It is the highest body of the corporation. Governing bodies of a commercial corporation as elements of a corporate governance system

New edition of Art. 65.3 Civil Code of the Russian Federation

1. The supreme body of a corporation is the general meeting of its participants.

In non-profit corporations and production cooperatives with more than a hundred participants, the supreme body may be a congress, conference or other representative (collegial) body determined by their charters in accordance with the law. The competence of this body and the procedure for making decisions are determined by this Code, other laws and the charter of the corporation.

2. Unless otherwise provided by this Code or other law, the exclusive competence of the supreme body of the corporation includes:

determination of priority areas of the corporation’s activities, principles of formation and use of its property;

approval and amendment of the corporation's charter;

determining the procedure for admission to the corporation's membership and exclusion from among its participants, except in cases where such a procedure is determined by law;

formation of other bodies of the corporation and early termination of their powers, if the charter of the corporation in accordance with the law does not include this power within the competence of other collegial bodies of the corporation;

approval of annual reports and accounting (financial) statements of the corporation, if the charter of the corporation in accordance with the law does not include this authority within the competence of other collegial bodies of the corporation;

making decisions on the creation of other legal entities by the corporation, on the participation of the corporation in other legal entities, on the creation of branches and on the opening of representative offices of the corporation, except for cases where the charter of a business company in accordance with the laws on business companies makes such decisions on these issues within the competence of other collegial bodies of the corporation;

making decisions on the reorganization and liquidation of the corporation, on the appointment of a liquidation commission (liquidator) and on approval of the liquidation balance sheet;

election of an audit commission (auditor) and appointment of an audit organization or individual auditor of the corporation.

The law and the founding document of a corporation may assign the resolution of other issues to the exclusive competence of its supreme body.

Issues referred by this Code and other laws to the exclusive competence of the highest body of the corporation cannot be transferred by it for resolution to other bodies of the corporation, unless otherwise provided by this Code or other law.

3. A sole executive body (director, general director, chairman, etc.) is formed in the corporation. The charter of a corporation may provide for the granting of the powers of a sole executive body to several persons acting jointly, or the formation of several sole executive bodies acting independently of each other (paragraph three of paragraph 1 of Article 53). Both an individual and a legal entity can act as the sole executive body of a corporation.

In cases provided for by this Code, other law or the charter of a corporation, a collegial executive body (board, directorate, etc.) is formed in the corporation.

The competence of the bodies of the corporation specified in this paragraph includes resolving issues that are not within the competence of its supreme body and the collegial management body created in accordance with paragraph 4 of this article.

4. Along with the executive bodies specified in paragraph 3 of this article, the corporation may establish, in cases provided for by this Code, another law or the corporation’s charter, a collegial management body (supervisory or other board) that controls the activities of the executive bodies of the corporation and performs other functions. functions assigned to it by law or the corporation's charter. Persons exercising the powers of sole executive bodies of corporations and members of their collegial executive bodies cannot constitute more than one quarter of the composition of collegial management bodies of corporations and cannot be their chairmen.

Members of the corporation's collegial management body have the right to receive information about the activities of the corporation and get acquainted with its accounting and other documentation, demand compensation for losses caused to the corporation (Article 53.1), challenge transactions made by the corporation on the grounds provided for in Article 174 of this Code or laws on corporations of individual organizational- legal forms, and demand the application of the consequences of their invalidity, as well as demand the application of the consequences of the invalidity of void transactions of the corporation in the manner established by paragraph 2 of Article 65.2 of this Code.

Since 2014, the civil legislation of the Russian Federation has divided commercial and non-profit enterprises into corporate and unitary. In this article we will tell you what applies to unitary legal entities. How are corporations different from them? More on this later.

The difference between corporate legal entities and unitary ones

A corporation is understood as a set of persons whose purpose of association can be considered to be the achievement of common goals and the implementation of joint activities. In this case, the association of persons forms an independent subject of legal relations - a legal entity.

In legal practice, over time, a general understanding of the types and legal personality of a legal entity has been developed.

The concept of a corporate legal entity is known to the legal systems of all developed countries.

This division helps to regulate in general not only the management structure and competence of the bodies of a corporate commercial and non-profit organization, but also a number of internal relationships that cause disputes in legal practice (for example, challenging decisions of meetings or other collegial bodies, the conditions determining the withdrawal from the membership participants, etc.).

Unitary legal entities include commercial enterprises that do not own the property assigned to them. Corporations were identified as special forms of formation of a legal entity, and this contributed to the consolidation in the Civil Code of general rules relating to the status of corporate enterprises themselves and their participants. It must be said that there are no similar general rules that relate to unitary enterprises in civil legislation. Russian civil legislation has identified a new classification criterion for separating corporate enterprises that are based on the membership of participants and unitary organizations. Legal organizations of a corporate type are enterprises that are based on the membership of participants.

The main governing body of the legal entity is formed from the participants of the corporation - the general meeting. Participation in a corporation gives its participants the corresponding membership rights and responsibilities in relation to the formed legal entity. Both commercial and non-commercial enterprises can be created in the form of a corporate enterprise. Corporations include all commercial legal entities, with the exception of unitary enterprises.

Unitary legal entities are legal entities whose founders do not become participants and do not acquire membership rights in them.

