A participant in a company has the right to pledge his share or part of it in authorized capital to another member of the company or, if it is not prohibited by the charter of the company, with the consent of general meeting participants to a third party (Article 22 of Law N 14-FZ). Thus, the founder will not succeed to a third party, if this is prohibited by the charter.
The decision of the general meeting on giving consent to the pledge of a share or part thereof in the authorized capital owned by a member of the company is taken by a majority of votes, if necessary. more votes for making such a decision is not provided for by the charter of the company. The vote of a participant who intends to pledge his share or part of it is not taken into account when determining the voting results.
share pledge agreement or its part in the authorized capital of the company is subject to notarization. This rule is established by Law N 312-FZ, which entered into force on July 1, 2009. This Law amended Art. 22 of Law N 14-FZ. Failure to comply with the notarial form of the specified transaction entails its invalidity.
Article 22 of Law N 14-FZ regulates in detail the question of how pledge is made share or part thereof in the authorized capital.
The notary within no later than three days from the date of notarial certification of the pledge agreement of a share (its part) in the authorized capital of the company transfers to the registration authority statement about . In it, he indicates the type of encumbrance (pledge) of the share (its part) and the period during which such an encumbrance will be valid, or the procedure for establishing this period. This application is signed by a member of the company - the pledgor.
The notary may submit this application to the registration authority directly or send it by mail with notification of its receipt. The application may also be transmitted using facsimile, computer networks and other technical means if such procedure is determined by the federal executive body authorized by the Government of the Russian Federation.
To date, the procedure for submitting an application using technical means has not been determined. Within three days after receipt of the said application, the state registration authority legal entities, makes an entry in the Unified State Register of Legal Entities on the encumbrance of the corresponding share or part thereof in the authorized capital of the company, indicating the period during which such an encumbrance is valid, or the procedure for determining it.
Registration in the Unified State Register of Legal Entities on the encumbrance of a share or part thereof in the authorized capital of the company is repaid (annulled) on the basis of a joint application of the pledgor and the pledgee or a court decision that has entered into force.
Not later than within three days from the date of notarization of the pledge agreement for a share or part thereof, the notary who has notarized such a transaction shall transfer to the company, the share or part of the share in the authorized capital of which is pledged, a copy of the said application.
Disputes arise on a number of issues related to the transfer of a share (its part) as collateral. Let us give an example from judicial practice.
In Resolution dated February 9, 2009 in case N A44-1084/2007, the Federal Antimonopoly Service of the North-Western District agreed with the conclusion of the lower court, which dismissed the LLC participant's claim to invalidate the decision of the general meeting of participants to give consent to the pledge of shares in the authorized capital of the company. Justification - the absence in the case file of proper evidence of the actual holding of the named meeting and the adoption of the contested decision.
In accordance with paragraph 1 of Art. 32 of Law N 14-FZ, the supreme governing body of the company is the general meeting of participants, which makes decisions within its competence. The executive body of the company organizes the keeping of the minutes of the general meeting. The decision of the general meeting, adopted in violation of the requirements of the law, other legal acts Russian Federation, the charter of the company and violating the rights and legitimate interests of its participant, may be declared invalid by the court at the request of the participant who did not take part in the voting or voted against the contested decision (clause 1, article 43 of Law N 14-FZ).
Such an application may be made within two months from the date on which the participant knew or should have known about decision. If he took part in the general meeting that adopted the appealed decision, the said application may be submitted within two months from the date of its adoption.
When considering this case in the court of first instance, the original copy of the minutes of the general meeting of participants was repeatedly demanded by the court from the persons participating in the case, incl. at the complainant. However, this document was never presented to the court. The testimony of the witnesses interrogated by the court of first instance during the consideration of the case did not confirm the fact of holding a general meeting either.
Under such circumstances, the FAS agreed with the conclusion of the court of first instance that the general meeting was not actually held. In addition, in the opinion of the court, the presented copy of the minutes of the said meeting is not evidence of the adoption of the disputed decisions by absentee voting.
Since the original minutes of the meeting, the decision of which is being challenged, or a properly certified copy thereof, were not presented, the courts could not consider the fact that the general meeting adopted the contested decision as proven.
The pledgee acquires the right to foreclose on the subject of pledge, if on the day of the due date for the fulfillment of the obligation secured by the pledge, it is not fulfilled. The exception is cases when, by law or contract, such a right arises later, or by virtue of law, recovery can be carried out earlier (Resolution of the Federal Antimonopoly Service of the Central District dated July 2, 2010 N F10-2069 / 10).
