A differentiated approach can be combined with an individual one. Differentiated and individual approach to learning

Sayapina Irina Anatolyevna - Lecturer, Department of Civil Law and Procedure, Volga University named after V.N. Tatishchev (Tolyatti).

A limited liability company, like any other organization that has the status of a legal entity, is characterized by a sign of property isolation. The property of the company, formed at the expense of the contributions of its participants during the creation, as well as acquired in the course of activity, belongs to the company on the basis of the right of ownership.

Federal Law "On Limited Liability Companies" dated February 8, 1998 N 14-FZ<*>does not imperatively provide for the obligation of the company to engage in entrepreneurial activities, but indicates its ability to have any civil rights and bear the obligations necessary to carry out any types of activities that are 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 a limited liability company, which is confirmed by statistical data.

<*>Federal Law of February 8, 1998 N 14-FZ (as amended on March 21, 2002) // Collection of Legislation of the Russian Federation. 02/16/1998. No. 7.

According to the Russian Ministry of Taxes and Duties, as of October 1, 2003, the Unified State Register of Legal Entities included more than 2 million organizations, 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 - 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 permissible 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 founding agreement of an LLC) related to the creation of a property base, increment of property of a limited liability company, as well as disputes in the field of property relations of a company in out-of-court and in judicial order. These can 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 that have a monetary value, with an increase or decrease in the authorized capital, redistribution of shares in the authorized capital, making contributions to the property of the company , which are not contributions to the authorized capital and other categories of disputes.

<*>Civil and commercial law foreign countries. Volume I. Edition 4, revised and supplemented / Ed. ed. E.A. Vasiliev, prof. A.S. Komarov. M.: International relations, 2004. S. 241.

Based traditional understanding entrepreneurial activity as independent activity carried out at your own risk, aimed at systematic profit, and also taking into account fundamental principle liability in the implementation of entrepreneurial activities - "responsibility without fault" with all their own property, the issue of forming the property base of a business entity (in this case - LLC) seems to be key.

The establishment of a limited liability company involves a multi-stage process, the stages of which are: the conclusion of a constituent agreement and the approval of the charter of the company, the formation of the authorized capital (which acts as the "initial property base") by making contributions by the participants, determining the composition and competence of the company's management bodies, state registration of the creation companies in the body that carries out state registration of legal entities.

We emphasize in particular that at the time of the creation of a limited liability company, the “personification” of its property isolation 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 determines further property and organizational foundations of society.

The problems of the authorized capital of a limited liability company are certainly diverse, it covers not only the formation of the authorized capital at the stage of the company's creation, but also issues that arise in the process of the functioning of the company - in the event of an increase or decrease in the authorized capital of the company, the transfer of a share in the authorized capital to other members of the company and third parties, withdrawal of a member from the company, foreclosure on the share of a member of the company in the authorized capital, etc.

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

The legal structure of a limited liability company assumes that the authorized capital of the company is divided into shares of certain founding documents sizes. Participants (or the sole 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 by virtue of the exclusion of personal property liability of participants for the obligations of the company.

Since a limited liability company is a type of commercial organization based on the pooling of the capitals of its participants, issues related to the formation, structure, size of the authorized capital acquire key importance at the stage of the company's creation. However, it should be clarified that a limited liability company is not a pure form"association of capital", as, for example, a joint-stock company; it also has elements of personal participation of the founders, which are characteristic of such an organizational and legal form of a legal entity as a partnership.

In our opinion, the concept that has developed in Russian and foreign civil law<*>, according to which a limited liability company is characterized by a dual legal nature (it simultaneously acts as 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 economic company. Internal legal relations (i.e. legal relations between participants) in an LLC have certain properties of partnerships that can be strengthened or, conversely, 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 Serova O.A. Ownership of a limited liability company / Dis... for competition degree cand. legal Sciences. Kolomna Pedagogical Institute. Kolomna, 2001, p. 70.
<**>Stepanov D. Limited Liability Companies: Legislation and Practice // Economy and Law. 2000. N 12. S. 56.

At first glance, with all the apparent clarity and unambiguity of the meaning of the concept "authorized capital of an economic company," its content should be interpreted uniformly in science. However, this is not the case. There are several reasons, in our opinion.

The possibility for a different interpretation of the concept of "authorized capital" opens up due to the fact that in the Russian legislation on business companies there is no legal definition of it. The legislator seems to deliberately not disclose the content this concept. 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 the formation of the company's property base begins with the question of the structure of the authorized capital and determining its minimum size at the time of the company's creation; further, the legislator establishes the procedure for making contributions by participants to the authorized capital of an LLC (placement of shares - in a joint-stock company), regulates the procedure for increasing, decreasing the authorized capital, etc.

<*>Federal Law of February 8, 1998 N 14-FZ (as amended on March 21, 2002) // Collection of Legislation of the Russian Federation. 02/16/1998. No. 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.

