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The authorized capital of a business company is in order. Authorized capital (authorized fund, share capital). Placement decision
The authorized capital of any business company ( LLC, CJSC, OJSC) determines the minimum size of the property of this society, guaranteeing the interests of its creditors.
The minimum amount of the authorized capital of business entities is for LLC - 10 (10,000 rubles), for CJSC - 100, and for OJSC - 1000 minimum wages established by federal law as of the date of submission of documents for state registration of these companies.
Stock Company and JSC at their establishment, as well as contributions to the authorized capital OOO may be paid for in money, securities, other things or property rights or other rights having a monetary value.
On the date of submission of documents for the state registration of an LLC, its authorized capital must be paid by the founders of the company by at least half.
At least 50% of the shares of OJSC and CJSC must be paid within three months from the date of state registration of the OJSC or CJSC.
It should be borne in mind that when making contributions to the authorized capital (in payment for shares) in non-monetary form, there is a special news for LLC, CJSC and OJSC:
- For LLC
The monetary value of non-monetary contributions to the authorized capital of the company, made by the company's participants and third parties accepted into the company, is approved by the decision of the general meeting of the company's participants, adopted by all participants of the company unanimously.
If the nominal value (increase in the nominal value) of the share of a company member in the authorized capital of the company, paid for by a non-monetary contribution, is more than twenty thousand rubles, an independent appraiser must be involved in order to determine the value of this property, provided that otherwise is not provided by federal law. The nominal value (increase in the nominal value) of the share of a member of the company paid for by such a non-monetary contribution cannot exceed the amount of the assessment of the specified contribution, determined by an independent appraiser.
In case of payment of shares in the authorized capital of the company by non-monetary means, the private members of the company and an independent appraiser within three years from the moment of state registration of the company or the corresponding changes in the charter of the company, jointly and severally, if the property of the company is insufficient, bear subsidiary liability for its obligations in the amount of overestimation of the value of non-monetary contributions.
The charter of the company may establish the types of property that cannot be a contribution to the charter capital of the company.
- For CJSC and OJSC
Monetary valuation of property contributed as payment for shares during the establishment of a company is made by agreement between the founders.
When paying for additional shares with non-monetary funds, the monetary value of the property contributed as payment for shares is made by the board of directors (supervisory board) of the company in accordance with Article 77 of the Federal Law “On Joint Stock Companies”.
When paying for shares with non-monetary funds, an independent appraiser must be involved to determine the market value of such property. The value of the monetary valuation of property made by the founders of the company and the board of directors (supervisory board) of the company cannot be higher than the value of the valuation made by an independent appraiser. The charter of the company may contain restrictions on the types of property that can be used to pay for the shares of the company.
If you intend to contribute to the authorized capital (in payment for shares) with intellectual property, you should be guided by paragraph 17 of the Resolution of the Plenum Supreme Court of the Russian Federation dated July 1, 1996 No. 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation”, explaining that as a contribution to the property of a business company, property rights or other rights having a monetary value. In this regard, such a contribution cannot be an object intellectual property(patent, object of copyright, including a computer program, etc.) or “know-how”. However, only the right to use such an object (but not the object itself) transferred to the company in accordance with a license agreement, which must be registered in the manner prescribed by law, can be recognized as a contribution.
Thus, as a contribution to the charter capital of a business company, one can make the right to use an intellectual property object, assessed accordingly by the founder of the company or an independent appraiser, drawn up by a legally registered license agreement for the use of this object.
At the same time, it should be noted the difficulties associated with the search for a qualified independent appraiser who has the right (on the basis of a special certificate) to evaluate intellectual property, as well as the significant cost of such an assessment.
When forming the authorized capital by a participant - a legal entity, it is necessary to strictly observe the rules of major transactions and transactions with interest.
28. Authorized capital economic society, its order
formation and change.
The authorized capital of the company is made up of the nominal value of the shares of the company acquired by the shareholders in the joint-stock company and from the nominal value of the shares of its participants in the LLC.
The authorized capital of a company determines the minimum size of the company's property that guarantees the interests of its creditors. The authorized capital is necessary for the creation of a business entity. Payment for the authorized capital of JSC and LLC may be made in cash, securities, other things or property rights or other rights having a monetary value. Sources of formation:
securities
property rights
other rights having a monetary value
money
The contribution of the authorized capital can be made simultaneously and in stages no later than 3 months after state registration.
