Which introduced significant changes in accordance with which joint stock companies are divided into public and non-public companies, that is, the division of JSC into closed and open has been abolished. In other words, organizational legal form "Joint-Stock Company“remains, but the types of such economic entities change.
According to the new rules, JSCs are divided into two types: public and non-public.
By virtue of clause 1 of Article 66.3 of the Civil Code of the Russian Federation public is a joint stock company whose shares and securities are publicly placed (by open subscription) or publicly traded under the conditions established by securities laws. Rules about public societies akh apply to joint-stock companies, the charter and corporate name of which indicate that the company is public. Thus, a society that does not meet the appropriate criteria can also become public.
A limited liability company and a joint stock company that does not meet the criteria specified above are recognized non-public.
A legal entity that is a commercial organization must have a company name, which is recorded in the constituent document (in a JSC this is the charter) and the Unified State Register of Legal Entities. The full corporate name of a public joint-stock company in Russian must contain the full name of the company and the words "public joint-stock company", an abbreviated name - the full or abbreviated name of the company and the words "public joint-stock company" or "PJSC".
A non-public company becomes (at its discretion) public from the date of entry into the Unified State Register of Legal Entities information about the company name containing an indication that the company should be considered public. The corporate name of a non-public joint-stock company in Russian must contain the full name of the company and the words "joint-stock company", an abbreviated name - the full or abbreviated name of the company and the words "joint-stock company" or "JSC" ().
As follows from the general norm (paragraph 3, paragraph 1, Article 53 of the Civil Code of the Russian Federation), the constituent document may provide that the authority to act on behalf of a legal entity is granted to several persons acting jointly or independently of each other. Information about this must be included in the Unified State Register of Legal Entities.
On the basis of this, JSCs created before 01.09.2014 and meeting the criteria of public joint stock companies are recognized as public, regardless of the presence in their corporate name of an indication that the company is public. In this regard, such companies have the right to publicly place shares and securities convertible into shares, although their name may not indicate that the company is public.
In order to inform investors and other interested parties, the Bank of Russia recommended that JSCs that meet the criteria of public JSC, whose securities are in the process of placement, disclose information about the company’s compliance with the criteria of public companies. The constituent documents (charter) and names of joint-stock companies created before 09/01/2014 must be brought into compliance with the norms of the Civil Code of the Russian Federation in the new edition when the constituent documents are changed for the first time. This is a requirement of Federal Law No. 99-FZ.
It is added that changing the name of a legal entity in connection with bringing it into compliance with the new norms of the Civil Code does not entail the need to make changes to the title and other documents containing its previous name. No re-registration required legal entities, created before 09/01/2014. Consequently, all title-establishing, title-certifying, title-terminating and other documents issued by the JSC before September 1, 2014 retain their legal force, so their replacement is not required. In particular, the above applies to licenses and other permits issued by Rosprirodnadzor and its territorial bodies (Letter of Rosprirodnadzor dated October 14, 2014 No. AA-03-04-36/16011).
At the same time, legal entities are not deprived of the right to apply to the relevant authority for amendments to previously issued documents (if the relevant normative document the procedure for issuing a document to replace a previously issued one is regulated). For example, the legislation on taxes and fees does not provide for the procedure for replacing notifications of registration with the tax authorities, and when bringing the name of a joint stock company into compliance with Chapter 4 of the Civil Code of the Russian Federation, replacement of these notifications on the grounds provided for by the Tax Code of the Russian Federation is not necessary (Letter of the Federal Tax Service of Russia dated September 16, 2014 No. SA-4-14/18715).
Re-registration of previously created legal entities specified in Art. 8, 9 Federal Law dated 05.05.2014 No. 99-FZ, in connection with the entry into force of this Federal Law is not required.
Joint-stock companies created before September 1, 2014 that meet these criteria are considered by default to be public joint-stock companies (according to general rule the company name of such a company must indicate that the company is public). A company that, by all indications, is classified as non-public, can become public if an indication of this is recorded in its corporate name. The charter of companies created before 09/01/2014 and their corporate names must be brought into compliance with the new requirements, which must be done when the first amendment to the charter, carried out on the basis of a decision of the general meeting of shareholders.