This appears to violate logic diagram regulation of the legislative process of establishing a company: as it were, the initial link "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 companies, the concept of "authorized capital" was not actively used. Soviet legal and economic literature to designate the property base of the enterprise used the concept of "statutory fund", which had in more accounting rather than legal value. The authorized capital was understood as "the monetary value of 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. S. 38.

In general, in the Soviet period, the problems of the essence, structure, and functions of the authorized capital were studied mainly in connection with the analysis of the relevant provisions of the foreign law of business entities. In this context, the authorized capital was defined, for example, as "capital, the amount of which is fixed in the charter"<*>- the specified definition on formal grounds is not quite logically sustained, tk. contains a "circle" and does not isolate the features of the concept being defined. R.T. Batista considered the authorized capital as "a permanent accounting cipher ... expressing property that should exist, and not what really exists"<**>. The above definitions suffer from a certain one-sidedness and, in our opinion, do not exhaustively reflect the legal nature of the authorized capital.

<*>Kulagin M.I. Selected works. M.: Statut, 1997. S. 85.
<**>Batista R.T. Legal regulation of joint-stock companies in Panama / Abstract of the thesis. for the degree of Cand. legal Sciences. M., 1978. S. 80. Cited. by ed.: Tarasenko Yu.A. Creditors: protection of their property rights. M.: Yurkniga, 2004. S. 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 is 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 // OOO. Library " Russian newspaper". Issue N 13. 2000. S. 110.

In our opinion, this concept is quite 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 the position of O.A. Serova, according to which consideration of the legal nature of the authorized capital of a limited liability company from an economic and civil law position is one-sided and "it makes no sense to distinguish between the concept of authorized capital, depending on who is involved in its research: a lawyer or an economist"<*>. There are no differences in the concept with an integrated approach, the same concept is, as it were, "illuminated" from different angles of view, which makes it possible to most fully reveal its content.

<*>Serova O.A. The right of ownership of a limited liability company / Dis... for the degree of Cand. legal Sciences. 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 size of the company's property that guarantees the interests of its creditors, and is determined by the total value 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 the 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 Federal Law of February 8, 1998 adopted later "On Limited Liability Companies" - "from the nominal value of the shares of its participants" (clause 1 article 14).

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

The nominal value of the participant's share is a conditional value, its size (in percentage or numerical fractional 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 a part of the value of the company's net assets at a certain point in time in proportion to the size of this share.

The concept of "participant's contribution" used by the Civil Code of the Russian Federation in the above context can be interpreted as a process of real transfer by a participant 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 speak of the authorized capital of the company as the nominal value of the shares, and not the value of the participants' contributions.

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

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

Delimiting 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 a share of a participant 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.

Arguments regarding the legal nature of the participant's share in the authorized capital of D. Stepanov's LLC are built 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 are revealed in the role that it plays throughout the entire period of the existence of the LLC "<*>. 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. No. 12. 2000. S. 62.

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

<*>Zalessky V. Society with limited liability in the system of economic partnerships and societies // Law and Economics. 1998. N 3. S. 19.

This obligatory legal aspect is strongly emphasized and, in fact, brought to the fore in the special literature. Commentators of the Federal Law "On Limited Liability Companies" state that "a participant's share in the authorized capital of a company, in essence, is a right of obligation"<*>.

<*>Commentary on the Federal Law "On Limited Liability Companies" / Ed. A.A. Ignatenko, S.N. Movchan. 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 an obligation-legal nature"<*>. They are acquired by the participants from the LLC in exchange for the contribution made to the authorized capital.

<*>Kamyshansky V.P. Some features of the formation of the authorized capital of LLC // Actual problems of private law regulation. Materials of the All-Russian IV scientific conference of young scientists. Samara, April 23 - 24, 2004 / Ed. ed. Yu.S. Pivovarov, V.D. Ruzanov. Samara: Samara University Publishing House, 2004, p. 79.

S.D. Mogilevsky defines that "the share (part of the share) of a participant in the authorized capital, being an object of civil rights, is nothing but a kind of objects 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 obligations (clause 2, article 48 of the Civil Code of the Russian Federation); secondly, "obligatory rights are nothing more than a kind of property rights, since the latter include the subjective rights of participants in legal relations related to the possession, use and disposal of property, as well as those material (property) requirements that arise between participants in civil circulation about the distribution of this property and the exchange"<**>.

<*>Mogilevsky S.D. Management Bodies of Business Companies: Legal Aspect: Monograph. M.: Delo, 2001. S. 79.
<**>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 true only for cases where the object of the legal relationship between the participant and the company is property or property rights. This does not take into account 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 property content are the rights of an informational, 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 a share in the authorized capital as a whole to such a type of objects as property rights narrows the content of the legal obligations of the participant and the company.