The monetary value of the property contributed to pay for shares in the LLC authorized capital of the company is approved by the decision of the general meeting of the company's participants, adopted by all the company's participants unanimously.
If the nominal value or increase in the nominal value of the share of a company member in the authorized capital of the company, paid in non-monetary funds, is more than twenty thousand rubles, in order to determine the value of this property, an independent appraiser in the JSC must be involved - always an appraiser.
1. An increase in the authorized capital of a company is allowed only after its full payment.
2. An increase in the charter capital of a company may be carried out at the expense of the company's property, and (or) at the expense of additional contributions from the company's participants, and (or), if this is not prohibited by the company's charter, at the expense of contributions from third parties accepted by the company.
Increasing the authorized capital of the company at the expense of its property
1. An increase in the authorized capital of a company at the expense of its property is carried out by a decision of the general meeting of the company's participants, adopted by a majority of at least two-thirds of the votes of the total number of votes of the company's participants, unless the need for a larger number of votes for such a decision is provided for by the charter of the company.
Increasing the authorized capital of the company through additional contributions from its members and contributions from third parties accepted by the company
1. The general meeting of the company's participants, by a majority of at least two-thirds of the total number of votes of the company's participants, if the need for a larger number of votes to make such a decision is not provided for by the company's charter, may decide to increase the authorized capital of the company by making additional contributions by the company's participants. Such a decision should determine the total cost of additional contributions, as well as establish a ratio, common for all participants in the company, between the value of the additional contribution of a company participant and the amount by which the nominal value of his share is increased. This ratio is established based on the fact that the nominal value of the share of a company member may increase by an amount equal to or less than the value of his additional contribution.
Simultaneously with the decision to increase the authorized capital of the company on the basis of the application of a third party or applications of third parties to accept him or them into the company and make a contribution, decisions must be made to accept him or them to the company, to amend the charter of the company in connection with an increase in the authorized the capital of the company, on determining the nominal value and size of the share or shares of a third party or third parties, as well as on changing the size of the shares of the company's participants. Such decisions are taken by all members of the company unanimously. The nominal value of the share acquired by each third person admitted to the company must not exceed the value of his contribution.
The introduction of additional contributions by the company's participants and contributions by third parties must be made no later than within six months from the date of the adoption by the general meeting of the company's participants of the decisions provided for in this clause.
The reduction of the authorized capital of the company may be carried out by reducing the nominal value of the shares of all participants in the company in the authorized capital of the company and (or) the redemption of shares owned by the company.
The company is not entitled to reduce its authorized capital if, as a result of such a decrease, its size becomes less than the minimum amount of the authorized capital determined in accordance with this Federal Law as of the date of submission of documents for state registration of the relevant changes in the company's charter, and in cases where, in accordance with by this Federal Law, the company is obliged to reduce its authorized capital, as of the date of state registration of the company.
Reducing the authorized capital of the company by reducing the nominal value of the shares of all participants in the company must be carried out while maintaining the size of the shares of all participants in the company.
Increase in the authorized capital of the company
1. The authorized capital of the company may be increased by increasing the par value of shares or placing additional shares.
2. The decision to increase the authorized capital of the company by increasing the nominal value of shares is taken by the general meeting of shareholders.
The decision to increase the charter capital of the company by placing additional shares is made by the general meeting of shareholders or the board of directors (supervisory board) of the company, if in accordance with the charter of the company it has been granted the right to make such a decision.
The decision of the board of directors (supervisory board) of the company to increase the authorized capital of the company by placing additional shares is taken by the board of directors (supervisory board) of the company unanimously by all members of the board of directors (supervisory board) of the company, while the votes of retired members of the board of directors (supervisory board) of the company are not taken into account .
3. Additional shares may be placed by the company only within the limits of the number of declared shares established by the charter of the company.
The decision on the issue of increasing the charter capital of the company by placing additional shares may be taken by the general meeting of shareholders simultaneously with the decision to introduce into the charter of the company the provisions on declared shares necessary in accordance with this Federal Law for making such a decision, or on changing the provisions on declared shares.
Decrease in the authorized capital of the company
1. The company has the right, and in the cases provided for by this Federal Law, is obliged to reduce its authorized capital.