It is important to note that when registering changes to the constituent documents of legal entities in connection with bringing these documents in accordance with the norms of Chapter 4 of the Civil Code Russian Federation There is no state fee.
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Requests for information related to the creation and subsequent operation of an OJSC are not the most common on the Internet. Usually people stumble upon texts about OJSC by mistake, confusing it with LLC or even with UAE. But if you came specifically to find useful information for business development, you probably know that OJSC is no longer just a business, but a business in an elegant tuxedo.
A little about the name
First of all, those who are thinking about creating a joint-stock company should erase from memory the very name “OJSC”, which has not officially existed for almost four years, although it is still used out of inertia.
In 2015 Federal Law No. 99, modifications were made to Chapter IV of the Civil Code of the Russian Federation. The modifications affected many aspects of the creation and activities of legal entities, including joint stock companies. In particular, joint stock companies were divided into two types - public and non-public. So OJSC turned into PJSC, and CJSC into NJSC.
PJSC, NJSC, LLC
If you imagine the form of doing business as a pyramid or ladder, then its first step will be an LLC. This does not mean that you need to start with an LLC. This means that the form of the LLC structure contains the foundations that can consistently develop into other forms of doing business.
Three pillars of registering a serious business
LLC structure– this is one or more founders (up to 50 people), between whom the authorized capital is divided. The division of profits occurs in accordance with the Charter of the company and the owner of a larger share does not always receive a larger percentage of the profits. Co-founders have the right to alienate their shares, subject to the pre-emptive rights of other co-founders.
Structure of the Nenets Autonomous Okrug– this is up to 50 shareholders, who together create the authorized capital. Or vice versa - the authorized capital divided into shares creates up to 50 shareholders. Simply put, the authorized capital is created by a group of people who contribute according to their financial capabilities. Profit is divided depending on the number and volume of shares. The shareholder has the right to alienate his shares subject to the preferential rights of other shareholders.
PJSC structure– this is the free number of founders who create the authorized capital according to the same principle as the shareholders of the NAO. At the same time, the number of shareholders of a PJSC can only be limited by common sense, since the main thing PJSC difference from LLC and NJSC - this is the right to free public issue and sale of shares. Profit in PJSC is distributed depending on the volume and value of shares.
For your information! PJSC, or open partnerships as they were called immediately after the collapse of the USSR, became the progenitors of the post-Soviet oligarchy. During the period when the Soviet economy was collapsing, former leaders, party workers, secretaries of regional and district party committees and other enterprising citizens became the founders of the first open partnerships, built on the bones of once prosperous enterprises. Having become, as a result of privatization, the owners of dying plants and factories, they offered former employees to purchase shares, which, as the enterprises were restored, were supposed to generate income. However, the plants and factories did not recover, and the party bosses quietly created other types of business. To this day, many current pensioners still have shares and certificates for participation in the privatization of once famous industrial facilities.
Who needs what?
From the point of view of the Criminal Code, there are not so many differences between a “pyramid” and a PJSC. Both of them sell pieces of paper, which they promise to turn into money over time. Those who manage to fulfill their promise become established entrepreneurs. Those who fail fall into the zone of interest law enforcement. Therefore, common sense restrictions when issuing shares are very important.
Otherwise, PJSC is one of best forms doing business for both beginning entrepreneurs and market sharks.
There is an opinion that the creation of a PJSC is the prerogative of already established and successful businessmen, for whom there is no point in studying the legislation and running with folders to various authorities, registering a PJSC. The best way for them is to enter into an agreement with a company that provides intermediary services for registering legal entities.
Of course this is very good way, but the fact is that PJSC is created not only by the Rothschilds, but also by third-year students, for whom every ruble is worth its weight in gold. They collect the required 100,000 rubles authorized capital with the world one by one, turning its creditors into shareholders of the future PJSC. Their future income is just an idea, but sometimes the idea is brilliant. To bring this idea to life, they need funds that will not pay off immediately, and therefore the option of obtaining a loan is not for them. The best way there will be the creation of a PJSC with the possibility of raising funds through the sale of shares.
- raising funds for business development;
- the opportunity to enter the international market in order to attract foreign shareholders.