Types of corporations

In addition, some non-profit organizations can also be classified as this type:

consumer cooperatives;
public organizations;
associations (unions);
real estate owners' associations;
Cossack societies included in the relevant state register;
communities of indigenous peoples.

Based on this, the misconception that a consumer cooperative is a unitary legal entity can hardly be true. All corporate organizations, including non-profit ones, are subject to the same rights for their participants and the same management rules. If the founders of a legal entity do not become members, then this enterprise is classified as a unitary legal entity. The right of ownership of property assigned by the owner does not pass to the unitary enterprise. The property assigned to him is considered indivisible. It cannot be distributed among contributions or shares, even among employees of the organization. The category of such organizations includes unitary enterprises of the state and municipal type according to the list.

Types of unitary institutions

Unitary legal entities include various types:

public, charitable and other foundations;
state institutions (including state academies of sciences), municipal and private (including public) institutions;
autonomous non-profit organizations;
religious organizations;
public companies.

Unitary legal entities

As we noted above, organizations whose property cannot be divided into parts are classified as unitary legal entities. The list of such institutions, we repeat, can be represented by state and municipal enterprises, various foundations, autonomous non-profit organizations, religious organizations, as well as public law companies. There is no such thing as “membership” in them.

Is transformation possible?

Experts have long noted that the presence of such an organizational and legal form as a unitary enterprise is futile from the point of view of the development of civil legislation. It was also stipulated that it would be gradually replaced by another type of commercial organization, including business entities. It is also noted that in the future, to meet the needs of the federal state, only federal government institutions in particularly important economic areas should remain.

But legislators did not make such drastic changes, leaving unitary enterprises of both state and municipal types, giving them not the right of economic management of property, but the right of operational management or economic management. As mentioned above, legal entities whose founders do not become participants are unitary.

Corporate legal entities

The highest body of a corporation under the civil legislation of the Russian Federation is called the general meeting of participants. In some non-profit organizations where the number of participants exceeds one hundred people, the supreme body may be in the form of a congress, conference or other collegial body, determined by their charters in accordance with the law.

Functions of the supreme body

In any corporate organization, the highest body considers the following issues:

determining the main directions of the organization’s activities, as well as the acquisition and use of property;
approval and amendment of the charter of a corporate organization;
determining the rules for admission to membership of the corporation and exclusion from its participants, except in cases where such rules are defined by law;
formation of other bodies of the enterprise, as well as early termination of their powers;
approval of the annual report and accounting (financial) reports of the corporation, if in the charter or in accordance with the legislation of the Russian Federation these powers are not assigned to the competence of other bodies of the organization;

making decisions on the creation of other legal organizations by the corporation's participants, the participation of the corporation in other legal entities, the creation of branches and the opening of representative offices of the organization;
making decisions on the reorganization and liquidation of the enterprise, forming the composition of the liquidation commission, as well as approving the liquidation balance sheet;
election of an audit commission and appointment of auditors of a legal entity.

Can the highest corporate body function alone?

Russian legislation and the charter may expand the competence of the highest collegial body, and it may include other issues of the corporation. Corporate legal entities must comply with all regulations. This is important because before this, the possibilities for a meeting of shareholders strictly corresponded to what was specified in the provisions of the Federal Law “On Joint-Stock Companies”. It was impossible to go beyond the limits of this law. In addition to the fact that the highest authority is formed in the corporation, a sole executive body is also created (in the person of the director, general director, chairman, etc.).

And if the Civil Code, another law or the organization’s charter provides for the creation of a collegial body (board, directorate, etc.), then it is formed as accountable to the highest body of the corporation. Corporate legal entities often also form a board that controls the activities of all these bodies.

Other conditions for the exercise of powers

An important point should be noted: the corporate charter may provide for special conditions for granting the powers of the executive body to several citizens who can act jointly, and it is also possible to form several sole executive bodies that can act without coordinating their decisions with each other. Such a body can be represented by either an individual or a legal entity.

The introduction of these rules forms the basis for the emergence of a special kind of relationship among the participants of the corporation. These relationships are called corporate. The very emergence of corporations is considered by experts as a development of the general provisions of the new edition of Article 2 of the Civil Code of the Russian Federation. Also important is paragraph 2 of Article 65.1 of the Civil Code of the Russian Federation, according to which participants in a corporate organization acquire membership rights and obligations in relation to a registered legal entity.

Legal exceptions

The only exceptions are the cases specified in the Civil Code of the Russian Federation. These rights apply to:

participation in the management of a corporate organization (with the exception of business partnerships, which have special management rules);
obtaining information about the activities of a legal entity, familiarization with accounting reports and other documents within the framework provided for by civil laws and constituent documentation;
appealing decisions of corporation bodies, the application of which will lead to civil consequences;
actions on behalf of the corporation to compensate for damage caused to the corporation;
challenging transactions on legal grounds.

Corporation participants may be granted other rights provided for by laws or charter.

Requirements for corporate participants

In addition to rights, members of the corporation are also given responsibilities, which include:

participation in the formation of property;
non-disclosure of confidential information about the work of the corporation;
participation in making strategic decisions for the corporation;
the impossibility of carrying out actions that are obviously aimed at causing harm to corporate interests;

Corporation participants may be assigned other responsibilities in accordance with legislative and constituent documents.

