent Broadcasting Corporation, which was liquidated on the same grounds, but at the request of a shareholder of the company (this right of a shareholder was abolished by the Federal Law of August 7, 2001).

The Constitutional Court came to the conclusion that these norms comply with the Constitution of the Russian Federation. The main arguments on which the decision of the Constitutional Court was based were as follows. Entrepreneurial activity is aimed at making a profit; losses indicate ineffective management. Maintaining a balance of interests of participants in civil transactions involves the elimination of ineffective business entities, and legislation establishes objective criteria for the unsatisfactory financial condition of a joint-stock company, in particular, the ratio of the size of the authorized capital to net assets. Since bankruptcy legislation uses the solvency criterion rather than the property sufficiency criterion, the interests of creditors are not always fully protected.

Thus, “according to the constitutional and legal meaning of this norm in the system of civil legislation norms, it is assumed that the negative value of net assets as a formal condition for the liquidation of a joint stock company is intended to reflect its actual financial insolvency, namely: lack of profitability, inability to fulfill its obligations to creditors and fulfill obligations to pay mandatory payments, despite the fact that shareholders had the opportunity to take measures to improve the financial position of the company or decide on its liquidation in the proper procedure.”

Foreign legislation most often contains similar rules for service
tea of reducing the value of the company's property below the authorized capital provided by law, although in a less stringent form. Yes, Art. 725 of the SCO provides that if the value of the company’s assets is less than half the size of the authorized capital, then the question of opening a competition over the company’s property should be raised.

Legislative restrictions on the payment of dividends also serve to maintain the value of the company's property. First of all, it is prohibited to make a decision on the payment of dividends until the entire authorized capital of the company has been fully paid. The source of payment of dividends can only be the net profit of the company. Only when paying dividends on preferred shares of certain types does the law allow the use of funds from company funds specially designated for this purpose (Article 42 of the Law on JSC). According to E.V. Pestereva, “the awareness of the importance of paying dividends from net income (and not from fixed capital) did not come immediately and was closely related to the growing role of fixed capital as a guarantee of the rights of participants and creditors of the company.”

According to the legislation of the Russian Federation, a joint stock company does not have the right to make a decision (announce) on the payment of dividends on shares, as well as to pay already declared dividends, if as a result of this the value of the company’s property will decrease so much that it will not be able to fulfill its obligations to shareholders and creditors (redeem shares in accordance with Article 76 of the JSC Law, pay the liquidation value of preferred shares, redeem bonds, etc.), in particular if the company shows signs of insolvency.

As for the size of dividends, the law does not prohibit the use of all company profits for these purposes. However, every joint stock company is forced to maintain the necessary balance between the interest of shareholders (mostly small ones) in receiving dividends and the interest of the company itself in directing funds for the development of production, expanding the scope of activities, etc. In this regard, the amount of dividends cannot be more than recommended by the board of directors (supervisory board). The specific amount and form of dividend payment is determined by the general meeting of shareholders of the company.

In practice, falsification of balance sheet indicators occurs by inflating asset items in order to distort the actual property status of the company in order to formally comply with the requirement for the ratio of the value of net assets and authorized capital. The laws of all countries contain provisions aimed at preventing this state of affairs, but they are not always able to prevent abuse.

Providing creditors with additional rights in the event of a change in the amount of the authorized capital. The guarantee function of the authorized capital is also manifested in the fact that the creditors of the company are granted additional rights in the event of a change in the amount of the authorized capital downward.

Permanence and stability of the size of the authorized capital is a characteristic feature of a joint-stock company, an inherent feature of this organizational and legal form. As noted, under the concession system of establishing joint-stock companies that existed in pre-revolutionary Russia (Article 2131, Part X, Vol. X of the Holy Law), the amount of the authorized capital was inextricably linked with the purpose of establishing a given legal entity. “This capital no longer even belongs to the person, but belongs to the enterprise for which it is intended, as a result of which any decrease or increase in this capital is tantamount to an extensive or intensive change in the purpose of the company,” noted I.T. Tarasov, - and therefore... should be considered as the establishment of a new company; That is why enterprises with a predominance of constant capital over circulating capital are especially characterized by the joint-stock form.”

The modern legislation of the People's Republic of China on companies, fixing the licensing procedure for the creation of joint-stock companies (Article 11), also establishes that not only the reduction of capital, but even the issue of increasing registered capital in excess of the established one is resolved specifically, through the adoption of legislative and administrative regulations.

The stability of the authorized capital is a feature of a joint-stock company, which is determined by the method of transferring the share of participation in the company to the shareholder. Exit from a joint-stock company is carried out through the purchase and sale of shares, and not by allocating a share from the company’s property, as in limited liability companies. Thus, the authorized capital remains intact.

Of course, this does not mean that the size of the authorized capital cannot be changed at all. However, the procedure for change, especially reduction, is quite complex. Russian legislation, when establishing the rules for increasing and decreasing the authorized capital of a joint-stock company, pays special attention to its reduction, since this usually indicates the ineffectiveness of the company’s commercial activities, a decrease in its solvency, and, therefore, negatively affects the interests of creditors.

The company is obliged to notify creditors in writing of the reduction of its authorized capital and its new amount within 30 days from the date of such a decision. In addition, the company is also obliged to publish a notice of the decision made in the appropriate printed publication. The company's creditors have the right to demand early termination or fulfillment of relevant obligations and compensation for losses within 30 days from the date of notification to them or within 30 days from the date of publication of the message (Article 30 of the Law on JSC). This right of the company’s creditors is supported by the rule on the procedure for state registration of changes in the company’s charter related to the reduction of the authorized capital. State registration of such changes is carried out only if there is evidence of notification of creditors about the decision.

Thus, the amount of the authorized capital recorded in the constituent documents is intended to express the value of the minimum amount of property of the joint-stock company. However, the authorized capital has largely lost its significance in guaranteeing the property rights of creditors. It is often quite difficult for counterparties to judge the financial condition of a joint-stock company based on the amount of authorized capital specified in the charter. The real value of the property of a joint-stock company may be lower than the amount of the authorized capital not only due to losses incurred by the company or incomplete payment of shares, but also due to an unfair assessment of the in-kind contributions of participants. In some legal systems, there is a refusal to fix the categories of authorized capital and nominal
ny share price, Russian joint stock legislation uses the concept of authorized capital as fundamental, and seeks to develop rules that ensure real guarantee of the property rights of creditors by the authorized capital of the company. Currently, the authorized capital as such guarantees the interests of creditors at the initial stage of the company’s existence, that is, during the period when the share of liabilities in the joint-stock company’s property is relatively small. Subsequently, the authorized capital ceases to be a totality of property and performs a guarantee function insofar as the value of the company’s net assets is compared with it.

