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1 Department of property and land relations Voronezh region State Regional Institution "Center for Corporate Development" RECOMMENDATIONS FOR JOINT-STOCK OF MUNICIPAL UNITARY ENTERPRISES VORONEZH February 2011
2 Stages of corporatization of municipal unitary enterprises Development and approval of a forecast plan (program) for the privatization of municipal unitary enterprises Appendix 1 Decision (order) on the conduct and timing of preparation for corporatization of municipal unitary enterprises Appendix 2 Preparation of a municipal unitary enterprise for corporatization Appendix 3 Decision making on the conditions for privatization of a municipal unitary enterprise. Annex 4 Registration of a joint-stock company with the Federal Tax Service Annex 5 Registration of real estate in the territorial department of the Rosreestr Office for the Voronezh Region and exclusion from the register of municipal property Registration of a share issue in the Regional Branch of the Federal Financial Markets Service in the South-West Region Annex 6 Organization of maintaining the register of shareholders (obtaining an extract from the register of shareholders on the ownership of 100% of the shares of the Municipality) 2
3 NORMATIVE FRAMEWORK AND RECOMMENDATIONS FOR CARRYING OUT THE PROCEDURE FOR CORPORATED PUBLICATION OF MUNICIPAL UNITARY ENTERPRISES (MUP) Name of the procedure 1. Formation of a forecast privatization plan in order to determine the possibility of corporatization of municipal unitary enterprises (hereinafter referred to as "MUP") Analysis constituent documents Analysis of the composition of the property of the enterprise, the presence of land plots, real estate, including objects of civil rights, the circulation of which is not allowed, as well as property that, in the manner prescribed by federal laws, can only be in state, municipal ownership Calculation of the net asset value of MUP according to balance sheet as of the last reporting date, taking into account the cadastral value of land plots (corporation of MUP is possible with a total value of more than 100 thousand rubles) (hereinafter the Law). Decree of the Government of the Russian Federation No. 806 “On approval of the rules for developing a forecast plan (program) for the privatization of federal property and introducing amendments to the rules for preparing and making decisions on the conditions for the privatization of federal property”. An analysis of the goals, objectives and functions of the MUE is being carried out to determine the possibility of corporatization of the enterprise Clause 3 of Article 3 of the Law Clause 2 of Article 11 of the Law. Order of the Ministry of Finance of Russia and the Federal Securities Commission of Russia dated n / 03-6 / pz. " Guidelines on property and financial liabilities”, 3
4 2.2. Formulation of results. 2.3. Formation of land plots, registration of passports Compilation of the interim balance sheet of the MUP Conducting an audit of the results and the interim balance sheet of the MUP of Russia and the Ministry of Justice of Russia from r / R-8/149. The results are drawn up according to unified forms approved by the Decree of the State Statistics Committee of Russia dated, taking into account the “Methodological recommendations on the rights to the results of scientific and technical activities”, approved by the joint order of the Ministry of Property of Russia, the Ministry of Industry and Science of Russia and the Ministry of Justice of Russia dated r/R-8/149. A passport for a land plot is issued in accordance with Chapter I.1 of the Land Code of the Russian Federation and clause 3. Article 27 of the Federal Law “On the State Cadastre of Real Estate” from the Federal Law. The interim balance sheet and other reporting documents of MUP are compiled in the amount and according to the forms of annual financial statements approved by Orders of the Ministry of Finance of the Russian Federation dated n, from n, taking into account the changes introduced by orders dated n, from n, from n. Conducted by an audit organization, the choice of which is carried out at a tender in accordance with the Federal Law "On Auditing" from the Federal Law and the Federal Law "On placing orders for the supply of goods, performance of work, provision of services for municipal needs" from the Federal Law. Composition of the MUP 4 complex subject to privatization
5 CBM. complex 2.7. Formation of a list of objects (including exclusive rights) not subject to privatization as part of the CBM complex. is formed on the date of preparation of the interim balance sheet and is drawn up in relation to accounts, sub-accounts and items of the interim balance sheet. The composition of the MUP complex subject to privatization includes all property owned by the enterprise on the right economic management, as well as land plots subject to privatization. Also included are the rights to designations that individualize the enterprise, its products, works and services (company names, trademarks, service marks), other exclusive rights to the results of scientific and technical activities. In addition, all obligations of CBM are included, including obligations for which the due date has not come, incl. obligations under promissory notes, guarantees, etc. The composition of the MUP privatization complex subject to privatization is drawn up only in EXCEL format. Based on this list, Appendix 1 is formed to the order on the conditions of privatization and, accordingly, the composition of the property transferred to the joint-stock company. The list is drawn up only if there are objects on the balance sheet of the MUE that are not subject to privatization, that is, those withdrawn from circulation, as well as objects that can only be in state or municipal ownership, including exclusive rights (in accordance with paragraph 3, paragraph 4 of the article 11, paragraph 1 of article 30, paragraph 6 of article 43 of the Law and other regulatory legal acts), as well as other objects not included in the composition of the subject to privatization 5
6 2.8. Calculation of the balance sheet value of the MUP assets subject to privatization List of encumbrances (restrictions) on property included in the MUP complex subject to privatization of the MUP complex. Based on this list, Appendix 2 is formed to the order on the conditions of privatization and, accordingly, the composition of the property transferred to the joint-stock company. In the case of an open joint stock company (hereinafter referred to as OJSC), the book value of the assets of a unitary enterprise subject to privatization (Charter of OJSC) is determined as the sum of the value of the net assets of the enterprise, calculated on the basis of interim balance sheet data, and the value of land plots (according to their cadastral value), for deducting the book value of objects not subject to privatization as part of a unitary enterprise complex (Article 11 of the Law). The authorized capital of an OJSC must be at least 100 thousand rubles. Calculation of the book value of assets is executed only in EXCEL format. Based on this calculation, Appendix 3 is formed to the order on the conditions of privatization and is attached to the transfer act. In the list of encumbrances (restrictions) of property included in the composition of the MUP complex subject to privatization, in the proposed form, the real estate object is indicated in respect of which the restriction (encumbrance) has been introduced, indicating, if necessary in such cases, the duration of such restrictions. Encumbrances and restrictions are established in accordance with paragraph 6 of article 28, articles 29,30, and 31 of the Law. Based on this list, Appendix 4 is formed to the order on the conditions of privatization. 6
7 3. Deciding on the conditions for the privatization of the MUP complex. When converting MUP into an open joint stock company, the order on the terms of privatization indicates the size of the authorized capital, the number of registered ordinary book-entry shares of the company and the nominal value of one share. The quantitative composition is determined and members of the board of directors of the company are appointed, members of the audit commission (auditor) of the company are appointed, before the first general meeting the sole executive body of the company is appointed. The decision on the terms of privatization of MUP approves: 1) Composition of the complex of MUP subject to privatization (Appendix 1). 2) The list of objects (including exclusive rights) not subject to privatization as part of the CBM complex (if these objects are available - Appendix 2). 3) Calculation of the book value of the MUP assets subject to privatization (Appendix 3). 4) List of encumbrances (restrictions) on property included in the complex subject to privatization (if such property exists, Appendix 4). 5) Charter of an open joint stock company. 6) Deed of transfer of the CBM complex to be privatized (drawn up in accordance with paragraph 1 of Article 11 of the Law, which in form and content corresponds to the composition of the CBM complex to be privatized, with the calculation of the book value of the CBM assets and a list of encumbrances (restrictions) of the property included in the complex MUP (in the presence of such property)). 7
8 APPENDIX 1 Development and approval of a forecast plan (program) for the privatization of municipal unitary enterprises 8
9 PREPARATION AND APPROVAL OF THE FORECAST PLAN FOR PRIVATIZATION OF MUNICIPAL UNITARY ENTERPRISES Executive authorities of municipalities (MO) MO analyzes constituent documents, composition of the complex (availability of land plots, real estate), analysis of financial and accounting statements. It is carried out on the basis of the constituent documents and accounting documents submitted by the MUP, taking into account the recommendations of the State Institution "Center", prepares proposals: - on the inclusion in the forecast plan (program) of the privatization of the MUE with a deadline for making a decision on the conditions of privatization in the reporting year; - on carrying out additional organizational measures in order to prepare MUP for privatization. Municipal Unitary Enterprises (MUP) Submit a copy of the charter, a list of land plots and real estate, balance sheets and profit and loss statements (forms 1.2) for the last two years. nine
10 Calculation of net assets thousand rubles. 1. Assets: 1.1. Intangible assets (110) 1.2. Fixed assets (120) 1.3. Construction in progress (130) 1.4. Long-term financial investments (140) 1.5. Other non-current assets () 1.6. Stocks (210) 1.7. Value added tax on acquired valuables (220) 1.8. Accounts receivable () 1.9. Short-term financial investments (250) Cash (260) Other current assets (270) Total assets (sum of points) 2. Liabilities: 2.1. Borrowed funds () 2.2. Deferred tax liabilities (515) 2.3. Other long-term liabilities (520) 2.4. Accounts payable (620) 2.5. Reserves for future expenses (650) 2.6. Other short-term liabilities (660) Total liabilities (sum of points) 3. Net assets: the sum of assets minus the sum of liabilities 4. Cadastral value of land Plots MUP can be corporatized provided that the total value of net assets and the value of land plots is more than 100 thousand rubles. ten
11 APPENDIX 2 Adoption of a decision (order) on the conduct and timing of preparation for corporatization of municipal unitary enterprises 11
