scholarly journals Corporate Rights as an Object of Civil Turnover

2020 ◽  
pp. 67-76
Author(s):  
Liliana SISHCHUK
Keyword(s):  
Civil Rights ◽  
Property Rights ◽  
Limited Liability ◽  
General Meeting ◽  
Legal Form ◽  
Corporate Rights ◽  
Legal Nature ◽  
Definition Of ◽  
A Company ◽  
Authorized Capital

Sustained scientific views on the legal nature of corporate rights and their turnover have been formed in the research of famous Ukrainian scientists, in connection with which several approaches to understanding corporate rights as an object of civil turnover have been identified. It is determined that the share in the authorized capital can be considered either through the legal category of «disembodied property» or «property rights», depending on the application of a scientific approach to these concepts. It is argued that the legislation on the alienation of shares in the limited liability company, although indirectly, but determines the link between the transfer of shares in the share capital and the rights arising from it, until the conclusion of the contract on alienation of property. After all, making changes to the charter on the composition of participants and the size of their shares on the basis of the decision of the general meeting of the company is not an obligation but a right of members of the company. It is substantiated that the share in the authorized capital should be determined not through the legal category of «property law», but through the concept of «corporate rights», which are filled with property content and pass as a single negotiable object from a participant to others. In this regard, the definition of «corporate rights» should be enshrined at the level of the Civil Code of Ukraine. The concept of «corporate rights» must include the following characteristics: organizational and property nature; the possibility of transfer of corporate rights from a company participant to other persons; value character; the legal form of fixing corporate rights to determine the share in the authorized (composed) capital. This will avoid gaps that need to be filled, based on the needs of a market economy, attracting foreign investment, improving the company's financial performance and more. In addition, it necessitates the introduction of the concept of corporate rights as an independent object of civil rights that can circulate freely in the market and be competitive and attractive to acquire, given the business reputation and existence of the company. Keywords: corporate rights, share in the authorized capital, right of participation, property rights, object of civil rights, object of civil turnover.

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 Separate Issues Regarding Corporate Rights of the Spouses

2020 ◽  
pp. 31-37
Author(s):  
Nataliia VINTONYAK
Keyword(s):  
Limited Liability ◽  
Private Company ◽  
Corporate Rights ◽  
Judicial Practice ◽  
The Family ◽  
Corporate Entity ◽  
Marital Property ◽  
The Right ◽  
A Company ◽  
Authorized Capital

Even though theoretical and practical problems that arise due to acquiring corporate rights by one of the spouses have been widely investigated in the scientific literature, certain aspects regarding corporate rights of the spouses remain relevant and require more in-depth research. It is due to the fact that quite often the spouses invest their marital property in the authorized capital of a corporate entity (for example, a Limited Liability Company (LLC) or a Private Company). For one of the spouses who is a company shareholder, the right to property, which is being contributed to the authorized share capital of the corporation, becomes corporate right. For the other spouse, the mentioned above rights become claim rights, which enable them to later obtain certain sums of money, including compensation for marital property objects invested in the authorized capital of a corporate entity. In this article the author analyzes the judicial practice that regards awarding compensation to one of the spouses in case marital property was invested in the authorized capital of a corporate entity. It has been concluded that judges employ several approaches in the course of setting up the compensation to one of the spouses. Namely, that of the spouses who is not a member of a corporate entity has the right to claim the following: 1) to be compensated for the share of marital property that was invested in the authorized capital of a corporate entity; 2) to be compensated for the share in authorized capital belonging to the spouse who is a member of a corporate entity. The spouse who is not a member of a corporate entity is entitled to compensation only in case marital property was invested in the authorized capital of the corporate entity without their consent and against the interests of the family. The aforementioned will be the key criterion while deciding whether the spouse is entitled to compensation for the marital property invested in the authorized capital of a corporate entity.

scholarly journals METHODICAL PROVISIONS FOR CREATING AN OUTSOURCING COMPANY (WITH CONSIDERING ORGANIZATIONAL AND LEGAL FORMS OF ENTERPRISES)

2019 ◽  
Vol 21 (2(71)) ◽  
pp. 121-129
Author(s):  
A. SAINCHUK
Keyword(s):  
Limited Liability ◽  
Institutional Support ◽  
General Meeting ◽  
The State ◽  
Joint Stock Company ◽  
Stock Company ◽  
Legal Form ◽  
Legal Forms ◽  
Definition Of ◽  
State Registration