In the theory of civil law, the idea is substantiated that the authorized capital of a joint-stock company performs a guarantee function, which is clearly stated in Art. 25 of the Federal Law “On Joint Stock Companies”. “Due to the limited liability of shareholders, this capital is the only subject for the satisfaction of its creditors, the only basis for its credit... A joint-stock company is a union not of persons, but of capital; its credit does not depend on the personal credit of one or another participant, but on the pooled capital.”

We can agree with the identification of two main measures aimed at fulfilling the guarantee function of the authorized capital of a joint-stock company, enshrined in the legislation of almost all states. This is, firstly, the actual creation of share capital, and secondly, the retention of property at the level of the amount of capital provided for in the charter. E.A. Sukhanov, in addition, emphasizes the importance of establishing in law the minimum amount of the company's authorized capital.

It seems necessary to highlight five main areas of influence of the norms of the Civil Code of the Russian Federation and the Law on Joint-Stock Companies in the field of fulfillment of the guarantee function by the authorized capital: establishing the minimum size of the authorized capital of a joint-stock company at the legislative level; ensuring the actual formation of the authorized capital stated in the constituent document of the company; ensuring that the real value of contributions to the authorized capital corresponds to their nominal value; maintaining the value of the company’s property at a level not lower than the amount of the authorized capital; providing creditors with additional rights in the event of a change in the amount of the authorized capital.

Establishment of the minimum size of the authorized capital of a joint-stock company at the legislative level. The Law on Joint Stock Companies establishes the minimum amount of authorized capital of joint stock companies. For an open joint-stock company, a minimum of no less than a thousand times the minimum wage is established, for a closed joint-stock company - no less than a hundred times the amount. The law does not establish the obligation of the company to increase its authorized capital, despite the constantly changing minimum wage. The legislator has established a higher minimum authorized capital for joint-stock companies wishing to operate in credit, insurance, investment and other areas in order to obtain the appropriate license.

Such an exception to the general rule is determined by the peculiarities inherent in these types of activities and increased social responsibility to society and the state. The establishment at the legislative level of the minimum size of the authorized capital of a joint-stock company as a legal entity, which is a “liability ceiling” bearing “independent and exclusive property liability”, is also typical for foreign legislation.

Ensuring the actual formation of the authorized capital stated in the constituent document of the company. In order to ensure the actual creation of the authorized capital of the joint-stock company, clause 3 of Art. 99 of the Civil Code of the Russian Federation prohibits open subscription to shares of a company until the authorized capital has been paid in full. The Civil Code of the Russian Federation and the Law on Joint-Stock Companies establish a rule according to which all shares when establishing a joint-stock company must be distributed among the founders (clause 2 of Article 25 of the Law on Joint-Stock Companies and clause 3 of Article 99 of the Civil Code of the Russian Federation).

At the first stages of the development of joint-stock companies, the domestic legal literature criticized legislation requiring or allowing the distribution of all shares of the future company between the founders - I.T. Tarasov called such a foundation “inflated” and advocated a ban on this method of distributing shares, highlighting as reasons the possibility of facilitating the game on the stock exchange, the possibility of abuse when founders make in-kind contributions, the harmful nature of monopolizing the benefits of a successful enterprise, etc. Public and equal for He considered everyone to subscribe to the shares of a joint-stock company as the only correct way to form the capital of a joint-stock company.

Thus, the prohibition of public subscription when establishing a joint stock company is not a characteristic tendency of joint stock law. There are other mechanisms for monitoring the legality of establishing a joint stock company, provided for in the norms of not only civil, but also public branches of law. In addition, the problem of so-called “failed” companies due to non-distribution of all declared shares of companies is eliminated. In the literature, however, there are proposals to make a public subscription when establishing a company. Thus, M. Antokolskaya proposes, while retaining a fairly large stake (up to 50 percent) for the founders, for a certain number of years to allow the distribution of the remaining shares among an indefinite number of persons.

The formation of the authorized capital is possible if the size of the authorized capital corresponds to the value of the shares representing it, in this regard, Art. 36 of the Law on Joint Stock Companies establishes that payment for company shares placed upon its establishment, as well as additional shares, is made at a price not lower than the par value of these shares. At least 50% of the company's shares must be paid for within three months from the date of registration of the company, the rest - within the period established by the charter, but not more than a year. Additional shares must be paid for in full (Article 34 of the Law on Joint Stock Companies). Shareholders who have not fully paid for the shares bear joint liability for the obligations of the company to the extent of the unpaid portion of the value of the shares they own.

Ensuring that the real value of contributions to the authorized capital corresponds to their nominal value. It is equally important that the authorized capital of a joint-stock company is not only formally fixed and shares are placed, it is necessary that the capital is actually filled with liquid assets. For this purpose, the legislator establishes rules for assessing non-monetary (in-kind) contributions made by participants to the authorized capital. It is also prohibited to release a shareholder from the obligation to pay for the company's shares, including by offsetting claims against the company (Clause 2 of Article 99 of the Civil Code of the Russian Federation).

When establishing a company, the valuation of property contributed as payment for shares is carried out by unanimous decision of the founders. When paying for additional shares, the value of the property is determined by the board of directors (supervisory board) of the company in accordance with Art. 77 of the Law on Joint Stock Companies. But in any case, the monetary value of such property cannot be higher than the value of the valuation made by an independent appraiser, who must be involved to determine the market value of non-monetary contributions, unless otherwise established by federal law (Article 34 of the Law on Joint Stock Companies).

The procedure for assessing contributions has always caused serious disagreement. The very possibility and expediency of contributing, for example, intellectual property as a contribution to the authorized capital is often questioned. So, for example, V.V. Dolinskaya proposes to use the experience of developed countries, where exemplary procedures for assessing property and intellectual property exist and are successfully applied: it is proposed to limit for a certain period the right to alienate shares received in exchange for tangible assets. Moreover, the original owners of shares issued in exchange for a contribution in the form of intellectual property are allowed to alienate their shares only after they prove to the general meeting of shareholders the real economic efficiency of their intellectual contribution. At the same time, of course, a reservation is made that such a restriction of rights must be based on the law, and, above all, on the Constitution of the Russian Federation. Currently, appraisers offer rules for determining the value of intellectual property, for example, Standards of the Russian Society of Appraisers, Standards of the Association of Intellectual Property Appraisers IPEA, etc.