The authorized capital of a company may be reduced by reducing the par value of shares or reducing their total number, including by acquiring a portion of shares, in the cases provided for by this Federal Law.
Reducing the authorized capital of the company by acquiring and redeeming a part of the shares is allowed if such a possibility is provided for by the charter of the company.
The company is not entitled to reduce its authorized capital if, as a result of such a decrease, its size becomes less than the minimum amount of the authorized capital determined in accordance with this Federal Law as of the date of submission of documents for state registration of the relevant changes in the company's charter, and in cases where, in accordance with by this Federal Law, the company is obliged to reduce its authorized capital - as of the date of state registration of the company.
2. The decision to reduce the authorized capital of the company by reducing the nominal value of shares or by acquiring a part of the shares in order to reduce their total number is taken by the general meeting of shareholders.
The authorized capital of an LLC consists of contributions from the founders and cannot be less than 100 times the minimum wage on the day of its registration. The authorized capital of an LLC must be at least half paid by its participants at the time of registration of the company. The remaining unpaid part of the authorized capital of the company is subject to payment by its participants during the first year of the company's activity. If at the end of the second or each subsequent fiscal year the value of the net assets of the LLC will be less than the authorized capital, the company is obliged to declare a decrease in its authorized capital and register its decrease in the prescribed manner. If the value of the specified assets of the company becomes less than a certain minimum amount of the authorized capital, the company is subject to liquidation. The supreme governing body in an LLC is the general meeting of its members. The current management of the company is carried out by an executive body accountable to the general meeting of founders (collegiate or sole). The volume of rights belonging to a particular member of the company (the number of votes at the general meeting, the amount of dividends and the liquidation quota) is determined by the size of its share in the authorized capital. A member of a company who grossly violates his obligations or impedes the activities of the company by his actions may be expelled from it, but only in a judicial proceeding. Participants of the company, whose shares in the authorized capital are at least 10%, have the right to raise this question. The participants of the company enjoy the pre-emptive right to purchase the share of the participant (its part) leaving the company in proportion to the size of their shares, if the charter of the company or agreement of its participants does not a different procedure for exercising this right is provided. When a participant withdraws from an LLC, the company is obliged to pay him the actual value of his share, determined on the basis of the company's financial statements for the year during which the application for withdrawal from the company was filed, or, with the consent of the company participant, issue him property of the same value in kind, and in case of incomplete payment of his contribution to the authorized capital of the company - the actual value of the part of his share proportional to the paid part of the contribution. The company is obliged to make all settlements with the withdrawing participant within six months from the end of the financial year during which filed declared a statement on withdrawal from the company, if a shorter period is not provided for by the charter of the company.
In case of bankruptcy of one of the participants, its liability is distributed among the rest in proportion to their contributions, unless otherwise established by the constituent documents. Otherwise, the status of this economic company is similar to the status of a limited liability company, which entails the application to it of the relevant legal norms.
Joint Stock Company (JSC)- a commercial organization, the authorized capital of which is divided into a certain number of shares, formed by one or more persons who are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of their shares(Article 96 of the Civil Code of the Russian Federation).
The legal status of a joint stock company is determined by the Civil Code of the Russian Federation, as well as by the Federal Law of December 26, 1995 No. 208-FZ (as amended on December 28, 2010) “On Joint Stock Companies”.