The legal personality of legal entities of the types considered is determined by their place in the economic system.

Full text of Art. 65.3 of the Civil Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice on Article 65.3 of the Civil Code of the Russian Federation.

1. The supreme body of a corporation is the general meeting of its participants.

2. Unless otherwise provided by this Code or other law, the exclusive competence of the supreme body of the corporation includes:
determination of priority areas of the corporation’s activities, principles of formation and use of its property;
approval and amendment of the corporation's charter;
determining the procedure for admission to the corporation's membership and exclusion from among its participants, except in cases where such a procedure is determined by law;
formation of other bodies of the corporation and early termination of their powers, if the charter of the corporation in accordance with the law does not include this power within the competence of other collegial bodies of the corporation;
approval of annual reports and accounting (financial) statements of the corporation, if the charter of the corporation in accordance with the law does not include this authority within the competence of other collegial bodies of the corporation;
making decisions on the creation of other legal entities by the corporation, on the participation of the corporation in other legal entities, on the creation of branches and on the opening of representative offices of the corporation, except for cases where the charter of a business company in accordance with the laws on business companies makes such decisions on these issues within the competence of other collegial bodies of the corporation;
making decisions on the reorganization and liquidation of the corporation, on the appointment of a liquidation commission (liquidator) and on approval of the liquidation balance sheet;
election of an audit commission (auditor) and appointment of an audit organization or individual auditor of the corporation.

The law and the founding document of a corporation may assign the resolution of other issues to the exclusive competence of its supreme body.

In cases provided for by this Code, other law or the charter of a corporation, a collegial executive body (board, directorate, etc.) is formed in the corporation.

(The article was additionally included from September 1, 2014 by Federal Law of May 5, 2014 N 99-FZ)

Commentary on Article 65.3 of the Civil Code of the Russian Federation

1. The fundamental provision of the commented article is to provide the corporation with the opportunity to independently determine the structure of management bodies, which was previously largely limited by regulatory requirements. In accordance with the provisions of the commented article, the procedure for managing a corporation is discretionary and is determined in relation to the characteristics of each of the specified entities, the structure of its participants, etc. The list of issues on which decisions must be made not by a majority vote, but unanimously, has been significantly expanded, which increases the degree of its legitimacy and reduces the number of claims for compensation of losses to corporation participants.

The corporation unites various types of legal entities and determines the provisions common to them.

The procedure for managing a corporation is traditional for Russian legislation and involves the formation of a two-level system:
- collegial body - a general meeting of participants, which can be supplemented by a board of directors, management board, etc.;
- sole executive body - head of the corporation (director, head of the peasant farm, chairman).

The sole body is vested with executive functions and is accountable to the collegial governing body. The collegial governing body allows each entity with a share in the capital of the organization to participate in decision-making. The general meeting must be convened at least once a year, and is authorized to make the most important and significant decisions in the activities of the corporation. Issues within the competence of the general meeting cannot be transferred to other entities. The expansion of the competence of the general meeting is carried out within the framework of the constituent documents. If the number of participants is large enough that it does not allow them to be united within the framework of a general meeting, the management of the organization can be carried out by authorized entities, for example, elected delegates to the congress or participants in the conference of the organization’s participants. The law also allows other forms of organization of the highest management body of a corporation. Changing the form of the highest governing body of a corporation is permitted only for non-profit organizations and production cooperatives.

2. The competence of the general meeting includes the approval of annual reports on the activities of the corporation, which indicates the accountability of the sole executive body - the head of the organization to the meeting. The manager's powers are of a temporary nature, usually for no more than five years. A novelty of the Civil Code of the Russian Federation is the consolidation of an approximate list of names of a sole body, which contributes to the formation of a unified system of corporate management. The open nature of this list provides members of the organization with the opportunity to independently determine the name of this body. The sole executive body may be:
- individual - director, chairman, etc.;
- powers are vested in several entities, for example the general and executive director,
- management company - in this case, the sole body is a legal entity.

The competence of the sole management body is determined according to the residual principle - it makes decisions on issues that are not within the competence of the collegial body.

3. In certain types of corporations, the structure of management bodies is complicated by the formation of other collegial management bodies (for example, a supervisory or other board). The purpose of such bodies is to control the activities of the executive bodies of the corporation and perform other functions assigned to them by law or the charter of the corporation. The collegial nature of such bodies makes it possible to develop the optimal solution on issues of the corporation’s activities, taking into account the opinions of each of its members.

Let us note that the formation of such bodies may be provided for both in the Civil Code of the Russian Federation itself, and in another law, as well as in the charter of a corporation. For example, special laws (see paragraph 4 of the commented article “Applicable Legislation”) stipulate that a clearing organization and a trade organizer must have a board of directors (supervisory board), and the management bodies of a credit organization, along with the general meeting of its founders (participants) are the board of directors (supervisory board), the sole executive body and the collegial executive body.

At the same time, the implementation by a corporation of this opportunity is subject to the following limitation: persons exercising the powers of the sole executive bodies of corporations and members of their collegial executive bodies cannot constitute more than one quarter of the composition of the collegial management bodies of corporations and cannot be their chairmen.

