Inheritance of a Share in a Limited Liability Company under Ukrainian Law

2020 ◽  
Vol 10 (2) ◽  
pp. 528
Author(s):  
Iryna A. DIKOVSKA ◽  
Iurii D. PRYTYKA
Keyword(s):  
Limited Liability ◽  
The Other ◽  
Controversial Issues ◽  
Limited Liability Company ◽  
The Law ◽  
The Right ◽  
Authorized Capital ◽  
A Share

The research focuses on one of the consequences of the death of the participant of a limited liability company under Ukrainian law: the emergence of a right to inherit his or her assets in the company. It analyses one of the most controversial issues of Ukrainian succession law: what types of assets the heirs inherit: the share in the authorized capital of the company or also the right to participate in it. As long as, on June 17, 2018, the Law of Ukraine ‘On Limited Liability and Additional Liability Companies’ has come into force, the research compares the approaches of previous legislation and the new Law. It has been concluded that the new Law makes the rule, under which the share in the authorized capital transfers to the heirs of the deceased participant, mandatory. It provides the automatic transfer of the right to participate in the company to the heirs. The new Law protects the interests of the heirs and does not take into account the interests of the other participants.

scholarly journals Legal status of the company's share in own authorized capital under the Law of Ukraine “On limited and additional liability companies”: problems of legal regulation

2021 ◽  
Vol 11/1 (-) ◽  
pp. 31-36
Author(s):  
Volodymyr TSIUPRYK
Keyword(s):  
Legal Status ◽  
Limited Liability ◽  
General Meeting ◽  
Legal Regulation ◽  
Legal Nature ◽  
The Law ◽  
The Right ◽  
A Company ◽  
Authorized Capital ◽  
A Share

Introduction. Nowadays, the issue of determining the legal status of the company's share in the own authorized capital of LLC and TDV has become quite acute, as evidenced by the adoption on July 28, 2021 by the Commercial Court of Cassation in Case № 904/1112/20, in which the Court established a new approach legal nature of such a phenomenon and expressed his own position on the understanding of the legislation concerning the legal status of the share of LLC and TDV in its own authorized capital. Given that a limited liability company is the most popular type of legal entity that is chosen to conduct business in Ukraine, the analysis of this issue is relevant. Some scientific value for the development of the transfer of the participant's share are the works of individual authors devoted to the study of the legal nature of the share in the authorized capital but the problems arising around the legal status of the company. in their own authorized capital in these works were only mentioned along with others, but did not receive a detailed separate study. The purpose of the paper is to analyze the normative regulation of the legal status of the company's share in the own authorized capital of LLCs and ALCs, identification of shortcomings in their legal regulation and implementation, as well as the search for ways to eliminate them. Results. One of the most relevant decisions concerning the subject of this article is the Judgment of the Commercial Court of Cassation in case № 904/1112/20 of July 28, 2021. The court in this case found that the votes attributable to the share belonging to the company itself are not taken into account when determining the results of voting at the general meeting of participants on any issues. However, Ukrainian legislation does not contain any direct norms that would prohibit the exercise of the right to manage a company in relation to itself on the basis of a share in its own authorized capital. That is why the company cannot be a participant in relation to itself, although they seem logical, but do not have sufficient regulatory support, and therefore do not allow to be firmly convinced of their compliance with the law. In view of this, it can be stated that there is a significant gap in the national legislation on this issue, which, in our opinion, the Court failed to “fill” with this decision in the case. Conclusion. In the Ukrainian legislation at the level of the Law of Ukraine “On Limited and Additional Liability Companies” Article 25 defines the possibility for a company to acquire a share in its own authorized capital. However, the regulation of the legal status of such a share cannot be called sufficient, due to which in practice there are certain problems in the implementation of the provisions of the legislation concerning the share of the company in its own authorized capital. The solution of these legal problems is necessary to ensure the highest quality and clarity of the law, as well as to form case law with common approaches to understanding a single rule.

scholarly journals CIVIL LEGAL NATURE OF RELATIONS BETWEEN LEGAL ENTITY AND ITS FOUNDERS

THE BULLETIN ◽  
2021 ◽  
Vol 389 (1) ◽  
pp. 284-289
Author(s):  
K.S. Zhylkichieva ◽  
A.A. Kalybaeva ◽  
G.Zh. Koshokova
Keyword(s):  
Limited Liability ◽  
Kyrgyz Republic ◽  
Limited Liability Company ◽  
Bank Account ◽  
Legal Entity ◽  
Legal Nature ◽  
Analysis And Synthesis ◽  
The Law ◽  
State Registration ◽  
Authorized Capital