Maintaining the value of the company's property at a level no lower than the size of the authorized capital. Maintaining the value of the company's property at a level not lower than the size of the authorized capital is ensured by rules establishing requirements for the ratio of the value of the company's net assets to the size of its authorized capital. The rules governing the payment of dividends, rules prohibiting the acquisition by the company of its own shares, or the return of the contribution made to the shareholder on other grounds, are also aimed at achieving this goal.

The value of the net assets of a joint stock company is understood as a value determined by subtracting the amount of its liabilities accepted for calculation from the amount of the assets of the joint stock company accepted for calculation. If the value of the company's net assets at the end of the second and each subsequent financial year is less than its authorized capital, the company is obliged to announce a reduction in its authorized capital to an amount not exceeding the value of its net assets. If the value of net assets is less than the minimum authorized capital, the company is obliged to make a decision on its liquidation. If the company does not make an appropriate decision within a reasonable time, the creditors have the right to demand from the company early termination or fulfillment of obligations and compensation for losses.

As noted by S.K. Elkin, the size of the net assets of a joint stock company in the first two years of its existence may be less than the authorized capital, which is not a violation of any regulatory requirements, since the authorized capital must not be paid immediately, but within a year; moreover, no sanctions are provided for , if in the second year of its existence the company has not yet managed to generate net assets exceeding the size of the authorized capital. It should be noted that in practice, the authorized capital is often not paid in full for many years. One should also agree with the opinion of I.A. Belov that if, after the approval of the “passive balance sheet” (that is, a balance sheet with a negative net asset value), the company has operated for at least a year and the annual balance sheet has been approved, but whose net assets exceed the size of the authorized capital, a claim for forced liquidation must be filed society is no longer possible.

But not all researchers consider it justified to establish in law the requirement for the ratio of the authorized capital and the size of the company’s net assets. Thus, V. Rutgaiser, speaking against such strict legislative regulation, cites, in particular, the following as arguments: incomparability of the valuation of property acquired in equal periods, the specifics of industry activities, exchange rate differences, etc.

M.G. Iontsev also believes that provided for in paragraph 6 of Art. 35 Law on Joint Stock Companies the possibility of liquidating a joint stock company due to the excess of the authorized capital over the amount of net assets is unjustified. In essence, the liquidation of a legal entity due to a decrease in the value of net assets is an accelerated bankruptcy procedure. Secondly, as the author notes, the possibility of such liquidation can be used by shareholders to “show off relations”, and, consequently, as a weapon of shareholder blackmail.

It is also prohibited to make a decision on the payment of dividends until the entire authorized capital of the company has been fully paid. The source of payment of dividends can only be the net profit of the company. Only when paying dividends on preferred shares of certain types does the law allow the use of funds from company funds specially designated for this purpose (Article 42 of the Law on Joint Stock Companies).

According to the legislation of the Russian Federation, a joint stock company does not have the right to make a decision on the payment of dividends on shares, as well as to pay already declared dividends, if as a result of this the value of the company’s property will decrease so much that it will be unable to fulfill its obligations to shareholders and creditors (to repurchase shares in accordance with from Article 76 of the Law on Joint Stock Companies, pay the liquidation value of preferred shares, redeem bonds), in particular if the company shows signs of insolvency. Let us note that in practice there is an overstatement of asset items in order to distort the actual property status of the company in order to formally comply with the requirement for the ratio of the value of net assets and authorized capital.

Providing creditors with additional rights in the event of a change in the amount of the authorized capital. The guarantee function of the authorized capital is also manifested in the fact that the creditors of the company are provided with additional rights in the event of a change in the amount of the authorized capital downward.

So, the amount of the authorized capital recorded in the constituent documents is intended to express the value of the minimum amount of property of the joint-stock company. However, the authorized capital has largely lost its significance in guaranteeing the property rights of creditors. It is often quite difficult for counterparties to judge the financial condition of a joint-stock company based on the amount of authorized capital specified in the charter. The real value of the property of a joint-stock company may be lower than the amount of the authorized capital not only due to losses incurred by the company or incomplete payment of shares, but also due to a biased assessment of the natural contributions of participants.

Sayapina Irina Anatolyevna - lecturer at the Department of Civil Law and Procedure at Volga University named after V.N. Tatishcheva (Tolyatti).

A limited liability company, like any other organization that has the status of a legal entity, is characterized by the characteristic of property independence. The property of the company, formed from the contributions of its participants during creation, as well as acquired in the process of activity, belongs to the company by right of ownership.

Federal Law "On Limited Liability Companies" dated 02/08/1998 N 14-FZ<*>imperatively does not provide for the obligation of the company to engage in entrepreneurial activities, but indicates its ability to have any civil rights and bear the responsibilities necessary to carry out any types of activities not prohibited by federal laws, i.e. determines the general legal capacity of society. The principle of general legal capacity is fundamental in determining the legal status of commercial legal entities, among which the most popular organizational and legal form is the limited liability company, which is confirmed by statistical data.

<*>Federal Law of 02/08/1998 N 14-FZ (as amended on 03/21/2002) // Collection of legislation of the Russian Federation. 02/16/1998. N 7.

According to the Ministry of Taxes and Duties of the Russian Federation, as of October 1, 2003, more than 2 million organizations were included in the Unified State Register of Legal Entities, of which 1.5 million were commercial. Of the total number of commercial legal entities, about 1.1 million (77%) are limited liability companies, the second place is occupied by joint stock companies - 170 thousand companies (12%), there are 25.6 thousand production cooperatives (2%), unitary enterprises - 16 thousand (1%), general partnerships - only 520 companies and limited partnerships - 688<*>.

<*>Source: KadisPress - www.kadis.ru

The domestic legislator followed the path of the German concept of a limited liability company, according to which an LLC is a company created for any acceptable purpose, and therefore its activities are not limited only to the purpose of making a profit<*>. In any case, a limited liability company is a “merchant in form” and its entrepreneurial activity is presumed. Based on this presumption, rules should be built (both legislative and local, expressed in the provisions of the charter and constituent agreement of the LLC) related to the creation of a property base, the increase in the property of a limited liability company, and also resolve disputes in the field of property relations of the company in extrajudicial and judicially. These may be disputes related to the formation of the authorized capital of the company, the transfer as a contribution to the authorized capital of things, property rights or other rights with a monetary value, with an increase or decrease in the authorized capital, redistribution of shares in the authorized capital, making contributions by participants to the property of the company that are not contributions to the authorized capital and other categories of disputes.

<*>Civil and commercial law of foreign countries. Volume I. 4th edition, revised and expanded / Rep. ed. E.A. Vasiliev, prof. A.S. Komarov. M.: International Relations, 2004. P. 241.