Article 1

Make the following changes to Chapter 4 of Part 1 of the Civil Code of the Russian Federation:

1) Article 48 should be stated as follows:

"Article 48. Concept of a legal entity

1. A legal entity is an organization that has separate property and is responsible for its obligations, can, on its own behalf, acquire and exercise civil rights and bear civil obligations, and be a plaintiff and defendant in court.

2. A legal entity must be registered in the unified state register of legal entities in one of the organizational and legal forms provided for by this Code.

2) in Article 49:

"3. 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 and terminates when information about its termination is entered into the said register.

3) in Article 50:

b) paragraph 3 should be stated as follows:

"3. Legal entities that are non-profit organizations may be created in the following organizational and legal forms:

4) partnerships of real estate owners, which include, among other things, partnerships of homeowners;

c) paragraph 4 should be stated as follows:

“4. Non-profit organizations may carry out income-generating activities, if provided for by their charters, only insofar as this serves the purposes for which they were created, and if this is consistent with such purposes.”;

d) add paragraphs 5 and 6 with the following content:

"5. A non-profit organization, the charter of which provides for the implementation of income-generating activities, with the exception of state-owned and private institutions, must have property sufficient for the implementation of these activities with a market value of at least the minimum amount of authorized capital provided for limited liability companies (clause 1 of Article 66.2) .

6. The rules of this Code do not apply to relations in the implementation of their main activities by non-profit organizations, as well as to other relations with their participation that are not related to the subject of civil legislation (Article 2), unless otherwise provided by law or the charter of a non-profit organization.";

6) Article 52 should be stated as follows:

"Article 52. Constituent documents of legal entities

4. The charter of a legal entity must contain information about the name of the legal entity, its location, the procedure for managing the activities of the legal entity, as well as other information provided by law for legal entities of the corresponding organizational and legal form and type. The charters of non-profit organizations must define the subject and goals of the activities of legal entities.

6. Changes made to the constituent documents of legal entities become effective for third parties from the moment of state registration of the constituent documents, and in cases established by law, from the moment the body carrying out state registration is notified of such changes.

7) in Article 53:

"1. A legal entity acquires civil rights and assumes civil responsibilities through its bodies acting on its behalf (clause 1 of Article 182) in accordance with the law, other legal acts and the constituent document.

The procedure for the formation and competence of the bodies of a legal entity are determined by law and the constituent document.

c) paragraph 3 should be stated as follows:

"3. A person who, by virtue of the law, another legal act or the constituent document of a legal entity, is authorized to act on its behalf must act in the interests of the legal entity he represents in good faith and reasonably. Members of the collegial bodies of the legal entity (supervisory or other board) bear the same obligation , board, etc.).";

"Article 53.1. Responsibility of a person authorized to act on behalf of a legal entity, members of collegial bodies of a legal entity and persons determining the actions of a legal entity

1. A person who, by virtue of the law, another legal act or the constituent document of a legal entity, is authorized to act on its behalf (clause 3 of Article 53), is obliged to compensate, at the request of the legal entity, its founders (participants) acting in the interests of the legal entity, losses, caused to a legal entity through his fault.

A person who, by virtue of the law, another legal act or the constituent document of a legal entity, is authorized to act on its behalf, shall be liable if it is proven that in the exercise of his rights and performance of his duties he acted in bad faith or unreasonably, including if his actions ( inaction) did not correspond to the usual conditions of civil turnover or normal business risk.

2. The responsibility provided for in paragraph 1 of this article is also borne by members of collegial bodies of a legal entity, with the exception of those of them who voted against the decision that caused losses to the legal entity, or, acting in good faith, did not take part in the voting.

3. A person who has the actual ability to determine the actions of a legal entity, including the ability to give instructions to persons named in paragraphs 1 and 2 of this article, is obliged to act in the interests of the legal entity reasonably and in good faith, and is responsible for losses caused through his fault to the legal entity face.

Article 53.2. Affiliation

In cases where this Code or other law places the onset of legal consequences in dependence on the presence of relatedness between persons(affiliation), the presence or absence of such relationships is determined in accordance with the law.";

9) Article 54 should be stated as follows:

"Article 54. Name, location and address of the legal entity

1. A legal entity has its own name, which contains an indication of its organizational and legal form. The name of a non-profit organization and, in cases provided for by law, the name of a commercial organization must contain an indication of the nature of the activity of the legal entity.

The location of a legal entity is determined by the place of its state registration. State registration of a legal entity is carried out at the location of its permanent executive body,

3. The address of the legal entity must be indicated in the unified state register of legal entities.

A legal entity bears the risk of the consequences of failure to receive legally significant messages (Article 165.1) delivered to the address indicated in the unified state register of legal entities, as well as the risk of the absence of its body or representative at the specified address. Messages delivered to the address specified in the Unified State Register of Legal Entities are considered received by the legal entity, even if it is not located at the specified address.

11) Article 56 should be stated as follows:

"Article 56. Liability of a legal entity

1. A legal entity is liable for its obligations with all its property

12) in article 57:

a) paragraph 1 should be stated as follows:

"1. Reorganization of a legal entity (merger, accession, division, separation, transformation) can be carried out by decision of its founders (participants) or a body of the legal entity authorized to do so by the constituent document.

