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Home / CURRENT CORPORATE LEGISLATION / NCCG prepared comments and suggestions to the draft Federal Law "On Amendments to Certain Legislative Acts of the Russian Federation (align with the new version of Chapter 4 of the Civil Code of the Russian Federation).

NCCG prepared comments and suggestions to the draft Federal Law "On Amendments to Certain Legislative Acts of the Russian Federation (align with the new version of Chapter 4 of the Civil Code of the Russian Federation).

) Amendments to the Federal Law "On Joint Stock Companies" (the Company Law).

1. From the meaning of paragraph 4 of Article 1 of the Draft Law amendments to Article 4 of the Law on Joint Stock Companies (paragraphs 2 and 3) it is difficult to understand what is the difference between full and brief name of the society. In our opinion, the abbreviated name of the company cannot contain the full name of the company. In this regard, the definition of abbreviated name of the company should delete the words "or full" and "words" or corporation "and" words or public joint stock company "respectively.

2. It is an objection of the article 5 of the Law on Joint Stock Companies as amended (paragraph 5 of Article 1 of the Draft Law), according to which in this article excluded the main provisions concerning the legal status of branches and representative offices, the procedure for appointment of their heads, which entails "apply "to the text of Article 55 of the Civil Code. In this regard, we consider it expedient for practical purposes, repeat the new version of Article 5 of the Law on joint basic provisions on branches and representative offices, contained in Article 55 of the Civil Code.

3. The proposed wording of the second paragraph of paragraph 3 of Article 6 of the Law on Joint Stock Companies (paragraph 6 of Article 1 of the Draft Law) must, in our opinion, more detail to reflect the status of orders and consent of the parent company. In particular, it is advisable to determine which controls the parent company and in what form have the right to give such directions and consent, or make reference to the fact that it can be determined by the charter subsidiary. Also doubtful exception existing provisions of paragraph 4 of paragraph 3 of Article 6 of the Law on Joint Stock Companies, which detects the presence of conscious guilt in causing the parent company to the subsidiary losses. The exception of this rule unreasonably extends the concept of fault of the principal company for causing losses to the subsidiary. The introduction of liability for damages for negligence in many respects may restrict the activities of the parent company, including the risk operations in business.

4. Paragraph 5 of Article 7 of the Law on Joint Stock Companies adopts by shareholders unanimously decision to exclude from the charter and corporate names indicate public status as entitling the shareholder to one action to block the adoption of such a decision. In connection with this offer to change the number of votes required for such a decision (eg, three-fourths of the votes).

5. According to the new wording of subparagraph 1 of paragraph 3 of Article 11 of the JSC Law (subparagraph "a" of paragraph 10 of Article 1 of the Draft Law) in the charter of the company, among other things, must include a full and (or) the abbreviated name of the Company. At the same time, in accordance with paragraph 4 of Article 1 of the Draft Law, which proposes a new wording of Article 4 of the Law on Joint Stock Companies, the Company shall have the right to have a full and abbreviated name in Russian. There is a contradiction: in one case, stating that society should mandatorily have full corporate name and, optionally, can be abbreviated company name, and in the other case is set discretionary rules - in the charter shall contain the full and (or) the abbreviated name of the company. In this connection it should resolve this discrepancy.

6. In paragraph 22 of Article 1 of the Draft Law amended paragraph 1 of Article 34-1 of the JSC Law does not specify what the society, public or non-public, subject to the rule of the right to make non-repayable contributions to the company's assets that do not increase the size of the share capital and do not increase the nominal value of the shares. We consider it necessary to make a specified point of the corresponding refinement, all the more so later in the article 34.1 of the question is only about the non-public companies.

7. We consider it necessary to amend subparagraph 11 of paragraph 1 of Article 48 of the JSC Law (paragraph 2 of subparagraph "a" of paragraph 27 of Article 1 of the Draft Law) to bring the name of the annual financial statements in accordance with the Federal Law of 06.12.2011 402-FZ "On Accounting ". According to the law to clarify the name of the annual financial statements, and changed the name of the profit and loss account on a "statement of income" (see. Article 13, Paragraph 1 of Article 14 of the Law on BU).

8. We consider it necessary to exclude allowance prescribed by subparagraph "b" of paragraph 28 of Article 1 of the Draft Law, to supplement Article 49 of the JSC Law, paragraph 1.1, providing that the company's shares owned by legal entities controlled by the Company, do not grant the right to vote and do not count votes on the following grounds. It should be noted that the shareholders of domestic companies are widely used for direct and indirect participation in the authorized capital of the Corporation, including using the possibilities of cross-ownership. One-time implementation of a total ban of shareholder rights in cross-ownership would entail a significant imbalance in the large corporate relations, especially holding companies. In addition, we draw attention to the fact that this norm is not aimed at bringing the JSC Law in line with the new version of Chapter 4 of the Civil Code.