12 Approximate form decision (order) on the preparation for the privatization of a municipal unitary enterprise On the preparation for the privatization of a municipal unitary enterprise privatization of municipal property of the district of the Voronezh region for years, approved from: 1. To the municipal unitary enterprise () - within the period up to 20 years, in the prescribed manner, conduct an inventory of property, rights to the results of scientific and technical activities and obligations of the enterprise; - up to 20 years to ensure the preparation of interim financial statements (balance sheet) of the enterprise; - within the period up to 20 years to ensure the audit of the balance sheet; - within the period up to 2020, to ensure, in accordance with the established procedure, the execution of technical passports, title documents for real estate objects administered by the enterprise, the issuance of acts on the provision of land plots and (or) the signing of contracts in accordance with which land plots are used, land management works and (or) registration of cadastral passports of land plots; 2. By 2020, submit: a) the results of the property and liabilities of the enterprise, including rights to the results of scientific and technical activities, drawn up in accordance with the established procedure; b) an interim balance sheet drawn up as of the end date; c) duly executed cadastral passports of land plots; 12
13 d) duly executed title documents for real estate objects, documents confirming state registration of rights to real estate held by the enterprise; e) composition of the enterprise complex subject to privatization; f) a list of property (including exclusive rights) not subject to privatization as part of the enterprise complex and proposals for its further use; g) calculation of the book value of the assets of the enterprise subject to privatization; h) other documents necessary for making a decision on the terms of privatization. 3. Eliminate the existing comments on the submitted documents within 15 days from the date of submission of such comments (if any). 4. I entrust control over the execution of this. Head 13
14 APPENDIX 3 Preparation of a municipal unitary enterprise for corporatization 14
15 PREPARATION OF MUNICIPAL UNITARY ENTERPRISES FOR JOINT-STOCK COMPANY Executive authorities of municipalities (MO) MO prepares orders for the privatization of MUEs included in the forecast plan (program) of privatization, with the timing of preparation and decision-making on the conditions of privatization, taking into account the presence or absence of title documents for land plots and real estate objects. The Ministry of Defense organizes a competition to select an audit organization, develops a task for an audit organization to verify the results and the interim balance sheet of the CBM. MO is developing model charter OJSC Municipal Unitary Enterprises (MUP) MUP, when preparing a decision on the terms of privatization, carries out the following activities: - conducts an inventory of property, incl. and rights to the results of scientific and technical activities; - determines the order of subsidiary unitary enterprises (if any); - draws up an interim balance sheet on the date of the transaction; - conducts an audit of the interim balance sheet of CBM; - draws up cadastral plans for land plots, cadastral passports for real estate objects and, accordingly, title documents for these objects; - conducts (if necessary) control checks of the availability and condition of property; - determines the composition of the unitary enterprise complex subject to privatization; - determines the objects that are not subject to privatization as part of the CBM complex and the procedure for their further use; - draws up a list of existing encumbrances (restrictions) and determines the need to establish additional restrictions during privatization; - determines the book value of the assets of the unitary enterprise subject to privatization. Develops the charter of JSC. fifteen
16 Draft terms of reference Audit of the completeness and presented results and the interim balance sheet of a municipal enterprise located at: city such property and liabilities and their reflection in the interim financial statements. The correctness of the preparation of the interim balance sheet and the formation of the composition of the complex of the Enterprise subject to privatization, as well as the list of objects that are not subject to privatization in its composition. The audit is carried out with the departure of employees of the audit organization to the location of the enterprise. When conducting an audit of the reliability of interim balance sheets and the results of property and liabilities of municipal unitary enterprises, the audit organization must ensure that the results of the following tasks and procedures are carried out and reflected in the audit report: p / p Name of the task 1. Audit of fixed assets p / p Name of the subtask 1. Audit of the results of fixed assets 16 List of procedures - implementation of a complete audit of real estate; inclusion of all real estate objects that are under the economic management of the enterprise in the inventory; the fact that the enterprise has all real estate objects
17 2. Audit and completeness of the reflection of fixed assets in the interim balance sheet 3. Audit and completeness of the reflection of fixed assets as part of the complex of municipal property subject to privatization, included in the inventory lists; compliance with the legislation of the Russian Federation; registration of results in accordance with the legislation of the Russian Federation; - assessment of the completeness and reliability and reliability of the reflection of fixed assets in the interim balance sheet; putting on accounting identified as a result of fixed assets the assignment of objects included in the relevant section to the category of real estate; 17
18 of a unitary enterprise, as well as in the list of objects not subject to privatization as part of the complex 4. Audit of title documents 5. Audit of the legality of establishing encumbrances - checking and completeness of the inclusion of fixed assets in the complex of a unitary enterprise subject to privatization; - verification of the legality of the inclusion of fixed assets in the list of objects not subject to privatization as part of the complex of a unitary enterprise; - verification of the compliance of title documents with the legislation of the Russian Federation; - assessment of the volume of rights of a unitary enterprise to fixed assets in accordance with title documents of the legitimacy of establishing encumbrances; the owner's consent; - auditing the timing of encumbrances 18
19 2. Audit of financial assets 6. Audit of efficiency of use of real estate objects 7. Audit of retirement of real estate objects for the last 4 years 1. Audit of results financial investments 19 - identification of property not used for its intended purpose; - identification of property used not in accordance with the statutory activities of the enterprise; - identification of property unreasonably or illegally transferred to the use of third parties. compliance with the legislation of the Russian Federation; the consent of the owner of the property; the authority of the person (public authority) who gave consent to act on behalf of the owner of the property of the Enterprise. - verification of compliance with the legislation of the Russian Federation; - design check
20 2. Audit of the completeness and reflection of financial investments in the interim balance sheet 3. Audit and completeness of the reflection of financial investments as part of the unitary enterprise complex subject to privatization; as well as in the list of objects not subject to privatization as part of the complex 4. Audit of title-establishing results in accordance with the legislation of the Russian Federation; - assessment of the completeness and reliability and reliability of the reflection of financial investments in the interim balance sheet; registration of financial investments revealed as a result of accounting and completeness of inclusion of financial investments in the composition of the unitary enterprise complex subject to privatization; the legality of including financial investments in the list of objects not subject to privatization as part of the complex of a unitary enterprise - verification of compliance with the title 20
21 3. Audit current assets x documents 1. Audit of the results of inventories 2. Audit of the completeness and reflection of inventories in the interim balance sheet 21 x documents to the legislation of the Russian Federation; - assessment of the scope of the rights of a unitary enterprise in accordance with title documents; - verification of compliance with the legislation of the Russian Federation; registration of results in accordance with the legislation of the Russian Federation; - assessment of the completeness and reliability and reliability of the reflection of inventories in the interim balance sheet; accounting records identified as a result of financial
22 3. Audit and completeness of the reflection of inventories as part of the complex of the municipal unitary enterprise subject to privatization, as well as in the list of objects not subject to privatization as part of the complex 2. Audit of the completeness and reflection of receivables in the interim balance sheet 3. Audit and completeness of the reflection of industrial reserves. and completeness of the inclusion of inventories in the complex of the unitary enterprise subject to privatization; the legality of the inclusion of inventories in the list of objects not subject to privatization as part of the complex of a unitary enterprise and the reliability of the reflection of receivables in the interim balance sheet; registration of accounts receivable identified as a result and 22
23 receivables as part of the complex of the federal state unitary enterprise subject to privatization 4. Audit of documents indicating the presence of receivables of the completeness of the inclusion of receivables in the composition of the complex of the unitary enterprise subject to privatization; the legality of the inclusion of receivables in the list of objects (including exclusive rights) not subject to privatization as part of the complex of a unitary enterprise; - assessment of the scope of the rights and obligations of a unitary enterprise in relation to the identified receivables in accordance with the available documents; - assessment of the execution of primary documents for the supply of goods and the provision of services from 23
24 4. Audit of accounts payable and liabilities 1. Audit of the results of accounts payable and liabilities. 24 in order to confirm the validity of the occurrence of receivables; whether all debtors have obligations to repay debts or enforcement orders, whether amounts are systematically received to pay off debts, what measures are taken against debtors from whom the receipts of money have ceased; - assessment of the reasons for the write-off of receivables, as well as the adequacy of the measures taken by the enterprise to return the written-off receivables - verification of compliance with the legislation of the Russian Federation. registration of results in accordance with the legislation of the Russian
25 2. Audit of the completeness and reflection of accounts payable and liabilities in the interim balance sheet 3. Audit and completeness of reflection of accounts payable and liabilities as part of the complex of the municipal unitary enterprise subject to privatization, as well as in the list of objects not subject to privatization as part of the complex of the enterprise of the Federation; - assessment of the completeness and reliability and reliability of the reflection of accounts payable and liabilities in the interim balance sheet; registration of accounts payable and obligations identified as a result of accounts payable and the completeness of inclusion of accounts payable and obligations in the unitary enterprise complex subject to privatization; the legality of including accounts payable and liabilities in the list of objects not subject to privatization as part of a unitary complex 25