13) in article 58:

d) paragraph 5 should be stated as follows:

"5. When a legal entity of one organizational and legal form is transformed into a legal entity of another organizational and legal form, the rights and obligations of the reorganized legal entity in relation to other persons do not change, with the exception of the rights and obligations in relation to the founders (participants), the change of which is caused by the reorganization.

14) Article 59 should be stated as follows:

"Article 59. Transfer deed

1. The transfer act must contain provisions on succession for all obligations of the reorganized legal entity in relation to all its creditors and debtors, including obligations disputed by the parties, as well as the procedure for determining succession in connection with a change in the type, composition, value of property, emergence, change, termination rights and obligations of the reorganized legal entity that may occur after the date on which the transfer deed was drawn up.

2. The transfer act is approved by the founders (participants) of the legal entity or the body that made the decision on the reorganization of the legal entity, and is submitted together with the constituent documents for state registration of legal entities created as a result of the reorganization, or amendments to the constituent documents of existing legal entities.

Failure to submit a deed of transfer along with the constituent documents, and the absence of provisions in it on legal succession for all obligations of the reorganized legal entity, shall entail refusal of state registration of legal entities created as a result of the reorganization.";

16) add articles 60.1 and 60.2 with the following content:

"Article 60.1. Consequences of invalidating a decision on the reorganization of a legal entity

1. A decision on the reorganization of a legal entity may be declared invalid at the request of the participants of the reorganized legal entity, as well as other persons who are not participants of the legal entity, if such a right is granted to them by law.

23) paragraph 1 is supplemented with articles 65.1 - 65.3 with the following content:

"Article 65.1. Corporate and unitary legal entities

1. Legal entities, founders ( participants) which have the right to participate (membership) in them and form their supreme body in accordance with paragraph 1 of Article 65.3 of this Code, are corporate legal entities (corporations). These include property owners' associations,

2. In connection with participation in a corporate organization, its participants acquire corporate (membership) rights and obligations in relation to the legal entity they created, with the exception of cases provided for by this Code.

Article 65.2. Rights and obligations of participants corporations

1. Participants of the corporation (participants, members, shareholders, etc.) have the right:

participate in the management of the affairs of the corporation, except for the case provided for in paragraph 2 of Article 84 of this Code;

in cases and in the manner provided for by law and the corporation’s constituent document, receive information about the activities of the corporation and familiarize itself with its accounting and other documentation;

appeal decisions of corporation bodies entailing civil consequences in cases and in the manner prescribed by law;

demand, acting on behalf of the corporation (clause 1 of Article 182), compensation for losses caused to the corporation (Article 53.1);

challenge, acting on behalf of the corporation (clause 1 of Article 182), transactions made by it on the grounds provided for in Article 174 of this Code or laws on corporations of certain organizational and legal forms, and demand the application of the consequences of their invalidity, as well as the application of the consequences of the invalidity of the corporation’s void transactions.

Participants in a corporation may have other rights provided for by law or the corporation's founding document.

2. A member or corporation must take reasonable steps to provide reasonable notice to other members.

3. Unless otherwise established by this Code, a participant in a commercial corporation who, against his will, as a result of unlawful actions of other participants or third parties, has lost the right to participate in it, has the right to demand the return to him of the share of participation transferred to other persons, with payment to them of fair compensation, determined court, as well as compensation for damages at the expense of persons responsible for the loss of the share.

4. A participant in a corporation is obliged to:

participate in the formation of the corporation’s property in the required amount in the manner, manner and within the time limits provided for by this Code, another law or the corporation’s constituent document;

not to disclose confidential information about the activities of the corporation;

participate in making corporate decisions, without which the corporation cannot continue its activities in accordance with the law, if his participation is necessary for making such decisions;

not to commit actions knowingly aimed at causing harm to the corporation;

not to commit actions (inaction) that significantly complicate or make it impossible to achieve the goals for which the corporation was created.

Members of a corporation may also bear other responsibilities provided for by law or the corporation's founding document.

Article 65.3. Management in a corporation

The supreme body of the corporation is the general meeting of its participants.

In non-profit corporations and production cooperatives with more than a hundred participants, the supreme body may be a congress, conference or other representative (collegial) body determined by their charters in accordance with the law. The competence of this body and the procedure for making decisions by it are determined in accordance with this Code by law and the charter of the corporation.

2. Unless otherwise provided by this Code or other law, The exclusive competence of the highest body of the corporation includes:

determination of priority areas of the corporation’s activities, principles of formation and use of its property;

approval and amendment of the corporation's charter;

determining the procedure for admission to the corporation's membership and exclusion from among its participants, except in cases where such a procedure is determined by law;

making decisions on the reorganization and liquidation of the corporation, on the appointment of a liquidation commission (liquidator) and on approval of the liquidation balance sheet;

election of an audit commission (auditor) and appointment of an audit organization or individual auditor of the corporation.

The law and the founding document of a corporation may assign the resolution of other issues to the exclusive competence of its supreme body.

3. The corporation shall establish a sole executive body (director, general director, chairman and so on.). The charter of a corporation may provide for the granting of the powers of a sole executive body to several persons acting jointly, or the formation of several sole executive bodies acting independently of each other (paragraph three of paragraph 1 of Article 53). Both an individual and a legal entity can act as the sole executive body of a corporation.

