Despite the fact that in the Russian Federation there are a sufficient number of various organizational and legal forms of a legal entity, at the end of 2011 the Government decided to introduce another type, namely, economic partnership.
This form of enterprise, according to the legislator, was supposed to be something between households. partnership and households. society and serve as an ideal option for innovative business. Thus, citizens of the Russian Federation received the right to create an economic partnership. Examples of industries that are most suitable for this are as follows: organizations working on applied research, design activities, technical, technological innovations, etc.
The concept of economic partnership
Economic partnerships are commercial enterprises created by several persons (at least two, but not more than 50), which are managed by members of the organization or other persons to the extent and extent established by the partnership management agreement. Household Partnerships are one of the forms of a legal entity, legally enshrined and regulated in Russia.
These enterprises have the ability to conduct their business only in those areas and only those types that are approved by the Government of the Russian Federation. Moreover, to obtain the right to engage in some of these partnerships are required to have a license. Participants in the economic partnership can be both private individuals and legal entities.
Legal regulation
Like any other type of activity, they are regulated by the SCF and the relevant Federal Law. The main features and nuances of managing households. partnerships are provided for in federal law. This law (Federal Law No. 380 "On Economic Partnerships") was adopted in December 2011, the third day.
The Government of the Russian Federation prescribes how economic partnerships should be founded and how they are managed. Civil Code of the Russian Federation in Art. 50 secures partnership as one of the forms of a commercial organization, and in Art. 65.1 clarifies that this type of enterprise is a corporate legal entity.
Federal Law No. 380 determines the legal status of economic partnerships, the procedure for their establishment and management, their rights and obligations, especially the reorganization or liquidation, as well as the rights, duties and responsibilities of participants in the partnership. It spells out the nuances of creating and maintaining constituent documents and equity capital.
Partnership establishment
The establishment of an organization of such a form as economic partnership is possible only by decision of the founders at their meeting (in full force). Formation of a company through the reorganization of another company is not possible.
At the time this business is established, participants are required to select and appoint a partnership auditor. It can be both an organization and a private person who are entitled to engage in auditing in accordance with the legislation of the Russian Federation.
Decision on the approval of households. Partnerships must contain the voting results of the founders, as well as information on decisions taken by them (on concluding a partnership agreement, election of governing bodies and others).
The registration of a business partnership is regulated by Federal Law 129 of 08.08.2001 “On State. registration of legal entities and individual entrepreneurs ”. It is carried out by the Federal Tax Service within the time limits established by law.
Partnership Management Bodies
Economic partnerships must without fail elect a sole executive body and an audit committee.
The procedure for their formation is enshrined in the partnership agreement, except for those features and nuances that are prescribed in the charter.
The sole executive body is elected by selecting one of the participants in the partnership, for the period specified in the charter or for an unlimited period, if this nuance is not specified in the constituent document. All information (including information on changes) about the sole executive body is subject to state. registration.
The sole executive body acts on behalf of the partnership (without a power of attorney), is responsible and has the rights prescribed in the management agreement. He has the right to issue decrees on the appointment or dismissal of employees of the organization, to encourage or fine employees.
Partnership Revision Commission (auditor) is a body having the right to conduct regular independent reviews of the partnership, its financial and economic activities. She has access to all legal documents. faces. The order of its activities is established by the charter of partnership.
An inspector or a member of the commission may only be a person who is not a member of the economic partnership.
Rights of participants and partnership in general
The Federal Law on Economic Partnerships (Article 5 of the Federal Law No. 380) explains and regulates the rights of participants in a legal entity, namely, participants have the opportunity to:
- manage partnerships;
- receive all the necessary information about the organization’s activities, including access to accounting and other documentation;
- sell their own share in the partnership’s capital, while in the case of a sale, the remaining members of the partnership have a preemptive right to purchase, and all transactions are notarized;
- in case of liquidation of a legal entity, to receive part of the property (in kind or in cash), if it remains after all settlements with creditors;
- refuse a share in the partnership or require the partnership to redeem it.
Also, if the agreement on the management of the enterprise provides, participants are entitled to give their own share on bail.
As for the rights of economic partnerships, the federal law on economic partnerships affords it the opportunity to possess all civil rights and obligations that are necessary for any activity permitted by the laws of the Russian Federation, if this does not contradict the goals of the partnership, which are specified in the Charter and the agreement.
Moreover, the Federal Law prohibits partnerships:
- be a founder or participant in other enterprises (legal entities), with the exception of unions or associations;
- issue bonds or other securities;
- advertise organization activities.
Responsibilities and Responsibilities
In addition to the rights vested in the participants of the partnership, as well as the enterprise as a whole, the law on economic partnerships sets out their duties and responsibilities. So, participants in these firms are required to:
- to make contributions to the share capital at the time and in the volumes stipulated by the agreement;
- Do not disclose confidential information about the organization.
It should be noted that members of the organization are not liable for partnership obligations, but only have the risk of possible losses associated with the activities of the enterprise, within the limits of their contributions. Meanwhile, the partnership is liable with all its property for its own obligations and is not responsible for the obligations of its participants.
If the partnership does not have enough funds to settle accounts with creditors, participants can voluntarily pay off this debt.
If the agreement on managing a business partnership provides for the appointment of members of a partnership management, then these persons are liable for losses to the organization if they arise due to their fault (action / inaction). An exception may be only other grounds or amounts of liability specified in the agreement or the Federal Law.
Out of court procedures, those partners who do not make an initial or subsequent contribution to the pooled capital on time may be excluded, and the decision on disposal should be made unanimously. It is also worth noting that if the partners of the enterprise violate their obligations that are enshrined in the Federal Law, then the participants have the full right to exclude him from the partnership through the court.