26 4. Audit of documents evidencing the presence of accounts payable and obligations of the enterprise compliance with the documents on the basis of which the accounts payable and obligations arose under the legislation of the Russian Federation; - assessment of the scope of the rights and obligations of a unitary enterprise in relation to the identified accounts payable and obligations in accordance with the available documents; - assessment of the execution of primary documents for the acquisition of inventory items and the provision of services in order to confirm the validity of the occurrence of accounts payable; target use of borrowings (credits) of the enterprise; availability of approval by the owner of the property of the enterprise of transactions on 26
27 5. Audit of the results of the inventory and reserves of future expenses and deferred income 6. Audit of capital and reserves 1. Audit of the results of reserves of future expenses and deferred income 1. Audit of the results of capital and reserves 27 attracting borrowed funds; the authority of the body that gave consent to the relevant transactions; - assessment of the reasons for non-write-off of accounts payable; - assessment of security issued by the enterprise for the last 4 years (guarantee, pledge, etc.); - verification of compliance with the legislation of the Russian Federation; registration of results in accordance with the legislation of the Russian Federation; - assessment of the completeness and reliability of compliance with the legislation of the Russian Federation;
28 2. Audit of the completeness and reflection of capital and reserves in the interim balance sheet 3. Audit and completeness of the reflection of capital and reserves as part of the complex of the municipal unitary enterprise subject to privatization, as well as in the list of objects not subject to privatization as part of the complex for reporting results in accordance with the legislation of the Russian Federation Federations; - assessment of the completeness and reliability and reliability of the reflection of capital and reserves in the interim balance sheet; registration of the capital and reserves identified as a result and the completeness of the inclusion of capital and reserves in the composition of the unitary enterprise complex subject to privatization; the legality of including capital and reserves in the list of objects not subject to privatization as part of 28
29 7. Verification of the eligibility of the head to perform the functions of the head of the enterprise 1. Checking the eligibility of the head to perform the functions of the head of the enterprise of the unitary enterprise complex of the eligibility of the head to perform the functions of the head of the enterprise (basis for appointment to the position, duration of the contract, certification in the prescribed manner) 29
30 APPENDIX 4 Deciding on the conditions for the privatization of a municipal unitary enterprise 30
31 DECISION-MAKING ON THE CONDITIONS OF PRIVATIZATION OF MUNICIPAL UNITARY ENTERPRISES Executive authorities of municipalities (MO) On the basis of the documents submitted by the MUP, the MO prepares an order on the conditions for the privatization of the MUP complex, which approves: 1- the composition of the MUP complex to be privatized; 2 - a list of objects (including exclusive rights) not subject to privatization as part of the CBM complex; 3 calculation of the book value of the MUP assets subject to privatization. 4- list of encumbrances (restrictions) of property included in the composition of the CBM complex subject to privatization; 5- Charter of an open joint stock company. 6- Deed of transfer of the CBM complex subject to privatization. 7- Deed of transfer of objects (including exclusive rights) not subject to privatization as part of the MUP complex. Municipal Unitary Enterprises (MUP) MUP submits to the MO, signed by the head and chief accountant (stamped), the following documents: - acts (results); - draft composition of the CBM complex to be privatized; - a draft list of objects (including exclusive rights) not subject to privatization as part of the CBM complex; - calculation of the book value of the assets subject to privatization. Copies (copy) of cadastral passports of land plots with copies of title documents attached. Copies (copy) of title documents for real estate 31
32 MO on the basis of the order on draws up a transfer deed, which in form and content corresponds to the composition of the CBM complex to be privatized with appendices: calculation of the book value of assets to be privatized CBM, list of encumbrances (restrictions) of property included in the composition of the complex. The Ministry of Defense submits to OJSC the decision on the conditions for the privatization of the MUP complex with all the documents approved by this order and the deed of transfer of the MUP complex with attachments. The deed of transfer is signed by the director of the MUP and the general director of the company. 32
33 An approximate form of a decision (order) on the conditions for the privatization of a municipal unitary enterprise On the conditions for the privatization of a municipal unitary enterprise MUP) by transforming it into an open joint stock company "" with an authorized capital of rubles, consisting of registered ordinary non-documentary shares with a nominal value of rubles each. 2. The director of the municipal unitary enterprise, in accordance with the established procedure, within three working days after the decision on the conditions of privatization is made, notify the body that carries out state registration of legal entities about the start of the reorganization procedure. 3. Approve the composition of the complex of the municipal unitary enterprise "" subject to privatization in accordance with the appendix Approve the list of objects (including exclusive rights) not subject to privatization as part of the complex of the municipal unitary enterprise "" in accordance with the appendix Approve the calculation of the book value of the assets of the municipal unitary enterprise subject to privatization "" in accordance with the appendix Approve the list of encumbrances (restrictions) of property included in the complex of the municipal unitary enterprise subject to privatization "" in accordance with the appendix Approve the Charter of the open joint stock company in accordance with appendix 5.
34 8. Approve the deed of transfer of the complex of the municipal unitary enterprise subject to privatization. 9. Approve the deed of transfer of objects (including exclusive rights) not subject to privatization as part of the complex of the municipal unitary enterprise. 10. Determine the composition of the board of directors of an open joint stock company in the number of people. Determine the composition of the audit commission of an open joint stock company in the number of people. 11. Prior to the first general meeting of an open joint stock company, appoint: the general director of the company; members of the board of directors: Chairman; ; ; ; ; ; ; members of the audit commission (auditor): ; ;. 12. To the General Director of an open joint stock company in accordance with the established procedure: a) to carry out legal actions for the state registration of an open joint stock company; b) within 10 days from the date of registration of an open joint stock company, submit to: a copy of the Charter with a mark of the registering authority, a copy of the document confirming the fact of making an entry in the state register, a copy of the deed of transfer. c) within a month from the date of state registration of an open joint stock company, submit the documents necessary for making appropriate changes to the register of municipal property; 34
35 d) within 3 months from the date of state registration of an open joint-stock company, carry out legal actions for state registration: transfer to an open joint-stock company of the right of ownership of property objects transferred in accordance with the deed of transfer of the complex of the municipal unitary enterprise subject to privatization; encumbrances (restrictions) on property included in the complex of the municipal unitary enterprise "" subject to privatization in accordance with the transfer act. e) transfer the property not included in the composition of the complex of the municipal unitary enterprise subject to privatization (the first section of Appendix 2) to the ownership of the municipality (to operational management, etc.). 13. Within 30 days from the date of state registration of the open joint stock company, the governing bodies of the open joint stock company shall: a) decide on the issue (if necessary, approve the prospectus) of the shares of the open joint stock company with the placement of all shares sole founder- in person, to approve the report on the placement of all shares of an open joint stock company to the sole founder; - in person, send the relevant materials to the authorized state registration body; b) organize the maintenance of the register of shareholders of the company, indicating in the person of the sole owner of all shares of the first issue and send it to an extract from the register of shareholders of an open joint stock company. 14. Control over the execution of this order. Head 35
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The last factor is related to the debt of enterprises. Many enterprises have huge accounts payable and receivables to banks, the state, other enterprises, etc. When assessing the property of enterprises, their shares must be taken into account, and the proposed price should be proportionally reduced if it is assumed that the obligation to pay the debt will be assigned to buyers, in in this case, to the shareholders. The presence of debt complicates the position of investors, who must make a choice between acquiring shares with existing capital or increasing the capital of the enterprise, since this alternative affects their share in the capital of the enterprise.
Shareholding as a form of privatization has its advantages and disadvantages.
ADVANTAGES of the transformation of state enterprises into joint-stock companies are the ability to interest allied enterprises in the development of a joint-stock company, strengthening it financial position by selling them shares. This circumstance is especially important for enterprises processing agricultural products, enterprises of the machine-building complex with a large number of suppliers.
DISADVANTAGES of the joint-stock form of ownership consist in limiting the production and economic independence of joint-stock companies and the need to share part of the profits with shareholders. Nevertheless, for large enterprises there is no alternative to this form of corporatization.
REPURCHASE OF A LEASED ENTERPRISE in form and content resembles a direct purchase. It can be done immediately or in installments. When renting state enterprise the collective of tenants forms a rental enterprise, which independently chooses the method of management in accordance with its charter. It is obliged under the lease agreement to take over the fulfillment of the state order. The rest of the rental company is given considerable independence. Therefore, in the conditions of transition to a market economy, rent is a way of denationalization with the subsequent formation of a non-state enterprise with a collective, cooperative or joint-stock form of ownership on the basis of a leased enterprise.