Joint-stock companies are divided into open (JSC) and closed (CJSC). Open JSCs have the right to sell shares to everyone, closed JSCs have the right to distribute shares only among the founders or other predetermined persons. In an JSC, it is not allowed to establish a pre-emptive right of a company or its shareholder to acquire shares alienated by the shareholders of this company. Shareholders of a CJSC have a preemptive right to acquire shares, sold by other shareholders of this company, at the offer price to a third party in proportion to the number of shares owned by each of them, unless the charter of the company provides for a different procedure for exercising this right. The charter of a CJSC may provide for the company's pre-emptive right to acquire shares sold by its shareholders if the shareholders have not exercised their pre-emptive right to acquire shares. The number of members of a JSC is not limited. A CJSC can have no more than 50 participants. Any citizens and legal entities can be shareholders. The minimum amount of the authorized capital of an OJSC must be at least 1000 minimum wages, CJSC - 100 minimum wages. The law requires payment of the first 50% of the shares within three months from the date of state registration of the company. The remaining 50% of the shares must be paid within a year (Article 34 of the Federal Law "On Joint Stock Companies"). The supreme management body of a joint-stock company - the general meeting of shareholders - has the exclusive competence defined by law. The general meeting is not entitled to consider and make decisions on issues that are not directly assigned by law to its competence. In a JSC with more than 50 participants, a supervisory board is necessarily created as a permanent body of shareholders that controls the managers (directors) of the company. The supervisory board (board of directors) of the company also has exclusive competence, determined by law and the charter of the company. However, the company must always have a sole body, and a collegiate body in cases provided for by the charter. By decision of the general meeting, the powers of the executive body may be transferred to a hired manager (individual entrepreneur or commercial organization). The legislator also defines such concepts as “subsidiaries” and “dependent companies”. A business company is recognized as a subsidiary if another (main) business company or partnership, by virtue of its predominant participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise, has the ability to determine decisions made by such a company (Art. 105 of the Civil Code of the Russian Federation). A business company is recognized as dependent if another (participating, predominant) company has more than 20% of the voting shares of a JSC or 20% of the authorized capital of a limited liability company. A company that has acquired more than 20% of voting shares (JSC) and more than 20% of the shares of the authorized capital of another company (LLC) is obliged to immediately publish information about this in the press, which publishes data on state registration of legal entities (Article 106 of the Civil Code ).A company or partnership (referred to as the main one) that has influenced the decisions of another company (subsidiary) by virtue of the predominant participation in its authorized capital, in accordance with an agreement or on other grounds, is jointly and severally liable with the subsidiary for transactions made as a result of such influence . Shareholders of a subsidiary company have the right to demand compensation for losses caused by the parent company. In the event of the insolvency of a subsidiary due to the fault of the principal, the latter is subsidiarily liable for its debts.
Authorized capital (authorized fund, share capital)- one of the types of capital of the organization, which is formed during its creation.
Subsequently, this type of capital may increase or decrease (according to the rules established by law).
Comment
Authorized capital (share capital, authorized fund, hereinafter referred to as authorized capital) is one of the types of capital of an organization. So, other types of capital are - additional capital, reserve capital, retained earnings.
The peculiarity of the authorized capital is that the legislation defines certain requirements for its formation, size, procedure for increasing and decreasing. This is due to the fact that the legislation considers the authorized capital as the minimum amount of the company's property that guarantees the interests of its creditors (for example, Article 90 of the Civil Code of the Russian Federation).
The authorized capital is formed only by commercial organizations. Non-profit organizations do not have authorized capital.
Business companies(joint stock company, limited liability company) form authorized capital(Article 66.2 of the Civil Code of the Russian Federation).
Business partnerships(general partnership, limited partnership) form share capital(Article 66.2 of the Civil Code of the Russian Federation).
State and municipal unitary enterprises form statutory fund(Article 12 of the Federal Law of November 14, 2002 N 161-FZ "On State and Municipal Unitary Enterprises").
Specific features of the authorized capital are established for each of the relevant legislation.
The owners of organizations (shareholders), in return for contributing funds to the authorized capital, receive the rights to these organizations (shares - a limited liability company, an additional liability company, partnerships, shares - a joint-stock company).
If organizations receive profit, it is distributed in proportion to the share in the authorized capital of the organization (for some, for example, for partnerships, the owners may establish a different procedure for distributing profits).
The guaranteeing role of the authorized capital.
The main essence of the authorized capital is that it determines the minimum amount of property that guarantees the interests of the creditors of the organization. The legislation establishes the requirements for the size of the authorized capital.
The funds of the authorized capital are not allocated to any separate bank account. Funds received in the form of a contribution to the authorized capital are not limited in use. The essence of the authorized capital guarantee is that if the value of the net assets of the organization is less than its authorized capital, then the organization is obliged to increase the value of net assets to the size of the authorized capital or register a decrease in the authorized capital. If the value of the company's net assets becomes less than the minimum amount of authorized capital determined by law, the company is subject to liquidation. Such a requirement is established for limited liability companies (clause 4 of article 90 of the Civil Code of the Russian Federation) and for joint-stock companies (clause 4 of article 99 of the Civil Code of the Russian Federation).
The amount of the authorized capital of a limited liability company must be at least 10,000 rubles (Article 14 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies").