9. In paragraph 17.3 of Article 65 of the JSC Law (subparagraph "a" of paragraph 36 of Article 1 of the Draft Law) terminology should be adjusted in the financial statements based on the fact that the Federal Law of 06.12.2011 402-FZ "On Accounting" specify the name of the annual accounting and changed the name of the profit and loss account on a "statement of income" (see. article 13, paragraph 1 of Article 14 of the Law on the rig, as well as paragraph 2 of Article 65.3 of the Civil Code).

b) Amendments to the Federal Law "On Limited Liability Companies" (Law on Limited Liability Companies)

1. It is an objection of the article 5 of the Company as amended (paragraph 5 of Article 2 of the Draft Law), according to which in this article excluded the main provisions concerning the legal status of branches and representative offices, the procedure for appointment of their heads, which entails "apply "to the text of Article 55 of the Civil Code. In this regard, we consider it expedient for practical purposes, repeat the new version of Article 5 of the basic provisions of the Company's branches and representative offices, as contained in Article 55 of the Civil Code.

2. The proposed wording of the second paragraph of paragraph 3 of Article 6 of the Law on Limited Liability Companies (paragraph "c" of paragraph 6 of Article 2 of the Draft Law) must, in our opinion, more detail to reflect the status of the instructions and consent of the parent company. In particular, it is advisable to determine which bodies mainstream society and in what form have the right to give such directions and consent, or make reference to the fact that it can be determined by the charter subsidiary.

3. Taking into account the structure of Article 67 of the Civil Code, according to which the right to require the exclusion of other members of society participant included in the list of rights of participants believe it appropriate to point 1 of Article 8 of the Law on Limited Liability Companies (subparagraph "a" of paragraph 8 of Article 2 of the Draft Law) with the norm of the right party the exclusion of another society member society of the society in court with payment of the actual value of its equity interest if such party by their actions (or inaction) cause significant public or otherwise significantly impedes its activities and the achievement of the purposes for which it was created, including in flagrant violation of its obligations provided for by law or the constituent documents of the company. Accordingly, Article 10 of the Law on Limited Liability Companies in the wording of paragraph 12 of Article 2 of the Draft Law be deleted.

4. We consider it inappropriate to make changes under sub-paragraph "b" of paragraph 2 of Article 15 of the Draft Law on the presentation of paragraph 3 of Article 14 of the Company as amended, under which the company's charter may be limited by the maximum size of the voting rights or other corporate rights granted by one party or society group members of society, interconnected on the basis of defined charter of the company, including in the case of members of certain acts (refraining from making) in accordance with the statute. It should be noted that the members of the Company, as a rule, are widely used for direct and indirect participation in the authorized capital of the Corporation, including using the possibilities of cross-ownership. The introduction of restrictions on the exercise of the rights of participants, interconnected can cause imbalance of corporate relations within societies. In addition, we draw attention to the fact that this norm is not aimed at bringing the Act into conformity Ltd. with the new version of Chapter 4 of the Civil Code.

5. Calls objections addition of Article 26 of the Law on Limited Liability Companies new paragraph 5 (paragraph "c" of paragraph 24 of Article 2 of the Draft Law), according to which the statement of withdrawal from society is the unilateral transaction and must be notarized. In our opinion, there is no need for such a bureaucratic encumbrance right out party of the company, except to meet financial interests of notaries. The process exit society "heavier" and may be not cheap, which largely eliminates the output value of the right member of society.

6. In the wording of Article 27 of the Law on Limited Liability Companies (paragraph 25 of Article 2 of the Draft Law) of paragraph 3, paragraph 2, believe it appropriate to delete the word "non-public".

7. Paragraph 4 of Article 40 of the Law on Limited Liability Companies (paragraph 32 of Article 2 of the Draft Law) needs to be supplemented, which should be clarified, the powers of one or more of sole executive bodies (in the presence of such a society) can be transferred to the management company or manager, and whether it is possible a situation where one of the sole executive body, acting alone, handed over power management company or manager, and others have been submitted.

8. Considers it necessary to supplement the Draft Law amending provisions in the first paragraph of Article 48 of the Company in terms of the terminology used, replacing the word "balance sheet" with the words "annual accounting (financial) statements" (see paragraph. 4 of Article 67.1 of the Civil Code).

9. In paragraph 21 of Article 11 of the Law on Limited Liability Companies (subparagraph "b" of paragraph 1 of Article 13 of the Draft Law) provides that the powers of the company's management to approve and change the rules of procedure and other internal documents of the company are determined by the company's charter with the provisions, including "hereof. "However, the Draft Law there are no rules specifying the competence of the general meeting of the company according to the constituent documents are not internal regulations and other internal documents of the company. In connection with this Draft Law propose to add the relevant provisions. In addition, for the purpose of convenience, it seems appropriate to include in the LLC Law list of issues that could be included in the company's charter to address the members of society, adopted unanimously, contained in paragraph 3 of Article 66.3 of the Civil Code.

Findings of Survey held by National Council on Corporate Governance and Russo-British Chamber of Commerce Moscow, 2010
Joint Survey by NCCG and KPMG, June 2009
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