Legends and Myths of the Internet
It is not known from whose light hand A story has appeared on the Internet that a PJSC can be registered only after preliminary registration of a non-profit joint-stock company, followed by bringing the documentation and authorized capital to the level of PJSC registration. At the same time, the authors of such statements without embarrassment refer to Art. 7.1 of the Law of the Russian Federation on joint stock companies. It is difficult to imagine in what state one should read Article 7.1 in order to see something that is not there.
Unfortunately, articles written by semi-professionals or even non-professionals copying each other have proliferated so widely that they have come to the attention of active lawyers. The latter, instead of studying the legislation, believed Internet myths, and the courts were filled with lawsuits from the founders of PJSC demanding the lifting of the bans government agencies to issue shares. Appeal proceedings are flooded Supreme Court RF, which time and again explains in its decisions that such statements are an incorrect interpretation of the law.
Advice! If you have opened an article that states that a PJSC cannot immediately obtain public status, then close it immediately. It was written by a layman from the jurisprudence. If the intermediary company that you contacted for the provision of services related to the registration of a public joint stock company assures you that you first need to register a private joint stock company, immediately refuse its services, and at the same time write a complaint to the Ministry of Justice.
Disadvantages of PJSC
The main disadvantage of PJSC was mentioned a little higher - the possibility of turning the issue of shares into a method of fraud.
That is why somewhat higher requirements are applied to PJSCs than to LLCs or NJSCs in terms of being under the control of law enforcement and tax authorities. This reduces the risk of transforming a joint stock company into another pyramid.
The forms of control over the activities of PJSC are:
- annual audits;
- publication of the results of economic and financial activities PJSC.
Where to begin
In legal terms, you need to start with Ad Ovo, that is, with the name. The legislation provides for certain requirements for the name of a PJSC:
- It must include a mandatory mention of publicity.
- It must be respectable and must not contain profanity, insults, any reference to racial discrimination, etc.
- The name must be in Russian.
Having decided on the name, you need to decide further:
- with the contribution of each shareholder;
- with the appointment of the General Director;
- with the choice of the legal address of the PJSC. This can be either the residence of one of the shareholders or rented premises.
Authorized capital
The minimum allowed amount of the authorized capital of a PJSC is 100,000 rubles. Without this amount, there is no point in starting the registration procedure.
It should be remembered that the origin of the amount of the authorized capital is the shares owned by the participants. Since PJSC is open organization, not only the founders, but also third parties have the right to purchase shares.
Since the authorized capital is formed from shares, during the activities of PJSC Management Company can increase by the amount of acquired shares or profit on them, but cannot fall below 100,000 rubles.
PJSC Charter
As in an LLC or NJSC, the Charter is the main constituent document of a PJSC, reflecting the direction and forms of its activities. It is the charter that provides for all the characteristics of the issue of shares and the subsequent actions of the PJSC regarding the accrual and payment of dividends.
You don't have to reinvent the wheel. The world is full standard samples charter of PJSC. When in possession English language at the Intermediate level you can also use foreign templates.
PJSC Administration
The management of a PJSC is a collective of shareholders. PJSC administration is:
- Board of Directors elected general meeting shareholders.
- General Director of PJSC.
- Audit Commission of PJSC.
PJSC can carry out any type of activity that is legal on the territory of the Russian Federation. A restrictive condition is the impossibility of a PJSC to carry out more than one type of activity. If the chosen type of activity requires mandatory state licensing, then the corresponding license is issued after the registration of the PJSC.
Registration stages
- Application for registration.
- Payment of state duty.
- Documents confirming the presence of a legal address. A house register, an extract from the cadastre or a lease agreement are suitable.
- Notarized copies of documents proving the identity of each of the founding shareholders.
- It is advisable to immediately provide the information of the selected accountant, so as not to waste time on making changes to the constituent documents.
Registration of a PJSC is a rather lengthy and labor-intensive process, so you should be patient. Or still think about an intermediary company that will do everything for you.
Non-public joint stock companies have appeared in the business community. And all because sensational amendments to the Civil Code were adopted. What are they? Which ones appeared in Russia in accordance with them? What should the correct name of a non-public joint stock company sound like if we are going to conduct business within this legal form? We will try to answer these questions and at the same time consider the most remarkable nuances that reveal the essence of legislative innovations.
