Business partnerships: concept and order of organization

2024 Author: Howard Calhoun | [email protected]. Last modified: 2023-12-17 10:16

Despite the fact that the Russian Federation has a sufficient number of different organizational and legal forms of a legal entity, at the end of 2011 the Government decided to introduce another type, namely, economic partnership.

This form of enterprise, as conceived by the legislator, was to become something between households. partnership and household society and serve as an ideal option for conducting innovative business. Thus, the citizens of the Russian Federation received the right to create an economic partnership. Examples of industries that are most suitable for this are: organizations working on applied scientific research, design activities, technical, technological innovations, etc.

The concept of economic partnership

Business partnerships are business ventures created by severalpersons (at least two, but not more than 50), which are managed by the participants of the organization or other persons within the limits and volumes established by the partnership management agreement. Household partnership is one of the forms of a legal entity, legally fixed and regulated in Russia.

These enterprises have the opportunity to conduct their business only in those areas and only those types that are approved by the Government of the Russian Federation. At the same time, in order to obtain the right to engage in some of them, partnerships are required to have a license. Participants in economic partnerships can be both individuals and legal entities.

Legal regulation

Like any other type of activity, they are regulated by the Civil Code of the Russian Federation and the relevant Federal Law. The main features and nuances of household management. partnerships are provided for in federal law. This law (FZ No. 380 "On business partnerships") was adopted in December 2011, the third day.

The Government of the Russian Federation prescribes how economic partnerships should be founded and managed. Civil Code of the Russian Federation in Art. 50 establishes partnership as one of the forms of a commercial organization, and in Art. 65.1 specifies that this type of entity is a corporate legal entity.

FZ No. 380 defines the legal status of economic partnerships, the procedure for their establishment and management, their rights and obligations, the specifics of reorganization or liquidation, as well as the rights, obligations and responsibilities of partnership participants. It spells out the nuances of creating and maintaining constituent documents andshare capital.

Partnership Establishment

Establishment of an organization of such a form as an economic partnership is possible only by decision of the founders at their meeting (in full force). The formation of a firm by reorganizing another enterprise is not possible.

At the time of the establishment of this business, the participants are required to select and appoint an auditor for the partnership. It can be both an organization and an individual who have the right to engage in auditing in accordance with the legislation of the Russian Federation.

Decree on the approval of households. partnership should contain the result of the vote of the founders, as well as information about the decisions they made (on the conclusion of a partnership agreement, election of management bodies, and others).

Registration of economic partnership is regulated by Federal Law 129 of 08.08.2001 “On the state. registration of legal entities and individual entrepreneurs. Carried out by the Federal Tax Service within the time limits established by law.

Partnership governing bodies

Business partnerships must elect a sole executive body and an audit committee.

The procedure for their formation is fixed in the partnership agreement, except for those features and nuances that are spelled out in the charter.

The sole executive body is elected by choosing one of the partnership participants, for the period specified in the charter or for an indefinite period, if this nuance is not spelled out in the foundingdocument. All information (including information about changes) about the sole executive body is subject to the state. registration.

The sole executive body acts on behalf of the partnership (without a power of attorney), bears responsibility and has the rights specified in the management agreement. He has the right to issue decrees on the appointment or dismissal of employees of the organization, to encourage or fine employees.

The audit commission of the partnership (auditor) is a body en titled to conduct regular independent audits of the partnership, its financial and economic activities. She has access to all legal documents. faces. The procedure for its activities is established by the charter of the partnership.

Only a person who is not a member of a business partnership can be an auditor or a member of the commission.

Rights of members and partnerships in general

The Federal Law on economic partnerships (Article 5 of the Federal Law No. 380) explains and regulates the rights of participants in a legal entity, namely, participants have the opportunity:

• manage the partnership;
• get all the necessary information about the activities of the organization, including having access to accounting and other documentation;
• sell your own share in the capital of the partnership, while in the event of a sale, the other members of the partnership have the pre-emptive right to purchase, and all transactions are notarized;
• in case of liquidation of a legal entity, to receive part of the property (in kind or in cash), if any remains after all settlements with creditors;
• give up a share in the partnership or require the partnership to buy it back.

Also, if the enterprise management agreement provides, the participants have the right to pledge their own share.

As for the rights of economic partnerships, the federal law on economic partnerships secures for him the opportunity to have all civil rights and obligations that are necessary for the implementation of any activity permitted by the laws of the Russian Federation, if this does not contradict the goals of the partnership, which are specified in Charter and agreement.

At the same time, the Federal Law prohibits partnership:

• be a founder or member of other enterprises (legal entities), except for unions or associations;
• issue bonds or other securities;
• promote the activities of the organization.

Duty and responsibility

In addition to the rights that are vested in the partners of the partnership, as well as the enterprise as a whole, the law on economic partnerships highlights their duties and responsibilities. So, participants in these firms are required to:

• make contributions to the share capital in the terms and in the volumes stipulated by the agreement;
• do not disclose confidential information about the work of the organization.

It is worth noting that the participants of the organization are not liable for the obligations of the partnership, but only have the risk of possible losses associated with the activities of the enterprise, within the limits of their contributions. Meanwhile, partnershipis liable with all its property for its own obligations and is not liable for the obligations of its participants.

If the partnership does not have enough funds to settle with creditors, the participants can voluntarily repay this debt.

If the agreement on the management of economic partnership provides for the appointment of members of the management of the partnership, then these persons are liable for losses to the organization, if any have arisen through their fault (action / inaction). An exception can only be other grounds or amounts of liability specified in the agreement or the Federal Law.

Out of court can be excluded those partners who do not make an initial or subsequent contribution to the share capital in a timely manner, while the decision on alienation must be taken unanimously. It is also worth noting that if the partners of the enterprise violate their obligations, which are enshrined in the Federal Law, then the participants have every right to exclude him from the partnership through the court.