Minimum authorized capital of an open company must be at least a thousand times the amount of the minimum wage established by federal law on the date of registration of the company;
Minimum authorized capital of a closed company- must be at least one hundred times the amount of the minimum wage established by federal law on the date of state registration of the company (Article 26 of the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies").
The size of the authorized capital of the state enterprise must be at least 5,000 minimum wages established by federal law on the date of state registration of a state-owned enterprise (see).
The size of the authorized capital of the municipal enterprise must be at least 1000 minimum wages established by federal law on the date of state registration of a municipal enterprise (see).
Authorized capital of business companies
For business companies, it is typical that their owners are not liable for the obligations of the company and bear the risk of losses associated with the activities of the company, within the value of their shares.
Members of the company who have not fully paid the shares are jointly and severally liable for the obligations of the company within the value of the unpaid part of the share of each of the participants (see, for example, Article 87 of the Civil Code of the Russian Federation).
Authorized capital society cannot be less than the amount determined by the relevant law.
So, for limited liability companies, the minimum amount of the authorized capital is determined by Art. 14 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies".
For joint-stock companies, the minimum amount of the authorized capital is determined by Art. 26 of the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies".
The rule is established that if, at the end of second or each subsequent financial year companies will be less than the authorized capital, the company is obliged to announce the reduction of its authorized capital and register its reduction in the prescribed manner. If the value of the specified assets of the company becomes less than the minimum amount of the authorized capital determined by law, the company is subject to liquidation (see, for example, Article 90 of the Civil Code of the Russian Federation).
Example
A company with an authorized capital of 100 thousand rubles at the end of the second year of operation has net assets in the amount of 70 thousand rubles.
The company is obliged to announce the reduction of its authorized capital to no more than 70 thousand rubles.
Example
A company with an authorized capital of 100 thousand rubles at the end of the second year of operation has net assets in the amount of 3 thousand rubles.
The minimum amount of authorized capital determined by law is 10,000 rubles.
The company must be liquidated.
The reduction of the authorized capital is allowed after notification of all its creditors. The latter have the right in this case to demand early termination or performance of the relevant obligations of the company and compensation for their losses.
Before the full payment of the authorized capital, it is prohibited pay dividends to the owners of the company. Such a rule is established, for example, Art. 29 of the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies", as well as Art. 102 of the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies".
Depending on the size of the authorized capital, restrictions on issuance of bonds. Thus, for limited liability companies, it is established that the issue of bonds by the company is allowed after full payment of its authorized capital. The nominal value of all bonds issued by the company must not exceed the size of the authorized capital of the company and (or) the amount of security provided to the company for these purposes by third parties (Article 31 of the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies"). The same rule is established for joint stock companies by Article 102 of Federal Law No. 208-FZ of December 26, 1995 "On Joint Stock Companies".
Authorized capital of state and municipal unitary enterprises
State unitary enterprises and municipal unitary enterprises form the authorized capital (an analogue of the authorized capital).
The statutory fund of a state or municipal enterprise determines the minimum amount of its property that guarantees the interests of the creditors of such an enterprise.
The size of the authorized capital of the state enterprise must be at least 5,000 minimum wages established on the date of state registration of the state enterprise.
The size of the authorized capital of a municipal enterprise must be at least 1,000 minimum wages established on the date of state registration of the municipal enterprise (Article 12 of Federal Law No. 161-FZ of November 14, 2002 "On State and Municipal Unitary Enterprises").
The authorized capital of a state or municipal enterprise must be fully formed by the owner of its property within three months from the date of state registration of such an enterprise. The statutory fund is considered to be formed from the moment the relevant amounts of money are credited to the bank account opened for these purposes and (or) the transfer in the established manner to the state or municipal enterprise of other property assigned to it on the basis of the right of economic management, in full (Article 13 of the Federal Law of 11/14/2002 N 161-FZ "On state and municipal unitary enterprises").
Subsequently, the authorized capital of the enterprise may increase or decrease, by decision of the owner (the procedure for increasing and decreasing the authorized capital is established by Articles 14 and 15 of the Federal Law of November 14, 2002 N 161-FZ "On State and Municipal Unitary Enterprises").