In cases provided for by this Code, another law or the charter of a corporation, a collegial executive body is formed in the corporation ( governing body, management, etc.).

Article 67.2. Corporate agreement

1. Participants in a business company or some of them have the right to conclude an agreement among themselves on the exercise of their corporate (membership) rights (corporate agreement), in accordance with which they undertake to exercise these rights in a certain way or to refrain (refuse) from exercising them, including vote in a certain way at the general meeting of the company's participants, coordinately carry out other actions to manage the company, acquire or alienate shares in its authorized capital (shares) at a certain price or upon the occurrence of certain circumstances, or refrain from alienating shares (shares) until the occurrence of certain circumstances.

30) add paragraph 6 with the following content:

"§ 6. Non-profit corporate organizations

1. General provisions on non-profit corporate organizations

Article 123.1. Basic provisions on non-profit corporate organizations

1. Non-profit corporate organizations are legal entities that do not pursue profit as the main goal of their activities and do not distribute the profits received among participants (clause 1 of Article 50 and Article 65.1), the founders (participants) of which acquire the right to participate (membership) in them and form their supreme body in accordance with clause 1 of Article 65.3 of this Code.

2. Non-profit corporate organizations are created in organizational and legal formsconsumer cooperatives, public organizations, associations (unions), property owners' associations, Cossack societies included in the state register of Cossack societies in the Russian Federation, as well as communities of indigenous peoples of the Russian Federation (clause 3 of Article 50).

3. Non-profit corporate organizations are created by the decision of the founders adopted at their general (constituent) meeting , conference, congress, etc. These bodies approve the charter of the relevant non-profit corporate organization and form its bodies.

4. A non-profit corporate organization is the owner of its property.

5. The charter of a non-profit corporate organization may provide that decisions on the creation of other legal entities by the corporation, as well as decisions on the participation of the corporation in other legal entities, on the creation of branches and on the opening of representative offices of the corporation are made by the collegial body of the corporation.

The most important principle of corporate governance is to exercise management through the bodies of the corporation, and not through its participants. This principle is constitutive when qualifying a subject as a legal entity. According to the general rule established by paragraph 1 of Art. 53 of the Civil Code of the Russian Federation, a legal entity acquires civil rights and assumes civil responsibilities through its bodies acting in accordance with the law, other legal acts and constituent documents.

In scientific doctrine, the body of a legal entity has always been viewed through the prism of the structure of the legal entity itself and its legal capacity. It is the bodies of a legal entity that form and express its will as a subject of law; actions of bodies are considered as actions of the legal entity itself. It is important to note that the body of a legal entity is not an independent participant in legal relations.

This conclusion is not only theoretical, but also of great practical importance: the rules on representation do not apply to transactions made on behalf of a legal entity by its bodies. When a body of a legal entity carries out transactions in excess of the powers provided for by law, the norm of Art. 168 of the Civil Code of the Russian Federation to invalidate void transactions, and in case of excess of powers established by the constituent documents - the provision of Art. 174 of the Civil Code of the Russian Federation on invalidating voidable transactions. The concept of a body of a legal entity as its component, and not a representative, has been adopted by judicial practice. The Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of February 9, 1999 N 6164/98 directly states that “the body of a legal entity is not a representative of the latter...”.

S.D. Mogilevsky identified the following essential features of a body of a legal entity.

1. A body of a legal entity is a certain organizationally formalized part of a legal entity, represented by either one or several individuals.

2. The body of a legal entity is formed in accordance with the procedure determined by law and constituent documents.

3. The body of a legal entity has certain powers, the implementation of which is carried out within its own competence.

4. The formation and expression of the will of a legal entity is formalized through the adoption of special acts of the bodies of the legal entity, the types of which are determined by law.

The bodies of a legal entity consist of individuals, but are not identified with them. Changing the personal composition of the management body does not cancel the decisions previously taken by this body. For example, a newly formed sole executive body “inherits” all transactions previously completed by its predecessor.

The competence of a body of a legal entity is determined by the legal capacity of the legal entity itself.

The competence of a body of a legal entity should be understood as the subject of its activities (the list of issues on which it is authorized to make decisions), as well as the specific rights and responsibilities necessary for the management body to carry out the functions assigned to it. The competence of the bodies of a business company is determined by legislation and the constituent documents of the organization.

Let us note that corporate legislation in matters of determining the competence of the bodies of a business company draws a line between the constituent and internal documents of the organization. Determining the competence of a body of a business company in an internal document is illegitimate - this conclusion follows from the design of legislative norms, which contain a list of issues falling within the competence of the bodies (see, for example, paragraph 20, paragraph 1, article 48 of the Law on JSC) and allowing determine (for the sole and collegial executive bodies) or expand (for the board of directors) the competence only by the company’s charter (see, for example, paragraph 18, paragraph 1, article 65, paragraph 1, article 69 of the Law on JSC). Internal documents determine the timing, procedure for convening and holding meetings of the company’s bodies, but not their competence. This approach is also associated with the protection of the interests of third parties entering into relations with the company: if the constituent documents of an organization are available for review, then local acts relate to the internal sphere of the corporation, which may be closed to outsiders. The practice of defining the competence of the sole executive body in an agreement with the director (or management organization) is also unjustified.