The article analyzes using the normative and systematic methods, as well as analysis and synthesis, the content of the statements of Civil Code of the Kyrgyz Republic, the Law of the Kyrgyz Republic "On economic partnerships and companies" and the Law of the Kyrgyz Republic "On state registration of legal entities, branches (representative offices)" and the works of Kyrgyz and Russian legal scholars. Within the framework of this article, the features of civil-legal nature of relations between legal entity and its founders are considered on the example of such legal entity as Limited Liability Company. The result of the authors' research is the statement – legal address of organization is determined in the decision to create legal entity, and is also established in all of its constituent documents. The legislation only stipulates when legal address changes, legal entity must notify state authorities about it. The authors come to the conclusion such lacuna in the legislation of the Kyrgyz Republic contributes to violation of rights of creditors of legal entity, since if it fails to fulfill obligations, it is rather difficult to find location of legal entity or location of its property. According to the authors, it is necessary to provide for minimum amount of authorized capital of legal entity in the norms of legislation and establish this capital should be placed in special bank account. Such decision will allow, firstly, to guarantee availability of any compensation to creditors for obligations of legal entity, and secondly, it will somewhat reduce number of registered such entities.

scholarly journals SHARE IN LLP CHARTER CAPITAL AS PROPERTY: SOME ISSUES OF THEORY AND PRACTICE RELATED TO THE LEGISLATION OF THE REPUBLIC OF KAZAKHSTAN

2016 ◽  
pp. 0-0
Author(s):  
Сергей Скрябин ◽  
Sergey Skryabin
Keyword(s):  
Limited Liability ◽  
Special Kind ◽  
Theory And Practice ◽  
Legal Regime ◽  
The Law ◽  
The Republic ◽  
The Right ◽  
The Cost ◽  
A Share

The article investigates the issue of legal regime of a share in the charter capital of limited liability partnerships as a special kind of property. The author considers justified extending to this type of property of the rules of civil legislation on the law of obligations with certain peculiarities of the legal regime. These include peculiarities of definitions of authorized persons and parties liable; extending to their turnover of the rules on substitution of parties in the obligation; establishing the price of the shares in charter capital through a correlation with the property of the company itself, fixing of their price at a certain moment, preceding the transfer; changing of current rules on the charge of the share. The right to the share in the charter capital is determined as a prerequisite of enjoyment of rights and obligations of a participant, as well as the cost of the property belonging to the partnership.

scholarly journals Pre-emption right of shareholder to acquire shares in the limited liability company

2020 ◽  
Vol 58 (3) ◽  
pp. 254-269
Author(s):  
Ilija Babić
Keyword(s):  
Real Estate ◽  
Limited Liability ◽  
The Other ◽  
Third Party ◽  
Limited Liability Company ◽  
Share Capital ◽  
The Moment ◽  
The Right ◽  
A Company ◽  
Inter Vivos

A limited liability company is a company with share capital. Each member of an LLC can freely transfer his share to one, more or all other members by inter vivos and mortis causa transactions (mainly contracts). If share is transferred to a third party, all LLC members have the right of preemption. It is a rule of dispositive nature and, therefore, it can be excluded by the Memorandum of Association. A member of an LLC who plans to transfer his share to a third party shall previously send an offer to the other members in the form of LLC membership share transfer agreement. The signature of the transferee on an offer must be authenticated by a notary. The notary shall confirm that offer if share of the transferee includes real estate or when it is governed by the special act. If a LLC member believes his right of pre-emption has been violated, he can bring a complaint to the relevant court demanding: 1) that the contract or any other act related to the transfer of share should be cancelled, or 2) the obligation of the defendant (member against whom the claim is brought) to transfer his share to the plaintiff, i.e. that a judgment of the court replaces share transfer agreement between the plaintiff and the defendant. The complaint can be brought within 30 days (subjective term) from the moment when LLC member had been informed about the conclusion of share transfer agreement, but not later than six months after share transfer registration in Business Registers Agency (objective term). After the expiration of these terms, the complaint will be rejected, and therefore disposal of shares will be strengthened.

La protection des actionnaires minoritaires En droit tunisien des sociétés

2006 ◽  
Vol 13 (1) ◽  
pp. 107-133
Author(s):  
Ahmed Ouerfelli
Keyword(s):  
Limited Liability ◽  
Company Law ◽  
Shareholder Rights ◽  
Political Rights ◽  
Minority Shareholders ◽  
Minimum Capital ◽  
The Creation ◽  
The Law ◽  
The Right ◽  
A Share

Abstract The Law on the Economic Initiative, promulgated on December 27th, 2007, amended several laws at the same time. Among these laws, is the modifi cation of certain provisions of the Commercial Companies Code of November 3rd, 2000. The Law aims at the impulse of the creation and the transmission of fi rms. In the field of company law, it reinforces the rights of shareholders in limited companies, listed or not, and abolishes the minimum capital, required for the constitution of limited liability companies. It also allows the shareholders to have a contribution in services (apport en industrie) in these companies. This study focuses on the consolidation of the shareholders’ rights under the new provisions. The shareholder rights are of two kinds: the right to participate in the taking of the decisions in the company (called “political rights”), and the right to a share of the profi t generated by the company’s activity. The Law on the Economic Initiative consolidated these two kinds of rights for minority shareholders.