What should be taken into account when transferring a share of a company to LLC participants and third parties?
According to paragraph 1 of Art. 21 of Law N 14-FZ, the transfer of a share or part of it in the authorized capital to one or more participants in this company or to third parties is carried out on the basis of a transaction, by way of succession or otherwise legal basis. In all these cases, disputes often arise.
Having analyzed judicial practice Recently, let's answer the question posed in the title of the section.
Law N 14-FZ provides for the right of a company participant to sell or otherwise alienate his share or part of it in the authorized capital to one or more participants in this company. The consent of other participants or the company to make such a transaction is not required, unless otherwise provided by the charter.
The society itself, by virtue of Art. 23 of Law N 14-FZ is not entitled to acquire shares (parts thereof) in its authorized capital, with the exception of cases provided for by this Law. As recalled by the Supreme Arbitration Court of the Russian Federation in Determination of 05.05.2010 N VAC-2864/10 in case N A07-7867/2008, violation of this rule entails the invalidity of the relevant transaction (Article 168 of the Civil Code of the Russian Federation).
In the Determination of the Supreme Arbitration Court of the Russian Federation dated 05.05.2010 N VAC-3726/10 in case N A55-2789/2008, the highest court recalled the following. In accordance with paragraph 8 of Art. 21 of Law N 14-FZ, shares in the authorized capital are transferred to the heirs of citizens and legal successors of legal entities that are members of the company. The charter may provide that the transfer to heirs is allowed only with the consent of the other participants in the company. At the same time, the procedure for obtaining such consent may be different depending on the grounds for the transfer of a share or part of it to a third party.
Free assignment of a share by one participant in an LLC to another participant is one of the ways to alienate a share. Consequently, the provisions of paragraph 2 of Art. 21 of Law N 14-FZ that its commission requires the consent of other participants in the company, if this is expressly stated in the charter.
As stated in the Determination of the Supreme Arbitration Court of the Russian Federation dated 04.20.2010 N VAC-1888/10, in the event that any member of the company violates the provisions of the charter on the need to obtain the consent of the remaining participants for the assignment of a share, such a transaction in relation to Art. 174 of the Civil Code of the Russian Federation is voidable. It may be declared invalid by the court at the suit of the person in whose interests the restrictions are established.
The participants in the company enjoy the pre-emptive right to purchase a share or part of a participant at the offer price to a third party or at a price different from it, predetermined by the charter of the company in proportion to the size of their shares. The charter of the company may provide for a different procedure for exercising the pre-emptive right to purchase a share or part of it (clause 4, article 21 of Law N 14-FZ).
In the Decree of 04/09/2010 in case N A55-10076 / 2009, the Federal Antimonopoly Service of the Volga District established the following.
Clauses 7.2 - 7.5 of the Charter of Privolzhsky PZhRT LLC provide for the pre-emptive right of its participants to acquire shares in the authorized capital when a participant sells his share. However, clause 7.1 of the Articles of Association provides for the right of a participant to sell or otherwise assign his share in the authorized capital in whole or in part to one or more participants in the company. Clause 7.2 of the Articles of Association determines the pre-emptive right of the company's participants to acquire a share in proportion to their shares in the authorized capital, in the event that one or more participants refuse to purchase, this right passes to other participants in proportion to their contributions to the authorized capital.
The court explained: pre-emptive right means the advantage of some persons in making a transaction over others. The acquisition of a share to be sold by one member of the company cannot violate the pre-emptive right of its other members, since the charter does not contain a requirement for the obligatory offer by a participant to sell his share to all participants in the company.
The court also came to the conclusion that the fact that the participants of the company have a pre-emptive right to purchase the share belonging to the participant over other persons (if they were determined by the charter) does not entail the invalidity of the transaction for the sale of the share. Violation of the pre-emptive right entails the possibility of transferring the rights and obligations under the transaction to the person whose right was violated, at the request of such a person.
The company must be notified in writing of the assignment of the right to claim with the presentation of evidence of such assignment. The acquirer of a share shall exercise the rights and bear the obligations of a member of the company from the moment the company is notified of the assignment.
For the transfer of the rights of a member of the company to the buyer of the share, it does not matter whether or not they are included in founding documents company changes associated with a change in the composition of participants or the size of their shares. It does not matter for establishing the fact of the transfer of the rights and obligations of the participant and the fact of the absence state registration such changes in the charter, since the legislator does not link the fact of state registration with the moment of transfer of the rights and obligations of the participant and the ownership of the share.