The legislation on business companies contains the principle of so-called residual competence, the essence of which is that the formation of the competence of each management body is based on the formula: the competence includes the authority to resolve those issues that do not fall within the exclusive competence of a higher body.

The competence of a body of a legal entity is exercised externally through the adoption of acts. In legal doctrine, an act is understood in two meanings - as an action and as a document, normative and non-normative.

The bodies of a legal entity carry out actions and also make decisions on issues within their competence. The word “decision” is used here as a collective concept denoting various documents adopted by the bodies of a legal entity. So, for example, the general meeting, board of directors, collegial executive body make decisions; the sole executive body issues orders and instructions; The audit commission draws up conclusions.

The question of the composition of the bodies of a business company is debatable.

So, if we formally approach the provision on the bodies of a legal entity contained in paragraph 1 of Art. 53 of the Civil Code of the Russian Federation, then to characterize any entity as a body it is necessary that it be created (appointed or elected) in accordance with the law and constituent documents. The general meeting of shareholders (participants) is not elected or appointed; it consists of shareholders (participants) of the company. This circumstance allows some authors to assume that the general meeting is not a management body, and the company’s participants exercise the right to participate in management personally, since in accordance with clause 2 of Art. 53 of the Civil Code of the Russian Federation, in cases provided for by law, a legal entity may acquire civil rights and assume civil responsibilities through its participants.

We should agree with those experts who classify the general meeting of shareholders as one of the bodies of the company. The general meeting has all the features inherent in a body of a legal entity, designated by Art. 53 of the Civil Code of the Russian Federation, with the exception of the specifics of its acquisition of the status of an organ. Indeed, based on the norms of the law, shareholders have the right not to directly manage the affairs of the corporation, as is the case in a general partnership (Article 72 of the Civil Code of the Russian Federation), but to participate in the general meeting with rights determined by the category, type and number of shares owned by them (Articles 31, 32 of the Law on JSC). The same applies to LLC participants (Clause 1, Article 32 of the LLC Law). The laws on business companies (clause 1, article 47 of the JSC Law, clause 1, article 32 of the LLC Law) define the general meeting as the highest governing body of the company.

The issue of including the liquidation commission of a business company among the management bodies is controversial. Since the liquidation commission: a) is created for a certain period of time with the special purpose of carrying out the liquidation procedure, b) does not have independent competence (in accordance with the norms of the law, all powers to manage the affairs of the company are transferred to it), c) along with the liquidation commission, the company continues to if its other bodies act, for example, the general meeting, which approves the interim and final liquidation balance sheets, we can conclude that the liquidation commission is not the management body of the business company.

In the literature, the concept of “auxiliary bodies of a business company” is sometimes encountered, which includes the counting commission, the presidium of the general meeting, and the corporate secretary. These entities are certainly not organs of a legal entity. They do not have independent competence and cannot create rights for a legal entity and accept obligations on its behalf. These structural formations are designed to perform, although significant, auxiliary functions. They are located, as it were, inside the corresponding organ of society, ensuring its functioning.

And one last note regarding the controversial issues regarding the composition of the corporation's governing bodies. The position of specialists who consider the chairman of the board of directors and the head of the collegial executive body to be among the management bodies of a business company seems erroneous. These persons also do not possess the qualities necessary for a company body: competence, the ability to exercise the legal capacity of a legal entity. The chairman of the board of directors, the head of the collegial executive body are members of the corresponding collegial body, burdened with certain functions in organizing its work (convening, holding meetings, keeping minutes, etc.).

So, the bodies of business companies are: general meeting, supervisory board (board of directors), sole and collegial executive bodies, audit commission (auditor).

Bodies of a legal entity can be classified according to a number of criteria

By order of formation

According to the order of formation or the method of acquiring powers - elected, appointed and formed in other ways.

In accordance with paragraph 1 of Art. 53 of the Civil Code of the Russian Federation, the bodies of a legal entity are appointed or elected and the procedure for their formation is determined by law and constituent documents. Appointment is the ability of any body or official to appoint another person to a position; in this case there is no alternative, there are no candidates for selection. On the contrary, during election, authorized persons must select one candidate from several proposed ones. The elected bodies in the legislation itself directly include the board of directors, the audit commission of a joint-stock company (clause 1 of article 66, clause 1 of article 85 of the Law on JSC), the sole and collective executive bodies of a limited liability company (clause 1 of article 40 , clause 1 of article 41 of the LLC Law). In other cases, the legislation uses the legal construct “Establishment of a body”: in relation to the executive bodies of a joint-stock company - clause 3 of Art. 69 of the Law on JSC, to the board of directors of a limited liability company - clause 2 of Art. 32 of the LLC Law. In this case, the procedure for forming a body (appointment or election) must be provided for in the charter of the business company itself.

A special position in the classification of corporation bodies according to the method of formation is occupied by the general meeting of shareholders (participants). The composition of this body is not elected or appointed; it is dictated by the fact of membership in the economic society.

By composition

The composition of corporations is traditionally divided into collegial and individual bodies.

A collegial body is a group of individuals elected or appointed to its composition in the manner established by current legislation and the charter, who jointly make decisions on issues of the powers granted to it. Two conclusions follow from this definition:

The quantitative composition of the collegial body cannot be less than two people;

The decision of the collegial body is made as a result of joint discussion and voting.

