The admissibility of liquidation of a commercial or non-profit organization is enshrined in the civil legislation of Russia, in particular, Articles 61–64 of the Civil Code of the Russian Federation.
Liquidation and its types
Liquidation implies the termination of both the activities of a legal entity and the existence of itself. The methods of liquidation of the company are divided into two types. The first type is voluntary, the second is compulsory. The latter is possible by decision of the judiciary.
One should distinguish between the liquidation of a company and its reorganization. When a company is reorganized, its rights and obligations are transferred to newly formed organizations, and upon liquidation, they are terminated.
Voluntary liquidation
The completion of the organization's activities on a voluntary path can be made at any time. It is not required to indicate to the registering authority any grounds for such an action, and the legislator has not determined a specific list of such grounds. However, an example is the situation in which a legal entity is liquidated in connection with the achievement of a goal (if only it was created exclusively for this). For example, if the founders created a limited liability company whose purpose is the construction of a certain structure. This goal is spelled out in the charter of the LLC. At the end of construction, the company is completely possible to liquidate on a voluntary basis.
Forced liquidation
Paragraph three of Article 61 of the Civil Code of the Russian Federation determines the reasons for which an enterprise can be liquidated by force. It should be noted that this type of liquidation is possible only on the basis of a court decision that has entered into force.
- If, during the creation of the company, serious violations were committed that cannot be eliminated, then such a company may be liquidated by a court decision. In this case, the right to appeal to the court has an authorized body, which in a lawsuit may require recognition of state registration as invalid. Upon satisfaction of the requirement, the company is liquidated (LLC, JSC, etc.).
- The next ground for compulsory liquidation may be a claim of a state body against an organization that engages in any activity without a license (if it is mandatory for this type of activity). The reason may be that this company is not (although it should) a self-regulatory organization, as well as the lack of the necessary permission to admit to some work.
- If a company commits actions prohibited by laws, it repeatedly or grossly violates the laws of Russia.
- The following grounds apply to non-profit organizations, such as religious and public associations, charitable foundations, etc. If these organizations constantly carry out activities that are contrary to their statutory goals, the interested state body may demand their liquidation.
- The Civil Code of the Russian Federation determines that liquidation through a court of law may be carried out on the basis of a claim by the founder. Such a claim is filed by the participant of the company if it cannot continue to carry out its activities or it is rather difficult.
- The list of grounds for compulsory liquidation presented in the Civil Code of the Russian Federation is by no means exhaustive. Therefore, the developers of the Civil Code have established an additional subparagraph determining that the forced liquidation of the management company or any other is possible in other cases, which may be provided for by any other laws.
Special base
Such a reason is the liquidation of a company with debts in accordance with the provisions of the legislation on insolvency and bankruptcy. If the organization does not have sufficient property and funds to settle accounts with all its creditors, then the termination of such a company should be carried out through the court. Voluntary liquidation of such an insolvent organization is also possible, but only by agreement with all its creditors.
Also, the legislation establishes the following obligation of the liquidation commission, which conducts the procedure on other grounds. If in the process of liquidation of a company it is discovered that there is insufficient money to cover all its debts to third parties, this commission is obliged to file a corresponding application with a court demanding that the company be declared bankrupt.
If such a commission has not yet been determined, then such a statement is submitted by the founder, the owner of the property.
Authorized bodies
State bodies can file a lawsuit on the grounds listed in paragraphs 1-4, and local authorities can also delegate such a function, their state has endowed such powers. For example, these may be tax authorities, the Central Bank of Russia, the federal body that controls insurance activities, and others. Such powers may be granted to these departments by legislative acts. For these bodies, such laws will be the Tax Code, the Law on Banks, the Law on the organization of insurance business (when the liquidation of the insurance company occurs), in which these powers are expressly provided.
Responsibilities Following Decision Making
The liquidation process of the company is quite lengthy, and not simultaneous. Information that the organization is in the process of liquidation must be transmitted and recorded in the Unified State Register of Legal Entities. Anyone can get acquainted with such information.
The legislator entrusted the founders of the liquidated company, who decided to cease operations, with some responsibilities. This was done in order to prevent violations of the rights of third parties that may be associated with this procedure, as well as to facilitate better state supervision of the process of termination of activity.
One of these duties is the immediate and timely (within 3 days) notification of the registering institution of the accepted intention, indicating the timing of the liquidation and the procedure.