As the Federal Antimonopoly Service of the Moscow District explained in Decree N KG-A41 / 4368-10 dated 07.05.2010, the spouse or spouse of a participant in a limited liability company, when dividing the property of the spouses, having received a share in the company related to the joint property of the spouses, acquires property rights (but not automatically the rights of a member of the company). This position is consistent with judicial arbitration practice (Determination of the Supreme Arbitration Court of the Russian Federation of October 30, 2009 N VAC-13987/09, Resolution of the FAS of the Moscow District of July 25, 2008 N KG-A40 / 5734-08).
The rights of a member of the company arise from his personal participation in the company and are regulated by the norms of not family, but corporate legislation. The procedure for joining the company's participants is regulated by the provisions of Law N 14-FZ.
As stated in paragraph 11 of Art. 21 of Law N 14-FZ, a transaction aimed at alienating a share or part of it in the authorized capital of a company is subject to notarization. Failure to comply with the notarial form entails the invalidity of the transaction.
Notarization is not required in the following cases:
- transfer of shares to the company in the manner prescribed by Art. Art. 23 and 26 of Law N 14-FZ, i.e. when the company buys out a share from a participant who wants to withdraw from the membership of the company;
- distribution of the share between the participants of the company and the sale of the share to all or some participants or third parties in accordance with Art. 24 of Law N 14-FZ;
- use of the pre-emptive right to purchase by sending an offer to sell a share or part of it and its acceptance in accordance with paragraphs 5 - 7 of Art. 21 of Law N 14-FZ, i.e. when acquiring a share as a result of exercising the pre-emptive right to purchase it.
If a member of the company has entered into an agreement establishing an obligation to conclude, in the event of certain circumstances or the performance by the other party of a counter obligation, a transaction aimed at alienating a share or part of it in the authorized capital of the company, and he unlawfully evades notarization of the transaction, the acquirer of the share or part of it has the right to demand in judicial procedure for the transfer of a share or part of it to him. In this case, the decision of the arbitral tribunal is the basis for the state registration of the relevant changes made to the Unified State Register of Legal Entities.
If, under the terms of the transaction, the share or part of it is transferred to the acquirer with the establishment of a pledge or other encumbrances at the same time, the application for making appropriate changes to the Unified State Register of Legal Entities, signed by the company member alienating the share or part of it, indicates the corresponding encumbrances.
The share of a member of the company may be alienated before its full payment only in the part in which it is paid.
The Federal Notary Chamber has developed Recommendations for Application separate provisions Federal Law "On Limited Liability Companies", which states that transactions for the alienation of a company's share are subject to mandatory notarization (paragraph 1, clause 11, article 21 of Law N 14-FZ):
- by one participant to another participant of the company, concluded not within the framework of exercising the pre-emptive right to purchase a share;
- members of the company to third parties.
According to Art. 22 of Law N 14-FZ, a pledge agreement for a share or part of it in the authorized capital of a company is subject to notarization. Failure to comply with the notarial form of the specified transaction entails its invalidity.
The list of documents confirming the authority of a person to alienate a share of a company is defined in paragraph 13 of Art. 21 of Law N 14-FZ. As stated in the Recommendations, the specified list of documents is not exhaustive and depends on the specific circumstances of the transaction being concluded.
When certifying transactions aimed at alienating a company's share, notaries are recommended to request the following documents:
- charter of the company;
- an agreement on the establishment of a company, a decision sole founder on the establishment of a company (in the event of the alienation of a share by the founder of the company);
- an extract from the Unified State Register of Legal Entities containing information about the person's ownership of a share in the company;
- a document confirming that a person owns a share of a company (memorandum of association; a notarized agreement on the acquisition of a share; a document expressing the content of a transaction on the acquisition of a share made in simple written form; a certificate of the right to inheritance; a certificate of ownership of a share in common property spouses, etc.);
- a document of the company confirming the payment of the share by the person alienating it;
- a document of the company confirming compliance with the rules for using the pre-emptive right to purchase a share of the company, established by Law No. 14-FZ and the charter of the company;
- the consent of the spouse to the alienation and purchase of a share of the company;
- other documents required for the transaction in accordance with the law, arising from the essence of a particular transaction.
In accordance with paragraphs. 5 p. 1 art. 333.24 of the Tax Code of the Russian Federation for certification of other contracts, the subject of which is subject to assessment, if such certification is mandatory in accordance with the legislation of the Russian Federation, a state fee is paid in the amount of 0.5% of the contract amount, but not less than 300 and not more than 20,000 rubles.