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

<*>

First, the author emphasizes the idea that a share is not a thing, an object or a security, and that it is not a property right either. Not recognizing the existence of a property right of a liability nature in a share, the author nevertheless argues that the debtor opposing the owner of the share is the company in the authorized capital of which the corresponding share is allocated. Thus, legal obligations already take place, despite the fact that, as V. Lapach points out<*>, "not only the cost, quantitative parameters of the claim are not known in advance, but even the moment the claim arises cannot be determined before the legal facts or conditions specified in the Law occur (withdrawal of a participant from a partnership or company; offer to sell a share by one of the participants with realization of the pre-emptive, proportional to the share of the 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 legal capacity of its own, 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 quality. Further, the author expresses a rather controversial provision that "a share is an ideal quota (part) in the ownership of the property of a company or partnership, a kind of analogue of a share in common property"<**>, but subsequently the author, as it were, departs from the position formulated by him, as if "softens" 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 on other grounds.

<*>There.
<**>There.

Since, according to V. Lapach, the actual property relations of the participants cannot be satisfactorily explained either from the point of view of law private property of a legal entity, and even more so by transferring provisions on common shared ownership to corporate property relations, the explanation for this phenomenon is the existence of a "special subjective right of participation, which has a unique property-obligatory nature"<*>. However, the argumentation of the "materiality" of the legal nature of the participant's share in the authorized capital of the company is not given.

<*>There.

The understanding of "proper rights" in civil law (in the most generalized 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 company participant (owner of a share in the authorized capital) and society. Therefore, the validity of the "materiality" of the participant's share in the authorized capital of the LLC, in our opinion, is doubtful.

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 in a closed joint-stock company, issued in non-documentary form.

The authors<*>who explored legal status 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 member of the company". Both the share and the share predetermine the forming, "starting" interest of the economic company, calculated in a monetary amount and providing a set of rights to the participant, while the degree of participation and the amount of the owner's losses depend on its (share or share) monetary value. The share and the share 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. No. 10; Lapach V.A. The 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 (according to the terminology of paragraph 1 of article 96 of the Civil Code of the Russian Federation - "shares") from shares in the authorized capitals of other companies (and joint capital of partnerships), consists in the same value of all shares ".

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

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

Summarizing the foregoing, 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 included in its entirety either 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 - it is the ability to satisfy the material and non-material needs of subjects, holders of the relevant 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 complex of characteristics peculiar only to it.

Abstraction. On the basis of 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 concretization of rights and obligations is carried out in each individual legal relationship: participant - society.
Obligatory-legal character. The share of the participant in the authorized capital of the company confirms the existence of the obligation of the participant's claim in relation to the company and vice versa; and also determines the amount of mutual obligations.
Combination of property and non-property principles. As noted above, the owner of a share in the authorized capital is endowed with a set 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 in the company. According to the general rule, the consent of the company or its other participants is not required for such a transaction.<*>. The sale or assignment in any other way by a member of the company of his share to a third party is allowed, unless this is prohibited by the charter of the company, and at the same time, other members of the company have the pre-emptive right to purchase the share of the participant selling it at the offer price to the third party.

<*>However, the charter of the company may provide otherwise, i.e. the need to obtain the consent of the other participants of the company to make these transactions. Existence in charter similar rules regarding the alienability of a share, it aims to limit the possibility of redistributing shares within the company itself and thus maintain a relatively stable balance between the participants in the company. With such a construction, 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 designated the structural component of the category "authorized capital of 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, let us designate the "forming" 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 the "starting" function, since it gives the primary impetus to the activities of society, as if creating a material "reserve" for the future.

Unfortunately, we have to state that the significance of this function of the authorized capital in the context of practice is not as great as the theoretical construction 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 when it was created. The size of the authorized capital of the company 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 No. 82-FZ of 19.06.2000 and Federal Law No. 198-FZ of 29.12.2004, the minimum wage for calculating payments under civil law obligations is 100 rubles.

In terms of comparative analysis Here are the legal 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 an order of magnitude lower and amounts to 2,000,000 lei (which corresponds to about 60 euros)<*>; in the Baltic States, the minimum 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, more high size the minimum authorized capital required to establish 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. No. 12. P. 707.

These figures make it possible to assess the importance the legislator attaches to the forming function of the authorized capital of an LLC. When frankly formal approach to the establishment of a 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 amount of the authorized capital of an LLC during its creation, but also by preventing the founders of the company from being released from the obligation to make contributions to the authorized capital of the company (paragraph 2, clause 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 a clear disregard for it. This is evidenced by the value of the minimum authorized capital in the Russian Federation. At the same time, one should take into account the fact that the authorized capital of the company at the time of its registration must be paid at least half, and the rest must be paid during the first year of the company's operation. Thus, in fact, at the time of its 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 value of the minimum authorized capital, one can judge the degree of security and guarantee of the interests of the creditors of the LLC.

