Termination of activities of a legal entity types of terminations. Termination of a legal entity. Reorganization of a legal entity: concept and forms
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The activities of an organization can be terminated in two ways: during reorganization or during liquidation.
Reorganization represents the termination of the activities of one organization with the transfer of rights and obligations to another organization.
Reorganization of a legal entity is carried out in the following forms:
Merger of several legal entities into one;
Merger of one or more legal entities to another;
Division of a legal entity into several independent organizations;
Separation from a legal entity (without ceasing its activities) of one or more new legal entities;
Transformation of a legal entity from one organizational and legal form to another (Clause 1, Article 57 of the Civil Code of the Russian Federation).
In all these cases, with the exception of separation, the activities of at least one legal entity are terminated, but its rights and obligations do not terminate, but are transferred to the newly created legal entities in the manner of succession. Succession also occurs during separation, because in this case part of the rights and obligations of the remaining legal entity passes to the newly created (spin-off) legal entity.
Consequently, the reorganization of a legal entity always entails the emergence of succession (even without being associated with the termination of its activities in the event of separation). This is a fundamental difference from the liquidation of a legal entity, in which no succession in rights and obligations arises, because they, like their subject - a legal entity, are subject to termination.
Reorganization of a legal entity according to general rule carried out by it voluntarily, by decision of its founders or a body authorized to do so by the constituent documents, for example, general meeting its participants. Voluntary reorganization in the form of merger, accession or transformation in cases provided for by law can be carried out with the prior consent of state bodies (clause 3 of Article 57 of the Civil Code of the Russian Federation). Such consent is required to be obtained from antimonopoly authorities that control the emergence of business entities that could occupy a dominant position in the product market.
In cases expressly provided for by law, reorganization in the form of division and separation may be carried out forcibly, by decision of the competent government agency or court. Thus, in accordance with the law, legal entities occupying a dominant position in any product market, in the event of repeated violations of the requirements of antimonopoly legislation, may be subject to forced division or separation of independent organizations from their composition.
The reorganization of legal entities is formalized either by a transfer act (balance sheet) (in cases of merger, accession and transformation), or by a separation balance sheet (in cases of separation and separation) (Article 58 of the Civil Code of the Russian Federation).
Creditors must be notified in writing of the ongoing reorganization, and they may demand early termination or fulfillment of obligations and compensation for related losses. Compliance with the rights of creditors is also guaranteed by the provisions of Art. 60 of the Civil Code of the Russian Federation, according to which the transfer act or separation balance sheet must necessarily contain information about all obligations of the reorganized legal entity, including those disputed at the time of reorganization. If after the reorganization it is impossible to determine a successor, the newly created legal entities bear joint liability to the creditor. Such liability means that the creditor has the right to make a claim in full against any of the newly created organizations
The reorganization is considered completed (taken place) from the moment of state registration of newly emerged legal entities, and in the case of merger - from the moment of state registration of the termination of the activities of the merged legal entity (Clause 4 of Article 57 of the Civil Code of the Russian Federation). It should be noted, however, that similar rules also exist in a number of special laws on certain types of legal entities (for example, paragraph 4 of article 15 of the Law “On joint stock companies"; clause 3 art. 51 of the Law “On Companies with limited liability"; clause 2 art. 26 of the Law “On Production Cooperatives”; clause 3 art. 16 of the Law “On Non-Profit Organizations”).
Liquidation a legal entity is a way to terminate its activities in the absence of succession in its rights and obligations (clause 1 of article 61 of the Civil Code of the Russian Federation). Since the rights and obligations of a legal entity are not transferred to legal successors, the task of ensuring the rights and interests of creditors (other participants in property turnover) becomes even more important here than in cases of its reorganization. Therefore, the law establishes a special procedure for the liquidation of a legal entity. Liquidation as a method of terminating a legal entity is a rather complex legal phenomenon that entails a kind of “death” of a particular business entity.
Liquidation can be carried out voluntarily, by decision of the founders or an authorized body of a legal entity, in particular, after the expiration of the period or with the achievement of the goals for which it was created (for example, the management of an enterprise under construction ceases its activities after the finished facility is put into operation). Forced liquidation is also possible in accordance with a court decision (clause 2 of Article 61 of the Civil Code of the Russian Federation). The grounds for it are the implementation by a legal entity of its activities without proper permission (license) or with repeated or gross violation of the law or other legal acts, as well as the contradiction of this activity with legislative prohibitions (including when systematic violation its special legal capacity as a non-profit organization). Cases of forced liquidation of a legal entity can only be provided for by the Civil Code of the Russian Federation. These also include the court invalidating the registration of a legal entity due to irreparable violations of the law committed during its creation, since in this case the “voluntary” liquidation of a legal entity is, in fact, forced (forced) in nature. A special case of liquidation of a legal entity is its insolvency (bankruptcy).
