Civil Code of the Russian Federation Article 97. Public joint stock company
ConsultantPlus: note.
If, as of 07/01/2015, the charter and name of a JSC created before 09/01/2014 indicate that it is a PJSC in the absence of signs of publicity, such a JSC must register a share prospectus before 07/01/2020 or change the charter, excluding public status from the name (Federal Law dated 06/29/2015 N 210-FZ).
ConsultantPlus: note.
JSCs created before September 1, 2014 and meeting the criteria of a PJSC are recognized as such, regardless of whether this is indicated in their name. For exceptions to this rule and refusal of public status, see Federal Law No. 99-FZ dated May 5, 2014.
1. A public joint-stock company (clause 1 of Article 66.3) is obliged to submit information about the company name of the company, containing an indication that such a company is public, for inclusion in the unified state register of legal entities.
A joint stock company has the right to submit information about the company's corporate name, containing an indication that such a company is public, for inclusion in the unified state register of legal entities.
A joint stock company acquires the right to publicly place (by open subscription) shares and securities convertible into its shares, which can be publicly traded on the terms established by securities laws, from the date of entry into the unified state register of legal entities of information about the company's corporate name containing an indication that such a society is public.
2. The acquisition by a non-public joint-stock company of the status of a public company (clause 1 of this article) entails the invalidity of the provisions of the charter and internal documents of the company that contradict the rules on a public joint-stock company established by this Code, the law on joint-stock companies and laws on securities.
3. In a public joint-stock company, a collegial management body of the company is formed (clause 4 of Article 65.3), the number of members of which cannot be less than five. The procedure for the formation and competence of the said collegial management body are determined by the law on joint stock companies and the charter of the public joint stock company.
4. Responsibilities for maintaining the register of shareholders of a public joint-stock company and performing the functions of the counting commission are carried out by an organization that has a license provided for by law.
(see text in the previous edition)
5. In a public joint stock company, the number of shares owned by one shareholder, their total par value, as well as the maximum number of votes granted to one shareholder cannot be limited. The charter of a public joint stock company cannot provide for the need to obtain anyone's consent to alienate shares of this company. No one can be granted the right of pre-emption to acquire shares of a public joint-stock company, except in cases provided for
Ten key differences between a public JSC and a non-public one
Concepts of public and non-public companies
The concepts of public and non-public companies are enshrined in Article 66.3 of the Civil Code.
Public joint stock companies- these are companies that are based on shares (securities) that have a large-scale free circulation market. These are societies with an unlimited and dynamically changing composition of participants.
Non-public joint stock companies- these are business companies based on shares that do not enter the organized circulation market.
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We have presented the main differences between public JSCs and non-public ones in a convenient table
№ |
Difference |
Public JSC |
Non-public JSC |
Legal norm |
| 1 | Placement and circulation of shares is the main difference | Shares and securities that are convertible into shares are placed by public subscription and are publicly traded in accordance with securities laws | Shares and securities cannot be placed by open subscription; they are not publicly traded |
|
Federal Law No. 99-FZ of May 5, 2014 (hereinafter referred to as the Law), which comes into force on September 1 of this year, introduces significant amendments to the procedure for the creation, activities and liquidation of legal entities. We looked at how the articles of the code containing general provisions on organizations will change. This material will be devoted to those amendments that affect specific organizational and legal forms of legal entities.
Closed list of non-profit organizations
The current edition of the Civil Code of the Russian Federation establishes that legal entities that are non-profit organizations can be created in such forms as a consumer cooperative, public or religious organizations (associations), institutions, charitable and other foundations, as well as in other forms provided by law (). In accordance with the Law, this list becomes closed and includes 11 organizational and legal forms of non-profit organizations ():
1
Consumer cooperatives. They can be formed, in particular, in the form of housing, housing-construction, garage, dacha consumer cooperatives, mutual insurance societies, credit cooperatives, rental funds, etc.
2
Public organizations. It is emphasized that political parties, trade unions, and social movements belong specifically to this form of non-profit organizations.
3
Associations (unions). These include, in particular, non-profit partnerships, self-regulatory organizations, associations of employers, associations of trade unions, cooperatives and public organizations, commercial and industrial, notary and bar chambers.
4
Property owners' associations, including homeowners' associations.
5
Cossack societies included in the state register of Cossack societies in the Russian Federation.
6
Communities of indigenous peoples of Russia.
7
Foundations (public, charitable, etc.).
8
Institutions. These include state, municipal and private (including public) institutions.