Charter of partnership

Constituent documents of economic partnership are the charter of the enterprise and the agreement on the management of households. partnership.

The charter of economic partnership in accordance with Article 9 of the Federal Law No. 380 must be signed by all the founders of the organization, and the document must also contain information about:

• company name of the organization (no abbreviations);
• on ongoing partnership activities;
• about the location of the economic partnership;
• oshare capital (its size);
• about the procedure for storing enterprise documentation (information about the license number and the location of the notary who certified and keeps the partnership management agreement);
• about the peculiarities of the formation of governing bodies.

The charter of a business partnership may contain other information at the discretion of its founders, if it does not contradict the law.

Any changes to the charter of an enterprise must be unanimously adopted by all participants (including those who are not founders) and registered.

If any member of the partnership or any interested person requires to present the charter for review, then this is subject to immediate implementation. When requesting a copy, funds may be charged only in an amount that does not exceed the cost of its production.

Partnership Management Agreement

General requirements for a partnership agreement are contained in Art. 6 of the Federal Law on economic partnerships. In accordance with it, any information about the rights, obligations of the participants and the features of the partnership itself, which do not contradict the law and should not be contained in the charter, can be fixed in the agreement.

The business partnership management agreement must be in writing and notarized. At the same time, all subsequent changes that will be made to it must also be notarized.

In thispartnership participants have the right to indicate the following provisions in the constituent document:

• conditions for the formation of share capital, terms and volumes of shares contributed to it;
• responsibility of partners who do not contribute to the share capital;
• Founders' rights that are not proportional to their contribution;
• ban on the alienation of a share in the capital or on its repeated purchase/sale;
• responsibility for breach of confidentiality;
• conditions for entering third parties into the partnership;
• rules for resolving various disputes between partnership participants and other similar provisions.

Unlike a charter, an agreement is not a public document. And it is made public only with the consent of the executive body. Therefore, participants in a business partnership cannot refer to a management agreement in relations with third parties. An exception can only be in situations where the partners prove that the third party knew or should have known at the time of the transaction about the content of this constituent document.

Share capital of the enterprise

Finance of commercial organizations is the formation and distribution of funds, as well as their use. One of the cash assets of an enterprise is its capital.

Business partnerships, like other commercial enterprises, are required to have their own capital. Owners of legal persons, contributing their share, receive the right to manage this organization and bear certain obligations in connection with this.

Legislatorestablishes for each organizational and legal form its own characteristics of the mandatory capital. So, in accordance with Art. 66 of the Civil Code of the Russian Federation, economic partnerships are required to form share capital.

It is formed by depositing money, property or other rights with a monetary value, by all partners. The contribution cannot be securities, except for bonds of households. societies. If the contribution is not made in cash, then its value must be determined unanimously at the meeting of the founders of the partnership. If consensus cannot be reached on this issue, then the contribution must be made in cash. The contribution will be made in part or in full, determined by the agreement.

If the partnership agreement does not stipulate other rules, then the partner who has not made part of the contribution to the share capital on time is obliged to pay the partnership 10% of this part and compensate for the losses incurred for this reason.

FZ No. 380 secures the pre-emptive right to purchase a share of the share capital for its participants.

Reorganization of economic partnership

Business partnerships, like other legal entities, can be reorganized or liquidated if necessary.

Features of the reorganization of such enterprises are described in Art. 24 FZ-380. The article states that the only option for reorganizing this form of legal entity is to transform it into a joint-stock company. Reorganization is mandatory if the number of participants in the partnership exceeds50 people.

Reorganization can only be carried out after a decision unanimously adopted by the founders, which must contain:

• information about the name and address of the joint-stock company;
• procedure and conditions of reorganization;
• features of the exchange of shares in the capital of partnership participants for shares;
• information about the members of a specially created audit commission (or about one appointed auditor);
• information about the participants of the collegial executive body or any other, if the joint-stock company will form them;
• information about the participant who is the sole executive body;
• data on the approval of the transfer act, as well as the application of this act;
• data on the approval of the charter of the joint-stock company, as well as the application of this constituent document.

After the decision is made, this should be reported within three working days to the state authority that deals with the registration of legal entities. persons by sending a written notice of reorganization there. Based on this, data on transformations are entered into a single state. registry. After that, the legal entity is obliged to publish data on its reorganization in the media.

An enterprise is considered reorganized from the moment of registration with the Federal Tax Service of a new joint-stock company resulting from the reorganization. After that, all outstanding obligations, rights and obligations of the economic partnership are transferred to the joint-stock company in full.

Liquidationeconomic partnership

In art. 25 of the Federal Law No. 380 specifies the features of the liquidation of a business partnership, the main of which is the mandatory liquidation of an enterprise if the number of its participants has decreased and has become less than two.

The liquidation of a firm can be either voluntary or by a court decision. In the case of the first option, the partnership participants or authorized bodies (specified in the agreement) must appoint a liquidation commission.

The liquidation commission conducts all settlements with creditors, after which it draws up a liquidation balance sheet. If the finances of commercial organizations that are economic partnerships (liquidated) are minimal and not enough to pay off all debts, then the commission sells the property of the enterprise at public auction.

The property that remains after settlements with creditors must be transferred by the liquidation commission to all participants in the partnership in proportion to their contribution to the share capital.

From the foregoing, we can conclude what distinguishes economic partnerships from other organizational and legal forms. The Civil Code of the Russian Federation and Federal Law No. 380 allow legal entities of this type:

• protect the contractual relationship between the founders of the partnership;
• balance the interests of business participants in accordance with their contributions;
• have great freedom in the distribution of the rights and obligations of the founders, in the formation of the features of partnership management through an agreement onmanagement.