At the same time, for the purposes of calculating the state duty, the value of the property is determined by appraisers (clause 10, clause 1, article 333.25 of the Tax Code of the Russian Federation).
After the notary has certified the transaction, he, no later than within three days from the date of such certification, transfers to the company a copy of the application for making appropriate changes to the Unified State Register of Legal Entities, signed by the company participant alienating the share or part of it.
FROM July 1, 2014 amendments to the Civil Code of the Russian Federation regulating collateral relations came into force. Many questions are solved in a new way.
In the framework of this article, we will talk about the new rules for pledge of the rights of a participant in a business entity.
Pledge of a share in the authorized capital of LLC not the most common way to secure a monetary obligation. However, if entrepreneurs choose this option, it is almost certain that we are talking about serious amounts.
And here it is extremely important to carefully approach the harmonization of the terms of the pledge agreement.
Let me remind you that the agreement on the pledge of a share in the authorized capital of an LLC is subject to notarization, and information about the pledge of the share is included in the Unified State Register of Legal Entities. The notary himself prepares the text of the pledge agreement. However, it is not too reasonable to rely entirely on the notary.
The law gives the parties certain freedom of action, and the parties must, first of all, determine for themselves which particular terms of the contract suit them.
One of the most important points, in my opinion, when pledging shares in the authorized capital, the question is whether who, during the term of the pledge agreement, will exercise the rights of a member of the company. pledger or pledgee.
Previously, this issue was not resolved in the legislation, which gave rise to a lot of controversy. Now, by default, the rule established by law applies. The parties must specify otherwise in their agreement.
What does the law prescribe to us by default?
Attention!
For LLC default, unless the pledgor and the pledgee agree otherwise, the rights of an LLC participant during the period of the pledge are exercised by pledgee - one who receives a share in pledge! Thus, if the parties do not specifically discuss this issue in the contract, this rule will apply.
What is "participant rights"? This is the right to participate in the management of the affairs of the company, to vote at the general meeting of participants, to receive information about the activities of the company, take part in the distribution of profits.
For joint-stock companies - a rule that is exactly the opposite: by default, the rights of a shareholder are exercised by pledger. At the same time, for joint-stock companies, the rules on exercising the rights of a shareholder are formulated in more detail.
Thus, it is expressly provided that the parties to the pledge agreement may transfer to the pledgee the exercise of all rights belonging to the pledger and certified by the pledged shares, or all rights, except for the right to receive income (dividends).
Thus, one should be careful when drawing up collateral relations, especially when it comes to pledging a share in an LLC, and think in advance which of the parties will exercise the rights of a member of the company and to what extent.
The new bail rules contain a lot of other nuances, which you need to be able to use when registering collateral relations. For example, how the pledgee will levy execution on the subject of pledge in case of violation by the pledgor of the obligation secured by the pledge. The legislator determined possible options actions. Which option to choose to the best way protect the rights of the mortgagee? Or, on the contrary, what should the pledger be afraid of?
We will talk about all the intricacies of the new pledge regulation at master class" ", which the will take place September 25, 2014 at the site of the Business Development Center of the Security Council of the Russian Federation.
Pledge of shares and shares in business companies in our arsenal, as a rule, is used as one of the elements for “packaging” relations with partners, fixing agreements when attracting third-party financing, including banking, along with a corporate agreement, an option to sell shares in LLC and others. In its civil law essence, this is a measure to ensure the fulfillment of obligations. At the same time, the peculiarities of the subject of collateral in the form of shares and shares, as practice shows, can lead to the loss of possessory control over the entire business, which, of course, we cannot keep silent about.
The main difference between a pledge of shares and a pledge of shares in a CC is as follows:
when shares are pledged, all shareholder rights are retained by the pledger (unless otherwise specified),
when pledging shares - all the rights by default belong to the pledgee (unless otherwise otherwise provided by the agreement).
Lack of due attention to such nuances can give rise to significant problems.
A pledge of a share in an LLC is a measure to ensure the fulfillment of obligations of a civil law nature. For example, a company takes a loan from a bank, which, in turn, in addition to a pledge of property and a personal guarantee, requires the debt of the share of the owner of such an LLC to be issued. In the article, we will consider how to draw up a pledge agreement for a share in an LLC.