In our opinion, it is necessary to increase by law, and not less than several times, the minimum allowable value of the authorized capital of a limited liability company in the Russian Federation. This will solve a number of problems related to:

the creation of a more solid 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,
stimulation of activity in the activities of the participants of the company in their chosen direction of entrepreneurial activity,
ensuring a higher discipline of the participants in the society (an 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, the establishment of a single minimum rate of the authorized capital for all limited liability companies, regardless of the nature, scope of activities, number of participants.

In this section, we support the point of view of the authors<*>who believe that the establishment of a minimum amount of the authorized capital in such a form, as provided for in Russia, is ineffective. S. Aigner-Heger writes: "... it should be borne in mind that the amount of necessary financial resources for running a particular business is determined in each separate case(for example, the implementation of the production of products requires much more capital than the provision of consulting services). One general minimum amount of the authorized capital cannot meet the requirements of any subject of activity"<**>. As a result, a situation arises: the actual provision of the rights of creditors in limited liability companies with the minimum allowable amount of authorized capital, but significantly different in terms of the volume of economic activity, the number of creditors and the amount of debts, will differ by an order of magnitude. This goes against the civil law principle of justice.

<*>See, for example: Aigner-Heger S. Limited Liability Company in Comparative Civil Law of Russia, Germany, England / Dis... for the degree of Cand. legal Sciences. M., 1994. S. 71; Tarasenko Yu.A. Creditors: protection of their property rights. M.: Yurkniga, 2004. S. 44.
<**>Aigner-Heger S. Limited Liability Company in Comparative Civil Law of Russia, Germany, England / Dis... for the degree of Cand. legal Sciences. M., 1994. S. 71 - 72.

Therefore, it makes sense to legally establish a differentiation of requirements for the minimum amount of the authorized capital of business companies depending on such an indicator as the nature of the activity (taking into account which direction of the company's activity acts as the main one - trade and procurement, production or agricultural activities, the provision of services, etc.). .p., which should be clearly defined in the founding 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, the essence and purpose of the authorized capital of an LLC is manifested in the guaranteeing and security function.

<*>See, for example: Gorlov V.A. Legal issues of creating the authorized capital of a limited liability company // Journal Russian law. 2000. N 4. S. 49; Serova O.A. The right of ownership of a limited liability company / Dis... for the degree of Cand. legal Sciences. Kolomna Pedagogical Institute. Kolomna, 2001, p. 82.

Let us designate the main problems of the Russian law of business entities that arise on the way to the implementation of the guaranteeing function of the authorized capital:

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

b) the absence in the legislation of restrictions on the expenditure of the authorized capital on the part of the founders. "Not inviolability" of the authorized capital can minimize the possibility of real satisfaction of the requirements of the company's creditors. German civilists, focusing on this problem, emphasize that since the managers of a company can use its authorized capital in the interests of the company (for the acquisition of means of production, payment of 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 society;

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

c) inadequate state of the legal framework governing 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 that characterizes the state of the company's real property, free from obligations, and indicates the actual ability of the company to fulfill its obligations. In the context of the implementation of the guaranteeing function of the authorized capital, the net assets of the LLC must be taken into account, since their value should not be smaller size authorized capital (clause 3, article 20 of the Federal Law of the Russian Federation "On LLC").

According to par. 3, paragraph 3 of Art. 20 of the LLC Law, the procedure for determining the value of the company's net assets should be established by 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 certainly necessary to adopt a special federal law that determines the procedure for assessing the value of the net assets of business entities. In our opinion, for the purpose of legislative economy, this federal law should extend its effect not only to limited liability companies, but also to other business companies (joint stock company, additional liability company).

Until the required federal law is adopted, taking into account previous practice, limited liability companies in 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 01.29.2003 N 10n / 03-pz "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 a value determined by subtracting from the sum of the assets of the joint-stock company accepted for calculation, the amount of its liabilities accepted for calculation;

d) the absence of clear legislative criteria regarding the form of depositing the so-called non-monetary<*>contributions of participants to the authorized capital of a limited liability company at the stage of its establishment. The law only defines indicative list types of non-monetary contributions that can be made to the authorized capital of an LLC, while it does not contain common criteria or indications of a non-monetary contribution. This makes it possible to form the 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 should include real property that can satisfy the claims of potential creditors"<**>.

<*>The Federal Law on LLC (clause 1, article 15) stipulates that money, securities, other things or property rights or other rights having a monetary value can be a contribution to the authorized capital of a company. Forms of deposits, with the exception of cash, are traditionally grouped under the concept of "non-monetary contributions".
<**>Sukhanov E.A. Economic companies and partnerships, production and consumer cooperatives // Bulletin of the Supreme Arbitration Court of the Russian Federation. 1998. N 6. S. 100 - 109.