As for business companies, it is established rule regarding the ratio of the size of the authorized capital and the net assets of the enterprise:
If at the end of the financial year the value of the net assets of the state or municipal enterprise turns out to be less than the size of its authorized capital, the owner of the property of such an enterprise is obliged to take a decision to reduce the size of the authorized capital of the state or municipal enterprise to an amount not exceeding the value of its net assets.
If, at the end of the financial year, the value of the net assets of a state or municipal enterprise turns out to be less than the minimum amount of the authorized capital established on the date of state registration of such an enterprise and within three months the value of net assets is not restored to the minimum amount of the authorized fund, the owner of the property of the state or municipal enterprises must decide on the liquidation or reorganization of such an enterprise (Article 15 of the Federal Law of November 14, 2002 N 161-FZ "On State and Municipal Unitary Enterprises").
Share capital of economic partnerships
Business partnerships differ from business companies in that the owners of the partnership bear additional (subsidiary) liability for the obligations of the partnership with all their property. The owners of the companies are liable for the obligations of the company only within the limits of the authorized capital.
Therefore, the share capital in business partnerships, first of all, has the function of start-up capital and, to a lesser extent, guarantees of creditors. The legislation does not establish any special rules governing the size of the share capital, its relationship with net assets.
Accounting for authorized capital
An accounting account is intended to account for the authorized capital. The balance of the account must correspond to the size of the authorized capital, fixed in the constituent documents of the organization. Account entries are made during the formation of the authorized capital, as well as in cases of increase and decrease in capital, only after making appropriate changes to the constituent documents of the organization.
After the state registration of the organization, its authorized capital in the amount of contributions of the founders (participants) provided for by the constituent documents is reflected in the credit of the account in correspondence with the account. The actual receipt of the founders' deposits is carried out according to the credit of the account in correspondence with the accounting accounts Money and other values.
The authorized capital is reflected in line 1310 "Authorized capital (share capital, authorized capital, contributions of comrades)" of Section III. CAPITAL AND RESERVES.
Participants (shareholders) of the company, the contribution of property to the authorized capital is reflected as financial investments:
D 58 - K 51 - money was deposited into the organization's savings account
D 58 - K 76 - the contribution to the authorized capital is taken into account minus the amount paid to the savings account (as of the date of registration in the Unified State Register of Legal Entities)
D 76 - K 51 - the debt on the contribution to the authorized capital has been paid
The supreme governing body of a limited liability company is the general meeting of its participants. The current management of the company is carried out by the executive body - collegiate or sole, while the sole body may be elected and not from among the participants.
The exclusive competence of the general meeting of participants includes:
determination of the main activities of the LLC, as well as making a decision on participation in associations and other associations of commercial organizations;
changing the charter of an LLC, including changing the size of the charter capital of an LLC;
amendments to the memorandum of association;
the formation of the executive bodies of the LLC and the early termination of their powers, as well as the decision to transfer the powers of the sole executive body of the LLC to a commercial organization or an individual entrepreneur (hereinafter referred to as the manager), approval of such a manager and the terms of the contract with him;
election and early termination of the powers of the audit commission (auditor);
approval of annual reports and annual balance sheets;
making a decision on the distribution of net profit between the participants of the company;
approval (acceptance) of documents regulating the internal activities of the LLC (internal documents of the LLC);
decision-making on the placement of bonds and other issuance valuable papers;
appointment of an audit, approval of the auditor and determination of the amount of payment for his services;
making a decision on the reorganization or liquidation of the LLC;
appointment of a liquidation commission and approval of liquidation balance sheets;
resolution of other issues provided for by the Federal Law "On Limited Liability Companies".
The next general meeting of LLC participants is held within the time limits specified by the charter, but at least once a year. The next general meeting of LLC participants is convened by the executive body of the LLC.
An extraordinary general meeting of participants in an LLC is held in cases specified by the charter of an LLC, as well as in any other cases if such a general meeting is required by the interests of the company and its participants.
The Charter of an LLC may provide for the formation of a Board of Directors (Supervisory Board), the competence of which is determined by the Charter of the Company. The charter also determines the procedure for formation, the procedure for activities and the procedure for terminating the powers of members of the Board of Directors of an LLC.