Based on the traditional understanding of entrepreneurial activity as an independent activity carried out at one’s own risk, aimed at systematically obtaining profit, and also taking into account the fundamental principle of responsibility when carrying out entrepreneurial activity - “responsibility without guilt” with all one’s own property, the issue of forming the property base of a business entity ( in the case under consideration - LLC) seems to be key.

The establishment of a limited liability company involves a multi-stage process, the stages of which are: conclusion of the constituent agreement and approval of the company’s charter, formation of the authorized capital (which acts as the “initial property base”) through contributions from participants, determination of the composition and competence of the company’s management bodies, state registration of the creation company in the body carrying out state registration of legal entities.

Let us especially emphasize that at the time of creation of a limited liability company, the “personification” of its property independence is the authorized capital. In our opinion, the category of “authorized capital” (or rather, its size, structure) not only for limited liability companies, but also for all other organizational and legal forms of business companies is one of the main criteria that subsequently determines the property and organizational fundamentals of society's activities.

The issue of the authorized capital of a limited liability company is, of course, diverse; it covers not only the formation of the authorized capital at the stage of creation of the company, but also issues arising during the functioning of the company - in the event of an increase or decrease in the authorized capital of the company, transfer of a share in the authorized capital to other participants of the company and third parties, withdrawal of a participant from the company, foreclosure of the share of a company participant in the authorized capital, etc.

The subject of the study of this work will be the essential, structural and functional aspects of the legal category under consideration - the authorized capital of an LLC.

The legal structure of a limited liability company assumes that the authorized capital of the company is divided into shares of sizes determined by the constituent documents. Participants (or the only participant) of the company bear the risk of losses associated with the activities of the company only within the limits of their contributions to the authorized capital. It is the authorized capital that is the “minimum property guarantee” of the company’s fulfillment of its obligations to creditors due to the exclusion of personal property liability of participants for the company’s obligations.

Since a limited liability company is a type of commercial organization based on the pooling of capital of its participants, issues related to the formation, structure, and size of the authorized capital acquire key importance at the stage of creating the company. It is necessary, however, to clarify that a limited liability company is not in its pure form an “association of capital”, such as, for example, a joint-stock company; it also has elements of personal participation of the founders, characteristic of such an organizational and legal form of a legal entity as a partnership.

In our opinion, the concept prevailing in Russian and foreign civil law<*>, according to which a limited liability company is characterized by a dual legal nature (it simultaneously acts as both an “association of capital” and an “association of persons”) most fully and comprehensively reflects the essence of a limited liability company and, accordingly, the specifics of the structure and functions of its authorized capital. It is necessary to take into account the presence of elements of the personal relationship of the founder (participant) to the business company. Internal legal relations (i.e., legal relations between participants) in an LLC have certain properties of partnerships, which can be strengthened or, on the contrary, weakened in the charter. At the same time, a number of features bring it closer to a joint stock company - the presence of an authorized capital, limited liability of participants, etc., but, unlike joint stock legislation, the legislation on limited liability companies allows its participants to maximally adapt the structure of the company to their individual needs. As D. Stepanov emphasizes, “in civil circulation, such a society acts as a capitalist enterprise, where the personal element of its participants is very strong.”<**>.

<*>This concept is substantiated, for example, in the work of O.A. Serova. Ownership of a limited liability company / Diss... for the academic degree of candidate. legal Sci. Kolomna Pedagogical Institute. Kolomna, 2001. P. 70.
<**>Stepanov D. Limited Liability Companies: Legislation and Practice // Economy and Law. 2000. N 12. P. 56.

At first glance, despite all the apparent clarity and unambiguity of the meaning of the concept of “authorized capital of a business company,” its content should be interpreted uniformly in science. However, this is not the case. In our opinion, there are several reasons.

The possibility for different interpretations of the concept of “authorized capital” opens up due to the fact that in Russian legislation on business companies there is no legal definition of it. The legislator seems to deliberately not disclose the content of this concept. In Chapter III of the Federal Law "On Limited Liability Companies"<*>, as well as the Federal Law "On Joint Stock Companies"<**>regulation of the procedure for forming the property base of a company begins with the question of the structure of the authorized capital and determining its minimum size at the time of creation of the company; Further, the legislator establishes the procedure for making contributions from participants to the authorized capital of an LLC (placement of shares in a joint-stock company), regulates the procedure for increasing and decreasing the authorized capital, etc.

<*>Federal Law of 02/08/1998 N 14-FZ (as amended on 03/21/2002) // Collection of legislation of the Russian Federation. 02/16/1998. N 7.
<**>Federal Law of December 26, 1995 N 208-FZ (as amended on February 24, 2004) Collection of legislation of the Russian Federation. 01/01/1996. N 1.

It seems that this violates the logical scheme for regulating the legislative process of establishing a company: the initial link, as it were, “falls out” - the legislative definition of the concept of “authorized capital”.

It is also necessary to take into account the fact that before the adoption of part one of the Civil Code of the Russian Federation and the emergence of such an organizational and legal form of legal entities as business entities, the concept of “authorized capital” was not actively used. Soviet legal and economic literature used the concept of “authorized capital” to designate the property base of an enterprise, which had more of an accounting and accounting than a legal meaning. The authorized capital was understood as “the monetary value of the fixed assets assigned to the enterprise and working capital recorded on the balance sheet of the enterprise”<*>.

<*>Tarasenko Yu.A. Creditors: protection of their property rights. M.: Yurkniga, 2004. P. 38.

In general, during the Soviet period, the issues of the essence, structure, and functions of the authorized capital were studied mainly in connection with the analysis of the relevant provisions of foreign law of business companies. In this context, the authorized capital was defined, for example, as “capital, the amount of which is fixed in the charter”<*>- the specified definition, based on formal characteristics, is not entirely logically consistent, because contains a “circle” and does not isolate the characteristics of the defined concept. R.T. Batista viewed the authorized capital as "a permanent accounting cipher... expressing property that should exist, and not what actually exists"<**>. The above definitions suffer from a certain one-sidedness and, in our opinion, do not comprehensively reflect the legal nature of the authorized capital.

<*>Kulagin M.I. Selected works. M.: Statute, 1997. P. 85.
<**>Batista R.T. Legal regulation of joint stock companies in Panama / Author's abstract. for the Candidate of Science degree. legal Sci. M., 1978. P. 80. Cited. according to the editor: Tarasenko Yu.A. Creditors: protection of their property rights. M.: Yurkniga, 2004. P. 39.