Liquidation of a legal entity is a fairly lengthy procedure, the main content of which is to identify and satisfy the claims of creditors. At the same time, the legal entity continues its activities (until it is removed from the state register). Therefore, both existing and potential counterparties must be aware and warned that this legal entity is in the process of liquidation and is making payments to its creditors, having decided (or being obligated) to cease its activities. For this purpose, persons or bodies that have made a decision to liquidate a legal entity must immediately notify the registration authority in writing in order to enter the relevant information into the register. State Register(clause 1 of article 62 of the Civil Code of the Russian Federation).
The statutory mandatory liquidation procedure is also designed to protect the interests of creditors. After all, the founders or participants of a legal entity during its liquidation are usually interested in preserving the maximum possible balance of property after completion of all payments, since it usually becomes their property. Therefore, liquidation must take place under the control of the body that carried out the state registration of the legal entity.
Liquidation begins with the appointment of a special liquidation commission (liquidcom) or a sole liquidator by the persons or body that made the decision to liquidate the legal entity, to whom all powers to manage the affairs of the legal entity are transferred, including appearing in court on its behalf (clauses 2 and 3 Art. 62 of the Civil Code of the Russian Federation). Such a commission (or a sole liquidator) is appointed by mandatory agreement with the registration authority (Clause 1, Article 62 of the Civil Code of the Russian Federation). The above actions constitute the first stage of the liquidation process.
The main task of the liquidation committee is to identify all debts of a legal entity and carry out settlements with its creditors, therefore, at the second stage, the liquidation committee is obliged to publish a notice of the liquidation of the legal entity, as well as the procedure and deadline for filing claims by its creditors (and such a period cannot be less than two months from date of this publication) and notify in writing of the liquidation all creditors known to him. In addition, the liquidation committee takes all other possible measures to identify creditors, as well as to collect debt from debtors of the liquidated legal entity (accounts receivable). It should be noted that the legislator allows the publication of a notice in any media, without in any way limiting the choice of the liquidation committee. An exception is provided for cases of bankruptcy - such announcements must be published in " Rossiyskaya newspaper", as well as other cases provided for by law (for example, announcements about the liquidation of credit institutions must be placed in the "Bulletin of the Bank of Russia").
After the deadline for submitting claims by creditors, the liquidation committee must draw up an interim liquidation balance sheet, which reflects information about the actual composition of the property of the liquidated legal entity, the list of claims submitted by creditors and the results of their consideration (the possibility of satisfaction or rejection). This balance is approved by the persons or bodies that made the decision on liquidation, also in agreement with the registering authority (Clause 2 of Article 63 of the Civil Code of the Russian Federation). The latter must therefore monitor the correctness and validity of the balance sheet data. These actions complete the second stage of liquidation.
If, according to the interim balance sheet, the liquidated legal entity does not have enough Money In order to satisfy the claims made by creditors, the liquidator sells his property at public auction (usually in the form of an auction in order to obtain the maximum possible amount for it). If there is a shortage of this property, in some cases it is possible to file a claim to satisfy the remaining part of the claims at the expense of the property of the founder (state-owned enterprise or institution) or participants of the legal entity (general partners, members of additional liability companies, production cooperatives, associations and unions). In this case, the creditor is not bound by the deadlines for approving the liquidation balance sheet and the work of the liquidation commission. This is the third stage of liquidation.
From the date of approval of the interim liquidation balance sheet, settlements with creditors of the legal entity begin, constituting the fourth stage of its liquidation. They are carried out in the order of priority established by Art. 64 Civil Code of the Russian Federation. In accordance with it, three sequentially satisfied queues of privileged creditors are provided, whose claims are satisfied preferentially before other creditors. There is also a fourth priority, which includes the claims of all other (non-privileged) creditors, payments to which begin only after a month has passed from the date of approval of the interim liquidation balance sheet. In this case, the requirements of each subsequent queue are satisfied only after the requirements of the previous queue are fully satisfied (clause 2 of Article 64 of the Civil Code of the Russian Federation). Consequently, if there is a shortage or absence of the necessary property, the requirements of subsequent queues may remain unsatisfied. Among creditors of the same priority, the property of a liquidated legal entity, if it is insufficient, is distributed in proportion to the amounts of their claims. For example, if the requirements of the corresponding queue amount to 500 thousand rubles, and the property remaining after satisfying the demands of the previous founders of the queues costs 100 thousand rubles, then this means that each of the creditors of this queue will receive only 20 kopecks per ruble of debt.
First of all, the requirements of citizens to the liquidated legal entity for compensation for harm caused to life or health, as well as for compensation for moral damage are included. When liquidating credit institutions, the demands of depositors are also satisfied first - individuals, for deposits not related to business activities. Secondly, there are claims for wages and remuneration under copyright contracts that arose both before and during the liquidation process. Thirdly, the requirements for mandatory payments to the budget (taxes) and extra-budgetary funds (pension, etc.) are satisfied. All other requirements relate to the fourth stage.