It should be noted one more function of the authorized capital - "certifying", or, in other words, it can be called "participation function". It allows you to establish the degree of interest of each member of the company in the activities of the company, since, depending on the size of the share of the participant in the authorized capital, the voting structure of the participants is determined when decisions are made at the general meeting of the participants in the company, and the profit received by the company is distributed.

As a general rule, each member of the company has a number of votes at the general meeting of members of the company in proportion to its share in the authorized capital of the company (paragraph 3, clause 1, article 32 of the Federal Law "On Limited Liability Companies").

However, as a result of the analysis of the norms of the legislation on LLC, it can be concluded 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 charter of the company, by decision of the general meeting of participants, may establish a procedure other than in proportion to the share in the authorized capital, the procedure 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 vested with 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 the alienation of the share of a participant endowed with additional rights, these additional rights do not transfer 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 "authenticating" function of the authorized capital is manifested more significantly in such a construction of a limited liability company as an LLC created by one participant. Unlike LLC, formed by two or more persons, in a company with a single participant, "association of persons" and "unification of capital" does 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 about the functional component of the category "authorized capital of an LLC", it should be stated 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's participants themselves.

Any newly created enterprise needs initial funds to conduct financial and economic activities and create sources of income. These funds can be expressed in cash, securities, property or rights to it. Together, they form the authorized capital. In the article, we will talk about how the Criminal Code is formed, why it is needed, how it is taken into account in accounting, consider accounting entries on account 80.

The concept of authorized capital (UK)

This concept is understood as the amount of funds initially invested by the owners or founders, necessary for the implementation of activities in accordance with the charter. In the case of a state or municipal enterprise, the concept of an authorized fund is used. The means of the authorized capital are those with which the economic entity is responsible to creditors.

Important functions of the Criminal Code:

Providing the enterprise with initial funds for commercial and other activities.
Guarantee of fulfillment of assumed obligations to creditors.
Determination of the share of each owner or shareholder in the total capital and income.

For each type of enterprise, the relevant laws define the minimum allowable amount of authorized capital. It is:

for LLCs and partnerships - 10,000 rubles
for CJSC - 100 minimum wages (the current value of the minimum wage)
for OJSC - 1000 minimum wages
for a municipal enterprise - 1000 minimum wages
for a state-owned enterprise - 5,000 minimum wages.

It should be noted that in modern conditions the authorized capital in the minimum amount is often insufficient both for the implementation of competitive activities and for the possibility of being a collateral for the funds raised. Therefore, many enterprises tend to declare the authorized capital in accordance with the actual market needs. In general, it should be understood that the amount of the UK is considered a very conditional indicator of the financial position of the enterprise. So, for example, shares in it are accounted for at face value, while their real value can grow several times.

Formation of the authorized capital

When registering, an economic entity independently determines the size and structure of its authorized capital, taking into account the minimum amount established by law. To deposit the cash component, a bank account is opened, which will later be used as the current account of the enterprise. State registration is carried out upon depositing 50% of the amount of the authorized capital into this account. When establishing joint-stock companies, payment of half of the required amount must be made within three months after registration, and full payment - within a year.

The method of formation of the Criminal Code depends on the organizational and legal form of the subject of economic activity.

For limited liability companies (LLC) and economic partnerships, the authorized (share) capital is formed from the contributions of their participants and is divided among the contributors in accordance with the contributed shares.

For joint-stock companies (JSC), the authorized capital is created by the initial issue of shares and represents the total nominal value of the placed securities. For state and unitary enterprises, the statutory fund is created by the state or local authority management.

When changing the organizational and legal form of the entity or the occurrence of other circumstances, it is possible to change the authorized capital in one direction or another.

Increase in UK can be done in the following cases:

lack of working capital
requirements of licensing authorities to the size of the authorized amount
admission of new participants contributing to the UK
use of a part of unspent profit for contribution to the authorized capital
increase in the face value of shares, additional issue (for joint-stock companies).

To increase the authorized capital, it is necessary to fulfill a number of conditions related to its size and the value of the net assets of the enterprise. The decision to increase the authorized capital is made by the general meeting and drawn up in the relevant minutes. Then the changes in the constituent documents are confirmed by the registration authorities.

MC reduction may occur if:

retirement of founders and the need to return their contributions ()
when reducing the par value of shares or their repurchase
in case of non-coverage of the accepted authorized capital by a subscription for shares
in other cases stipulated by the legislation.

The decision to reduce is also taken by the general meeting of co-founders (shareholders), which fixes all the changes that occur in the constituent documents. It is necessary to notify creditors of the adopted reduction of the authorized capital. Further, a package of documents is prepared and the reduction is registered.

You can learn more about the features of the procedure for reducing and increasing the authorized capital in.