9
Autonomous non-profit organizations.
10
Religious organizations.
11
Public law companies.
The Law establishes the definitions of all these forms of organizations, establishes the procedure for their establishment and management, and outlines the rights and obligations of their participants. Let us note that consumer cooperatives, public organizations, associations, partnerships of real estate owners, Cossack societies and communities of indigenous peoples of the Russian Federation are classified as corporate, and all others are classified as unitary non-profit organizations.
To engage in income-generating activities, non-profit organizations will need provide for such a possibility in their charters. According to the current edition of the Civil Code of the Russian Federation, in order to carry out entrepreneurial activities, only one condition must be met - this activity must serve the achievement of the goals for which they were created and correspond to them. This condition remains.
Business partnerships and societies
The law does not change the organizational and legal forms of business partnerships - they can still be created in the form of a general partnership or limited partnership. But there will be fewer forms of business entities from September 1 - by Law such form as additional liability company is excluded(will no longer be valid from September 1). Thus, it remains possible to create only limited liability companies (LLC) and joint stock companies (JSC). Experts in the field of civil law note that this is a very correct change, since in practice ODL have not become widespread.
A number of changes concern the authorized capital of business companies. Thus, the Law stipulates that the founders of the company are obliged pay at least three quarters of the authorized capital before state registration of the company, and the rest - during the first year of its activity (). However, laws regulating the activities of a particular type of company may establish a different procedure. The same laws, as before, determine the minimum size of the authorized capital of companies. Moreover, in cases where state registration of a business company is allowed without such advance payment, the company's participants will bear subsidiary liability for its obligations that arise before the full payment of the authorized capital.
Another change concerns the procedure for making non-monetary contributions to the authorized capital. For their monetary valuation of the company (regardless of the value of the participants’ shares in the authorized capital) will be required to involve independent appraisers. Moreover, if the appraiser makes a mistake in the calculations and overestimates the valuation of the property, he, together with the participants whose shares he assessed, will bear subsidiary liability for the obligations of the company within the amount by which the valuation of the property contributed to the authorized capital is overestimated, for a period of five years from the date of state registration of the company. It is worth noting that the provision on such liability will not apply to property appraisers and participants in privatized state unitary enterprises and municipal unitary enterprises. Currently, an independent appraiser must be involved to determine the market value of property when paying for shares of a joint-stock company in non-cash (clause 3, article 34 of the Federal Law of December 26, 1995 No. 208-FZ ""). Limited liability companies are required to do this only if the nominal value of the participant’s share in the authorized capital paid in kind is more than 20 thousand rubles. (clause 2 of article 15 of the Federal Law of February 8, 1998 No. 14-FZ "").
Participants in business societies, according to the Law, will be able to establish a certain procedure for exercising their membership rights in a special document - corporate agreement(The Civil Code of the Russian Federation is supplemented by the corresponding Article 67.2). In it they will be able to indicate that these rights must be exercised in a certain way, for example: how to vote at a general meeting of participants, at what price to acquire or alienate shares in the authorized capital (shares), etc. (). However, not all participants in the company can enter into such an agreement. In this case, it naturally does not create obligations for persons who are not parties to it.
In addition, the Law establishes the need to confirm the fact that the general meeting of participants of a business company made a decision and the composition of the company participants present. Thus, in relation to a public joint stock company, such confirmation will be carried out by the register of its shareholders, a non-public joint stock company - by notarization or also certification by the registrar of the register of shareholders, a limited liability company - by notarization ().
Joint stock companies
Important amendments also affected joint-stock companies. Law cancels their division into open and closed- they will be replaced by public and non-public companies (a new article will appear in the Civil Code of the Russian Federation - Article 66.3). Public will be a joint-stock company whose shares and securities convertible into them are publicly placed (by open subscription) or publicly traded under the conditions established by securities laws. In addition, the rules on public companies will apply to joint-stock companies whose charter and corporate name indicate that the company is public. JSCs that do not meet these conditions are non-public. LLCs () are also classified as non-public companies.
It should be noted that the Law regulates the activities of public joint-stock companies in more detail (specific provisions regarding them are enshrined in the new edition), since their activities affect the property interests of a large number of shareholders and other persons.
We emphasize that the Law cancels the possibility of restriction the number of shares owned by one shareholder of a public JSC, their total par value, as well as the maximum number of votes granted to one shareholder. Currently, such restrictions may be provided for by the charter of a joint-stock company (clause 3 of article 11 of the Federal Law of December 26, 1995 No. 208-FZ ""; hereinafter referred to as the Law on Joint-Stock Companies). At the same time, according to the Law, public joint-stock companies are prohibited from placing preferred shares whose par value is lower than the par value of ordinary shares ().