If the liquidation committee refuses to satisfy a specific claim of a creditor, the latter has the right to file a corresponding claim in court (until the final liquidation balance sheet is approved). During the same period, it is still possible to file a claim with the liquidator, despite missing the deadline established by it for these purposes. In both situations, the creditors' claims can be satisfied from the remainder of the property, if any. In the absence of such a balance, the creditors' claims are considered extinguished. The claims of creditors rejected by the liquidation committee and then not presented in court, or claims the satisfaction of which the creditor was denied by a court decision (clauses 4-6 of Article 64 of the Civil Code of the Russian Federation) are also repaid.
The last, fifth stage of liquidation begins after completion of all settlements with creditors. The liquidation committee draws up the final liquidation balance sheet, which is approved by the persons or body that made the decision to liquidate the legal entity, in agreement with the registration authority (clause 5 of article 63 of the Civil Code of the Russian Federation). The remainder of the property is transferred to the founders or participants of the legal entity, and upon liquidation of some non-profit organizations used for the purposes provided for by law and their constituent documents. Liquidation is considered completed, and the legal entity is considered to have ceased to exist from the moment an entry about this is made in the state register (clause 8 of Article 63 of the Civil Code of the Russian Federation).
First of all, we note that civil legislation does not contain a definition of the concept of “termination of a legal entity.” Nevertheless this term actively used in regulatory legal acts.
The Civil Code of the Russian Federation establishes that the legal capacity of a legal entity arises from the moment information about its creation is entered into the Unified State Register of Legal Entities (hereinafter referred to as the Unified State Register of Legal Entities) and terminates when information about its termination is entered into the said register.
In accordance with the Civil Code of the Russian Federation, when a legal entity is reorganized in the form of the merger of another legal entity, the first of them is considered reorganized from the moment an entry is made in the Unified State Register of Legal Entities on the termination of the activities of the merged legal entity.
IN Federal Law dated 08.08.2001 N 129-FZ "On state registration of legal entities and individual entrepreneurs"(hereinafter - Law N 129-FZ) provides that the reorganization of legal entities in the form of transformation, merger, division is considered completed from the moment of registration of newly emerged legal entities, and the reorganized legal entities are considered to have ceased to exist. Similar provisions regarding the consequences of the reorganization of legal entities are contained in, Federal Law dated December 26, 1995 N 208-FZ “On Joint-Stock Companies” and Federal Law dated February 8, 1998 N 14-FZ “On Limited Liability Companies”.
The Civil Code of the Russian Federation operates with the concept of “termination of an inactive legal entity,” meaning the exclusion from the Unified State Register of Legal Entities of information about a legal entity that, during the twelve months preceding its exclusion from the specified register, did not submit reporting documents required by law Russian Federation about taxes and fees, and did not carry out transactions on at least one bank account.
From the above rules it follows that the termination of a legal entity is a termination of the activities of a legal entity, legally secured by making appropriate entries in the Unified State Register of Legal Entities, entailing the inability of this legal entity to further acquire and exercise (fulfill) rights and obligations on its own behalf and in any way participate in civil circulation.
In turn, under the liquidation of a legal entity, civil legislation implies a certain procedure that entails the termination of this legal entity without transfer in the order of universal succession of its rights and obligations to other persons (Civil Code of the Russian Federation).
Taking into account that, as follows from the above norms, the termination of legal entities in the process of reorganization entails the transfer of the rights of these legal entities to newly created or existing legal entities (see also the Civil Code of the Russian Federation), and the termination of an inactive legal entity (Civil Code of the Russian Federation ), according to Law N 129-FZ, does not require compliance with the liquidation procedure provided for by the Civil Code of the Russian Federation, we can conclude that the termination of a legal entity as a result of liquidation is only one of the possible cases of termination of a legal entity.
Thus, the concepts of “liquidation of a legal entity” and “termination of a legal entity” are correlated as particular and general, that is, the liquidation of a legal entity is only a special case of its termination.
Prepared answer:
Expert of the Legal Consulting Service GARANT
Candidate of Legal Sciences Shirokov Sergey
The answer has passed quality control
The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.
The activities of a legal entity are terminated through its reorganization (Article 57) or liquidation (Article 61).
Reorganization of legal entities is carried out in the following forms: a) merger of several legal entities into one; b) merger of one or more legal entities to another; c) division of a legal entity into several independent legal entities; d) separation from a legal entity (which does not cease its activities) of one or more new legal entities; e) transformation of a legal entity from one legal entity to another. In all cases, except for “d”, the activity of at least one legal entity is terminated, but its rights and obligations do not terminate, but are transferred to the newly created legal entities in the order of succession. Succession also occurs during separation, because part of the rights and obligations of the remaining legal entity passes to the separated legal entity. Consequently, the reorganization of a legal entity always carries succession, and this is its difference from the liquidation of a legal entity, in which no succession arises, because their subject (LE) is subject to termination.