The initiative to privatize a leased enterprise can only come from a collective of tenants.
The most important condition for the privatization of a leased enterprise is the possibility of using the profits of the enterprise for redemption, as well as depreciation deductions from the value of property acquired by a group of tenants during the lease period. This allows you to accumulate funds for redemption and do without bank loans and attracting personal funds from members of the workforce.
In the republic, almost all lease agreements were concluded before the adoption of the law on privatization. Therefore, approximately by the year 2000, the lease agreements will end. Rent by various reasons failed to successfully solve the urgent problems of enterprises. Among these reasons are the following.
Growth rates rent due to inflation and constant revaluation of funds, led to a deterioration in the financial position of rental enterprises.
The economic mechanism of rental enterprises is such that it does not stimulate the innovation process, the emergence of new ideas among the collective of tenants. Therefore, the competitiveness of rental enterprises is not higher than that of state-owned enterprises.
The organizational and legal basis of privatization does not provide for other forms of privatization, except for redemption, which significantly limits the possibilities for privatization of property by a collective of tenants.
I decided to paint these questions for myself, so that later I could just use the link.
You need to start with the Civil Code, which says that: a unitary enterprise is a type of commercial company that does not have ownership of the property assigned to it by the owner. At the same time, only state or municipal authorities can be the owners of the company.
Why might a unitary enterprise be created?
Unitary enterprises are formed to implement state tasks on a commercial basis. This may be the maintenance or management of property, which cannot be privatized; solving social problems, including the sale of products or the provision of services at prices below cost; conducting unprofitable productions or supporting subsidized activities.
The property of a unitary enterprise may be transferred to it by the owner as a contribution to the statutory fund, or received from other sources, but only with the owner's approval. At the same time, a unitary enterprise does not have the right to dispose of its property without the approval of the owner.
The sources of income of a unitary enterprise can be:
- results of economic activity;
- subventions (budget funds transferred free of charge);
- subsidies (budget funds allocated for targeted financing of costs in the implementation of a particular type of activity);
- subsidies (budget funds allocated to finance the costs of a unitary enterprise as a whole).
All profits of a unitary enterprise go to the budget in the form of non-tax revenues.
The following restrictions are imposed on a unitary enterprise:
- it cannot be the founder of subsidiaries;
- it cannot independently enter into large transactions (more than 10% of the authorized capital or 50,000 minimum wages);
- it cannot use profits for material incentives for employees.
What changes with a corporatization?
First, don't confuse corporatization with privatization. During corporatization, the organizational form changes, but the state remains the owner of the enterprise. But the transfer or sale of state-owned shares into private hands is already privatization.
Main changes:
- the right to dispose of property passes from the owner to the management of the enterprise;
- the company gets the opportunity to independently distribute profits, but the dividends paid on shares still go to the budget;
- the enterprise loses the right to receive direct payments from the budget (subventions, subsidies or grants).
The key issue of corporatization is the question of ownership: does it remain in the ownership of the state, with its transfer to operational management or lease to the enterprise, or does it become the full property of the enterprise.
In the first case, the purpose of corporatization is not always obvious. For example, if property is prohibited for privatization, then a change in organizational form does not affect this possibility in any way. In the second case, there will always be suspicions of corruption, since the issue of establishing the price of property and the subsequent price of shares has subjective components.
Evaluation of the results of corporatization and subsequent privatization should be carried out for each unitary enterprise separately, taking into account the issue of transferred property, the features of conducting business activities and its results.
Shareholding is the process of transforming enterprises that are a single state or private property into a legal entity, the authorized capital of which is divided into small shares.
Shareholding is the process of transforming enterprises that are a single state or private property (owned by one or more people) into a legal entity, the authorized capital of which is divided into small shares. The share in the authorized capital in this case is fixed by the number of equity securities - shares. The amount of their nominal value is equal to the authorized capital of the legal entity. At the same time, participants (owners of shares) are not liable for the obligations of the JSC, but only bear the risk of losing funds invested in their shares.
When is corporatization
In the Russian Federation, corporatization is most often used as a mechanism for the privatization of state unitary enterprises. As a rule, medium and large enterprises are privatized through this mechanism. At the same time, the ownership of the organization in the end does not necessarily completely or partially pass into private hands, but may remain completely (100% of the shares) in the hands of the state. Often, only a certain block of shares remains under state control:
– control (more than half of the shares);
– blocking (20-30% of securities);
- minority (not allowing to influence the activities of the company).
At the same time, the main goal of corporatization is the increase in the efficiency of the work of the subject of the economy. It can be achieved through:
– greater freedom of action for economic entities;
- the emergence of personal interest (dividends) in increasing the profitability of the company's activities from new owners;
– attracting investments through the sale of shares, the issuance of preferred shares or bonds;
- creation of integrated structures when legal entities acquire shares of suppliers, trade structures, production enterprises of subcontractors, absorption of competitors;
- separation as a result of corporatization of the most viable parts of enterprises on the market (when the enterprise is corporatized not as a whole, but only a certain part with commercial potential);
– the appearance of direct control over the targeted use of the company's funds, the effectiveness of its activities on the part of shareholders.
Main stages of corporatization
The first is the initiation of the creation of a joint-stock company on the basis of a unitary state or municipal organization. The initiator may be the Government of the Russian Federation, the executive body of the subject of the country, municipalities and other bodies and persons endowed with appropriate powers.
The second is the definition of the body that will become the founder of the joint-stock company. As a rule, these are the same persons that act as initiators.
The third stage is the creation of a privatization commission, the organization of its activities. Responsibilities for the creation of the commission are assigned to the federal, regional or municipal body for the management of state property. As members of the commission, it includes officials of the property management body, various functional representatives from the executive branch, may be representatives of the joint-stock company and employees of the antimonopoly department.
The fourth stage is the development of a plan for privatization through corporatization, which determines the timing and responsibility. It is based on a standard normative legal act, approved by the Government of the Russian Federation. The plan is being approved by the general meeting of employees of the privatized enterprise. The plan serves as the basis for the development of the charter of the society being created.
The final fifth stage is the formation of society. It is produced in accordance with the privatization plan. The result of this stage is the registration of the JSC in the relevant state bodies and the exclusion of the privatized unitary enterprise from the register of legal entities.
In the process of corporatization, employees and non-working pensioners of the privatized organization are given the opportunity to purchase shares of the company being created (if 100% state ownership is not assumed). After completion of the corporatization procedure, the shares of the established company can be sold at special auctions. Certain social obligations may be imposed on buyers of company shares in terms of the rights of employees of a privatized economic entity (preservation of jobs, retraining of personnel, labor protection, working conditions at workplaces, etc.). Under the conditions of the auctions held, there may be certain requirements regarding investments by new owners in the development of the joint-stock company.
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Introduction
1 Shareholding as one of the methods of privatization
2 The essence and significance of the joint-stock form of management
2.1 Organization of a joint stock company
2.2 Types of joint stock company
3 Management bodies of the joint-stock company and the main directions for improving its activities
3.1 Management organization
3.2 The main directions for improving the activities of the joint-stock company
Conclusion
Bibliography
Applications
INTRODUCTION
The transition of enterprises to a market economy led to the search various forms management. One of them is stock.
The advantages of this form of management, primarily in the possibility of creating new and expanding existing enterprises in all sectors of the economy - industry, construction, transport, wholesale trade, banking and other businesses. attraction share capital allows such an enterprise to create more competitive production at a relatively high technical base, since the centralization of the capital of shareholders is carried out, and the direct interested participation of shareholders stimulates the economical use of resources, the all-round increase in production efficiency.
Under the conditions of a joint-stock enterprise, the personal and collective interests of the workers merge. On the one hand, a collective form of ownership is realized here, and everyone is interested in the highest final results of their labor. On the other hand, by participating with their share of shares in the capital of the company, each shareholder shows creative activity to the best of his ability - economic entrepreneurship, which helps to increase the efficiency of production and sales of products, and allows financial incentives for everyone. The joint-stock form of management reveals wide opportunities for the participation of each employee in managing the affairs of the enterprise. In the conditions of a joint-stock enterprise, it becomes possible to develop a wide variety of forms of self-government, to cultivate a sense of a true master of production. It becomes possible to accept original solutions, development of creative initiative.
The issue of shares allows you to attract free cash to accelerate the economic development of the enterprise and social development team of workers. Appears real opportunity development and modernization of production, introduction new technology. In the conditions of the joint-stock form of management, the problem of the interest of enterprises in the establishment and production of new products should be positively resolved.
The advantages and almost unlimited possibilities of the joint-stock form lead to the fact that all more number individual enterprises are being replaced by joint-stock ones. The joint-stock form penetrates deeply into the industry, construction, and transport.
In June 1990 The Council of Ministers of the USSR approved the Regulations on Joint Stock Companies and Limited Liability Companies and the Regulations on Securities.