The procedure for making a decision by a collegial body by a simple or qualified majority is most often determined on the basis of dispositive norms of legislation by the company’s charter. There are usually two approaches here:

When the legislation contains a list of issues on which the body must make decisions with a qualified number of votes, and this list can be expanded by the charter of the company. For example, the procedure for making decisions by the general meeting of participants in a limited liability company is regulated (Clause 8, Article 37 of the LLC Law);

When the legislation does not contain any list of issues, decision-making on which requires a qualified majority, and the determination of the procedure for decision-making is completely left to the discretion of society itself.

A special case is the legal regulation of the procedure for making decisions at the general meeting of shareholders, when the list of issues on which decisions are made by a qualified majority of votes cannot be expanded by the company’s charter (clause 4 of article 49 of the JSC Law).

When making decisions, members of collegial bodies have either one vote each - in the board of directors, collegial executive body, audit commission, or, depending on the shares (shares) they own, a different number of votes - at the general meeting of shareholders (participants). With regard to the board of directors of a joint-stock company, there is a special rule that establishes the possibility of providing for the charter of the company the right of a casting vote of the chairman of the board of directors when making decisions by the board in the event of an equality of votes of its members (Clause 3 of Article 68 of the Law on JSC). By analogy, such a provision may be provided for in the charter of a limited liability company.

The sole executive body of a corporation is a director - an individual or a managing organization (manager), appointed or elected in the manner established by current legislation and the constituent documents of the company, who manages the current economic activities of the company through the sole adoption of decisions related to his competence.

By the nature of the functions performed

Based on the nature of the functions performed, the bodies of a legal entity are divided into management bodies (managing and executive) and control bodies.

The governing bodies of corporations include the general meeting of shareholders (participants) - the highest management body and the board of directors, which exercises general management of the company's activities.

The governing nature of the general meeting of shareholders (participants) is manifested in the fact that this body makes decisions on the most significant issues of the organization and activities of a business company: approves and makes changes to the charter, makes decisions on issues of reorganization and liquidation of the company, forms other bodies of the company - the board of directors , the audit commission, as well as executive bodies (if the formation and termination of their powers is not within the competence of another governing body - the board of directors), approves internal documents on the company's bodies regulating their activities.

The Board of Directors, being the governing body of the company, determines the priority areas of the company's activities. In accordance with mandatory norms of legislation (clause 3 of article 49 of the JSC Law), a number of the most significant issues can be considered by the general meeting of shareholders only at the proposal of the board of directors (clauses 2, 6 and 14 - 19, clause 1 of article 48 of the Law about JSC).

In general, the role of the board of directors is understood differently in different legal systems. In Anglo-Saxon law, it is given a leading role in decision-making: the general meeting of shareholders, at best, approves the decisions of the board of directors. In US law, the general meeting is not even formally considered as a governing body of a joint stock company. In European countries, where this body is called the supervisory board, it is assigned the corresponding function of monitoring the interests of owners and other participants in corporate relations, such as employees. Thus, the supervisory board of German corporations includes representatives of employee trade unions. In Russian legislation, where even the name of this body combines the concepts of Anglo-Saxon and continental law, the board of directors (supervisory board) has functions that are assigned to it by the corporation itself within the framework of possible discretionary regulation. The real importance of the board of directors is determined, among other things, by the management model chosen by the company, the distribution of property, the presence of independent directors in its composition and other circumstances.

The executive bodies organize the current activities of the company; they are accountable to the board of directors and the general meeting of shareholders (participants).

The audit commission (or auditor), which exercises control over the financial and economic activities of the company, is its control body.

Depending on the role in forming the will of a legal entity

Depending on the role in the formation of the will of a legal entity, a distinction is made between will-forming and will-expressing bodies.

Will-forming bodies can only form the will of a legal entity without expressing it externally. The will-forming bodies of the corporation include the general meeting of shareholders (participants), the board of directors and the collegial executive body.

Will-expressing bodies express the will of a legal entity externally. They act without a power of attorney within the scope of their competence. The sole executive body of the organization is among those expressing their will. In some cases, the sole executive body can be both will-expressing and will-forming.

By term of office

The terms of office are divided into permanent and temporary bodies.

All bodies of business companies, with the exception of the general meeting, are created for a certain period, i.e. are temporary.

According to the criterion of the period of activity of V.V. Dolinskaya classifies all bodies into: permanent, temporary (with a limited period of validity) and periodic activity, to which she classifies the general meeting of the corporation.

Depending on the mandatory formation

Depending on the mandatory nature of formation, one can distinguish governing bodies that must exist in any economic society - mandatory and governing bodies that can be formed at the discretion of the society itself - optional.

Mandatory bodies, which include the general meeting, the sole executive body, and for a joint-stock company - also the audit commission (auditor), are formed on the basis of mandatory norms of legislation; the company itself is deprived of the right to decide whether to create these bodies or not.

The optional bodies of the corporation are the collegial executive body, the board of directors - for a limited liability company, as well as for a joint-stock company with up to 50 shareholders - owners of voting shares (Clause 1, Article 64 of the Law on JSC). Thus, legislation allows the corporation itself to build a system of its own governing bodies or choose an organizational management model.