The reorganization of a legal entity, as a general rule, is carried out voluntarily, by decision of its founders or its authorized body (general meeting). Voluntary reorganization in the form of merger, accession or transformation in cases provided for by law requires the prior consent of government agencies (antimonopoly or other). In cases expressly specified in the law, reorganization in the form of separation and separation can be carried out forcibly, by decision of the competent government agency or court (legal entities that occupy a dominant position in the market have repeatedly violated the requirements of antimonopoly legislation). Reorganization of a legal entity is formalized either by a transfer act (balance sheet) (merger, accession or transformation) or by a separation balance sheet (division and separation). These documents must contain a provision on the succession of all rights and obligations of the reorganized legal entity in relation to its creditors and debtors without exception (Article 59). Often in practice, the reorganization of a legal entity worsens the position of creditors, therefore the law requires notification of all creditors about the decision made by the founders, and the latter have the right to demand termination or early fulfillment of relevant obligations and compensation for losses incurred. The approved PA or RB must be submitted to the GR along with other documents. The reorganization is considered completed from the moment of the GR of the newly emerged legal entities, and in the case of merger - the GR of the termination of the activities of the merged entity.
Liquidation of a legal entity is a method of terminating its activities in the absence of succession in its rights and obligations. In this case, the task of protecting the rights and interests of creditors becomes even more important than in cases of reorganization. The Civil Law establishes a special procedure for the liquidation of legal entities. Liquidation can be carried out voluntarily by decision of the founders or an authorized body of the legal entity. Forced liquidation is also possible in accordance with a court decision, on the basis of: carrying out activities without proper permission (license); repeated gross violation of laws or regulations; Contradiction of activities with legislative prohibitions, etc. The Civil Code provides for all cases of forced liquidation of a legal entity. A special case of liquidation of a legal entity is bankruptcy.
Liquidation of a legal entity is a fairly lengthy procedure, the main content of which is to identify the satisfaction of the claims of creditors. At the same time, the legal entity continues its activities, and the persons who made the decision on liquidation notify the registration authority about this. The reported information is entered into the state register, and the words “in liquidation” must be added to the name of the legal entity. Liquidation takes place under the control of the body that carried out the GR of the legal entity. Stages of liquidation of a legal entity: appointment, with the consent of the registration body, of a special liquidation commission (sole liquidator); publication in the media of a notice of liquidation, as well as the procedure and timing (at least 2 months) for filing claims by creditors and written notification of this to known creditors; approval of the interim liquidation balance sheet; if there is insufficient funds to satisfy the stated requirements - sale of the legal entity’s property at public auction; settlements with creditors of legal entities in order of priority (Article 64 – recourse, salary, collateral, taxes, others); drawing up a liquidation balance sheet and its approval, transferring the remaining property to the founders. Liquidation is considered completed, and the legal entity has ceased to exist, from the moment an entry about this is made in the state register.
The termination of legal entities consists of two very different procedures, namely reorganization and liquidation. All this together adds up to the termination of a legal entity.
Reorganization is a way to terminate a legal entity with the transfer of its rights and obligations to another person. The common term for this is “succession”. It is always present during reorganization.
Liquidation is a method of terminating a legal entity without legal succession, that is, a completely irreversible method.
Reorganization.
The reorganization occurs in the following order:
1. Making a decision on reorganization.
This decision can be made by:
· Founders of a legal entity (participants of a legal entity);
· Body of a legal entity within the competence of which this issue is included in the constituent documents. Most often this is a general meeting.
· In cases provided for by law, a decision on reorganization may be made by decision of an authorized government body or by a court decision. According to their decision, most often it concerns division and merger (due to the need to comply with antimonopoly legislation). If the state makes a decision on reorganization, and the legal entity does not begin the reorganization within the established time frame, then the state goes to court and then it is carried out forcibly, compulsorily.
Reorganization occurs in five forms:
1) Merger.
2) Accession.
3) Separation.
4) Selection.
5) Transformation.
Merge:
New legal entity
1 legal l. 2 legal entities, 1 is included in its composition.
Highlight:
A legal entity makes a decision and a legal entity is separated from it. Selection is a method in which there is no cessation. That is, it is a form of creation rather than cessation.
1 legal l. 2 legal entities, new, separated from the first legal entity.
Separation.
From one legal entity two are formed and the original one is terminated. Reverse connection.
Legal entity OJSC "Solnyshko" LLC.
In case of merger, transformation and accession, a transfer deed is drawn up, and in case of separation and division, a separation balance sheet is drawn up.
Article 59.