In Russia, the process of privatization began, which took place in several stages.
This thesis presents an analysis of the privatization process taking place in Russia, in particular, the corporatization process. Based on the analysis, it was revealed that the corporatization process in Russia has its own specific features. First of all, he showed that it is not enough to own corporatization and approval of commercial goals to obtain sustainable financial results, but it is also necessary to introduce an effective system of intra-company management. Shareholding presupposes transformation organizational structures and changing the competence of government bodies, which, in fact, is a problem in a transitional economy. In addition, the problem of bureaucratic influence and administrative levers of management, complete subordination of a joint-stock company (JSC) with 100% state capital to power structures remains.
The author of this thesis believes that the joint-stock form of management in the conditions of market relations is the most preferable. However, in the process of corporatization, first of all, the interests of the director of enterprises, his desire to supplement the administrative power at enterprises with economic power were taken into account. And as a result, the entire privatization process in Russia became a decisive stage in the formation of the modern Russian economic elite. The main goal of privatization - the creation of a wide layer of the population owning property ("40 million shareholders" - A. Chubais) turned out to be unresolved.
The purpose of this thesis work is not only the analysis of the corporatization process, the identification of its specific features, but also paid attention to the analysis of the current legal norms governing the process of corporatization, as well as the definition of the main directions for improving the activities of JSC.
To study the topic, the legal norms of the Civil Code of the Russian Federation, Decrees of the President of the Russian Federation and others were used. regulations; scientific papers, author's works, as well as statistical data published in the journal "Economic Issues". The following time frames of the study are determined, starting with the voucher privatization of Russia and up to 1999.
1 SHAREHOLDERING AS ONE OF THE PRIVATIZATION METHODS
Joint-stock companies appeared in Russia at the beginning of the 18th century. By 1830, the issue of shares could not keep up with the demand for them. Representatives of all classes showed interest in the shares.
The development of the joint-stock business assumed a spontaneous character. Therefore, in 1835, the draft "General Joint Stock Law" (adopted in 1836) and the "Regulations on Companies on Shares" were developed. In Russia at that time, the importance of joint-stock companies as a specific form of enterprise organization was clearly recognized. During the entire period of discussion of the draft law, the need for the emergence of joint-stock companies in Russia has never been called into question. At the same time, two goals were associated with this need: the development in the country of large industrial, transport, trade and other enterprises in joint stock form and the development of entrepreneurial activity in general with the help of such companies.
The foresight of the Russian government of that period should also be noted, since the need for such a development had not yet become clear and acute.
According to shareholder statistics for 1911, published in the reference book "Joint Stock Enterprises of Russia", the total number of joint stock enterprises in industry and transport alone was 821. The largest number (303) was in the textile industry. The average fixed capital per enterprise was equal to 2142 thousand rubles. In mechanical engineering and metal processing there were 92 joint-stock enterprises with an average fixed capital of 2484 thousand rubles.
At the end of 1917 - beginning of 1918. the process of development of joint-stock companies has stopped. The reason for this was the widespread nationalization carried out in those years. However, since 1920 this process has revived again. “Already in 1920, 20 joint-stock companies were established, and at the beginning of 1925. there were more than 150 of them. Moreover, the most important sphere of action of joint-stock companies was trade and commercial and industrial activities. In the late 20s - early 30s. all joint-stock companies were liquidated or transformed into state associations. Only two joint-stock enterprises have survived: the Bank for Foreign Trade of the USSR (established in 1924) and the All-Union Joint-Stock Company Intourist (organized in 1929). In 1973, the insurance joint-stock company of the USSR, Ingosstrakh, was created. However, all these joint-stock enterprises do not operate in production area. For the sake of objectivity, it is necessary to note that the gradual liquidation of joint-stock companies and partnerships at the end of the 20s, in addition to the ideologization of economic and social life, was also influenced by the negative aspects revealed in these years in the activities of these societies and partnerships.
Joint-stock companies received new development in the second half of the 80s, when it became clear that the country's economy was moving to market relations.
A certain stage on this path was the Decree of the Council of Ministers of the USSR "On the issue of securities by enterprises and organizations" dated October 13, 1988, according to which enterprises and organizations were granted the right to issue two categories of shares: shares of the labor collective distributed among members of their collective , and shares of enterprises distributed among other enterprises and organizations.
By July 1, 1994, the first stage of privatization of state property, called the voucher, was completed in Russia. This stage was so important for the country, so huge in its significance that it requires a serious analysis of its results.
The main ones, of course, include the beginning of a large-scale process of transformation of the command-administrative economy into a market economy, the creation of conditions for the subsequent redistribution of property rights that have developed in society. "Giving preliminary estimates voucher privatization, its leader A. Chubais noted: “In no other country in the world of such a scale, a program in such a timeframe has been peacefully implemented. Russia did this for the first time not only in its history, but in history in general. This fact cannot be denied today. It is also impossible to deny the fact that it was the program of Russian privatization that made, perhaps, the entire program of Russian economic reforms irreversible.” .
Of course, one must keep in mind that the process of privatization in Russia is qualitatively different from the privatization carried out in Western countries. The very nature of the stateization of the socialist economy has set other, deeper and larger-scale tasks in the field of privatization: to serve as an instrument for creating not only a new ownership structure, but also the formation of a class of private owners. It was from this idea that the “Law on the Privatization of State and municipal enterprises in the Russian Federation, where privatization was seen not just as a transition from one form of ownership to another, but as a change in the owner himself, the creation of a new bearer of property relations.
The need to set just such a task of privatization was dictated by the fact that in Russia, as in other post-socialist countries, there was no such holder of property in the form of an individual or legal entity. There was practically no one who could sell property as a commodity, exchange it in the interests of extracting maximum utility from it. Of course, if the post-socialist countries had the time and financial resources, it would be possible to wait until the class of private owners formed by itself, in the course of historical development. However, this possibility did not exist in Russia. Therefore, it had to be replaced by large-scale privatization, which, in a certain sense, was the creation of a class of private owners artificially initiated from above, without which the transition to a market economy is in principle impossible.
Forms, specific ways and options for privatization were determined by the "State Program for the Privatization of State and Municipal Enterprises of the Russian Federation for 1992". The program provided four ways of privatization: auction, commercial competition, lease with the right to purchase, corporatization.
The choice of privatization methods was based on the size of enterprises. On this basis, enterprises were divided into three categories, for each of which their own conditions for privatization were established (assessment of funds as of 01.01.1994). ( Appendix 1).
Small enterprises that were not subject to the corporatization procedure were subject to sale through auctions or were put up for auction on a competitive basis. Such a step was calculated to, firstly, to get to know them market value and, secondly, to create competition between buyers. It was envisaged that small enterprises could be bought out by private individuals working for them. This method could also be used by groups of enterprises that entered into a lease agreement with the state with the right to subsequently buy out the property of the enterprise.
At medium and large enterprises, privatization, as a rule, took place in two stages. First, corporatization was carried out, then shares were issued, which were distributed among the members of the labor collective, the management of the enterprise and outside individuals and legal entities in proportions determined by the choice of the collective.
Almost the entire population of Russia was involved in the first stage of privatization. Apparently, for this reason, privatization was referred to by the official authorities as "people's". Privatized checks (vouchers), distributed to all citizens, regardless of gender, age, nature of employment, served as an instrument for its implementation. At the same time, the chosen system of privatization, as members of the Russian government repeatedly declared, pursued the goal of creating the maximum interest of labor collectives in effective work privatized enterprises.
According to the first option The company's employees received the following benefits:
the right to preferred shares in the amount of 25% of the authorized capital of the company. These preferred shares did not give voting rights (their owners cannot vote at general meetings of shareholders), but provided a priority right to dividends in comparison with all other shareholders. in addition, the owners of preferred shares also received the right to receive their share in the event of bankruptcy or sale of the enterprise;
the right to purchase up to 10% of ordinary voting shares on exclusively preferential terms. These conditions include a 30% discount on face value, a three-year installment plan for payment of shares with an initial payment of 15% of face value;
the right to use privatized checks when acquiring all shares - preferred and common;
the possibility of the administration of the enterprise acquiring ordinary shares at a nominal value for an amount not exceeding 5% of the authorized capital of the company.
With the second option the following conditions apply:
up to 50% of the value of shares can be paid by privatized checks;
the total number of shares to be sold to employees of the enterprise being privatized and employees of enterprises that are part of a single technological complex with it cannot exceed 51% of the value of the authorized capital of the company.
For the third option a group of employees (not necessarily the entire workforce) was given the right to conclude an agreement with the relevant property fund on the reorganization of the enterprise. By agreement, this group of employees is obliged to reorganize the enterprise within a year, invest their personal funds in it in the amount of at least 200 minimum wages established in Russia for each member of the group. If the terms of the agreement are met, the members of the group receive the right to purchase 20% of common shares at par value. In addition, all employees of the enterprise, including members of this group, can purchase another 20% of the shares under the same conditions as in the second option.