Accounting of the Criminal Code (postings)

The balance on account 80 corresponds to the accepted amount of the authorized capital. Postings on the account occur during the formation of the Criminal Code, and then in case of changes in the value, after they are fixed in the constituent documents. For joint-stock companies, this account may have sub-accounts by types of shares (common or preferred) and by stages of formation of the authorized capital. Analytical accounting is carried out according to the founders of the enterprise and types of changes in the authorized capital.

The accounting procedure in economic entities of various forms of ownership is regulated by the relevant federal laws and regulations. The correctness of accounting of the Criminal Code is controlled by periodic audits of enterprises.

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

Art. 25 of the JSC Law 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 charter of the company, counterparties have the opportunity to decide on the advisability of entering into business relations with this legal entity based on an assessment of its solvency. “Due to the limited liability of shareholders, this capital is the only
the essential object of the satisfaction of its creditors, the sole basis of its credit... A joint-stock company is a union not of individuals, but of capitals; its credit does not depend on the personal credit of this or that participant, but on the accumulated capital. The current legislation establishes that shareholders risk losing their invested funds, but are not liable for the debts of a joint-stock company with personal property.

V.V. Dolinskaya identifies two main measures aimed at fulfilling the guarantee function by 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 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 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 the law the minimum size of the company's authorized capital.

It seems necessary to single out 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) establishment of 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, declared 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 size of the authorized capital;

5) granting additional rights to creditors 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 the authorized capital of joint stock companies. For an open joint-stock company, a minimum of at least a thousand times the amount of the minimum wage is established, for a closed joint-stock company - at least a hundred times the amount. This takes into account the minimum wage set by federal law as of the date of state registration of the company (Article 99 of the Civil Code of the Russian Federation and Article 26 of the JSC Law). Therefore, given the constant change in the minimum wage, for societies created in different periods time, it can be different values. The law does not establish the obligation of the company to increase the authorized capital following the increase in the minimum wage. However, if the company wishes to reduce its authorized capital, the minimum wage that exists on the date of registration of such changes, and not on the date of registration of the joint-stock company as a legal entity, is taken into account. But if the 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 amount 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. Such an exception to general rule due to the characteristics 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 minimized.

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 full 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 on the minimum amount of the share capital of a general partnership and a limited partnership.
re. The minimum size of the share 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 establishment in the law of the minimum amount of its authorized capital.

The establishment at the legislative level of the minimum amount 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 characteristic of foreign legislation.

The second EU directive on commercial partnerships 72∖91 of December 13, 1976 established the mandatory establishment in national legislation of a 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 the law of the Federal Republic of Germany, must have an authorized capital of at least 50 thousand euros (par. 7 of the Joint-Stock Law of the Federal Republic of Germany).

Ensuring the actual formation of the authorized capital, declared 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 an open subscription for shares of a company until the authorized capital is 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 during the establishment of a joint-stock company must be distributed among the founders (clause 2, article 25 of the Law on JSC and clause 3, article 99 of the Civil Code of the Russian Federation).

It is interesting that in the early stages of the development of joint-stock companies as an independent organizational and legal form of a legal entity, in the domestic legal literature, legislation was criticized that required or allowed the distribution of all shares of the future company among the founders. Such a foundation of I.T. Tarasov called "inflated" and advocated a ban on this method of distribution
shares. The reasons for this are the promotion of the stock market game, the possibility of abuse when the founders make non-monetary contributions, the unfairness of monopolizing the benefits from a successful enterprise, etc. He considered public and equal subscription for shares to be the only the right way formation of the capital of a joint-stock company (of course, if a complete and reliable prospectus is available). The participation of the general population 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 laws allow an open subscription for shares when establishing a joint-stock company, or establish two methods of establishment - with and without a public subscription. The Hungarian Law on Business Companies allows for a subscription (public sale of shares), or a closed circle establishment (the founders agree that they themselves will acquire all the shares). 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 at the time of establishment is also possible under Bulgarian law.

In some cases, the foreign legislator requires the founders to retain a certain minimum part of the issued shares. For example, the Law of the People's Republic of China on Companies in Art. 74 provides that the formation of a joint stock company may be carried out in the following forms: by initiators (initiators who create a company subscribe for all shares to be issued by the company) or by raising funds (initiators
subscribe to a part of the shares, but not less than 3 5 percent of the total number, while they do not have the right to sell them within three years from the date of the company's formation. The rest of the shares are distributed by 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 among the founders, but also among the persons invited by them to participate in the joint-stock company, and such an invitation could also be made through public announcement(Article 326). However, the founders had 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 trend of joint-stock law. There are other mechanisms of control over the legitimacy of the establishment of 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 shareholders-subscribers. In addition, the problem of the so-called "failed" due to the non-distribution of all declared shares of companies is eliminated. Nevertheless, there are proposals in the literature to introduce a public subscription when establishing a society. For example, M. Antokolskaya proposes, while retaining a fairly large stake (up to 50 percent) for the founders, to allow the distribution of the remaining shares among an indefinite circle of persons for a certain number of years.