The next responsibility of the participants of the organization is to carry out liquidation measures. Moreover, in cases where there is not enough property and money for this, participants must conduct these events at their own expense. If they refuse or evade it, the judicial authority may appoint an arbitration manager.
Liquidation commission
The next step of the company participants who have taken the decision on liquidation is the selection and appointment of the liquidation commission, which is given a certain period to complete the task. Since the creation of this commission, it becomes the governing body of this company.
It should be noted that, although the decision on liquidation was made, the company in this regard does not lose its legal capacity. She also retains rights to enter into transactions and other actions. The only thing, all these actions should now be aimed at achieving one goal - the liquidation of the organization.
It is assumed that the liquidation commission, when fulfilling its duties, will act objectively, honestly, and carry out all its actions taking into account the interests of not only the company itself, but also its creditors.
Features of the liquidation of legal entities with various organizational and legal forms are established by special normative acts regulating their activities. When establishing the terms of the liquidation commission, in which it must complete the procedure, these features must be taken into account.
Liquidation Procedure
The liquidation procedure of the company is as follows. After its appointment, the liquidation commission shall place a notice in print media. The announcement must indicate which legal entity is being liquidated, the term for admission, the procedure for claiming creditors' claims of the liquidated person, which should not be less than 2 months from the date of publication.
Placing an announcement in the media does not exempt the liquidation commission from identifying creditors and their written notice that the company is being liquidated. The deadlines for making claims must also be indicated. In addition, she must establish the debtors of the organization, take measures to return debts from them.
After the expiration of the deadline for accepting claims of creditors, an interim liquidation balance sheet is drawn up. It notes what property the company has, a list of creditors with a breakdown of debts, the requirements for which a court decision has entered into force is indicated. Then this balance is subject to approval by the participants of the organization, its founders. The essence of this balance is to identify all creditors, calculate all property and determine the sufficiency of this property to pay off all debts. Creditors' claims must be supported by written documents. It can be court decisions, contracts concluded with the company being liquidated, securities, etc.
The satisfaction of the claims of creditors is as follows. At first, these requirements are satisfied by the money available to the organization. If there are not enough, then the rest of the property is sold. Sale is carried out through bidding. In this case, bidding is not required if the value of an object is less than 100,000 rubles. If there is a shortage of property sold, the case is referred to court for recognition of bankruptcy.
Having completed the settlement with creditors, the commission prepares the final liquidation balance sheet, also approved by the founders. If after all settlements the company has any funds left, they are transferred to the founders. All documents are sent to the authorized state body.
From the moment of entering data on the termination of the company in the USRLE, the company ceases to exist and is considered liquidated.
Settlement with creditors
Settlement with third parties, to which the legal entity is indebted, is carried out in compliance with the order. The legislation establishes four stages, the requirements of each of which must be satisfied after satisfying the requirements of the previous one.
- First of all, citizens, to whom the company has responsibility for causing damage to their life or health.
- The second stage is salary, severance pay for employees of a liquidated legal entity, as well as settlements with the authors.
- The third stage - mandatory payments to the budget.
- The fourth turn - the rest of the creditors.
Settlements with creditors of these lines begin immediately after the approval of the interim liquidation balance sheet.
Apart are creditors whose obligations are guaranteed by the pledge of property of the company being liquidated. Their requirements are satisfied from the proceeds from the sale of such collateral. They have an advantage over other creditors, with the exception of entities from the 1st and 2nd stages, before which the company had obligations before signing the pledge agreement. If the received funds from the sale of collateral is not enough to cover all the debt to the mortgage lender, the missing part of the debt goes into the fourth place.
When settling with creditors, if there is not enough money to completely satisfy their claims, the sums of money are distributed in proportion to the sums of their claims.
Inactive Organization
For a separate reason, a legal entity may be liquidated that within one year has not passed tax and duty reporting established by law. Also, in order to consider such a person to cease activities, it is necessary that he does not perform any banking operations during this period.
Bankruptcy of a legal entity
Bankruptcy is considered one of the reasons for the termination of the company. As well as the necessary liquidation of the company, bankruptcy can be carried out voluntarily or by force. The main sign that a legal entity becomes bankrupt is its insolvency, that is, the inability to pay all its creditors. The Federal Law “On Insolvency (Bankruptcy)” fully reveals the features of the bankruptcy procedure. One of these features of bankruptcy is that the aforementioned law provides not only for the process in which a company is liquidated with debts, but also for all kinds of measures aimed at financial recovery of a legal entity and subsequent settlement with creditors.