In the doctrine of civil law, the concept has become widespread according to which the authorized capital is considered from different positions: from a civil law and from an economic point of view. From the position of an economist, the authorized capital serves as the personification of the economic resources of the enterprise at the time of its creation. From a civil law point of view, the authorized capital represents the minimum amount of property of a legal entity that guarantees the interests of its creditors<*>.

<*>Lytneva N.A. Accounting for operations to form the authorized capital of a limited liability company // LLC. Library of the "Rossiyskaya Gazeta". Issue N 13. 2000. P. 110.

In our opinion, this concept is completely justified, since the use of an integrated approach in the study of a particular legal phenomenon makes it possible to take into account its various aspects and thereby avoid one-sidedness in its understanding. Therefore, we consider it possible to be critical of O.A.’s position. Serova, according to which consideration of the legal nature of the authorized capital of a limited liability company from an economic and civil legal position is one-sided and “there is no point in making a distinction in the concept of authorized capital depending on who is studying it: a lawyer or an economist”<*>. With an integrated approach, no distinctions are made in the concept; the same concept is, as it were, “covered” from different angles of view, which makes it possible to most fully reveal its content.

<*>Serova O.A. Ownership of a limited liability company / Diss... for the academic degree of candidate. legal Sci. Kolomna Pedagogical Institute. Kolomna, 2001. P. 64.

Following the indicated integrated approach, we propose the following definition of the concept of “authorized capital” in relation to limited liability companies, which includes both the economic and civil law aspects of the phenomenon under study.

The authorized capital of an LLC is a value calculated in monetary terms, reflecting the minimum amount of the company's property that guarantees the interests of its creditors, and is determined by the totality of the values of the nominal shares of the company's participants.

Consequently, the size of the authorized capital is the value of the specified property of the company, determined in the appropriate currency.

Russian legislation on business companies somewhat ambiguously answers the question of what constitutes the authorized capital of a limited liability company, i.e. what is its structure? The reason for the discrepancy should be sought in the insufficient development in domestic legislation of the main theoretical provisions on the basis of which the general concept of a limited liability company as a type of commercial legal entity would be built.

According to paragraph 1 of Art. 90 of the Civil Code of the Russian Federation, the authorized capital of a limited liability company is made up “from the value of the contributions of its participants”, and in the interpretation of the later adopted Federal Law of 02/08/1998 “On Limited Liability Companies” - “from the nominal value of the shares of its participants” (clause 1 Art. 14).

In our opinion, the wording of the Civil Code is more general in nature compared to the LLC Law, which immediately implies differentiation between the nominal and actual (or, as it is also called, real) share of a participant in the authorized capital of the company.

The nominal value of a participant's share is a conditional value, its size (in percentage or fractional numerical expression) is determined in relation to the initial size of the authorized capital formed upon the creation of the company, and the actual value of the share corresponds to part of the value of the company's net assets at a certain point in time in proportion to the size of this shares.

The concept of “participant’s contribution” used by the Civil Code of the Russian Federation in the above-mentioned context can be interpreted as the process of the participant’s actual transfer of property benefits in monetary or non-monetary terms to the authorized capital of the company. Therefore, as repeatedly emphasized in the literature<*>, it is more correct to talk about the authorized capital of a company as the nominal value of shares, and not the value of contributions of participants.

<*>See, for example: Sukhanov E.A. Law on Limited Liability Companies // Economy and Law. N 5. 1998. S. 43 - 44.; E.A. Ignatova. Commentary on the Federal Law “On Limited Liability Companies”: Article-by-article. M.: OS-89, 2004. P. 60.

The nominal value of a share is determined by its initial valuation (i.e., the valuation specified in the constituent documents at the time of registration of the company), and its actual value is determined by the real valuation, which, in a normally operating company, should naturally be higher than the nominal value due to the increase in the property mass of the company in the process of economic activity.

When distinguishing between the nominal and real share of a participant in the authorized capital of an LLC, it is necessary to dwell on the interpretation of the very legal nature of such an undoubtedly significant legal concept as the participant’s share in the authorized capital of a limited liability company.

In the specialized literature on business companies one can find the following points of view on this issue.

Reasoning regarding the legal nature of the participant’s share in the authorized capital of D. Stepanov’s LLC is constructed using the “by contradiction” method. The author begins by indicating what, in fact, a share in the authorized capital is not: “...a share in the authorized capital of an LLC, as it is understood in the Federal Law on LLC, is neither a sum of money, nor a separate right or set of rights, nor a security or a surrogate for a security. A share in the authorized capital of a Russian LLC is a special legal instrument, the essence and purpose of which is revealed in the role it plays throughout the entire period of the LLC’s existence."<*>. However, it is noteworthy that in a positive sense, the legal nature of a share in the authorized capital as a “legal instrument” remained, as it were, “in the shadow part” of the author’s field of reasoning.

<*>Stepanov D.A. Limited liability companies: legislation and practice // Economy and Law. N 12. 2000. P. 62.

V. Zalessky states that “the share of an LLC participant in the authorized capital of the company determines the size of the liability claim belonging to the participant in relation to the company”<*>. Thus, the author focuses on the legal obligation nature of the share in the authorized capital.

<*>Zalessky V. Limited liability company in the system of business partnerships and societies // Law and Economics. 1998. N 3. P. 19.

This legal obligation aspect is emphasized in every possible way and, in fact, is brought to the fore in the specialized literature. Commentators on the Federal Law “On Limited Liability Companies” state that “a participant’s share in the authorized capital of a company is, in essence, an obligatory right of claim”<*>.

<*>Commentary on the Federal Law "On Limited Liability Companies" / Ed. A.A. Ignatenko, S.N. Movchana. M.: Information and Publishing House "Filin", 1999. P. 136.

V. Kamyshansky also formulates that the share of a participant (founder) in the authorized capital of an LLC is “a bundle of subjective civil rights of a legal obligation nature”<*>. They are purchased by participants from the LLC in exchange for their contribution to the authorized capital.

<*>Kamyshansky V.P. Some features of the formation of the authorized capital of an LLC // Current problems of private law regulation. Materials of the All-Russian IV Scientific Conference of Young Scientists. Samara, April 23 - 24, 2004 / Rep. ed. Yu.S. Pivovarov, V.D. Ruzanova. Samara: Samara University Publishing House, 2004. P. 79.

S.D. Mogilevsky determines that “the share (part of the share) of a participant in the authorized capital, being an object of civil rights, is nothing more than a type of object of property rights”<*>. This conclusion follows from the following provisions: firstly, the author indicates that the share in the authorized capital is a conditional value and determines the scope of the participant’s obligatory rights (clause 2 of Article 48 of the Civil Code of the Russian Federation); secondly, “obligatory rights are nothing more than a type of property rights, since the latter include the subjective rights of participants in legal relations associated with the ownership, use and disposal of property, as well as those material (property) claims that arise between participants in civil transactions regarding the distribution of this property and exchange"<**>.