Reorganization procedure.
1. A decision is made on reorganization. The legal entity reports this decision to the Federal Tax Service as the registration authority within 3 working days. This message (notification) must indicate, with mandatory indication, the date from which the reorganization begins and the form of the reorganization.
2. The registering authority makes an entry in the Unified State Register of Legal Entities that this person is in the process of reorganization.
3. Information about the reorganization must be published. The law requires that there be at least two publications with a frequency of once a month. This happens after the entry appears in the registry. The law determines the means mass media, in which it is worth doing this - it must be published in the relevant media that publish information about registration. "Bulletin of State Registration".
The publication must contain information about each legal entity participating in the reorganization, information about the legal entity being created (the one that will only be formed, it does not exist yet), the form of organization, the procedure and conditions for filing claims by creditors. And in some cases, a number more.
4. Statement of creditors' claims. This step is not always necessary because it may not exist if creditors decide not to pursue a claim. This is Article 60 of the Civil Code of the Russian Federation.
Creditors of reorganized legal entities have the following rights:
1) Demand early fulfillment of obligations from your counterparty undergoing reorganization.
2) If early fulfillment of obligations is impossible, demand termination of the obligation and compensation for losses caused by this. The law now requires that claims against these creditors arise before notice of the reorganization is published.
3) The Civil Code, in part 3 of Article 60, establishes a special rule: “Creditors of a legal entity - an OJSC, reorganized in the form of a merger, accession or transformation, if its rights of claim arose before the publication of the notice of reorganization have the right V judicial procedure demand early fulfillment of an obligation or termination of obligations and compensation for losses in the event that the reorganized legal entity, its participants or third parties do not provide sufficient security for the fulfillment of relevant obligations.” These requirements can be stated no later than 30 days after publication.
If all the obligations of the reorganized legal entity occur before the reorganization, everything is fine. And if after... In this case, the Civil Code says that newly formed legal entities become joint and several debtors among themselves (if the legal entity has ceased) and with the original legal entity, if it has not terminated.
5. The reorganization will be finally completed after information on the termination of those being reorganized and the creation of new legal entities in the process of reorganization is entered into the Unified State Register of Legal Entities.
Liquidation of a legal entity.
Now we are talking about liquidation without bankruptcy.
Grounds for liquidation:
1. The Civil Code provides separate grounds for liquidation at the initiative of the founders; such liquidation is sometimes called “voluntary”.
2. Grounds for liquidation by court decision. This type of liquidation is sometimes called a “forced” liquidation.
Grounds for voluntary liquidation. They are not exhaustive and cannot be exhaustive and look like this:
1) Either in connection with the achievement of the goals for which the legal entity was created;
2) Either the unattainability of the goal;
3) Either with the expiration of the period, if you created a legal entity for a certain period;
4) And a number of others.
That is, for any reason. No one will establish this reason. “We don’t want to, we can’t do it anymore and we’re completely tired of it” - this is how you can write it, it will be something like “the unattainability of the goal.”
Grounds for forced liquidation.
Provided for in Part 2 of Article 61 of the Civil Code of the Russian Federation:
1. In case of gross violations of the law committed during the creation of a legal entity, if these violations are irreparable.
2. In connection with the implementation of activities by a legal entity without a license.
3. In connection with the implementation of activities prohibited by law or in violation of the Constitution of the Russian Federation.
4. Or with the commission of other repeated or gross violations of the law or other legal acts.
5. For non-profit organizations - if it is established that they systematically carry out activities that contradict their statutory goals.
6. And in other cases provided by law.
Liquidation procedure:
1) Decision-making by the founders of a legal entity or the relevant body of a legal entity, and in prescribed cases - government agencies, about liquidation. This decision should be notified in writing immediately (immediately) to the Federal Tax Service - the registration authority. The Federal Tax Service contributes to Unified State Register of Legal Entities information that the legal entity is in liquidation.
2) Participants of a legal entity or its body appoint a liquidation commission (liquidator, if one person and not a commission), and also make decisions on the procedure and timing for filing claims by creditors and resolve other organizational and liquidation issues.
3) From the moment the liquidation commission is created, the powers to manage the affairs of the legal entity are transferred to it (in essence, the powers of a permanent executive body).
4) Identification of creditors and debtors of a legal entity. The main focus is on creditors, not debtors.
To identify creditors, the following measures must be taken:
1. All known creditors must be notified in writing of the liquidation.
2. The liquidation commission is obliged to publish in the same media (“Bulletin of State Registration”) a notice of liquidation, which must indicate the deadlines and procedure for filing an application from creditors, and these deadlines cannot be less than 2 months from the date of publication.
3. At the same stage, accordingly, it is necessary to wait for this period and create all the creditors’ claims that will be submitted.