Another significant change concerns maintaining the register of shareholders and performing the functions of the counting commission - from September 1, this will be done exclusively independent organizations licensed by law, – (). However, this rule applies only to public joint-stock companies. Let us recall that in current practice, joint-stock companies either transfer the maintenance of the register to such a registrar, or are themselves its holders (). As for the counting commission, according to the current legislation it is created in a company in which the number of shareholders - owners of voting shares of the company - is more than 100, and its quantitative and personal composition is approved by the general meeting of shareholders. If the register of a joint-stock company is maintained by a registrar, he may also be entrusted with performing the functions of a counting commission. And in companies in which the number of shareholders - owners of voting shares is more than 500, the functions of the counting commission are performed exclusively by the registrar ().
In addition, the Law establishes the need to verify and confirm the accuracy of annual accounting (financial) statements mandatory external audit for absolutely all JSCs(currently it is carried out only in relation to organizations that are OJSC, and also for) and in some cases - for LLC ().
ATTENTION!
No mass re-registration of legal entities in connection with the adoption of the Law is not expected, since it does not establish its obligatory nature. The names of existing organizations and their constituent documents will need to be brought into compliance with the requirements of the Law the first time these documents are changed (). There are no specific deadlines within which this must be done. In addition, JSCs that meet the criteria of a public JSC will not even need to indicate in their corporate name that they are public.
Experts also note that these amendments to the Civil Code of the Russian Federation are aimed at harmonizing Russian civil legislation with the legislation of foreign countries, which will help in attracting foreign investors to Russian business.
In the modern economy of the Russian Federation, there are several forms of activity of business entities. Each enterprise chooses which one to choose to organize its activities. Joint stock companies have a number of features. Such organizations are usually divided into open and closed varieties.
In order not to get confused in concepts, you need to understand the abbreviations. Closed (ZAO) and have a number of organizational differences. The first form of business entities has now been renamed JSC - joint stock company. But what it means is a closed type.
How a JSC differs from an OJSC is a very interesting question. This determines a number of features of the functioning of enterprises. Companies have the opportunity to reorganize the company and create a JSC instead of an OJSC. This may be necessary for a number of reasons. How this happens, as well as why it is needed, should be considered in more detail.
What is a joint stock company?
To understand the difference between a JSC and an OJSC, it is necessary to consider this form of economic activity in a general sense. Such an organization is formed by several founders. The authorized capital is formed from a certain number of shares, which are distributed among the owners. They are issued when a company is created. Moreover, the number of securities and their nominal value are immediately specified. The rules for their distribution indicate the type of organization of the enterprise.
These securities share certain rights with their owners. For the fact that the shareholder contributed a certain amount of his funds to the authorized capital (this is fixed by the share) at the end of the reporting period to receive the corresponding part of the net profit. This remuneration corresponds to the shareholder of the securities in the total This shareholder's income is called dividends.
The owner also has the right to take part in voting in the process of making important decisions for the company, as well as to receive part of the property in the event of its liquidation.
Rights and obligations of shareholders
When studying how a JSC differs from an OJSC, it is necessary to pay attention to the rights and responsibilities of shareholders. They are limited by certain legislative frameworks. Their liability is limited only by the value of the securities.
The risk of loss does not apply to all property of the owners. But if, in the event of bankruptcy of an enterprise, the fault of, for example, a hired director or a certain group of shareholders was established, then they bear increased responsibility. If a company does not have enough funds to pay off its debts, the perpetrators may be subject to subsidiary liability.
Shareholders may also be liable if the authorized capital of the enterprise consists of a certain part of unpaid securities.
All decisions are made at the meeting of shareholders. Voting rights have the same weight as how many shares the founder has. If it has 50%+1 share, it is controlled by one individual or legal entity.
Distinctive features
A company is organized as a closed joint stock company if the number of shareholders does not exceed 50 people. This form is typical for medium-sized businesses. The difference between a JSC and an OJSC lies primarily in the method of distribution of shares.
In a closed joint-stock company they are purchased by a limited number of persons. The authorized capital in this case is less than 100 times the minimum wage (minimum wage).
In an OJSC the number of shareholders is unlimited. This form of management is characteristic of large businesses. Securities are sold through free sale. Information about the state of the company and its financial activities in this case is provided publicly.