<*>Mogilevsky S.D. Management bodies of business companies: Legal aspect: Monograph. M.: Delo, 2001. P. 79.
<**>Right there.

This position, from our point of view, does not take into account the fact that not all rights of the owner of a share in the authorized capital of a company have a property content. This is only true for cases where the object of the obligatory legal relationship arising between the participant and the company is property or property rights. In this case, other objects of civil rights specified in Art. 128 of the Civil Code of the Russian Federation, for example, objects such as information. Beyond the scope of property content are rights of an informational and organizational nature (the right to participate in managing the affairs of the company, to receive information about the activities of the company, and others).

In our opinion, attributing the entire share in the authorized capital to such type of objects as property rights narrows the content of the obligatory legal relations between the participant and the company.

V. Lapach<*>pays serious attention to the issue of the legal nature of the share in the authorized capital of a limited liability company, his research is deep, but the provisions formulated are not always consistent and even somewhat contradictory.

<*>

First, the author emphasizes the idea that a share is not a thing, object or security and that it is not a property right. Without recognizing the existence of a property right of an obligatory nature in a share, the author nevertheless argues that the debtor opposing the owner of the share is the company in whose authorized capital the corresponding share is allocated. Thus, obligatory legal relations already take place, despite the fact that, as V. Lapach points out<*>, “not only are the cost and quantitative parameters of the claim unknown in advance, but even the moment the claim arises cannot be determined before the legal facts or conditions specified in the Law occur (the withdrawal of a participant from a partnership or company; an offer to sell a share by one of the participants with implementation of the preferential, proportional to the share, right of acquisition by other participants; distribution of the received profit in proportion to the share; receipt of the liquidation balance in proportion to the share, etc.) It turns out that before the occurrence of such circumstances, the share exists in some kind of its own legal capacity, without being a property right. But even when and if the indicated circumstances occur, the share does not develop into a property right, remaining in its former capacity.” Further, the author expresses a rather controversial position that “a share is an ideal quota (part) in the right of ownership of the property of a company or partnership, a kind of analogue of a share in common property”<**>, but subsequently the author seems to move away from the position he formulated, as if “softening” it, taking into account the content of Article 213 of the Civil Code of the Russian Federation, according to which commercial organizations, except for state and municipal enterprises, are the owners of property transferred to them as contributions (contributions) of their founders (participants, members), as well as property acquired by these legal entities for other reasons.

<*>Right there.
<**>Right there.

Since, according to V. Lapach, the actual property relations of the participants cannot be satisfactorily explained either from the point of view of the private property rights of a legal entity, much less by transferring the provisions on common shared ownership to corporate property relations, the explanation for this phenomenon is the existence of a “special subjective participation rights having a unique property-obligatory nature"<*>. However, no argument is given for the “materiality” of the legal nature of the participant’s share in the authorized capital of the company.

<*>Right there.

The understanding of “real rights” in civil law (in the most general form, as a set of legal powers of a person in relation to a thing) is not entirely consistent with the legally established principles of property relations between a participant in a company (the owner of a share in the authorized capital) and the company. Therefore, the validity of the “materiality” of a participant’s share in the authorized capital of an LLC, in our opinion, raises doubts.

To reveal the essence of a participant’s share in the authorized capital of an LLC, it is advisable to draw a parallel with the concept of “shares” in a joint-stock company. The legal structure of a share in the authorized capital of an LLC reveals the greatest similarity with a share of a closed joint-stock company issued in uncertificated form.

Authors<*>, who studied the legal status of securities (and especially shares) as objects of civil rights, came to the conclusion that a share as a security and a share in the authorized capital have the same legal nature and represent an organizational subjective right “to be a participant in the company.” Both the share and the share predetermine the formative, “starting” interest of the business company, calculated in a monetary amount and providing a set of rights to the participant, while the degree of participation and the amount of losses of the owner depend on its (share or share) monetary value. Shares and shares act as “units of measurement” of the authorized capital in general and the contribution of each founder to the authorized capital in particular.

<*>See, for example: Belov V.A. Transactions with shares, the issue of which is not registered // Legislation. 1998. N 10; Lapach V.A. System of objects of civil rights: theory and judicial practice.

As V. Lapach reasonably notes<*>, “the main quality that distinguishes shares in the authorized capital of a joint-stock company (in the terminology of paragraph 1 of Article 96 of the Civil Code of the Russian Federation - “shares”) from shares in the authorized capital of other companies (and the joint capital of partnerships) is the same value of all shares. ".

<*>Lapach V.A. System of objects of civil rights: theory and judicial practice.

A share in the authorized capital of a limited liability company implies that its participant is endowed with a whole range of rights and obligations of both a property and non-property nature. The main property rights of participants provided for by the Law include: the right to participate in the distribution of profits, to sell, or otherwise assign their share in the authorized capital or part thereof to one or more participants of the company, the right to receive the liquidation balance after settlements with creditors. The main property obligation of participants is the obligation to make a contribution to the authorized capital in the manner, amount, composition and within the time limits provided for by the Law and the constituent documents of the company. The main non-property rights are: the right to participate in managing the affairs of the company, to receive information about the activities of the company, the right to get acquainted with its accounting books and other documentation, and the right to leave the company at any time. The non-property obligation should also include the obligation not to disclose confidential information about the activities of the company. It is necessary to take into account that the Federal Law “On LLC” (clause 2 of article 8, clause 2 of article 9) allows the vesting of participants with additional rights and obligations not provided for by the Law (which, since this does not contradict the Law, can be both property , and non-property nature).

Summarizing the above, we believe that the share of a participant in the authorized capital of a limited liability company is a separate, independent object of civil rights, not entirely included in the group of things, money or securities, other property or property rights, or in the group of intangible benefits. However, a share in the authorized capital of an LLC undoubtedly has a quality common to all objects of civil rights - this is the ability to satisfy the material and non-material needs of the subjects, holders of the corresponding right (participants of the company).

Thus, the share of a participant in the authorized capital of an LLC is a specific object of civil rights, on which the interest of participants in a limited liability company (as well as companies with additional liability) is concentrated and which has a set of characteristics unique to it.