Partnership Charter
The constituent documents of the economic partnership are the charter of the enterprise and the agreement on the management of households. partnership.
The charter of economic partnership in accordance with Article 9 of the Federal Law No. 380 must be signed by all the founders of the organization, and the document must contain information about:
- company name of the organization (without abbreviations);
- on ongoing partnership activities;
- the location of the economic partnership;
- on share capital (its size);
- on the procedure for storing enterprise documentation (information on the license number and location of the notary public who has a partnership management agreement certified and stored);
- about the features of the formation of governing bodies.
The charter of a business partnership may contain other information at the discretion of its founders, if it does not contradict the law.
Any changes to the charter of the enterprise must be unanimously accepted by all participants (including those who are not founders) and registered.
If any member of the partnership or any interested person requires to present a charter for review, this is subject to immediate implementation. Upon request to issue a copy, money may be charged only in an amount that does not exceed the cost of its production.
Partnership management agreement
General requirements for a partnership agreement are contained in Art. 6 Federal Law on Economic Partnerships. In accordance with it, the agreement may fix any information about the rights, obligations of participants and the features of the partnership itself, which do not contradict the law and should not be contained in the charter.
An agreement on managing a business partnership must be in writing and notarized. Moreover, all subsequent changes to be made to it must also be notarized.
In this constituent document, the partnership participants are entitled to indicate the following provisions:
- conditions for the formation of joint capital, terms and volumes of shares contributed to it;
- liability of partners who do not contribute to the share capital;
- the rights of founders that are not proportional to their contribution;
- a ban on the alienation of a share in the capital or its repeated purchase / sale;
- liability for breach of confidentiality;
- terms of entering into partnership of third parties;
- rules for resolving various disputes between participants in the partnership and other similar provisions.
Unlike the charter, the agreement is not a public document. And it is put on public display only with the consent of the executive body. Therefore, participants in a business partnership cannot invoke a management agreement with third parties. An exception can only be in those situations where the partners prove that the third party knew or should have known at the time of the transaction about the contents of this constituent document.
Share capital of the enterprise
Finance of commercial organizations is the formation and distribution of monetary funds, as well as their use. One of the funds of the enterprise is its capital.
Economic partnerships, like other commercial enterprises, are required to have their own capital. Owners of legal persons contributing their share receive the right to manage this organization and bear certain responsibilities in this regard.
The legislator establishes for each legal form its own characteristics of mandatory capital. So, in accordance with Art. 66 GKRF economic partnerships are required to form share capital.
It is formed by depositing cash, property or other rights with a monetary value, all partners. The contribution may not be securities other than bonds of households. societies. If the contribution is not in cash, then its value should be determined unanimously at the meeting of the founders of the partnership. If consensus on this issue cannot be reached, then the contribution must be made in cash. A contribution will be made in parts or in full, determined by agreement.
If the partnership agreement does not fix other rules, then the partner who did not make a part of the contribution to the share capital on time is obliged to pay the partnership 10% of this part and compensate for the losses caused for this reason.
Federal Law No. 380 secures the pre-emptive right to purchase a share of joint capital for its participants.
Business Partnership Reorganization
Economic partnerships, like other legal entities, can be reorganized or liquidated if necessary.
Features of the reorganization of such enterprises are described in Art. 24 FZ-380. The article states that the only option for the reorganization of this form of legal entity is the transformation into a joint stock company. Reorganization is mandatory if the number of participants in the partnership exceeds 50 people.
Reorganization can be carried out only after a decision unanimously adopted by the founders, which should contain:
- information on the name and address of the joint-stock company;
- reorganization procedure and conditions;
- features of the exchange of shares in the capital of the partnership for shares;
- information about the members of a specially created audit commission (or about one appointed auditor);
- information about the participants of the collegial executive body or any other, if the joint-stock company will form them;
- information about the participant, which is the sole executive body;
- data on the approval of the deed of transfer, as well as the appendix of this act;
- data on approval of the charter of the joint-stock company, as well as the appendix of this constituent document.
After the decision is made, it should be reported to the state authority that deals with the registration of legal entities within three business days. persons by sending there a written notice of reorganization. Based on this, data on transformations are entered into a single state. registry. After which the legal entity is obliged to publish data on its reorganization in the media.
An enterprise is deemed to be reorganized from the moment of registration of a new joint stock company with the Federal Tax Service resulting from the reorganization. After that, all outstanding obligations, rights and obligations of the economic partnership are transferred to the joint-stock company in full.
Liquidation of a business partnership
In Art. 25 Federal Law No. 380 specifies the features of the liquidation of a business partnership, the main of which is the mandatory liquidation of an enterprise if the number of participants has decreased and has become less than two.
Liquidation of a company can be either voluntary or by court order. In the first case, the partnership participants or authorized bodies (specified in the agreement) should appoint a liquidation commission.
The liquidation commission carries out all settlements with creditors, after which it draws up a liquidation balance sheet. If the finances of commercial organizations that are business partnerships (liquidated) are minimal and not enough to pay off all debts, the commission sells the property of the enterprise at public auction.
The property that remains after settlements with creditors must be transferred by the liquidation commission to all participants in the partnership in proportion to their contribution to the share capital.
From the foregoing, we can conclude what distinguishes economic partnerships from other organizational and legal forms. Civil Code of the Russian Federation and Federal Law № 380 allow legal entities of this type:
- protect contractual relations between the founders of the partnership;
- to ensure a balance of interests of business participants in accordance with their contributions;
- to have great freedom in the distribution of the rights and obligations of the founders, in the formation of the features of partnership management through a management agreement.