Large enterprises and giant associations, of which there are quite a few in Russia, demanded special methods during privatization. Here, the first step towards privatization was their transformation into OJSC. In itself, corporatization is not yet privatization in the generally accepted sense, but only changes in the organizational and legal form of the enterprise. Until the sale, the enterprise remains state-owned.
“Large federally owned enterprises account for 1/5 of the total number of privatization enterprises. Total by December 1993. 86 thousand enterprises were privatized, of which 31% were corporatized (partially or completely), 69% were sold.
At the end of 1993, approximately 17% of federally owned enterprises, over 22% of regional level enterprises, and 70% of municipally owned enterprises were corporatized. In terms of the value of the privatized property, the shares of these levels amounted to 68.4%, respectively; 21.1%; 10.5%.
The corporatization of large enterprises is carried out by transferring a significant part of the property to labor collectives free of charge or by transferring shares for vouchers. The part of the shares transferred to employees of enterprises is in most cases paid from the income of the enterprises themselves, which worsens their economic situation. In the course of voucher privatization, only every 10-12 of the corporatized enterprises sold their shares in full. By the beginning of 1994 Only about 50% of voucher holders sold them in one form or another. By the end of 1993 About 38 million checks returned to the state, of which 14 million - by closed subscription, 24 million - through check auctions.
Check investment funds have been created for wider involvement in the privatization process. Since December 1992 voucher auctions began. In just ten months in 1993. more than 3.5 thousand of them were held, where 5,500 enterprises from almost 80 regions were exhibited. The sold authorized capital amounted to 53.2 billion rubles, and about 30 million privatization checks were accepted.”
The corporatization is carried out in such a way and under such conditions that the enterprises practically retain the same forms of management and the same level of entrepreneurial interest. Dominance in 1992-1993 The joint-stock form of privatization of large enterprises and the focus mainly on this form of municipal enterprises hindered its interest, making it ineffective in most cases.
2 ESSENCE AND SIGNIFICANCE OF THE JOINT-STOCK COMPANY FORM
2.1 Organization of a joint stock company
A joint stock company is an organizational and legal form entrepreneurial activity, whose capital is divided into a certain number of shares and which is created by its sections (shareholders). It is a legal entity and owns separate property, acts as an independent subject of law, can, on its own behalf, acquire property and non-property rights, bear obligations, be a plaintiff and defendant in court.
The property (capital) of a joint-stock company is determined by the authorized capital, made up of the nominal value of the shares of the company acquired by the shareholders. At the same time, the shares themselves are divided into outstanding shares (acquired by shareholders), declared shares (which the company has the right to place additionally in a certain number and par value) and paid-in shares (acquired and fully paid-up shares within a specified period).
A feature of joint-stock property is that the joint-stock capital and other property belong to the company as a legal entity and are not the property (joint and shared) of its shareholders. Shareholders acquire the right to receive part of the property only upon liquidation of the company. Shareholders have the right to participate in the general meeting with the right to vote on all issues within its competence, as well as the right to receive dividends.
Comparing a joint-stock company with other organizational and legal forms, for example, with a limited liability company, it should be noted that a limited liability company is an association of persons, and a joint-stock company is an association of capital. This feature of joint-stock ownership determines the entire system of relations between the JSC and its founders (shareholders), as well as the procedure for managing it.
At present, the normative regulation of the organization, activities and management of joint-stock companies is regulated legislative acts, which can be grouped into three groups:
norms of general economic regulation that establish the rules for the activities of all economic entities in the field of relations with government bodies, the budget, in the field foreign economic relations, as well as on issues of competition and restriction of monopolistic activity;
norms governing the transformation of state and municipal enterprises into joint-stock companies;
norms directly regulating the organization, activities of joint-stock companies for their management.
Within the framework of the problems under consideration highest value have legal norms of the third group. These legal norms are established by the Civil Code of the Russian Federation (entered into force on January 1, 1995 by the Federal Law of November 30, 1994 No. 52 - FZ) and the Federal Law "On Joint Stock Companies".
The Federal Law "On Joint Stock Companies" in accordance with the Civil Code of the Russian Federation determines the procedure for the creation and legal status of joint stock companies, the rights and obligations of shareholders, as well as the protection of their rights. The provisions of the Law "On Joint Stock Companies" develop the relevant articles of the Civil Code, supplement them with the norms necessary for the legal regulation of the activities of an economic entity of this organizational and legal form.
In accordance with the law, the rights of shareholders are also provided, such as (depending on the share of shares) the right to vote at a general meeting, the right to receive dividends, the right to convene an extraordinary meeting (influence package), the right to veto (a small controlling stake), the right to resolve issues on the agenda of the meeting shareholders (controlling and large controlling stake).
In order to ensure organizational unity production processes(creation of the organizational unity of technological chains) provides for the merger of two or more joint-stock companies with the transfer of all rights and obligations of each of them to the newly emerged company. The merger of companies can also occur with the aim of diversifying production, improving the maintenance of production processes, and so on. The same goals are pursued by the accession of the society. In this case, the merging companies cease to exist, and all their rights and obligations are transferred to another company. The merger procedure, therefore, does not require the creation of a new company and provides for the introduction necessary changes in the charter and other documents.
In the event that there is no expediency to organizationally combine various types of activities, or the antimonopoly law is violated, the company may be divided. At the same time, the termination of the company's activities is recognized, and all its rights and obligations are transferred to the newly created company. For analytical reorganization, it is possible to spin off a company. In this case, the activities of the joint-stock company do not stop, and the newly created (spun off) companies acquire the rights of legal entities with the transfer of part of the rights and obligations of the reorganized company to them.
In accordance with the legislation, a joint-stock company may also be transformed into a limited liability company or a production cooperative.
In all cases of reorganization, the general meeting of shareholders determines the procedure for converting the shares of the company, and in the case of the transformation of the company, the exchange of shares for contributions from a limited liability company or as members of a production cooperative.
The requirement for the active interaction of joint-stock companies (especially large ones) with specialized external organizations which include companies that have placed shares or registrars (specialized registrars), auditors, property appraisers (including those involved in determining the market price of shares), as well as mass media that publish information about general meetings, reports of joint-stock companies, results of audit checks, information on the reorganization of companies.
2.2 Types of joint stock company
According to the criteria for participation in capital and the influence of state bodies on management, three types of joint-stock companies can be distinguished; JSC with 100% state-owned capital; JSCs in which the state owns a controlling stake or a "golden" share; Joint-stock companies in which the shares of the state do not form a controlling stake.
Joint stock companies with 100% state-owned capital. Since the state is the sole shareholder of companies with 100% state capital, its management decisions are not limited by the will of other shareholders. In this sense, there is no difference between them and the state commercial enterprise.
There are at least three reasons for the formation of the considered ARs.
Firstly, the joint-stock form in the future makes it possible, without any organizational changes, to throw a block of shares on the market for the partial privatization of a joint-stock company and attraction of additional investments at the expense of non-state funds.
Secondly, the form of JSC, by definition, implies broad economic independence, because the owner of the property is the joint-stock company, and not the state. A real opportunity is being created for non-bureaucratic control over the activities of managers by the state. It must be carried out in accordance with general principle JSC management: shareholders do not directly manage the enterprise, they only periodically evaluate the activities of managers based on the achieved financial results. The state-shareholder should do exactly the same, introducing, if necessary, additional (other than financial) criteria for evaluating the activities of the company's managers. Thirdly, the statement of commercial goals in itself does not create a sufficient basis for obtaining sustainable financial results. It is necessary to introduce an effective system of internal management. Shareholding involves the transformation of organizational structures and a change in the competence of management bodies.
Economic independence and responsibility for their debts create objective prerequisites for the market behavior of JSCs with 100% state capital, however, the sufficient efficiency of such JSCs is limited by the possibility of direct pressure from employees of the state administration apparatus on its governing bodies, which can hinder the actions of these bodies aimed at achieving best business results. In particular, by Presidential Decree of June 10, 1994 No. 1200, establishing the appointment and procedure for the activities of state representatives in the management bodies of JSCs, no exceptions are provided for JSCs with 100% state capital. This means that both the chairman of the board of directors (general director, president of the JSC) and all of its members are appointed by the state body in charge of the relevant JSC. Thus, the system of administrative control levers creates the possibility of complete subordination of joint-stock companies with 100% state capital to the commands of power structures. The task is to ensure that the practice of applying these levers is reasonable and allows JSCs to compete in the market (both internal and external) by making independent decisions.
Joint stock companies in which the state owns a controlling stake or "golden" shares. They are more promising than the form discussed above. The controlling stake allows the state to exercise the rights of the owner through its representatives in the management of the joint-stock company (meeting of shareholders, board of directors), since for at least three years at least 51% of the members of the board of directors of newly formed joint-stock companies must be representatives of the state. At the same time, there is a tendency, connected with fiscal considerations, to put up for sale a significant block of shares owned by the state. At the same time, in order to create an “effective owner”, the shares are sold in a single package, that is, hands down. Meanwhile, there are no guarantees that this stake will not be bought by some dubious, and perhaps even mafia, organization. The situation is aggravated by the fact that the property of the enterprise current rules is determined in 1992 prices. Under such conditions, the anxiety of the administration and the labor collective about the fate of their enterprise is quite understandable.