Abstractness. Based on the charter, in accordance with the Law, the owner of a share in the authorized capital is endowed with an abstract set of rights and obligations in relation to the company. The specification of rights and obligations is carried out in each individual legal relationship: participant - society.
Legal obligations nature. The participant’s share in the authorized capital of the company confirms the existence of an obligatory right of claim of the participant in relation to the company and vice versa; and also determines the amount of mutual obligations.
A combination of property and non-property principles. As noted above, the owner of a share in the authorized capital is endowed with a complex of property and non-property rights and obligations.
Alienability. The owner of a share in the authorized capital has the right to sell or otherwise assign (exchange, donate) his share in the authorized capital to one or more participants of the company. As a general rule, the consent of the company or its other participants is not required to complete such a transaction.<*>. The sale or assignment in any other way by a company participant of his share to a third party is permitted, unless this is prohibited by the company’s charter, and in this case, other company participants have a pre-emptive right to purchase the share of the participant selling it at the offer price to the third party.

<*>However, the company's charter may provide otherwise, i.e. the need to obtain the consent of the remaining participants of the company to carry out these transactions. The existence in the charter of such rules regarding the alienability of shares is intended to limit the possibility of redistribution of shares within the company itself and thus maintain a relatively stable balance between the company’s participants. With this design, strengthening the personal element, the society acts primarily as an “association of persons” and in its essence approaches the organizational and legal form of partnerships.

Having identified the structural component of the category “authorized capital of an LLC,” let’s move on to its functional component.

The essence of the authorized capital of a limited liability company, like any other phenomenon of legal reality, is reflected in its functions.

As the first function of the authorized capital, we denote the “formative” one, which consists in determining the minimum size of the company’s property, in the formation of its material basis, primarily at the stage of its creation, also in the process of its further activities - in the event of an increase or decrease in the size of the authorized capital of the company. In the literature, this function is also called “starting”, since it gives the primary impetus to the activities of society, as it were, creates a material “background” for the future.

Unfortunately, we have to admit that the significance of this function of the authorized capital in practice is not as great as the theoretical design suggests. This is primarily due to the fact that the Russian legislator established an unreasonably low minimum level of the authorized capital of an LLC upon its creation. The size of the company's authorized capital must be at least 100 times the minimum wage<*>(Clause 1, Article 14 of the Federal Law of the Russian Federation “On LLC”), which in monetary terms is 10 thousand rubles or approximately 279 euros.

<*>In accordance with Federal Law dated June 19, 2000 N 82-FZ and Federal Law dated December 29, 2004 N 198-FZ, the minimum wage for calculating payments for civil obligations is 100 rubles.

In terms of comparative analysis, we present the legislative requirements on the size of the minimum authorized capital of a limited liability company in other European countries. For example, in Hungary the minimum authorized capital of an LLC is 3 million forints (which corresponds to approximately 12,250 euros), in Romania it is much lower and amounts to 2,000,000 lei (which corresponds to about 60 euros)<*>; in the Baltic countries, the minimum amount of the authorized capital of an LLC is set accordingly: in Estonia - 40,000 kroons (about 2,500 euros), in Latvia - 2,000 lats (about 3,200 euros), in Lithuania - 10,000 litas (about 2,700 euros). In general, within the framework of European legislation, the requirements for the minimum amount of the authorized capital of an LLC are fundamentally different and range from 1 euro in Ireland to 23,500 euros in the United Kingdom and 25,000 euros in Germany<**>.

<*>However, for foreign investors there is a higher minimum authorized capital required to create an LLC in Romania.
<**>The data are given in the article "Baldiges neues Grundungsverfahren in Frankreich: Die franzoesische "Blitz-S.A.R.L." von Dr. Patricia Becker // GmbH-Recht. 2003. N 12. P. 707.

These figures make it possible to assess the importance the legislator attaches to the formative function of the authorized capital of an LLC. With a frankly formal approach to establishing the minimum amount of authorized capital (for example, 1 euro), its formative function turns out to be “dead”, not working.

The formative function of the authorized capital is implemented not only by legislatively determining the minimum size of the authorized capital of an LLC upon its creation, but also by preventing the release of the founders of the company from the obligation to make contributions to the authorized capital of the company (paragraph 2, paragraph 1, article 16 of the Federal Law of the Russian Federation on LLC).

The Russian legislator, while not formally denying the formative function of the authorized capital, nevertheless demonstrates clear disdain for it. This is evidenced by the size of the minimum authorized capital in the Russian Federation. In this case, one should take into account the fact that the authorized capital of the company at the time of its registration must be paid in at least half, and the rest must be contributed during the first year of the company’s activity. Thus, in fact, at the time of creation, the authorized capital of the company can be only 5 thousand rubles, which can hardly be considered a solid material basis for its further activities.

Depending on the size of the minimum authorized capital, one can judge the degree of security and guarantee of the interests of the LLC’s creditors.

In our opinion, it is necessary to legislatively increase, and no less than several times, the minimum permissible amount of the authorized capital of a limited liability company in the Russian Federation. This will solve a number of problems related to:

creation of a stronger material and financial base of the society already at the stage of its establishment,
increasing the degree of security for the interests of potential creditors of the company,
stimulating activity in the activities of society participants in their chosen direction of business activity,
ensuring higher discipline of society participants (the expression of which will be a decrease in the number of “fictitiously created” or “dead” societies).

In addition, in our opinion, it is not entirely justified, first of all, from an economic point of view in terms of implementing the “forming” function of the authorized capital, establishing a single minimum rate for the size of the authorized capital for all limited liability companies, regardless of the nature, volume of activity, or number of participants.

In this context, we support the point of view of the authors<*>who believe that establishing a minimum amount of authorized capital in the form provided for in Russia is ineffective. S. Aigner-Heger writes: "... it should be taken into account that the amount of financial resources required to run a particular business is determined in each individual case (for example, the production of products requires much more capital than the provision of consulting services). One general minimum amount of the authorized capital capital cannot meet the requirements of any subject of activity"<**>. As a consequence, a situation arises: the actual provision of creditors’ rights in limited liability companies with a minimum allowable amount of authorized capital, but significantly different in volume of economic activity, in the number of creditors and the amount of debt, will differ by an order of magnitude. This goes against the civil law principle of fairness.

<*>See, for example: Aigner-Heger S. Limited Liability Company in Comparative Civil Law of Russia, Germany, England / Diss... for the scientific degree of Ph.D. legal Sci. M., 1994. P. 71; Tarasenko Yu.A. Creditors: protection of their property rights. M.: Yurkniga, 2004. P. 44.
<**>Aigner-Heger S. Limited liability company in comparative civil law of Russia, Germany, England / Diss... for the scientific degree of candidate. legal Sci. M., 1994. S. 71 - 72.