The shares are freely traded on the stock market. The size of the authorized capital in this case is not less than 1000 minimum wages.
Fundamental differences
The difference between OJSC and JSC is quite significant. First of all, the approach to the sale of shares is fundamentally different. If the JSC decides to sell part of the securities, the consent of all shareholders will be required. Moreover, they have an advantage when purchasing. OJSC sells shares freely, without notifying other participants. Therefore, the number of security holders is not limited.
JSC does not publish its financial statements in the public domain. The JSC is obliged to provide such information openly. This gives everyone the opportunity to evaluate the results of the company’s activities. For this reason, investors are much more likely to provide their temporarily free funds to open-ended organizations. The closed joint-stock company is not expanding to the level of a large business.
State as founder
To understand how a JSC differs from an OJSC, it is necessary to consider the case when part of the shares is owned by the state. The founders of the company can be the governing bodies of the Russian Federation at various levels of subordination.
In this case, the organization can only be an open issue type. Information about the results of the activities of such an enterprise is required to be publicly posted. If part of the shares is owned by subjects of the governing bodies of the Russian Federation, its municipal organizations, the formation of a closed joint stock company is strictly prohibited.
This is another significant difference between the two forms of management presented. The shares are publicly traded and quoted on the stock market.
Reorganization
For certain reasons, it may be necessary to reorganize an OJSC into a JSC. This conversion can also be performed in the opposite direction. In this case, the volume of the authorized capital changes, as well as the rights and obligations of the owners of securities.
If, based on the results of the company’s activities, its authorized capital does not exceed 1000 minimum wages, documents for reorganization should be prepared. This provides a number of benefits to the enterprise. But the reduction of own sources leads to a decrease in production.
This is a negative trend, but with a significant drop in sales volume and the market value of the company's shares, this is a necessary measure to prevent bankruptcy. The reorganization process is taken very seriously. The decision to change the form of business is made at a meeting of shareholders based on the results of the financial statements.
Preparation of documents
In the process of changing the form of business from open to closed joint stock company, no transformation is carried out. An OJSC can only be reorganized into a JSC. If there is a need for this, the board of directors prepares the necessary documentation.
For this purpose, a project is drawn up, which includes a number of mandatory items. The company's management in this document discloses the procedure and conditions of the reorganization. Next, the process of exchanging shares of the old company for deposits and securities of the new organization is discussed.
Creation of a new society
The circle of persons among whom new securities are distributed does not exceed 50 people. A complete list of property that becomes the property of the reorganized joint-stock company is also compiled.
The meeting of shareholders approves the size of the authorized capital and appoints the managers of the new company.
Next, the state registration authorities establish the fact of termination of the existence of an open company of shareholders, and then a new closed organization is created. This will allow the company to operate in accordance with the market share it occupies. During this process, relevant documentation is recorded.
Required Documentation
There is a significant difference between a newly created and a reorganized enterprise. The main document denoting the difference between these two organizational forms of companies is succession. This document represents a transfer act or It depends on the form of the reorganization itself.
Re-registration of an OJSC into a JSC requires the collection of a certain list of documents. If shares are distributed among individuals, it is necessary to provide the commission with copies of passports and identification codes. If the owner of the securities is a legal entity, a copy of its registration documentation will be required.
Next, data on the receipt of funds or property of shareholders is prepared. After this, the type of activity of the company is determined. It is assigned the appropriate OKVED codes. In order to assign a legal address to an organization, it is necessary to provide a lease agreement. If it is not there, representatives of the commission go to the location of the main production facilities of the enterprise. It is assigned a legal address.
What does the reorganization give?
Changing an OJSC to a JSC entails significant changes for the organization. First of all, the balance sheet currency is significantly reduced. With a decrease in own financial sources, the investment rating falls.
Society will be able to attract fewer credit funds. It has the right not to publicly disclose the results of its activities, but this also repels investors. All ownership of shares is recorded in the Federal Tax Service database. Wanting to sell his securities, the owner notifies the other shareholders in writing of his decision.
If they do not agree to purchase the shares, they can be sold to a new owner. The documentation collected during the creation of the company is subject to change. New data is added to it. This is a longer process.
Having considered how a JSC differs from an OJSC, it is worth noting a number of advantages of each business form. Depending on the volume of business, one or another type of object is chosen. This allows companies to organize their activities most efficiently. In constantly changing market conditions, it is possible to reorganize an OJSC into a JSC and vice versa. In some cases, this is a necessary measure that cannot be avoided.