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

The formation of the authorized capital is possible if the value of the authorized capital corresponds to the value of the shares representing it. In this regard, Art. 36 of the JSC Law establishes that payment for the company's shares placed at its establishment, as well as additional shares, is made at a price not lower than the nominal value of these shares. At least 50 percent of the company's shares must be paid 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 in full (art. 34 JSC Law). Shareholders who have not paid their shares in full are jointly and severally liable for the company's obligations to the extent of the unpaid part of the value of their shares (Article 2 of the JSC Law).

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, but the shares are placed, it is necessary that the capital receive a real filling with liquid assets. To this end, 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, Article 99 of the Civil Code of the Russian Federation).

When a company is established, the assessment of property contributed as payment for shares is made by a 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 JSC Law. But in any case, the monetary valuation of such property cannot be higher than the value of the valuation made by an independent appraiser, who is necessarily involved in determining the market value of non-monetary contributions, unless otherwise provided by federal law (Article 34 of the JSC Law).

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

The procedure for evaluating contributions has always been a matter of considerable controversy. The very possibility and expediency of making, for example, objects of intellectual property as a contribution to the authorized capital is often called into question. “These objects can be of great importance for scientific activity, but in entrepreneurial activity their “usefulness” is conditional” ■ writes E.I. Goryainova, however,
the author further acknowledges that even if the authorized capital is paid in full in cash, in a market economy and inflation this does not guarantee full protection of the rights of creditors, and proposes to establish a certain ratio of monetary and non-monetary parts of the authorized capital.

V.V. Dolinskaya proposes to use the experience of developed countries, where exemplary procedures for the valuation of 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 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 should be based on the law, and above all, on the Constitution of the Russian Federation. The proposal to develop and introduce into legislation should be supported general principles and procedures for evaluating non-monetary contributions. It should be noted that at present professional appraisers offer rules for determining the value of intellectual property objects, for example, the Standards of the Russian Society of Appraisers, the Standards of the Association of Appraisers of Intellectual Property IREA, etc.

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

Maintaining the value of the company's property at a level not 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 the rules that establish requirements for the ratio of the value of the company's net assets to the size of its authorized capital.

To achieve this goal, the rules governing the payment procedure are also aimed
dividends, rules prohibiting the acquisition by the company of its own shares, or the return to the shareholder of the contribution made for other reasons.

The value of the net assets of a joint-stock company is understood as a value determined by subtracting from the sum of the assets of the joint-stock company accepted for calculation, the amount of its liabilities 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 turns out to be less than its authorized capital, the company is obliged to announce the reduction of its authorized capital to an amount not exceeding the value of its net assets. If the value of net assets turns out to be less than the value of the minimum authorized capital, the company is obliged to make a decision on its liquidation. If the company fails to make an appropriate decision within a reasonable time, its creditors have the right to demand from the company early termination or performance of obligations and compensation for losses.

In addition, if these decisions have not been made, the body that carries out the state registration of legal entities, or other government bodies or local self-government bodies, to which the right to present such a claim has been granted by federal law, have the right to file a claim with the court for the liquidation of the company (Article 35 of the JSC Law).

As S.K. Elkin, 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 should 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 size of the authorized capital . Such a situation may arise if the participants have not paid for their shares within a year (or another period provided for by the charter) and the ownership of these shares has passed to the company in accordance with Art. 34 of the JSC Law. It should be noted that
in practice, often the authorized capital is 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 version of Order No. Yun, OZ-6/pz, the company assesses the value of net assets not only at the end of the year, but quarterly, and the relevant information is disclosed in the annual and interim financial statements. But the decrease in net assets to a value less than the size of the authorized capital according to the results of the quarter does not entail the obligation of the company to reduce the authorized capital, since Art. 35 of the JSC Law establishes such a requirement only in relation to the financial performance of the company at the end of the reporting year.

One should also agree with the opinion of V.A. Belov that if, after the approval of the “passive balance sheet” (that is, the balance sheet with a negative value of net assets), the company functioned for at least another year and approved the annual balance sheet, according to which net assets exceed the size of the authorized capital, filing a lawsuit for forced liquidation society is no longer possible. However, there is no doubt that creditors have the right to take advantage of the provisions of paragraph 6 of Art. 35 of the JSC Law, the possibility of protecting their interests within the general three-year limitation period, even if a positive balance is approved based on the results of the further activities of the joint-stock company.

Not all authors consider it justified to establish in the law the requirement for the ratio of the authorized capital and the size of the company's net assets. V. Rutgaiser, opposing such strict legislative regulation, cites, in particular, the following as arguments: the incompatibility 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 in the direction of its convergence with international standards allows to eliminate or minimize some of the negative aspects of accounting given by the author.