In accordance with the presidential decree of June 10, 1994. Representatives of the state in the management bodies of the JSC may be civil servants or other citizens of the Russian Federation. Civil servants are sent as representatives in the management bodies of the JSC on the basis of decisions of the President of the Russian Federation, the government, federal bodies executive branch or the Russian Federal Property Fund. Other citizens - on the basis of contracts concluded in accordance with civil law. Both those and other entities are obliged to coordinate in writing with the executive authorities or with the Russian Federal Property Fund, on behalf of which they act, draft decisions being made, their voting on draft decisions proposed by other members of the company's management bodies, these are fundamentally important decisions: making changes and additions to the statutory documents; appointment (election) of specific persons to the management bodies of the JSC; change in the amount of the authorized capital; obtaining loans in the amount of more than 10% of net assets; sale or other alienation and pledge of real estate: participation of joint-stock companies in the creation of other enterprises (including subsidiaries) and financial and industrial groups. The list is not exhaustive, because the government of the Russian Federation can expand it at its discretion.
Less opportunities to influence the management of a joint-stock company gives a "golden" share. It is known that it provides its owner with the right of a suspensive veto when the meeting of shareholders makes decisions on issues within its exclusive competence. Authority Analysis government agency holding a "golden" share, indicates minimal restrictions on the competence of the meeting of shareholders. In essence, they come down to control over the organizational transformations of JSCs and the conclusion of transactions for amounts that can undermine the property base of the company. In all other matters, the meeting of shareholders has the same rights as in any other joint-stock company, then launched into "free floating" on market waves.
One of the reasons for issuing a "golden" share is to satisfy the fiscal interests of the state. Its issue makes it possible to simultaneously maintain control over the enterprise by the state and sell almost all shares to private investors (with the exception of one, “gold”, which, after its expiration date or with any method of alienation, is converted into an ordinary share).
Thus, a “golden” share and even the presence of a controlling stake in the hands of the state does not lead to a sharp restriction of economic independence and at the same time retains the possibility of non-economic influence on the activities of the transformed joint-stock companies for state structures.
Joint-stock companies, in the authorized capital of which the state's share does not constitute a controlling stake. In them, the representative of the state is usually one of the major investors and influences the adoption of managerial decisions by creating a bloc with other investors. In other words, without a controlling stake, a representative of the state cannot dictate his will to JSCs, but in some cases he can exert a decisive influence on decision-making by the general meeting of shareholders. Thus, there are cases when a 20% stake in the Federal Property Fund had a decisive influence on elections. CEO AO.
“The legal status of a state representative in such a joint-stock company is determined by the same Presidential Decree of June 10, 1994 No. 1200 and, therefore, the rights and obligations of a state representative in a joint-stock company where the state does not own a controlling stake are no different from the rights and obligations set out above representatives of the state in joint-stock companies in which the controlling stake is owned by the state”.
A joint-stock company, being a legal entity, has all its properties, namely: it owns separate property recorded on its independent balance sheet, can acquire and exercise property and personal non-property rights on its own behalf, bear obligations, be a plaintiff and defendant in court.
The legal capacity of JSC is actually not limited by anything. In Art. 49 of the Civil Code of the Russian Federation and the Law of the Russian Federation "On Joint Stock Companies" art. 2 states: the company has civil rights and bears the obligations necessary to carry out any type of activity that is not prohibited by federal laws.
Joint-stock companies, as well as other legal entities, are subject to restrictions on the subject of activity associated with the need, associated with the need to obtain additional permission for their implementation. It's about licensing. At the same time, the Law of the Russian Federation “On Joint Stock Companies” contains an interesting provision in this regard, which establishes that if the conditions for granting a special permit (license) to engage in a certain kind activity provides for the requirement to engage in such activity as exclusive, then the company during the period of validity of the special permit (license) is not entitled to carry out other types of activities, with the exception of those provided for by the special permit (licenses), and related to them.
The law provides for two types of joint-stock companies - open and closed.
In an open company, shareholders may alienate their shares without the consent of other shareholders of this company; such a company has the right to conduct an open subscription for the shares it issues and to carry out their free sale; number of shareholders open society not limited.
Companies whose founders are (in cases established by federal laws of the Russian Federation), a constituent entity of the Russian Federation or municipality(with the exception of companies formed in the process of privatization of state and municipal enterprises) can only be open.
The authorized capital of the company determines a part of the total value of property that allows for the effective development of the company, as well as guaranteeing the interests of creditors
For example, the authorized capital of OAO Prodtovary is 3,990,000 thousand rubles, divided into 1,452,000 registered ordinary shares with a nominal value of 2.5 thousand rubles each into 144,000 preferred shares with a nominal value of 2.5 thousand rubles. each. Preference shares are subject to quarterly dividends of 1% of the par value of the shares.
The shares of the company are distributed among the founders in the following amounts:
In a closed company, its shares are distributed only among the founders of this company or other predetermined circle of persons; such a company is not entitled to conduct an open subscription for shares issued by it or otherwise offer them for purchase to an unlimited number of persons; the number of shareholders of a closed company should not exceed fifty.
Most contentious issues related to the regulation of the activities of a closed joint-stock company (CJSC) can be divided into three groups.
The first group - issues related to the definition of CJSC.
In accordance with the Law “On Joint Stock Companies”, Article 7, Clause 3, closed companies include those companies whose shares are distributed only among its founders or other predetermined circle of persons.
Comparison of this definition with certain ones given in the Regulations on joint-stock companies, approved by the Decree of the Council of Ministers of the RSFSR on December 25, 1990 No. 601, allows us to conclude that the definition of CJSC has undergone significant changes. Thus, in the Regulations, a closed company was recognized as one whose shares “may be transferred from one person to another only with the consent of the majority of shareholders ...”. Regulations - through descriptions of the possibilities of the shareholders themselves for the distribution of their own shares. A different approach to the definition of a closed society also determined qualitative differences in the mechanism of "closing" a society. And if in the first version the “closedness” of the company consisted in the additional consent of some shareholders to the alienation of shares by others, then in the latter this is not the case. The closed nature of the company in the new law is achieved through the distribution of shares by the company only among its founders or another predetermined circle of persons.
Such an approach to “closing” a joint-stock company is unusual for Russian practice, therefore, it can lead to a lot of errors in its application. First of all, there is a difficulty in the formation of the so-called predetermined circle of persons.
At the same time, by granting the right to the company itself to determine the circle of persons among whom it will be possible to distribute shares, establish their number and thus regulate the "quality" and the number of accepted shareholders, the Law opens up unlimited opportunities for "penetration" of any individuals and legal entities through the acquisition shares from shareholders. This is the second group of questions.
If we analyze the provisions of the Law of the Russian Federation "On Joint Stock Companies" Art. 7 paragraphs 2 and 3 from the point of view of opposing an open society to a closed one, then inevitably there will be new question: why, in relation to the shareholders of an open company, the Law specifically provides for the right to alienate their shares without the consent of other shareholders of this company? After all, if the Law does not stipulate any restrictions on the alienation of shares by shareholders of a closed company, then a special provision on this for shareholders of an open company loses its meaning. If we perceive this provision as a norm that defines the differences in the powers of shareholders different type companies, then the rules governing the rights of shareholders of a closed company should contain some restrictions on the alienation of their shares by them.
In this situation, it would be logical to connect the ability of shareholders to alienate their shares precisely with those persons who fell into that very “predetermined circle of persons”. But the Law does not provide for such a direct connection, as, by the way, it does not provide for the establishment of any restrictions on this account in the charter of the company.
It would seem that to confirm the absence of the need for such restrictions, a rule is introduced on the pre-emptive right of shareholders of a closed company to acquire shares sold by other shareholders. However, this right can be exercised by a shareholder only at the “offer price to another person”. There are no regulations for the exercise of such a right in the provisions of the Law. Therefore, the developers of CJSC charters are given next recommendation to eliminate this problem: it is necessary to specifically “decipher” the meaning of the provision “offer price to another person” and the procedure for applying this rule in the charter. For example, this can be done in the following form: The offer price to another person is the share price set by the shareholder himself - the seller, at which the person who agreed to purchase it can redeem it only after the expiration of the pre-emptive rights to purchase shares by shareholders and the company itself.
If the share is not redeemed at this price and the selling shareholder establishes a new, higher low price offer, this again entails the emergence of a pre-emptive right of shareholders of the company and the company itself. Further, the procedure for buying a share and the consequences of its non-repurchase is repeated. The establishment of each new offer price to another person restores the pre-emptive right of the shareholders of this company and the company itself to acquire shares sold by other shareholders of this company.