4. All stated claims of creditors are considered by the liquidation commission and, regardless of recognition or non-recognition of their validity, must be included in the interim liquidation balance sheet.
5. The liquidation commission prepares an interim liquidation balance sheet, and it, in turn, is approved by the bodies or founders of the legal entity. This balance sheet must reflect all the property owned by the legal entity - and in in a broad sense property: both active and passive. It must reflect all submitted applications from creditors and the results of their consideration. If the creditors' claims are not justified, then the claims are included in the interim balance sheet, and next to it it is written that the claims are unfounded and will not be satisfied. Creditors can appeal this in court.
5) Intermediate (subsidiary) stage. If the interim liquidation balance sheet reveals insufficient funds to satisfy the claims of creditors. Then, at this stage, other property can be assessed and sold at public auction.
6) Satisfying the demands of creditors. Satisfaction occurs in the order of priority; queues are provided for in Article 64 of the Civil Code of the Russian Federation.
The priority principle consists of two rules:
1. Satisfaction of the claims of creditors of each subsequent priority occurs only after the claims of the previous ones have been fully satisfied.
1. General Provisions. Legal entities not only arise, but also stop its activities in accordance with the procedure established by law. In this case, it is necessary to distinguish between the statutory reasons, methods And forms termination of activities of legal entities.
Grounds for termination– these are certain factual circumstances with which the law connects the termination of the activities of legal entities.
The grounds for terminating the activities of legal entities can be very different. If, for example, a legal entity was created to achieve specific purpose, then upon achieving this goal it ceases to exist. The expiration of a certain period for which a legal entity was created is also grounds for termination of its activities.
Legal entities based on private form property and created in any organizational and legal form, cease to exist not only on the grounds provided for by law, but also on grounds that may be additionally determined by their charters or regulations.
Termination methods- this is the procedure for terminating the activities of legal entities provided for by law.
Yes, termination government organizations, which are legal entities, is carried out by the body by whose decision they were formed. Legal entities of any organizational and legal form, based on private ownership and created at the request of their founders, can terminate their activities in the same voluntary manner.
Thus, the methods of terminating legal entities are not fundamentally different from the methods of their creation.
It is, however, also possible forcible termination of the activities of legal entities, i.e. against the will of their founders. Based on a court decision, business companies cease their activities if they are declared bankrupt, systematically and grossly violate the current legislation, if the constituent documents are declared invalid, in other cases provided for by the current legislation (Article 19 of the Law of Ukraine “On Business Companies”). By a court decision, an association of citizens ( public organization or Political Party) is dissolved (ceases its activities) in cases where its activities take on a nature that undermines the security of the state, restricts generally recognized human rights, in other cases provided for in Art. 4, 22 and 32 of the Law of Ukraine “On Citizens' Associations”.
Forms of termination– these are methods for terminating the activities of legal entities provided for by law.
Legal entities are terminated through reorganization and liquidation.
2. Reorganization of legal entities. For many decades, reorganization was considered as a method of terminating a legal entity, distinct from liquidation by the presence of succession. This approach was predetermined by the norms of Art. 37 of the Civil Code of the Ukrainian SSR of 1963. The legislation lacked even legal definitions of both the reorganization itself and its individual forms.
As a result of codification, the Criminal Code of Ukraine retains the term “reorganization”, traditional for our legislation, and establishes the possibility of terminating the activities of a business entity through its reorganization (merger, accession, division, separation, transformation) (Article 59). At the same time, the Civil Code of Ukraine does not contain the general term “reorganization”. It is replaced by a list of its forms: merger, accession, division, transformation (Part 1 of Article 104). This was explained by the desire of the developers of the Civil Code of Ukraine to apply European legal structures, which do not have this term, but in legal norms are indicated separate forms reorganization or a list of them, or the phrase “termination that does not entail liquidation” is used.
The main goal of the reorganization is not the termination of the subject of law, but, on the contrary, the continuity of the implementation economic activity, preservation and continuation of an integral property complex either in the form of the creation of a new entity, or “...by inclusion in an already existing entity.” However, always, with any form of reorganization, its result is the appearance in commercial circulation of a new or updated integral property complex (integral property complexes).
Analyzing the process of reorganization, it is possible to identify its inherent elements of both creation and termination. New entities are created through reorganization in four legal forms - merger, separation, division, transformation. Elements of creation in these forms can be traced in the appearance of: a new property base of the organization - a new size of the authorized capital, changed quality composition an integral property complex (integral property complexes), as well as the subject (subjects) of the reorganization.
Subjects also cease to exist in four forms - upon merger, annexation, division, and transformation. Elements of liquidation include, in particular, the closure of bank accounts, deregistration with tax authorities, exclusion from the Unified State Register of Legal Entities (hereinafter referred to as the Unified State Register), and submission of seals and stamps for destruction.