What is a pledge
A pledge is a means of securing the performance of an obligation. Initially, the obligation itself arises (for example, payment of a certain amount of money). In this case, the pledgor can be both the main debtor under this obligation, and any third party.
In order for an LLC to be able to transfer a share as a pledge, the charter of this company should not contain a prohibition on transferring a share as a pledge to a third party. Even if there is only one member in the society.
The decision to transfer the share as a pledge is made by the decision of the founders on the basis of more votes, except for the vote of the founder who plans to pledge his share. His vote should not count. If there is only one participant in the society, then he makes his own decision.
Pledge agreement for a share in an LLC
Having drawn up a share pledge agreement, it without fail must be certified by a notary. After that, the information under the contract is entered into the Unified State Register of Legal Entities.
Important! Independent evaluation shares in an LLC are not required to conclude an agreement. The assessment of the share of the parties to the agreement is carried out independently, taking into account its actual value.
If the debtor fails to fulfill its obligations, the creditor may foreclose on the pledge. At the same time, the creditor must be confident that the share and LLC will be as liquid as when registering the share as collateral. Accordingly, there are some limitations:
The rights of an LLC participant can be exercised by both the pledgor and the pledgee.
Since, when a share of an LLC is pledged, the corporate rights of the participant are transferred to the pledgee, the creditor himself takes part in the meetings of participants in the LLC instead of him. At the same time, he has the right to vote when making certain decisions, or to take them alone if there is only one participant in the LLC. Decisions to be made by the mortgagee include the following:
- by increase authorized capital at the expense of the contribution of a new participant, since in this case the share of LLC participants will be significantly diluted;
- on the approval of large transactions on the reduction of net assets, the alienation of real estate, which may ultimately lead to bankruptcy;
- to change the director of the LLC to a person not controlled by the participant;
- on reorganization or separation of the company to a third party.
Important! To avoid such situations, the pledge agreement for a share in an LLC must contain the following information: "the corporate rights of a member of the Company continue to be exercised by the pledgor."
When the rights of a member of the Company are exercised by a pledgee, the duty of the director is to notify the pledgee of meetings of participants, namely, the place and time of their holding, as well as the agenda. The minutes of the meeting are also signed by the pledge holder together with other participants of the LLC.
If the Company fails to notify the pledgee of the meeting at which any decision will be made without his consent, the pledger has the right to challenge it in court.
It is important not to miss such a moment, since the inept use of collateral can lead to a loss of control over the business. All the rights of the pledgor and the pledgee are important to be prescribed in the contract.
The pledgor does not have the right to alienate the pledge without the consent of the pledgee, provided that this is not provided for in the agreement or the law.
All information about the pledge is reflected in the Unified State Register of Legal Entities, respectively, on its own, a member of the company is not entitled to sell, donate or exchange a share and leave the LLC without the consent of the pledgee. Such a transaction as a pledge of a share is subject to notarization, in which the notary examines the contract and requires the written consent of the pledgee.
The pledge of a share in an LLC is retained in the event of the transfer of a share to another person, including the transfer to an assignee.
Termination of pledge
To redeem the collateral in in full bail is not enough. It is important to extinguish the entry in the Unified State Register of Legal Entities about the encumbrance of the share. This can be done either on the basis of an application from the pledgee (form No. P14001), or by a court decision. The application is signed by the pledgee, whose signature is certified by a notary. Therefore, without a pledgee, it will not be possible to exclude information from the Unified State Register of Legal Entities.
The term for filing such an application is not limited by law. But you can prescribe it in the pledge agreement. If the pledgee is in no hurry to submit such an application or refuses to submit it at all, the pledgor may apply to the court to force the submission of an application for repayment of the obligation.
Foreclosure on a pledged share in an LLC
If the debtor fails to fulfill the obligation secured by the pledge, the pledgee shall levy the pledged share. This can be done by a court order. The pledge agreement may also contain the procedure for extrajudicial collection, but in practice this procedure is quite complicated, as it involves the passage of many administrative procedures. Therefore, it is better to apply the penalty in court.
The appeal of the pledgee to the court with the recovery of the pledged share does not guarantee the transfer of this share to his property. For example, if there is more than one participant in an LLC, then the remaining participants can pay the pledgee the cost of a share, or part of it, based on the amount of the debt. The payment must be made within 3 months after the application for the recovery of the share.
What else to provide in the share pledge agreement
It is important to provide for a mechanism for the sale of the share in the pledge in the agreement on the pledge of the share of the LLC. You can do this in the following ways:
- Upon receipt of a share in the property of the pledgee at the price stipulated by the agreement;
- When collateral is sold to another person at or above the market price, withholding from the proceeds the debt secured by the sold collateral.