New law
Such a phenomenon as non-public is completely new for Russia. This term became widespread only after some legislative reforms carried out in September 2014. Then several amendments to the Civil Code of the Russian Federation came into force. According to them, joint stock type how the types of organizational and legal form of operation of enterprises received a different name. Now other terms are in circulation, namely “public” and “ordinary” society. What are they?
Public companies now include organizations that own shares and securities that are placed in an open format (or traded on the market in accordance with the norms of legal acts regulating the turnover of securities). Other types of business companies - closed joint stock companies, as well as open joint stock companies, which do not have securities in free circulation, receive the status of "ordinary". Their name sounds like some kind of addition. We also note that this format of organizing enterprises, such as ALC, in principle, was not classified and abolished in any way. Therefore, companies established before September 2014 must be renamed accordingly. The new ones will function in the status established by law.
Terminology nuances
The new law does not contain a term that sounds specifically like “non-public joint stock company”. Thus, such an organizational and legal form as a closed joint stock company has not received a direct analogue. However, if an organization still has shares, even if they have not been put into free trade, the use of the term “non-public joint stock company” in relation to them is quite acceptable in an informal manner. In turn, an LLC in which there are no shares (there is only authorized capital) is called as before.
So, the main criterion for “publicity” is open trading in shares and other securities. In addition, experts note that another aspect is no less important. The “publicity” of a joint-stock company, in addition, must be reflected in its charter.
We also note that according to the new law, the re-registration of organizations in order to bring their names into compliance with the amendments does not need to be carried out urgently. In addition, when carrying out the corresponding procedure, companies do not need to pay state duty. Interesting fact- amendments to the Civil Code of the Russian Federation, about which we're talking about, were initiated by the authorities back in 2012.
Is LLC a non-public company?
In relation to such an organizational and legal entity as an LLC, there is a peculiarity regarding the amendments to the Civil Code of the Russian Federation under consideration. On the one hand, in the new edition of the Code, LLCs are now classified as non-public companies, on a par with “former” closed joint-stock companies. On the other hand, other provisions of the Civil Code of the Russian Federation say nothing about changing their status. Thus, an LLC is seemingly a “non-public company”, like a closed joint-stock company, and at the same time, an independent organizational and legal form of an enterprise.
Three types of societies
So, what do we have in terms of amendments to the law? There remain three main types of organizations in Russia.
1. Public joint stock companies
These are enterprises that have freely circulating shares. In any case, these are “former” JSCs.
2. Two subtypes of non-public companies:
JSCs that do not have shares in free circulation (this can be either “former” closed joint stock companies or open joint stock companies with unissued securities) are informally referred to as “non-public joint stock companies”;
LLC without shares.
The former SDOs have been abolished. Those companies that have managed to register in this status will now be subject to the rules specific to LLCs.
Re-registration nuances
What should already registered companies do? Do they need to rename in accordance with the new norms of the Civil Code of the Russian Federation? Lawyers believe not, based on the content of the amendments to the Code. The fact is that in paragraph 11 of Article 3 of the relevant law on the renaming of companies, organizations that were created before the amendments entered into force and have signs of being public are automatically recognized as such. In turn, the closed joint-stock company also does not have to be re-registered, however, only until the moment when changes are made to the charter - this is what paragraph 9 of article 3 of the law on amendments says.
Re-registration algorithm
Let's consider how the re-registration (renaming) of a company should be carried out in practice, if the need for this nevertheless arises. The procedure consists of the following main steps.
First, the company fills out an application on form number P13001, which is approved by the Federal Tax Service. Then the company attaches the following documents to it:
Minutes of the meeting of founders (shareholders);
New charter of a non-public joint stock company.
There is no need to pay a fee, as we said above. The next stage is putting it in order. In particular, the abbreviation CJSC and the corresponding term “closed joint-stock company” should be renamed JSC. After this, it is also necessary to change the structure of the seals, make changes to bank documents, and also send information to partners that such and such a closed joint stock company is now a non-public joint stock company. In this regard, some experts still recommend carrying out the renaming procedure so that counterparties and possible investors can understand more clearly what type of company they are or will be cooperating with. Although the law does not require this by default.