The Law includes the following issues within the competence of the Board of Directors of an LLC (Supervisory Board):
determination of the main activities of the LLC;
the formation of the executive bodies of the LLC and the early termination of their powers, as well as the adoption of a decision to transfer the powers of the sole executive body of the company to a commercial organization or an individual entrepreneur (hereinafter referred to as the manager), approval of such a manager and the terms of the contract with him;
setting the amount of remuneration and monetary compensation to the sole executive body of the LLC, members of the collegial executive body of the company, and the manager;
making a decision on the participation of LLC in associations and other associations of commercial organizations;
the appointment of an audit, the approval of the auditor and the establishment of the amount of payment for his services;
approval or acceptance of documents regulating the organization of the activities of the LLC (internal documents of the LLC);
creation of branches and opening of representative offices of LLC;
resolving issues of approval of transactions in which there is an interest, in cases provided for in Article 45 of the Federal Law "On Limited Liability Companies";
resolving issues on the approval of major transactions in cases provided for by Article 46 of the Federal Law "On Limited Liability Companies";
resolving issues related to the preparation, convening and holding of a general meeting of LLC participants;
other issues provided for by the Federal Law "On Limited Liability Companies", as well as issues provided for by the charter of the LLC and not referred to the competence of the general meeting of participants in the LLC or the executive body of the LLC.
Members of the collegial executive body of an LLC cannot make up more than one-fourth of the Board of Directors. The person exercising the functions of the sole executive body cannot be the Chairman of the Board of Directors at the same time. Members of the Board of Directors or a person exercising the functions of the sole executive body of the LLC may participate in the general meeting of participants of the LLC with the right of an advisory vote.
The management of the current activities of the LLC is carried out by the sole executive body or the sole executive body and the collegial executive body. The executive bodies of the LLC are accountable to the general meeting of participants and the Board of Directors. The sole executive body of an LLC (general director, president, and others) is elected by the general meeting of LLC participants for a period determined by the charter of the LLC, if the charter of the LLC does not refer these issues to the competence of the board of directors (supervisory board) of the LLC. The sole executive body of an LLC may also be elected from outside its members.
The sole executive body of LLC:
acts on behalf of the LLC without a power of attorney, including representing its interests and making transactions;
issues powers of attorney for the right of representation on behalf of the LLC, including powers of attorney with the right of substitution;
issues orders on the appointment of LLC employees, on their transfer and dismissal, applies incentive measures and imposes disciplinary sanctions;
exercises other powers that are not assigned by the Federal Law "On Limited Liability Companies" or the charter of an LLC to the competence of the general meeting of participants in an LLC, the board of directors (supervisory board) of an LLC and the collegial executive body of an LLC.
The procedure for the activities of the sole executive body of an LLC and the adoption of decisions by it is established by the charter of the LLC, internal documents of the company, as well as an agreement concluded between the company and the person exercising the functions of its sole executive body.
If the charter of the LLC provides for the formation, along with the sole executive body, of a collegial executive body (management board, directorate, etc.), such body is elected by the general meeting of participants in the LLC in the number and for the period determined by the charter of the LLC. The collegial executive body exercises the powers assigned by the charter of the LLC to its competence. The procedure for the activities of the collegial executive body and the adoption of decisions by it is established by the charter of the LLC and internal documents.
A member of the collegial executive body can only be an individual who may not be a member of the LLC. The functions of the chairman of the collegial executive body are performed by the person exercising the functions of the sole executive body, except for the case when the powers of the sole executive body are transferred to the manager.
The audit commission (auditor) of an LLC is elected by the general meeting of participants of the LLC for a period determined by the charter of the LLC. The number of members of the audit commission of the company is determined by the charter of the LLC.
The audit commission (auditor) of an LLC has the right to conduct audits of the financial and economic activities of the LLC at any time and have access to all documentation relating to the activities of the LLC. At the request of the audit commission (auditor) of the company, members of the board of directors (supervisory board) of the LLC, the person acting as the sole executive body of the LLC, members of the collegial executive body of the LLC, as well as employees of the company are obliged to give the necessary explanations orally or in writing.
The auditing commission (auditor) of an LLC must check the annual reports and balance sheets of the LLC before they are approved by the general meeting of participants in the LLC. The general meeting of LLC participants is not entitled to approve the annual reports and balance sheets of the LLC in the absence of conclusions of the audit commission (auditor) of the LLC
The procedure for the work of the audit commission (auditor) of an LLC is determined by the charter and internal documents of the LLC.