Important! The listed methods of realizing a share are possible only if the pledger is a legal entity or an entrepreneur.
When it is not possible to collect a share
It is impossible to foreclose on the share of an LLC if two conditions are met:
- The delay period is less than 3 months;
- The pledgee's claims are disproportionate to the value of the share in the pledge. Such a condition is appropriate if the amount of the unfulfilled obligation by value is less than 5% of the market value of the share.
For example, the pledgee applied for the recovery of a share, the value of which is over 3 million rubles. The outstanding debt in this case is equal to 200 thousand rubles. In this case, the pledgee may be refused to foreclose on the share, since the amount of the debt is clearly incommensurate with the value of the pledge.
Thus, a share pledge agreement is a guarantee of securing the borrower's debt. However, when deciding to conclude such an agreement, it is important to take into account some of the nuances for the successful repayment of the debt, as well as the normal termination of the pledge.
- 3.1. The share pledge agreement concluded before July 1, 2009 in simple written form remains in force
- 3.2. If it is impossible to determine the date of pledge of the share and applying to the tax office after 07/01/09, such a transaction requires notarization
- 3.3. An additional agreement to the share pledge agreement concluded before July 1, 2009 does not require a notarized form, regardless of the date of the agreement
- 3.4. The power of attorney issued in a simple written form for making a pledge of a share ceased from 1.07.2009
- 3.5. Information on the pledge of a share that arose before July 1, 2009 may be included in the Unified State Register of Legal Entities at the request of the pledgor submitted by him or by a notary
- 4.1. The alienation of the pledged share without the consent of the pledgee does not entail the invalidity of the transaction
- 4.2. Extrajudicial foreclosure of the pledged share until March 7, 2012 was allowed according to the general rules of the Civil Code of the Russian Federation on the recovery of pledged property
- 4.3. Until 03/07/2012, the share pledge agreement could not contain a clause on extrajudicial foreclosure if the pledgee was not a member of the company
- 4.4. It is not allowed to levy execution on the pledged share, which was acquired for compensation by a bona fide purchaser from the pledgor
- 4.5. The imposition of an arrest by a bailiff on a share that is pledged does not violate the rights of the debtor
Encyclopedia of Judicial Practice
Pledge of shares in the authorized capital of the company
(Article 22 of the Federal Law "On Limited Liability Companies")
1. Essence, grounds and registration of a pledge of a share in the authorized capital
1.1. Pledge of a share is not its alienation
The courts rightly took into account the plaintiff's argument that the legal pledge rule does not conflict with the provisions of the Limited Liability Companies Law on the pledge of shares. Foreclosure on a share in the authorized capital of a company is possible on the basis of paragraph 5 of Art. 488 of the Civil Code of the Russian Federation in case of non-payment of a share sold on credit.
Clause 5 of the loan agreement with collateral stipulates that the valuation of the subject of collateral - 100% of the share in the authorized capital was to be determined in accordance with the appraiser's report. However, it follows from this report that the subject of the assessment was not a 100% share in the authorized capital of the company, but market price the property rights of this legal entity to the property it owns.
Since the share in the authorized capital in the amount of 100% was not the subject of this assessment, the courts of the first and appellate instances came to a reasonable conclusion that the parties did not assess the subject of the pledge and concluded that the pledge agreement was not concluded.
1.4. A pledge of a share arises by virtue of an agreement if the nature, size and term of the obligation to be secured are determined
The contract for the pledge of a share in the authorized capital is not concluded, since it does not specify the nature, amount and term of fulfillment of the obligation secured by the pledge.
As follows from the content of the agreements on the pledge of a share in the authorized capital of an LLC, the agreement on the subsequent pledge of a share in the authorized capital of an LLC, they do not specify the conditions on the nature, amount and term of fulfillment of the obligation secured by the pledge. In the absence of an agreement between the parties on the named terms of the pledge agreement, the shares in the authorized capital of the LLC cannot be considered concluded.
1.5. A company's decision to pledge a share is not required if the pledger is its sole participant
The arguments of the cassation appeal that the courts did not apply articles 22 of the Federal Law "On Limited Liability Companies" about the absence of a decision by the sole participant of the company to approve the transaction were considered by the court of appeal and they were given a proper legal assessment. The Court of Appeal pointed out that the pledge agreement was concluded by the sole member of the company. The corresponding will of the defendant as the only participant in the company was properly expressed in the pledge agreement.