Some experts note, referring to paragraph 1 of Article 97 of the Tax Code of the Russian Federation, that JSCs that have signs of “publicity” are required to add a corresponding indication to their name. “Non-public” joint-stock companies, at their discretion, can do the same if shareholders intend to announce that the securities will be available for public subscription.
Register and registrar
We also note the fact that the amendments to the Civil Code of the Russian Federation were also accompanied by a number of by-laws. These, in particular, include one of the Letters from the Bank of Russia. It reflects the obligation of organizations to transfer to a specialized registrar - be it an open or non-public joint stock company - the register of shareholders. This is a mandatory order of the Central Bank for all joint-stock companies, as lawyers note. If an open or non-public joint stock company has not yet transferred the register of shareholders to anyone, then its founders must carry out a number of procedures. Namely:
Select a registrar and discuss with him the terms of the agreement for maintaining the register;
Prepare relevant documents and information;
Conclude an agreement with the registrar;
Disclose information (if the AO is directed to do so) about the partner firm;
Notify persons whose data is included in the registration documents;
Transfer the register to the partner organization;
Enter information about the registrar into the Unified State Register of Legal Entities;
Significance of reforms
What are the practical consequences of reforming CJSCs and OJSCs? Experts believe that the state can now control the work of joint stock companies more actively than before. In particular, all joint-stock companies will have to undergo a mandatory audit, both public ones and those whose shares are not freely traded. The status of JSC securities does not matter. Even for such a form of business as non-public joint stock companies, audit becomes a mandatory procedure.
In this case, the auditor should not be associated with the interests of the audited joint-stock company or personally with the shareholders of the company. The subject of the audit is accounting and financial reporting. Owners of more than 10% of the corporation's assets (shares or authorized capital) can initiate an unscheduled inspection. The criteria for carrying out this procedure may be reflected in the charter of the JSC.
We also note that a number of other amendments were made to the Civil Code, complementing those that we are considering. In particular, the company can now employ several people in positions general director. However, the charter of a non-public joint stock company or its “open” analogue must contain information about the powers of each person. It is interesting that the position of chief accountant can be exclusively one-person. Another significant innovation is that some types of decisions made by shareholders of companies must now be notarized.
Significant changes concern, for example, such a nuance as the method of confirming the list of persons participating in the meeting of shareholders. For public joint-stock companies, a standard has been established - the corresponding procedure can be carried out by a person who maintains the register of shareholders and at the same time performs the functions characteristic of the counting commission. These are the innovations. In turn, in such a form of business organization as non-public joint stock companies, the maintenance of the register can also be carried out by an executive person, but its function, which is related to determining the composition of participants in the meeting, can be performed by a notary. In addition, as some lawyers note, the specifics of this procedure can also be prescribed in the charter of a non-public company - the law does not directly prohibit this.
Also, the new edition of the Civil Code changed the procedure for transforming one company into another. Now a joint-stock company can become an LLC, or a cooperative. At the same time, the JSC loses the right to become a non-profit organization.
Corporate agreement
The amendments to the Civil Code also introduced a new term into legal circulation - “corporate agreement”. It can be concluded by shareholders of companies if they wish. If they do this, then if the JSC is public, the contents of the document must be disclosed (however, current rules governing this procedure have not yet appeared). In turn, if the “corporate agreement” was drawn up by a “former” closed joint-stock company, a non-public joint stock company, then the law does not require disclosing its details.
Changes in the charter
There are a number of nuances that are useful to pay attention to for JSC owners who decide to organize. New edition The Civil Code contains a number of new requirements for this constituent document. Let's consider the clauses that a standard charter of a non-public joint stock company may contain. Knowing them can be useful both when creating a new company and when re-registering an existing one. So, the form of the charter of a non-public joint stock company must include the following points:
Corporate name of the organization;
An indication that it is public (if the actual activities and type of action correspond to this);
The procedure and conditions under which the audit requested by shareholders who own at least 10% of the securities will be carried out;
Name settlement where the company is registered;
List of rights and obligations of the founders of the company;
Features of the procedure in which some shareholders notify others that they will go to court with independent claims;
List of rights established for persons forming the collegial management structure of the company;
Information on the distribution of powers between various internal corporate structures.