The authorized capital of a business company is made up of the nominal value of shares (shares) of the company acquired by shareholders (participants). The authorized capital is the total value (or monetary value) of the property contributed by all founders (participants) as payment for the acquired right to participate in the company. That is, the amount of the authorized capital indicated in the company's charter is a nominal figure that determines only the aggregate assessment of the participants' contributions at the time they are made.
The size of the authorized capital, fixed in the charter of the company, may not correspond to the value of the money and property actually received by the company.
Secondly, the types of property contributed to the authorized capital and its valuation are determined by the founders when the company is founded, which does not exclude the subjective assessment of the value of the authorized capital.
In paragraph 1 of Art. 25 of the Federal Law "On Joint Stock Companies" The authorized capital of a company is made up of the nominal value of the company's shares acquired by shareholders.
In paragraph 1 of Art. 14 of the Federal Law "On Limited Liability Companies" The authorized capital of a company is made up of the nominal value of the shares of its participants.
Understanding the essence of the authorized capital is possible through the definition of its functions.
a) financial support function. The authorized capital of a business company is the property basis for the activities of the company, the initial (starting) capital. Therefore, the specific amount of the authorized capital is determined by the founders, depending on the type of activity that the organization being created will be engaged in;
b) warranty function. The authorized capital indicates a certain value of the property owned by the company. The purpose of the authorized capital is to guarantee the obligations of the company to third parties. Since, unlike participants in general partnerships, participants in business companies, according to the general rule established in Art. 56 of the Civil Code of the Russian Federation, are not liable for the obligations of the company own property, then the company must have property on which its creditors will be able to foreclose. To perform the guarantee function, the legislation establishes the minimum amount of the authorized capital of a business entity.
The guarantee function does not mean that the authorized capital should be inviolable and cannot be used for the current needs of the company. The authorized capital is used by the company for entrepreneurial activity and can be spent, among other things, for the acquisition of property, for paying rent for premises, paying salaries to employees, etc. The legislation does not limit the expenditure of authorized capital.
The guarantee function of the authorized capital of the company is that the value of the net assets of the company cannot be less than the size of the authorized capital. If at the end of the second or each subsequent financial year the value of the net assets of the joint-stock company is less than the size of the authorized capital, the company is obliged to reduce the amount of its authorized capital in accordance with the established procedure. And if the value of the net assets of the company becomes less than the minimum amount of the authorized capital determined by law, the company can be liquidated (clause 6, article 35 of the JSC Federal Law).
The concept of "net assets" and the procedure for determining the value of the net assets of joint-stock companies are defined in the legal acts regulating accounting, since the value of the company's net assets is estimated solely on the basis of accounting data.
The net assets of a joint-stock company is a value determined by subtracting from the amount of the company's assets taken into account the amount of its liabilities taken into account. The company's assets consist of cash and property of the company, while liabilities are the company's obligations to third parties.
The procedure for assessing the value of net assets of joint-stock companies was approved by Order of the Ministry of Finance of Russia dated August 28, 2014 N 84n "On approval of the Procedure for determining the value of net assets" (10/14/2014 N 34299).
Thus, the fulfillment of the guarantee function by the authorized capital of the company does not mean limiting the liability of the company by the size of the authorized capital. Legal entities, including business companies, are liable for their obligations with all their property, regardless of the size of the authorized capital (Article 56 of the Civil Code of the Russian Federation).
c) distribution function. The formation of the authorized capital makes it possible to determine the share of participation of each shareholder (participant) in the company. Knowing the share (percentage) of participation of a particular shareholder (participant) in the authorized capital, it is easy to determine his influence at the general meeting of shareholders (participants) and the amount of income due to him from the profit of the company, since the number of votes and the amount of his income correspond to the percentage of participation in the authorized capital. As a general rule, each shareholder or member of a limited liability company has a number of votes at the general meeting in proportion to its share in the authorized capital, the same approach is applied when distributing the company's profits. At the same time, exceptions are possible in a limited liability company: 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 on LLC ) and a different procedure for distributing profits between participants (clause 2, article 28 of the Federal Law on LLC). In addition, members of a limited liability company may be endowed with additional rights, in addition to the rights provided for by law (clause 2, article 8 of the Federal Law on LLC).