As we can see, elements of creation and termination simultaneously take place only during merger, division and transformation, while in other forms of reorganization only one of the elements occurs: either only termination (upon accession) or only creation (upon separation).
The rights and obligations of the legal predecessor, depending on the form of reorganization, may be transferred to a different number of legal successors. During a merger and accession, they pass in full to only one legal successor, and not to several (as in the case of division) or to one or more (as in the case of separation). This, on the one hand, is common feature such legal forms of strengthening the position in the market as mergers and accessions, with the help of which the economic problem is solved - the capitalization of business companies. On the other hand, their distinctive feature from such forms of reorganization as division and spin-off.
So, the signs of reorganization are:
1) the emergence of a new or updated integral property complex of a legal entity;
2) creation of one (or more) legal entity (entities) and (or) termination of one (or more) legal entity (entities);
3) the presence of legal succession between the reorganized legal entities (legal predecessors and successors).
Reorganization is the termination of the activities of a legal entity when its affairs and property are not liquidated, but are transferred to another legal entity that is obliged to perform the functions of the ceased legal entity.
There are 5 forms of reorganization: merger, accession, division, separation and transformation.
When one legal entity merges with another, all property rights and obligations of each of them are transferred through a transfer deed to the legal entity resulting from the merger.
When one legal entity merges with another, all property rights and obligations of the merged legal entity are transferred to the latter.
When dividing a legal entity, the property rights and obligations of the reorganized legal entity are transferred to the new legal entities according to the separation act in the relevant parts.
When one or more new legal entities are separated from a legal entity, the property rights and obligations of the reorganized legal entity are transferred to each of them according to the separation balance sheet in the appropriate parts.
When one legal entity is transformed into another, all property rights and obligations of the previous legal entity are transferred to the newly emerged legal entity (the organizational and legal form changes: state enterprise in JSC).
The participants of a legal entity, the court or the body that made the decision to terminate the legal entity, appoint, in agreement with the body carrying out state registration, a commission for the termination of the legal entity (the functions of the commission may be assigned to the management body of the legal entity):
– from the moment the commission is appointed, the powers to manage the affairs of the legal entity are transferred to it;
– the commission acts on behalf of a legal entity that is being terminated;
- the commission for the termination of a legal entity publishes in the printed media ("Uriadovy Kur'yer", or a specially created printed organ from state registration) information that the legal entity is in a state of reorganization and about the procedure and deadline for filing claims against it (this the period cannot be less than 2 months);
– the termination commission takes all possible measures to identify creditors and personally notifies them of the termination of the legal entity.
A legal entity is considered to have ceased to exist from the date of entry into the Unified State Register of Enterprises and Organizations of a record of its termination (Article 104 of the Civil Code, Article 59 of the Criminal Code - records of the termination of its activities). The termination of the activities of legal entities is carried out, as a rule, in the same order in which they were created (with the exception of bankruptcy).
Liquidation a legal entity is a way to terminate its activities without transferring rights and obligations through succession to other persons. The Civil Code of Ukraine contains a list of grounds for liquidation of legal entities, which can be either voluntary or compulsory.
IN voluntary In accordance with the procedure, a legal entity is liquidated by a decision of its participants or a body of the legal entity authorized to do so by the constituent documents. The grounds for voluntary liquidation are the expiration of the period for which it was created, the achievement of the goals of the organization for which it was created, as well as in other cases provided for by the constituent documents (clause 1, part 1, article 110 of the Civil Code of Ukraine).
Forced liquidation is carried out by a court decision on the court declaring the state registration of a legal entity invalid due to violations committed during its creation that cannot be eliminated, as well as in other cases established by law (for example, if it carries out activities that contradict statutory documents or prohibited by law; failure to provide documents to tax authorities throughout the year financial statements; presence in the Unified State Register of a record of the absence of a legal entity at the location indicated by it, etc.).
For some types of legal entities, the law establishes additional grounds for liquidation. The Civil Code of Ukraine provides additional grounds for liquidation individual species legal entities operating within certain organizational and legal forms. For example, according to Part 1 of Art. 141 of the Civil Code of Ukraine, the number of participants in a limited liability company should not exceed the limit established by the legislation of Ukraine. Otherwise, it is subject to transformation into a joint-stock company within one year, and upon expiration of this period - liquidation through a judicial procedure, if the number of its participants does not decrease to the established limit. A limited liability company cannot have another business company consisting of one person as its sole participant.
Part 2 Art. 38 of the Law of Ukraine “On state registration of legal entities and individuals - business entities” establishes that the basis for the resolution court decision about liquidation is non-compliance minimum size statutory fund of a legal entity to the requirements of the law. This general basis is specified for business entities. The legislation provides for such grounds for liquidation as loss of property, i.e. reduction in cost net assets organizations below the minimum size level authorized capital . Thus, a limited liability company is also subject to liquidation if its participants have not paid the full amount of their contributions during the first year of the company’s activity or if the value of net assets decreases below the level established by law (Part 4 of Article 144 of the Civil Code of Ukraine). A similar rule only regarding joint-stock companies is contained in Part 3 of Article 155 of the Civil Code of Ukraine.