The arguments of the cassation appeal about the invalidity of the contract subject to the provisions of Art. 22 of the Law "On Limited Liability Companies" and Art. 349 of the Civil Code of the Russian Federation were also the subject of an assessment by the court of first instance, which came to the correct conclusion that, according to the documents submitted, the person was the sole participant in the LLC, in connection with which he had the right to take the decision on the pledge of his share owned by him alone, while his actions in view of the absence of other participants in the company did not affect anyone's rights to the invariance and certainty of the composition of the participants in the company.
1.6. Pledge of a share owned by a minor participant in a company is allowed with the consent of the guardianship and guardianship authority
Members of the society are minors. From the concepts given in paragraph 2 of Article 37 of the Civil Code of the Russian Federation, it is not seen that the conclusion of pledge agreements on property owned by a limited liability company on the basis of ownership requires the consent of the guardianship and guardianship authority, since the wards are participants in such a company. The rule established in paragraph 2 of Article 37 of the Civil Code of the Russian Federation may be applied to legal relations arising in accordance with Article 22 of the Federal Law "On Limited Liability Companies" in connection with the pledge of a share of a member of the company.
1.7. The pledge agreement is subject to the rules on major transactions
In dismissing the claim for recognition of the pledge agreement as invalid, the court erroneously proceeded from the fact that this transaction is not regulated by Article 46 of the Federal Law "On Limited Liability Companies", since it is of a security nature.
Attention
The consent of the company by decision of the general meeting of participants in the company for the pledge of the share was not received.
Consequently, the contested contract regarding the pledge was rightfully recognized by the courts as invalid as contrary to the requirements of Article 22 of the Law on Limited Liability Companies.
Since the materials of the case do not confirm the consent of the LLC participants, drawn up in the minutes of the general meeting of participants, to transfer the share as collateral, the court, in accordance with the law, declared the pledge agreement invalid.
The court came to the correct conclusion that the pledge agreement for a share in the authorized capital of an LLC is invalid, since, in violation of Art. 22 of the Federal Law of the Russian Federation "On Limited Liability Companies", memorandum of association LLC, the Charter of the LLC, the participant did not receive the consent of another participant in the company - to pledge his share to a third party.
Note
According to the current version of Art. 168 of the Civil Code of the Russian Federation (as amended by the Federal Law of 07.05.2013 N 100-FZ), a transaction that violates the requirements of a law or other legal act and at the same time infringes on the rights and public interests of third parties is recognized as void, unless it follows from the law that such the deal is voidable
2.2. The pledge of a share without the consent of other members of the company is voidable
A transaction to pledge a share of a member of a limited liability company as a pledge without notice and consent of the other members is voidable and not void.
2.3. The pledge of a share is void if its commission is prohibited by the charter
The charter of a company is not law or legal act therefore, transactions made in violation of the provisions of the charter cannot be declared invalid on the basis of Article 168 of the Civil Code of the Russian Federation.
Since the charter is not a law or a legal act, transactions made in violation of the provisions of the charter cannot be recognized as void on the basis of Article 168 of the Civil Code of the Russian Federation. These transactions are classified as voidable.
Contrary to the argument of the complainant, the court came to the correct conclusion that the inconsistency of the share pledge agreement with the provisions of the Charter of the LLC is not a basis for the invalidity (insignificance) of the agreement.
2.5. Failure to bring the charter of the company in line with the new legislation does not prevent the pledge of a share by a participant
Failure to bring the company's charter in line with the new legislation may not serve as grounds for invalidating the company's transactions, for refusing credit institutions to open bank accounts for such a company or conducting transactions with them, for refusing registration authorities to state registration of rights to real estate and transactions with it, for refusing notaries in the notarization of transactions with shares or parts of shares in the authorized capital of the company (hereinafter referred to as shares), refusal of registering authorities to make changes to the information about the company contained in the Register, not related to changes in the charter of the company (including those related to the transfer of shares), or in the state registration of legal entities created by reorganizing the company, or in making an entry on the liquidation of the company, etc.
Regardless of bringing the company's charter in line with the new legislation, its participants have the right to alienate their shares in the company's authorized capital, pledge them, etc.
3. Pledge of a share until 07/01/2009
3.1. The share pledge agreement concluded before July 1, 2009 in simple written form remains in force
In connection with the introduction from 01.07.2009 of a mandatory notarial form of a share pledge agreement (paragraph 2 of Article 22 of the Law on Limited Liability Companies as amended by Law N 312-FZ), courts should take into account that share pledge agreements concluded before this date in simple written form shall remain in force after this date.