But even following this recommendation does not exclude the possibility of a situation where the company itself is not entitled to conduct an open subscription for the shares it issues or otherwise offer them for purchase to an unlimited number of persons, and a shareholder, regardless of the size of his block of shares, can actually offer his shares without any restrictions. Moreover, a situation is possible when a shareholder transfers his shares free of charge, for example, in the form of a gift. In such cases, the Law does not at all provide for the emergence of any pre-emptive rights for other shareholders. The third group of questions is connected with this moment. Indeed, by limiting the maximum number of shareholders of a closed company to fifty shareholders, the Law, it would seem, provided for the impossibility of an unlimited distribution of shares. In addition, this requirement is ensured by a fairly strict norm of the Law of the Russian Federation “On Joint Stock Companies”, Article 7, clause 3, dated December 25, 1990, which determines that if the number of shareholders of a closed company exceeds the established limit, then within one year it must be transformed into the open. If the number of shareholders is not reduced to fifty, the company is subject to liquidation in court.
At the same time, the Law of the Russian Federation "On Joint Stock Companies" art. 94, paragraph 4 limited the application of this rule, extending it only to closed companies that were created after January 1, 1996, and, accordingly, excluding the possibility of its application to CJSCs created before the entry into force, i.e. until January 1, 1996
Regulation "On Joint Stock Companies" and the Civil Code of the Russian Federation Art. 97 unequivocally established a prohibition for a CJSC to conduct an open subscription and to offer its shares for purchase to an unlimited number of persons and, accordingly, the possibility of their distribution among the founders or another predetermined circle of persons.
Civil Code of the Russian Federation Art. 97 extended these obligations and is equal to all JSCs, regardless of the date of their establishment, since Art. 5 of the Federal Law “On the Enactment of Part One of the Civil Code of the Russian Federation” unequivocally established: “Part One of the Code applies to civil legal relations that arose after its entry into force. With regard to civil legal relations that arose before its entry into force, Part One of the Code shall apply to those rights and obligations that arise after its entry into force. Thus, the provision of the Civil Code of the Russian Federation on the possibility of a closed company to distribute its shares only among the founders or another predetermined circle of persons, taking into account the prohibitions already described, cannot be withdrawn from the regulation of the powers of a closed company.
More about the pre-emptive rights of shareholders. Along with the above argumentation, which is also applicable in this case, the right of preemptive purchase of shares is also exercised by shareholders in accordance with the general rules set forth in the Civil Code of the Russian Federation, Art. 250. These rules mean that when selling a share in the right of common shared ownership to an outside person, the remaining participants in shared ownership have the pre-emptive right to purchase the share being sold at the price for which it is being sold, and on other equal terms, except in the case of a sale at a public auction. When selling a share in violation of the pre-emptive right to purchase, any other participant in shared ownership has the right, within three months, to demand in court that the rights and obligations of the buyer be transferred to him. Thus, the pre-emptive rights of CJSC shareholders to purchase shares sold by other shareholders of this company cannot be excluded from the regulation of the powers of shareholders.
And finally, restrictions on the number of shareholders. On this issue, Article 97 of the Civil Code of the Russian Federation does not establish any restrictions, indicating that specific quantitative restrictions will be established by the Law "On Joint Stock Companies". By outsourcing to the Law the resolution of the issue of the maximum number of CJSC shareholders, the Civil Code of the Russian Federation enabled the Law to determine the circle of CJSCs to which this restriction will apply.
Thus, despite the unclear wording of the Law of the Russian Federation "On Joint Stock Companies" Art. 97, paragraph 4, all the above arguments prove that the norms of Article 7, paragraph 3 of the Law, which do not apply to CJSCs established before January 1, 1996, relate only to the provision establishing the maximum number of their shareholders, and do not affect all other provisions .
The consequences of such an approach are ambiguous. On the one hand, this assessment is positive, since in the process of transforming a number of enterprises into joint-stock companies (for example, leased enterprises that have the right to buy out property or have already bought it out), a large number of CJSCs were created with the number of shareholders significantly exceeding fifty - from two hundred to several thousand. Regulations of the Law of the Russian Federation "On Joint Stock Companies" art. 94 creates calm conditions for the work of those organizations that, in accordance with the law in force at the time of their creation, could choose a completely specific type of joint-stock company and not change it. On the other hand, this assessment can be considered negative, since the Law not only does not contain any regulators on the number of shareholders for such CJSCs, but also does not provide for any fixation without the right to change their number on a certain date. At present, this provokes the emergence of a situation that is completely unnormal, in my opinion, when the number of shareholders of a closed company, several times greater than the limit, may continue to increase. And if this is connected with the ability of shareholders to sell their shares to an unlimited circle of persons, then we will see that an attempt to close a company through a quantitative criterion is not always applicable.
A joint stock company, like any legal entity, regardless of its type, can create branches and open representative offices.
A branch and a representative office of a company have many similarities;
are separate divisions society;
must be located outside the location of the company (i.e. outside the place of its registration);
are not legal entities, act on the basis of a regulation approved by the company;
endowed by the company that created them, which is taken into account both on their separate balance sheets and on the balance sheet of the company;
managers are appointed by the company and act on the basis of a power of attorney issued by the company;
carry out activities on behalf of the company that created them;
responsibility for the activities of the branch and representative office shall be borne by the company that created them;
the charter of the company must contain information about its branches and representative offices.
The difference between branches and representative offices is as follows: a representative office is a subdivision that represents the interests of a JSC and protects them; the branch cannot perform all the functions of the company, including the functions of representation, or part of them.
There has been a turn in the legislation towards streamlining the process of creating branches and representative offices. This is mainly due to the fact that information about branches and representative offices must be included in the charter. The implementation of this provision requires a number of actions.
First, to make decisions on the creation of branches and on the opening of representative offices.
The Law of the Russian Federation "On Joint Stock Companies" defines this action as the exclusive competence of the board of directors, that is, neither the general meeting of shareholders nor the executive body has the right to decide this issue. However, only the decision of the board of directors is not enough, since the Law provides mandatory order entering this information into the charter - only by the general meeting of shareholders.
Secondly, the board of directors is obliged to raise the issue of creation from the general rule, that is, it does not require the registration of such changes, but only allows a notification procedure. These changes in the charter of the company come into force for third parties from the moment of notification.
3 GOVERNING BODIES OF THE JOINT STOCK COMPANY AND MAIN DIRECTIONS FOR IMPROVING ITS ACTIVITIES
3.1 Management organization
The current legislation on joint-stock companies provides for a three-tier management system, including the general meeting of shareholders, the board of directors (supervisory board) and the executive body. (Appendix 2).
Depending on competitive conditions, this system can be simplified or modified. Thus, it is possible to use a two-tier management system that provides for assigning the functions of the board of directors to the general meeting if the number of shareholders owning voting shares is less than fifty. The powers of the executive body can be transferred under an agreement to a commercial organization or an individual entrepreneur (trust management). The General Meeting of Shareholders is the supreme governing body of a joint stock company. Supreme, but not omnipotent. It cannot consider issues related to the jurisdiction of the board of directors or the executive body, and is not entitled to make decisions on them.
The meeting of shareholders is a heterogeneous body in terms of its composition. In the most general form, shareholders can be divided into three groups:
Shareholders who purchase shares for the purpose of speculation or as a rentier. They are connected with the joint-stock company by a purely monetary interest. These are small shareholders, each of whom owns a small share of the property; their concern is that their share brings as much money as possible. When there is an opportunity to increase their income, they sell shares and invest in more profitable securities.
Shareholders - employees of the enterprise (including administration). The interests of an employee of an enterprise, as a rule, are not limited to a dividend. He is not at all indifferent to the fate of the enterprise, on which he depends. wage, receiving a number of social benefits and even social prestige. The incentive motive of the employee is a combination of motives of monetary reward and solidarity with the goals of the company. At the same time, employees - owners of shares are rather holders and managers than responsible owners.
Large shareholders who purchase shares for entrepreneurial reasons. One and the same investor in some cases acquires an enterprise (or a number of enterprises) in order to develop production, in others - establishes management, sanitizes the enterprise, and then sells it, in still others - buys a block of shares for the purpose of resale. But in each case, the investor plays a very specific role. In the process of privatization or the sale of a large block of shares, this role should be taken into account based on the interests of the state.
The actual exercise of the right to manage a joint-stock company by each shareholder is a problem that has not been resolved not only by our legislation, but also by the laws of other countries. “In the USA, for example, the problem of ensuring the participation of shareholders in the management of a joint-stock company is being discussed very actively. They propose to provide investors with significant advantages over stock speculators at a general meeting of shareholders: shareholders should have the right to vote at this meeting only after two years of ownership of shares, and in the third year of ownership they will have 1/3 of the vote, in the fourth year - 2/3 of the vote and only on the fifth - full voice. Only a person who has acquired at least 20% of the share capital shall immediately use the full vote. Thus, the rights of stock speculators who own shares for a short time are sharply limited.
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