In connection with the reform of corporate law, the classification of business entities has changed, which has become habitual over a sufficiently long period of existence. Now there is no OJSC and CJSC. They were replaced by public and non-public business companies. Next, consider the changes in more detail.
New categories: first difficulties
So, instead of OAO and ZAO, public and non-public companies appeared. The law changed not only the definitions themselves, but also their essence and characteristics. At the same time, the categories did not become equivalent. Thus, a closed joint-stock company cannot automatically become non-public, just like an open joint-stock company. Accepted wording of the rules can be interpreted in two ways. Clarifications are not enough today, and there is no judicial practice at all. In this regard, it is not surprising that companies may face difficulties in the process of self-determination.
The objectives of the new classification
Why was it necessary to introduce public and non-public companies? The rules for regulating internal corporate relations that existed for a closed joint-stock company and a joint-stock company, in the opinion of the rulemakers, were not clear enough. The new classification, presumably, should establish differentiated management regimes for companies that differ in the nature of the turnover of securities and shares, as well as in the number of participants.
The essence and signs of software
A public company should be considered a joint-stock company in which shares and securities convertible into them are placed through open subscription or public circulation in accordance with the conditions established by regulatory enactments. The turnover is carried out within an indefinite circle of participants. Public society is characterized by dynamically changing and unlimited subjective composition. Openness means that the company is focused on a wide range of participants. A public company is characterized by a large number of diverse shareholders. To maintain a balance of interests of participants, activities in such AOs are regulated mainly by peremptory norms. They prescribe standard, unambiguous rules of conduct for corporate participants. The use of provisions that are not allowed to be changed at the discretion of the prevailing entities of the company guarantees the attraction of investments.
Software Activity
Public companies borrow from the stock market among an unlimited number of persons. These corporations cover a wide range of diverse investors. In particular, software interacts with the state, banks, investment companies, collective and pension investment funds, small individual entities. The activities carried out by public companies, as mentioned above, are regulated by peremptory norms. This indicates a relatively small freedom of corporate organization.
The essence of BUT
Non-public is a company that does not meet the criteria established by law for a public company. These criteria are given in Art. 66.3 GK. BUT - corporations that place securities within a predetermined circle of entities. They do not go into open circulation. In addition, non-profit organizations are based on a low-turnover asset - shares of the authorized capital of LLC. Public and non-public companies are distinguished by the mechanisms used to manage internal corporate relations. So, NGOs can apply special methods of monitoring the subject composition of participants. They have greater freedom of corporate self-organization.
Features of the functioning of BUT
Activities carried out by non-public companies are governed mainly by dispositive rules. They allow the introduction of individual behaviors of company participants at their discretion. Non-public companies do not borrow on the stock market.
Normative separation
Today, the border between imperative and discretionary management is between AO and LLC. The reform of the Civil Code slightly pushed it. However, according to some critics who analyze the procedures in which public and non-public joint-stock companies exist today, there is some confusion of different types of companies when they are assigned to any of the categories. However, there is another opinion on this. When corporations are included in public and non-public joint-stock companies, the fundamental differences between entities are not called into question. The features of the circulation of securities and shares are quite clearly expressed, which is the main sign for classification. The division into public and non-public companies is reduced solely to an attempt to form general management regimes. Moreover, the expansion of the influence of dispositive norms does not extend to the features that distinguish the circulation of securities. Due to insufficient practice and the absence of a number of clear language, it is difficult to classify certain joint-stock companies into public and non-public companies.
Comparative characteristics
Public and non-public companies mainly differ in the way that is used when placing securities. How these procedures are implemented in BUT and software is described above. By public offering of securities is understood alienation through open subscription. It is a way to increase the amount of the authorized capital of the corporation. The software carries out paid placement of an additional number of shares in the issuance process among an unlimited circle of entities. The method of alienation of securities is included in the decision on their issue. This document is approved by the board of directors and is registered with the state market regulator. Previously, the Federal Financial Markets Service of the Russian Federation and the Federal Securities Commission of the Russian Federation acted as him. Currently, the state regulator in the market is the Central Bank of the Russian Federation. After registration, the document must be kept by the issuer. According to the text of the decision, it can be determined whether an additional subscription of an additional number of shares was openly signed or not. Public and non-public companies differ in the way securities are circulated. Turnover is a process of concluding civil transactions. They entail the transfer of ownership of shares (securities) after their first alienation following their issue by the issuer (outside the issue procedure).
A sign of a public joint-stock company is open circulation. What does it mean? This term should be understood as the turnover of securities (stocks) within the framework of organized trading. Public circulation can also be carried out by offering them to an unlimited mass of entities. Among the ways to implement this feature is advertising. These provisions are established in Art. 2 Federal Law No. 93, which regulates the functioning of the securities market. It should be noted that the circulation of shares can be carried out by different methods. In particular, it may be a one-time event. In this case, the appeal has a time limit. This, for example, may be a sale at auction, auction to a wide range of people. Also, the appeal can be of unlimited duration. For example, this happens when the turnover is carried out on stock exchanges.