M.G. Iontsev also believes that provided for in paragraph 6 of Art. 35 of the JSC Law, the possibility of liquidating a joint-stock company in connection with the excess of the authorized capital over the amount of net assets is unjustified. According to him, this norm, firstly, duplicates bankruptcy legislation: a decrease in the value of net assets indicates an inefficient management of the entity, which results in its recognition as insolvent. But as part of the bankruptcy procedure, the property of the company 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 JSC Law, there are no such positive aspects. In fact, the liquidation of a legal entity due to a decrease in the value of net assets is an accelerated bankruptcy procedure. Secondly, according to the author, the possibility of such liquidation can be used by the shareholders to "show things off", and, consequently, the tool of the joint-stock

Characteristically, Art. 35 of the JSC Law became the subject of consideration at a meeting of the Constitutional Court. The complaint of CJSC "Media-Most" challenged the constitutional
the validity of paragraphs 5 and 6 of Art. 35 of the JSC Law (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 suit 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 value of the minimum authorized capital provided for by law (at the same time, the company itself did not decide on its 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 suit of the company's shareholder (this right of the shareholder was canceled by the Federal Law of August 7, 2001).

The Constitutional Court came to the conclusion that these norms correspond to 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 the inefficiency of management. Compliance with the balance of interests of participants in civil turnover involves the elimination of inefficient economic entities, and the 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 law uses the criterion of solvency, and not the criterion of property sufficiency, 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 law 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 the obligation to pay mandatory payments, despite the fact that the shareholders had the opportunity to take measures to improve the financial situation of the company or decide on its liquidation in the proper procedure.

Foreign legislation contains most often similar rules in the service
tea to reduce the value of the company's property below the authorized capital provided by law, although in a less severe form. Yes, Art. 725 of the SHOZ 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.

The value of the company's property is also maintained by legislative restrictions on the payment of dividends. First of all, it is forbidden to make a decision on the payment of dividends before the full payment of the entire authorized capital of the company. The source of payment of dividends can only be the company's net profit. Only when paying dividends on preferred shares of certain types, the law allows the use of funds of the company's funds specially intended for this purpose (Article 42 of the JSC Law). According to E.V. Pestereva, “realization of the importance of paying a dividend 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 is not entitled 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 (to 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 amount of dividends, the law does not prohibit directing the entire profit of the company for these purposes. Nevertheless, each 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, expansion of 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, there is a falsification of balance sheet indicators by overstating asset items in order to distort the actual property status of the company in order to formally comply with the requirement of 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 company's creditors are granted additional rights in the event of a decrease in the amount of the authorized capital.

The constancy, 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 (Art. 2131, part X, vol. St. Law), the amount of the authorized capital was inextricably linked with the purpose of establishing this legal entity. “This capital ceases even to belong 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 predominant fixed capital over circulating capital are especially characteristic of the joint-stock form.

The modern legislation of the People's Republic of China on companies, fixing the permissive 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 the registered capital in excess of the established one, is decided specifically by adopting legislative and administrative regulations.

The stability of the authorized capital is a feature of a joint-stock company, which is due to the method of transferring the share of participation in the company of the shareholder. Exit from a joint-stock company is carried out by buying and selling shares, and not by allocating a share from the property of the company, 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 changing, especially reducing, is quite complicated. Russian legislation, establishing the rules for increasing and decreasing the authorized capital of a joint-stock company, pays special attention to its decrease, since this usually indicates the inefficiency 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 size within 30 days from the date of such decision. In addition, the company is also obliged to publish a notice of the decision taken in the appropriate printed publication. The creditors of the company have the right to demand early termination or performance of the relevant obligations and compensation for losses within 30 days from the date of sending the notification to them or within 30 days from the date of publication of the notice (Article 30 of the JSC Law). 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 a decrease in the authorized capital. State registration of such changes is carried out only if there is evidence of notification of creditors about the decision taken.

Thus, the value of the authorized capital, fixed in the constituent documents, is intended to express the value of the minimum size of the property of a joint-stock company. However, the authorized capital has largely lost its significance of guaranteeing the property rights of creditors. It is often quite difficult for counterparties to judge the financial condition of a joint-stock company by the size of the authorized capital fixed in the charter. The real value of the property of a joint-stock company may turn out to 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
share price, Russian joint stock legislation uses the concept of authorized capital as a fundamental one, and seeks to develop norms that ensure the real guarantee of the property rights of creditors by the authorized capital of the company. At present, the authorized capital as such guarantees the interests of creditors on initial stage the existence of the company, that is, during the period when the share of liabilities in the composition of the property of the joint-stock company is relatively small. In the future, the authorized capital ceases to be a set of property and performs a guarantee function insofar as the value of the company's net assets is compared with it.