Another example of establishing additional grounds in legislation could be Art. 83 of the Law of Ukraine “On Business Companies”, as well as Part 1 of Art. 139 of the Civil Code of Ukraine, which provide that a limited partnership is terminated if all participants leave it with full responsibility. Under such circumstances, all required composition limited partnership, and it ceases to correspond to its form. However, under such circumstances, its full participants have the right to transform the limited partnership into a full one.
The constituent documents may provide for the liquidation of a general partnership in the event of the departure of any of the participants from it. According to Part 1 of Art. 132 of the Civil Code of Ukraine, a general partnership is liquidated if there is only one participant left in the society. Liquidation of both a full and limited partnership takes place if only one member of the company remains due to the fact that these organizational - legal forms societies are an association of two persons to conduct business activities. However, this participant has the right for a period of six months from the date he became the only participant society, transform it into another economic company. This is a wise decision by the legislator, since it is inappropriate to liquidate, for example, a general partnership that was created by two persons and generates a stable income in the event of the death of one of the participants. However, if the remaining participant does not take advantage of the given opportunity to transform the business company, he will be forced to accept its liquidation.
Article 36 of the Law "On securities and the stock market" establishes that the activities stock exchange terminates when there are fewer than ten members. If the stock exchange has ten members left, its activities will cease if new members are not admitted within six months. These are additional grounds for terminating stock exchanges, and in other cases, the activities of the stock exchange are terminated in accordance with the legislation of Ukraine on joint stock companies and other types of business entities.
Liquidation procedure legal entity is regulated by Art. 111-112 Civil Code of Ukraine, Art. 60 – 61 HC of Ukraine and consists of the following stages:
1) the participants of the organization, its authorized body or the court, which made the decision on liquidation, appoint a liquidation commission (or a sole liquidator), determine the procedure and timing of liquidation. The liquidation commission assumes all powers to manage the legal entity;
2) the liquidation commission publishes a notice in the press about the liquidation of a legal entity, the procedure and deadline for filing claims by creditors (this period cannot be less than 2 months), identifies all creditors and notifies them of the liquidation, and collects the receivables of the legal entity;
3) the liquidation commission evaluates the composition of accounts payable, makes a decision to satisfy (reject) the identified claims and draws up an interim liquidation balance sheet;
4) in accordance with the interim liquidation balance sheet, the legal claims of creditors are satisfied, and payments are made in the order of priority established by Art. 112 Civil Code of Ukraine. If the organization’s funds are not enough to pay creditors, the liquidation commission sells the property of the legal entity;
5) after repayment of accounts payable, the liquidation commission draws up the final liquidation balance sheet and distributes the remaining property among the participants of the legal entity, unless otherwise follows from the law or constituent documents organizations. All documents formalizing the liquidation are transferred to the registration authority, which, on their basis, makes a corresponding entry in the unified state register of legal entities. From this moment on, the legal entity is liquidated.
The specifics of the liquidation procedure in the event of bankruptcy of a legal entity are established by the Law of Ukraine “On restoring the debtor’s solvency or declaring him bankrupt.”
1. Define a legal entity. What are the characteristics of a legal entity?
2. Expand the concept of “organizational unity of a legal entity” and determine the governing bodies of the legal entity. What is “corporate democracy”?
3. How is the property independence of a legal entity expressed? Expand the concept and meaning of the authorized capital.
4. Expand the meaning of independent property liability of legal entities and the features of the liability of some legal entities (state-owned enterprises, general companies, limited partnerships, companies with additional liability).
5. What methods of creating legal entities are distinguished in the science of civil law?
6. What legislative acts Is the creation of legal entities regulated?
7. Who has the right to establish a legal entity? Who is the founder and participant of a legal entity?
8. What rights and obligations do a participant in a legal entity have?
9. What is the importance of state registration of legal entities? What is the Unified State Register?
10. Determine the procedure for registering legal entities and the grounds for refusing state registration of a legal entity.
11. Determine the bodies authorized to make decisions on invalidating a record of state registration, and the legal consequences of such a decision.
12. By what criteria can legal entities be classified?
13. Name the organizational and legal forms of legal entities.
14. What types of business companies do you know? Describe the features of their legal status.
15. The concept of a cooperative. Types of cooperatives.
16. Features of the status and responsibility of a state-owned enterprise.
17. Legal status of the institution.
18. What is reorganization of a legal entity?
19. What is the liquidation of a legal entity? What are its legal consequences?
20. Procedure for liquidation of a legal entity: legal status liquidation commission, procedure for satisfying creditors' claims.