Procedural problems of alienation of shares and shares of business entities

2020 ◽  
Vol 7 (1) ◽  
pp. 17-21
Author(s):  
Aleksey A. Maksurov
Keyword(s):  
Corporate Culture ◽  
Russian Federation ◽  
Limited Liability ◽  
Civil Code ◽  
The Russian Federation ◽  
Business Entities ◽  
The Right ◽  
Corporate Legislation ◽  
Authorized Capital ◽  
A Share

The article deals with the practice of observing the pre-emptive rights of shareholders of non-public joint-stock companies and business company participants when alienating shares (stocks) of business companies, including third parties. We are talking about protecting the interests of participants (shareholders) and the company as well as persons alienating the shares. The material is of interest in the formation of a civilized and effective corporate culture. The law provides not only for the right to alienate shares in business companies and non-public joint-stock companies, but also for the forms (methods) of exercising such a right (power). These forms (methods) have an approximate list. Based on the concept of civil law dispositivity, the rightholder can use any method of shares (stocks) alienation that is not prohibited by law. The Civil Code of the Russian Federation1 mentions the ways of transferring shares only in relation to a limited liability company (Article 93). The norms of this Code do not contain any specifics in this regard, thus leaving the issue to special (corporate) legislation. However, corporate legislation does not fully regulate the entire mechanism for transferring a share in the authorized capital or shares to another person. The most common method of share alienation is a share purchase and sale agreement; other methods that are not prohibited by law are considered auxiliary methods. The paper deals with procedural issues involved in using methods of shares alienation in practice. 1 The Civil Code of the Russian Federation (Part one) from 30.11.1994 № 51-FZ (as amended on 16.12.2019, Rev. from 12.05.2020) / / Collection of Legislation of the Russian Federation. 1994. No. 32. St. 3301.

KEPEMILIKAN DAN PENGUASAAN OBJEK JAMINAN FIDUSIA APABILA TERJADI SENGKETA WANPRESTASI DALAM PERJANJIAN KREDIT

2020 ◽  
Vol 8 (1) ◽  
pp. 78
Author(s):  
Dija Hedistira ◽  
' Pujiyono
Keyword(s):  
Economic Benefits ◽  
Civil Code ◽  
The Other ◽  
Third Party ◽  
Analysis Method ◽  
The Law ◽  
The Right

<p>Abstract<br />This article aims to analyze the ownership and mastery of a fiduciary collateral object, in cases that often occur today, many disputes between creditors and debtors in fiduciary collateral agreements are caused because creditors assume that with executive rights as fiduciary recipients, the fiduciary collateral object legally owned by creditors and creditors the right to take and sell fiduciary collateral objects when the debtor defaults unilaterally, as well as the debtor who considers that the fiduciary collateral object is owned by him because the object is registered on his name, so that the debtor can use the object free as  giving to a third party or selling the object of fiduciary guarantee unilaterally. the author uses a normative <br />juridical approach, and deductive analysis method based on the Civil Code and fiduciary law applicable in Indonesia, Law No. 42 of 1999 concerning Fiduciary Guarantees. The conclusion of the discussion is the ownership of the object of the Fiduciary Guarantee is owned by the debtor in accordance with the Law, mastery of the object of collateral controlled by the debtor for economic benefits, the procedure of execution The object of Fiduciary Guarantee is carried out in accordance with the Fiduciary Guarantee Act, an alternative mediation in resolving the dispute. There needs to be clarity in the use of language in making a law, so as not to conflict with each other between Article one and the other Articles.<br />Keywords: Ownership; Mastery; Object of Fiduciary Guarantee; Debtor; Creditors.</p><p>Abstrak<br />Artikel ini bertujuan untuk menganalisis tentang kepemilikan dan penguasaan suatu objek jaminan fidusia, dalam kasus yang saat ini sering terjadi, banyak sengketa antara kreditur dan debitur dalam perjanjian jaminan fidusia disebabkan karena kreditur beranggapan bahwa dengan adanya hak eksekutorial sebagai penerima fidusia, maka objek jaminan fidusia tersebut secara sah dimiliki oleh kreditur dan kreditur berhak mengambil dan menjual objek jaminan fidusia saat debitur cidera janji<br />(wanprestasi) secara sepihak, begitupun dengan debitur yang menganggap bahwa objek jaminan fidusia tersebut dimiliki olehnya karena objek tersebut terdaftar atas namannya, sehingga debitur dapat mempergunakan objek tersebut secara bebas seperti menyerahkan kepada pihak ketiga atau menjual objek jaminan fidusia tersebut secara sepihak. penulis menggunakan pendekatan yuridis normatif, dan metode analisis deduktif yang didasarkan pada Kitab Undang-Undang Hukum Perdata<br />dan hukum jaminan fidusia yang berlaku di Indonesia, Undang-Undang No. 42 Tahun 1999 tentang Jaminan Fidusia. Kesimpulan pembahasan adalah Kepemilikan Objek Jaminan Fidusia dimiliki oleh debitur sesuai Undang-undang, penguasaan objek jaminan dikuasai debitur untuk manfaat ekonomis, prosedur eksekusi Objek Jaminan Fidusia dilakukan sesuai dengan Undang-Undang Jaminan Fidusia, alternatif secara mediasi dalam menyelesaikan sengketa yang terjadi. Perlu ada kejelasan dalam<br />penggunaan bahasa pada pembuatan suatu Undang-Undang, agar tidak saling bertentangan antar Pasal satu dengan Pasal yang lainnya. <br />Kata Kunci: Kepemilikan; Penguasaan; Objek Jaminan Fidusia; Debitur; Kreditur.</p>