What other nuances does work on the charter include? The following fact can be noted: when a non-public joint stock company is registered, information about the sole shareholder is not required to be included in the main constituent document. Or, for example, information about how the composition of participants in shareholder meetings is determined - the law in this sense gives the owners of non-public companies relative freedom of action.
The sample charter of a non-public joint stock company, which we outlined above, can also be supplemented with a number of provisions. True, this requires a unanimous decision of the founders. But if it is received, then it is permissible to include the following provisions in the constituent document:
On the assignment of issues resolved at the general meeting to the competence of the collegial management structure of the company;
On determining the cases that determine the creation of an audit commission;
About how the meeting of shareholders is carried out in a special manner;
On the procedure for granting the pre-emptive right to purchase securities that are converted into assets of the company;
On the procedure for consideration by the general meeting of those issues that, according to the legal acts of the Russian Federation, do not fall within its competence.
This is a very approximate example of the charter of a non-public joint stock company. However key nuances, which are useful for entrepreneurs to pay attention to, we touched on.
The essence and characteristics of public and non-public societies
In order to understand how to determine the status of a particular society, it is necessary to analyze the norms that define these categories.
Public society - a joint stock company whose shares and securities convertible into its shares:
publicly posted (through open subscription);
and/or publicly traded under the terms and conditions required by securities laws.
The rules on public companies also apply to joint-stock companies, the charter and company name of which contain an indication that the company is public (Clause 1, Article 66.3 of the Civil Code of the Russian Federation).
Public company is a business company based on shares (securities), who are placed and circulate among an indefinite circle of people. This is a society with an unlimited and dynamically changing composition of participants. Publicity means that the corporation focuses on an unlimited number of participants (shares are offered for sale to a wide range of people).
Public companies are characterized by a large number of diverse shareholders. In order to ensure a balance of interests of the latter, the activities of such joint-stock companies are primarily regulated by imperative norms, which prescribe unambiguous, standard rules of conduct for participants in the corporation. The use of standards that cannot be changed at the discretion of the prevailing participants in the society guarantees the attraction of investors.
Public companies borrow on the securities market among an unlimited number of people; they cover a larger array of diverse investors: institutional (state, banks and investment companies), collective (collective investment funds, pension funds), small individual investors. The activities of public companies are to a greater extent regulated by imperative norms designed to ensure a balance of interests of a heterogeneous and dynamically changing mass of investors. Therefore, this type of economic society, unlike a non-public one, has little freedom of intra-corporate self-organization.
Non-public company - a business company that does not meet the criteria established by law for public companies. This is a limited liability company and a joint stock company that does not meet the criteria specified in paragraph 1 of Art. 66.3 of the Civil Code of the Russian Federation (clause 2 of Article 66.3 of the Civil Code of the Russian Federation).
Non-public companies are, firstly, business companies whose shares are placed among a predetermined circle of persons and are not publicly traded. Secondly, this category includes companies based on a low-current asset - a share in the authorized capital of an LLC. Such companies are focused on a limited, small, predetermined number of participants. They can use special mechanisms to control the personal composition of their participants and they have much more freedom of internal corporate self-organization.
The activities of non-public companies are primarily regulated by dispositive norms of legislation, allowing for the establishment of individual rules of conduct (interaction) for corporation participants at their discretion. Non-public companies do not borrow from open market. They are addressed with more dispositive norms; they have potentially greater freedom of internal corporate self-organization - that is, the ability to establish rules of interaction at their own discretion.
Currently, the divide between strong mandatory regulation of intracorporate relations and significant dispositive principles passes between two types of business companies - joint stock and limited liability companies. The reform of the Civil Code of the Russian Federation shifted it along the line of public and non-public companies.
Criticism is expressed about the unification into a general type of business company (non-public) of various types of business companies: joint-stock companies based on shares and limited liability companies based on shares in the authorized capital. According to some experts, this leads to a mixture of these essentially different economic societies.