On the date of signing by the parties of the share pledge agreement, the transaction was not required to be notarized. Corresponding amendments to the Federal Law "On Limited Liability Companies", providing for mandatory notarial certification of such transactions, came into force only from 01.07.2009.
When making the contested decision, the tax authority did not know the date of conclusion of the pledge agreement.
On the date of signing by the parties of the share pledge agreement, the transaction was not required to be notarized. The relevant amendments to the Federal Law "On Limited Liability Companies", providing for mandatory notarial certification of such transactions, came into force only from 01.07.2009.
Thus, failure to re-register the pledge agreement by the parties could not entail its invalidity. Decor additional agreements to the said contract in the same form as the main obligation does not testify to their illegality.
3.4. The power of attorney issued in a simple written form for making a pledge of a share ceased from 1.07.2009
The sale of the pledged property (property right) without the consent of the pledgee does not entail the invalidity of the concluded transaction. By virtue of the Civil Code of the Russian Federation, the transfer of ownership of property as a result of a transaction made with it does not terminate the right of pledge.
Thus, the completed transactions for the sale and purchase of a share in the authorized capital of an LLC do not violate the rights of the pledgee. The legislation provides for other consequences of a transaction in violation of the rules established by law for the alienation of pledged property. By virtue of the Civil Code of the Russian Federation, the pledgee has the right to demand early performance of the obligation secured by the pledge, and if his demand is not satisfied, to foreclose on the subject of pledge.
The seller of the share-mortgagor undertook not to assign the subject of pledge (share) without the prior written consent of the pledgee. At the same time, proceeding from the Civil Code of the Russian Federation, in case of violation of such a requirement, the pledgee has the right to demand early performance of the obligation secured by the pledge and foreclosure of the pledged property. The contract has not been challenged in court and has not been declared invalid. Thus, the restrictions associated with the disposal of the subject of pledge do not affect the transfer of the rights and obligations of the participant to the buyer of the share.
4.2. Extrajudicial foreclosure of the pledged share until 03/07/2012 was allowed under general rules Civil Code of the Russian Federation on the recovery of pledged property
The condition on the extrajudicial procedure for foreclosing the pledged property also cannot be contained in the contract of pledge of a share (part of a share) in the authorized capital of a limited liability company, concluded by one of the participants in the company - individual(including individual entrepreneur) with a pledgee who is not a member of the company, since such a pledge is possible only with the consent of the general meeting of participants in the company (paragraph 1 of Article 22 of the Federal Law "On Limited Liability Companies").
Attention
These clarifications were adopted prior to the entry into force of Article 5 of Federal Law No. 405-FZ of 06.12.2011, which allows determining an out-of-court procedure for foreclosing a participant's share in the authorized capital of a company in a pledge agreement
4.4. It is not allowed to levy execution on the pledged share, which was acquired for compensation by a bona fide purchaser from the pledgor
The courts justifiably rejected the plaintiff's arguments to invalidate the share purchase and sale agreement with reference to the buyer's bona fide acquisition of the share and the impossibility of applying in this case the legal mechanism established by paragraphs 1 and 2 of Article 167 of the Civil Code of the Russian Federation to protect the rights of the person.
The absence in the Unified State Register of Legal Entities of an entry on the encumbrance of the share by the seller’s pledge when selling the share on credit (lack of publicity) does not mean the absence of collateral, but the seller’s requirement to foreclose on the share can be neutralized by the objection that the acquirer of the share did not know and should not have known about the existing pledge.
Note
According to the current wording of sub. 2 p. 1 art. 352, paragraph 1 of Art. 353 of the Civil Code of the Russian Federation, the pledge is terminated if the pledged property was acquired for compensation by a person who did not know and should not have known that this property was the subject of pledge.
4.5. The imposition of an arrest by a bailiff on a share that is pledged does not violate the rights of the debtor
Allowing the stated requirements, the court of first instance, correctly applying the provisions of the Federal Law "On Enforcement Proceedings", evaluating in accordance with the requirements of Article. 84 of the CAS RF, the evidence collected in the case, based on the fact that the seizure of a pledged share in the authorized capital of an LLC, carried out as part of a consolidated enforcement proceeding, one of the recoverers of which is an administrative plaintiff, does not violate the rights of the debtor [pledger].
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