Information about legal entities conducting entrepreneurial activities is contained in the register of legal entities , i.e., the Unified State Register of Legal Entities. This information resource is national. The Federal Tax Service is responsible for maintaining the Unified State Register of Legal Entities.
Information Content
The USRLE contains data on:
- state registration of legal entities during their creation, liquidation, reorganization.
- Changes to the constituent documentation.
- Correction of information contained in the Unified State Register of Legal Entities, including those related to the correction of errors made by the registering structure.
The organization through its representative independently provides documents that are the basis for entering information into the USRLE.
Legal entity reorganization
General rules for conducting this procedure are enshrined in article 57 of the Civil Code. Normally, the following forms of reorganization are provided:
- merger;
- transformation;
- affiliation;
- selection;
- separation.
Restrictions on the conduct of procedures may be established by federal laws. According to paragraph 1 of article 57, a combination of several forms of reorganization is allowed.
FTS Notification
When reorganizing a legal entity, under Art. 60 of the Civil Code , must notify the supervisory authority of the decision. The notice shall be sent in writing before the expiration of three days from the date of approval of the relevant decision.
If the reorganization was carried out with the participation of several organizations, then the IFTS should notify the legal entity that approved the decision last.
In the notification, according to Art. 60 of the Civil Code of the Russian Federation , information should be provided on each organization participating in the procedure, including the establishment or continuation of work. In addition, the form in which the reorganization was carried out is indicated. The procedure and conditions for the appeal of creditors of a legal entity with statements on the repayment of obligations by the reorganized enterprise are described without fail.
Federal law may require an organization to notify creditors of planned procedures.
On the basis of the notice received by the IFTS, in accordance with the provisions of Art. 60 of the Civil Code of the Russian Federation, enters into the Unified State Register of Legal Entities information about the beginning of the reorganization.
Publication of information in the media
After entering information about the beginning of the procedure in the register of legal entities, the organization publishes a notification to the media twice a month. If several enterprises participated in the reorganization, the message is posted from all participants by the entity that made the decision last.
A legal entity is also entitled to independently determine the person responsible for publishing information in the media.
Creditors Rights
In cases where claims arose before posting the message in the media, the lender may demand its early repayment. To do this, he goes to court.
If it is impossible to satisfy the creditor's claims for the early fulfillment of the obligation, the interested party may demand the termination of the latter and compensation for losses associated with this. An exception is cases expressly established by law or by agreement between the creditor and the reorganized company.
Nuances
According to paragraph 2 of Art. 60 of the Civil Code of the Russian Federation , a claim for early repayment of an obligation or its termination and compensation for losses may be filed before 30 days from the date of the last notice of the reorganization procedure in the media.
The rights provided for in paragraph 1 of paragraph 2 of paragraph 60 of Article of the Code cannot be exercised by a creditor who has sufficient security for his claims.
Claims submitted on time must be satisfied before the end of the procedure, including by depositing the amounts owed on the deposit in the cases specified in article 327 of the Code.
Art. 60 of the Civil Code of the Russian Federation as amended restricts the creditor's right to present an early demand or terminate an obligation. The ban is valid if within a month from the moment of the filing of the claim he will be provided with security that will be deemed sufficient in accordance with paragraph 4 of article 60.
The norm contains a special reservation that the presentation by the creditor of the requirements provided for in paragraph 2 does not suspend the procedure.
Guarantees of the rights of creditors of a reorganized legal entity
If the interested person, who has requested the early repayment or termination of the obligation in the manner established by Article 60 of the Civil Code, has not been provided with the fulfillment, the losses have not been compensated and the security that is recognized as sufficient has not been offered, along with the legal entities formed during the reorganization, they will be jointly and severally liable :
- entities with the actual ability to determine the actions of these business entities;
- members of collegial management structures;
- a person authorized to represent the interests of the reorganized person.
This provision applies to cases where the actions / inactions of these entities have led to the onset of the above consequences.
If the reorganization was carried out in the form of separation, in addition to joint and several liability, the reorganized person is involved. The relevant provisions are contained in paragraph 3 of Art. 60 Civil Code of the Russian Federation.
Sufficiency of collateral
Its signs are provided for in paragraph 4 of Art. 60 Civil Code of the Russian Federation .
Collateral may be deemed sufficient if the creditor:
- I agreed to its adoption.
- I received an irrevocable independent bank guarantee of a credit institution, which has no reasonable reasons to doubt its creditworthiness, the validity of which exceeds the period of fulfillment of the secured obligation by at least 3 months. In this case, the condition of payment shall be provided for at the request of the guarantor with the application of documents certifying non-fulfillment of obligations of the reorganized or reorganized person.
Additionally
In practice, by no means in all cases of reorganization by the deed of transfer can the successor of the reorganized person be determined. In such cases, all entities participating in the procedure, including newly created ones, will be jointly and severally liable.
A similar order is provided if it follows from the deed of transfer or on the basis of other facts that during the reorganization the obligations and assets of the companies were unscrupulously distributed, which entailed significant violations of the interests of creditors.
Art. 60 Civil Code of the Russian Federation with comments
Of course, the process of reorganization of the enterprise cannot but affect the interests of creditors. It is guarantees of the rights of persons to which the company has obligations that Article 60 of the Civil Code is devoted to.