Therefore, it makes sense to legislatively establish differentiation of requirements for the minimum amount of authorized capital of business companies depending on such an indicator as the nature of the activity (taking into account what direction of the company’s activity is the main one - trade and purchasing, production or agricultural activities, provision of services, etc. .p., which must be clearly defined in the constituent documents).

The second function of the authorized capital should be called the guaranteeing function, or otherwise it can be called security. The authorized capital is intended, as noted above, to guarantee the satisfaction of the interests of the company's creditors. This is the task of the guaranteeing function of the authorized capital. In our opinion, it is in the guaranteeing and security function that the essence and purpose of the authorized capital of an LLC is revealed.

<*>See, for example: Gorlov V.A. Legal issues of creating the authorized capital of a limited liability company // Journal of Russian Law. 2000. N 4. P. 49; Serova O.A. Ownership of a limited liability company / Diss... for the academic degree of candidate. legal Sci. Kolomna Pedagogical Institute. Kolomna, 2001. P. 82.

Let us outline the main problems of Russian law of business companies that arise on the way to implementing the guaranteeing function of the authorized capital:

a) the unjustifiably low minimum amount of authorized capital established for LLCs by Russian legislation. (This issue, as already noted, is closely related to the implementation of another function of the authorized capital - forming.);

b) the absence in legislation of restrictions on the expenditure of authorized capital on the part of the founders. The “non-inviolability” of the authorized capital can minimize the possibility of actually satisfying the claims of the company’s creditors. German civil experts, focusing on this problem, emphasize that since the managers of a company can use its authorized capital in the interests of society (to purchase means of production, pay wages, etc.), then in this case the company’s possible creditors “will be left with nothing.” how"<*>. The legislation does not provide for the obligation of participants to make additional payments - this would be contrary to the essence of such a company;

<*>Seibert Ulrich. Legislation of the Federal Republic of Germany on companies based on the combination of capitals (joint-stock company and limited liability company) // Fundamentals of German trade and economic law. M., 1995. P. 40.

c) inadequate state of the legal framework regulating the procedure for determining the value of the net assets of a limited liability company. The value of net assets acts as a conditional value characterizing the state of the company's real property, free from obligations, and indicating the actual ability of the company to fulfill its obligations. In the context of implementing the guaranteeing function of the authorized capital, the net assets of the LLC must be taken into account, since their value should not be less than the size of the authorized capital (Clause 3, Article 20 of the Federal Law of the Russian Federation “On LLC”).

According to para. 3, paragraph 3 art. 20 of the LLC Law, the procedure for determining the value of the company’s net assets should be established by the federal laws of the Russian Federation and regulations issued in accordance with them, but the required federal law has not yet been adopted. In this regard, it should be noted that there is a gap in the legal regulation of this area of LLC property relations.

To eliminate the existing gap in the law, it is, of course, necessary to adopt a special federal law defining the procedure for assessing the value of the net assets of business companies. In our opinion, this federal law, for the purpose of legislative economy, should extend its effect not only to limited liability companies, but also to other business entities (joint stock company, additional liability company).

Until the required federal law is adopted, taking into account previously established practice, limited liability companies, when determining the value of net assets, must be guided by the rules established for joint-stock companies, namely the Order of the Ministry of Finance of the Russian Federation and the Federal Commission for the Securities Market dated January 29, 2003 N 10н/03-пз "On approval of the procedure for assessing the value of net assets of joint-stock companies." According to this Order, the value of the net assets of a joint-stock company is understood as the value determined by subtracting from the amount of the assets of the joint-stock company accepted for calculation the amount of its liabilities accepted for calculation;

d) lack of clear legislative criteria regarding the form of contribution of so-called non-monetary<*>contributions of participants to the authorized capital of a limited liability company at the stage of its creation. The law defines only an approximate list of types of non-monetary contributions that can be made to the authorized capital of an LLC, and does not contain general criteria or characteristics of a non-monetary contribution. This makes it possible to form authorized capital from illiquid property or property rights, or even “fictitious” authorized capital. It is especially important to keep in mind that “the authorized capital must include real property that can satisfy the claims of potential creditors”<**>.

<*>The Federal Law on LLC (Clause 1, Article 15) stipulates that a contribution to the authorized capital of a company can be money, securities, other things or property rights or other rights that have a monetary value. Forms of deposits, with the exception of cash, are traditionally combined with the concept of “non-cash deposits”.
<**>Sukhanov E.A. Business societies and partnerships, production and consumer cooperatives // Bulletin of the Supreme Arbitration Court of the Russian Federation. 1998. N 6. P. 100 - 109.

One more function of the authorized capital should be noted - “certifying”, or, as it can be otherwise described, “participation function”. It allows you to establish the degree of interest of each company participant in the company’s activities, since depending on the size of the participant’s share in the authorized capital, the voting structure of participants when making decisions at the general meeting of company participants is determined, and the profit received by the company is distributed.

As a general rule, each company participant has a number of votes at the general meeting of company participants in proportion to his share in the authorized capital of the company (paragraph 3, paragraph 1, article 32 of the Federal Law “On Limited Liability Companies”).

However, as a result of analyzing the norms of the legislation on LLCs, we can come to the conclusion that not only the size of the share in the authorized capital determines the degree of interest of the participant in the affairs of the company. This is evidenced by the following rules, which, in our opinion, somewhat weaken the meaning of the “participation” function:

The company's charter, by decision of the general meeting of participants, may establish a procedure other than proportional to the share in the authorized capital for determining the number of votes of the company's participants (paragraph 5, clause 1, article 32 of the Federal Law of the Russian Federation "On LLC");
members of the company may be granted additional rights in addition to the rights provided for by law. Additional rights are granted by decision of the general meeting of the company's participants and do not directly depend on the size of the participant's share in the authorized capital. Moreover, in the event of alienation of the share of a participant vested with additional rights, these additional rights do not pass to the acquirer of the share (Clause 2, Article 8 of the Federal Law of the Russian Federation “On LLC”).

It should be noted that the role of the “certifying” function of the authorized capital is manifested more significantly in such a structure of a limited liability company as an LLC created by one participant. Unlike LLCs formed by two or more persons, in a company with a single participant, “association of persons” and “pool of capital” do not occur. Since there is no division of the authorized capital into shares, all 100% shares of the authorized capital certify the property interest of one person - the sole founder of the company.

Summarizing what has been said regarding the functional component of the category “authorized capital of an LLC,” it should be noted that the legal mechanisms in force in the Russian Federation do not fully ensure the implementation of the functions of the authorized capital of a limited liability company, which inevitably “undermines” their effectiveness. And this, in turn, negatively affects the security of the interests of the company’s creditors and cannot but affect the property interests of the company participants themselves.

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