scholarly journals Authorized Failure: How is Company Status?

2020 ◽  
Vol 2 (2) ◽  
Author(s):  
Fiany Alifia Lasnita ◽  
Muhamad Adji Rahardian Utama
Keyword(s):  
Limited Liability ◽  
Limited Liability Company ◽  
Legal Entity ◽  
Company Limited ◽  
Proof Of Ownership ◽  
Personal Wealth ◽  
A Company ◽  
A Share

The sense of the limited liability company is a legal entity to be able to run a business that has a capital consisting of a share, which its owners have lots of stock. Because it is composed of capital over shares that can be traded, and changes to the ownership of the company can be done without the need for a dissolution of a company. Limited liability company is a business entity and the magnitude of the capital company which are poured in a basic budget. The wealth of the company separate from the personal wealth of the owners of the company so that it can have its own treasures. Each person can have more than one stock which can be a proof of ownership of a company. The owner of the stock itself has a limited liability, i.e. as much as their shares. In the establishment of limited liability company also required permission and also some important documents that should be owned by a limited liability company to be its foundation.

scholarly journals ABUSE OF THE RIGHT TO INITIATE BANKRUPTCY PROCEEDINGS

2020 ◽  
pp. 259-264
Author(s):  
В. В. Дутка
Keyword(s):  
The Other ◽  
Legal Entity ◽  
Legal Norms ◽  
Other Hand ◽  
Bankruptcy Procedure ◽  
Good For ◽  
The Law ◽  
The Right ◽  
Ordinary Citizens ◽  
Legal Entities

The relevance of the article is that society’s attitude to the bankruptcy procedure is ambiguous: ordinary citizens who have never been involved in bankruptcy proceedings often perceive it as a certain negative phenomenon that should be avoided and avoided. On the other hand, for many debtors, bankruptcy becomes the “lifeline” with which they can repay their claims to creditors and start financial life “from scratch”. At the same time, it should be noted that many debtors and creditors use the bankruptcy procedure not for the purposes provided by the legislator in the relevant legal norms, but to satisfy only their own interests, to the detriment of the interests of other parties to the case. In this regard, the study of the abuse of the right to initiate bankruptcy proceedings becomes relevant. The article is devoted to the study of abuse of the right to initiate bankruptcy proceedings. The purpose of the article is to study the abuse of the right to initiate bankruptcy proceedings and highlight the author’s vision of this issue. According to the results of the study, the author concludes that the application to the debtor of bankruptcy procedures can be both good for the debtor and to the detriment of the interests of his creditors. Entities that could potentially abuse the right to initiate bankruptcy proceedings are: creditors of the debtor – a legal entity, as well as debtors – legal entities, individuals and individuals – entrepreneurs. The fact of exemption of debtors from the court fee for filing an application to initiate bankruptcy proceedings is not only an unjustified luxury for our state, but also only contributes to the abuse of the right to initiate bankruptcy proceedings by unscrupulous debtors. In order to reduce the number of cases of abuse of the right to initiate bankruptcy proceedings, the author justifies the need to complicate the conditions for opening bankruptcy proceedings, for example, by returning the conditions provided by the Law of Ukraine “On Restoration of Debtor’s Solvency or Recognition of Debtor’s Bankruptcy”.

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