Normally, the actions of the reorganized person are prescribed. First of all, the organization must fulfill the information obligation. In particular, within three days it is necessary to notify the decision of the IFTS. Secondly, the organization places a notice in the media. 60 article establishes the mandatory frequency of publication of the message: twice (within 2 months once a month).
In addition, unless otherwise provided by federal law, the organization shall notify creditors of the commencement of the procedure within five days after the notification is sent to the registration authority.
Persons to whom the company is indebted must know about all organizational changes and their form, as well as have information about each of their participants. Of particular importance are the conditions and procedure for sending claims by creditors. They must be spelled out in the notice.
Ways of providing
The obligation to creditors must be secured according to the rules established in the Civil Code. This order may be executed not only by the directly reorganized person, but also by the participants of the company, as well as by other persons.
An enterprise may use the collateral provided for in Sec. 23 of the Code, other regulatory documents, as well as the contract.
Collateral may be different for a particular organization, or in relation to a specific lender. For example, it is allowed to conclude an agreement on forfeit, surety, pledge. In such transactions, respectively, one of the participants is the lender himself. In other cases, the use of collateral does not require the participation of a creditor. For example, when providing a guarantee, risk insurance, etc.
In the first case, accordingly, the reorganized enterprise must carry out certain activities directly with persons whose interests are affected by the reorganization. If the collateral does not require the participation of creditors, it is sufficient to notify them of the work performed to ensure the claims.
Special situations
Section 60 establishes a restriction on the right of creditors to secure. If, for example, a pledge agreement has been concluded, then the person concerned cannot demand the implementation of additional measures to protect his interest. This rule applies to cases where the pledge does not cover all the requirements.
The inability of the reorganized enterprise to provide sufficient security to creditors is the basis for sending the claims provided for in paragraph 2 of article 60 and a prerequisite for the application of the provisions of paragraph 3 of the rule.
Controversial issues
During the reorganization, some of the rules enshrined in the Code do not apply. For example, 1 paragraph 391 of the article does not apply to legal relations. Accordingly, the creditor cannot block the transfer of debt, as well as the reorganization of the company itself.
Meanwhile, in order to protect the interests of the creditor, the legislation provides for the possibility of the interested person to demand early fulfillment of obligations. If, for objective reasons, this cannot be done, the entity may file a claim for termination of the obligation with compensation for losses associated with this.
Special Rights of the Lender
They occur if:
- The debtor is AO.
- Reorganization forms are merger, transformation, accession.
- Enforcement of requirements is considered insufficient.
In the presence of these conditions, the creditor may, within 30 days, submit a demand for early repayment of the obligation or its termination with compensation for losses. If you pass, the period is not subject to restoration. Accordingly, an entity that does not make a claim on time loses its right.
Features of the transition of obligations
The creditor may demand early repayment of claims under the conditions and in the manner specified in the notice. Claims of persons duly declared shall be repaid before the end of the reorganization. Obligations are fulfilled and are not reflected in the deed of transfer. Accordingly, they do not pass to successors.
Claims that have not been declared, in accordance with the separation balance sheet / deed of transfer, are transferred to successors or remain with the managing company (depending on the form of reorganization).
Obligations that remain outstanding are settled after completion of the reorganization procedure. Established or continuing operations enterprises are jointly and severally liable for them.
Norm Sphere
The rules enshrined in paragraphs 1-5 of Article 60 of the Code apply regardless of the subject who made the decision to reorganize. This can be done either by the founders or the authorized structure of the company, or by a competent state body or court.
The provisions of the article apply to all legal entities, with the exception of credit companies. The procedure for notifying the registering structure and creditors, the rules for presenting claims, disclosing information and other features of the process are governed by special federal laws. If some points are not regulated in these normative acts, the provisions of article 60 of the Code are applied.
The specifics of the procedures
Reorganization, in contrast to liquidation, subsequently assumes the existence of obligations and rights, preservation of property complexes in an enlarged or reduced volume.
This procedure always involves continuity. That is, duties and rights pass to the newly created company (or several companies).
Reorganization is voluntary or compulsory.
In the first case, the decision is made by the participants or the authorized structure of the company. If, for example, business entities participate in a merger, they conclude an agreement on this. In the document, they establish the procedure and conditions of the procedure, the rules for converting the securities of each legal entity into shares of a new company.
Forced reorganization takes place in case of violation of the provisions of the law (for example, when the number of employees is exceeded). The corresponding decision is made by the authorized control state body or the court.
Documents
When merging, merging, transforming, the obligations and rights of the company being reorganized pass to the newly formed ones according to the deed of transfer, and when separating and splitting - according to the separation balance sheet. Balance is also used when changing the legal form (transformation of an economic company of one type into a legal entity of another type).
The balance sheet / deed of transfer contains complete information about the succession of all existing obligations and rights of the reorganized entity in relation to creditors and debtors. These documents are approved by the founders or the structure that made the decision on reorganization.
A separation balance sheet or deed of transfer is provided along with the constituent documentation, as well as a decision on the reorganization of the registration authority to make entries in the Unified State Register of Legal Entities on the creation of new companies or changes in the documents of existing enterprises.