Topicality. The topicality of the problem of creating an outsourcing company does not raise doubts, because the number of outsourcing companies is constantly increasing which provide outsourcing services. During the crisis in Ukraine, there is to need in next positions: reducing the cost of the enterprise, maintaining a certain market segment, maintaining competitiveness in the market, maintaining a certain quality of services (works, goods). If the company use outsourcing at the enterprises, it will be possible to hold all these positions, during the crisis management period.Aim and tasks. The aim of the article is to develop methodological provisions for creating an outsourcing company within the framework of the existing institutional support in Ukraine. Some stages of creating an outsourcing company can be given on the example of law firm in the form of an attorney company, an attorney bureau or a lawyer of individual (an entrepreneur and a self-employed person).Research results. The methodological provisions were developed for creating an outsourcing company. In the article was using the example of practice of law, was taking into account the peculiarities of state registration of various organizational and legal forms of management and the tax system. Also, an algorithm has been created for the election of a simplified taxation system if to realise the case of a project to create an outsourcing company.Conclusion. Methodical provisions for creating an outsourcing company consist of sixteen stages. The author provided recommendations for making changes to the classifier of organizational and legal forms of enterprenier. It was proposed to add an outsourcing company as a new organizational and legal form of enterprenier in order to improve the existing system of national statistical classifications. The changes will provide the State Statistics Service of Ukraine the opportunity to raise to a qualitatively new level the statistical analysis of outsourcing companies in Ukraine.There is no clear phased methodology or instructions for creating a new outsourcing enterprise in Ukraine. The author has developed a methodology for creating an outsourcing company within the institutional support in Ukraine.The article examines in details the situation - the use of outsourcing when creating an outsourcing company. The article also gradually developed an algorithm for creating an outsourcing enterprise. Only five stages were investigated for creating outsourcing company in this article.The author has distinguished the sixteen stages of creating an outsourcing company.Stage 1 - the definition of the organizational and legal form of entrepreneur. The author proposed a new legal form - an outsourcing company. Therefore, it is necessary to change the existing classifier. In work the algorithm of definition of the organizational and legal form of entrepreneur on an example of lawyer activity is developed.Stage 2 - determination of the name of the enterprise. Practical recommendations are given for determining the name of an outsourcing company.Stage 3 - determining the number of participants (founders) of the company. Depending on the number of founders, it is necessary to choose a certain organizational and legal form of entrepreneur. So, for example, if a lawyer carries out practice of law individually without the involvement of employees and other founders, then it is necessary to carry out activities in the form of an individual, an entrepreneur or a self-employed person. Then create a company is not required.Stage 4 - the formation of the charter capital of an outsourcing company. The author has noticed that the minimum charter capital is set for a joint stock company, but not for a limited liability company. This stage is status ant, as the participants are responsible within their share in the charter capital.Stage 5 - drawing up and signing the charter and the protocol of the general meeting of the participants (founders) of the company on the creation of an outsourcing company. There are two types of charters in the article: model and own charter of the company. The model charter does not even need to be submitted to the state registrar. The article contains the main sections of the charter of an outsourcing company.The next article will consist of from sixth to sixteenth stages.

scholarly journals An Object of Vindication: Problems of Law Enforcement

2021 ◽  
Vol 16 (4) ◽  
pp. 76-93
Author(s):  
A. A. Guseva
Keyword(s):  
Law Enforcement ◽  
Civil Rights ◽  
Russian Federation ◽  
Limited Liability ◽  
Civil Code ◽  
Judicial Practice ◽  
Legal Nature ◽  
The Russian Federation ◽  
Theory Of Law ◽  
Authorized Capital

The paper is devoted to examining objects of civil rights in order to establish whether it is possible to subject them to vindication. The paper analyzes such objects as things, “incorporeal things”, non-cash funds, uncertified securities, intellectual property, shares in the authorized capital of limited liability companies, digital rights, cryptocurrency, etc. The author determines the legal nature of the objects under consideration with due regard to the theory of law and legal stances of courts. As a consequence, the author substantiates the relativity of the possibility or impossibility of their vindication under Art. 301 of the Civil Code of the Russian Federation. Also, the author examines the issues of existence of special mechanisms for protection of rights holders of uncertified securities and shares in the authorized capital of limited liability companies to find the interrelation between them and vindication. The paper provides the analysis of judicial practice on the issue of claiming civil law objects from someone else’s illegal possession. Conclusions are drawn as to which objects can be subject to vindication under Art. 301 of the Civil Code of the Russian Federation, which objects can be claimed by analogy of the law and which objects cannot be subjected to vindication.

scholarly journals Concept and Content of Corporate Rights as an Object of Civil Law Regulations

2020 ◽  
pp. 182-189
Author(s):  
Kostiantyn LEONOV
Keyword(s):  
Civil Rights ◽  
Private Property ◽  
Civil Law ◽  
Integrated Approach ◽  
Business Organization ◽  
Business Law ◽  
Foreign Investors ◽  
Corporate Rights ◽  
Legal Nature ◽  
Definition Of

During the years of independence, entrepreneurship in Ukraine has undergone a significant evolution. The opening of domestic markets and stable economic growth contributed to the emergence of a significant number of foreign investors who became participants (shareholders) of domestic companies. Along with foreign investors in Ukraine, European approaches to business structuring, building a model of relations between partners, standards of corporate governance, ethics, etc. began to be applied. The development of corporate law was significantly influenced by Ukraine's recognition of private property and guaranteeing equality of all forms of ownership. In view of the above, the issue of essential content of corporate rights, in particular their role in civil law relations, becomes especially important. Assigning corporate rights to a certain type of objects of civil law and distinguishing the features of their turnover requires, first of all, determining the legal nature of corporate rights, identifying the characteristics and formulating their definition. The most common views on the legal nature of corporate relations are the approaches of civil doctrine, business law, as well as the so-called integrated approach. Thus, the definition of corporate relations is inextricably linked with the definition of the range of legal entities for which we can generally speak of the existence of corporate rights. In legal science, different views are expressed on this issue. Some scholars note that corporate rights can have only members of corporations, and the corporations, in turn, it should be considered only those companies in which the share capital is divided into shares, participants are entitled to part of the company's profits and to participate in its management. Taking into account the specific legal nature of corporate rights, the latter should be considered a special and independent object of civil law, characterized by its own, not inherent in any other object features. Ensuring proper civil circulation of such objects requires amendments to the current legislation, first of all, the recognition of them as the objects of civil rights. Undoubtedly, such changes should be comprehensive and aimed at improving the civil circulation of corporate rights between the parties to civil relations. Based on the above, it is proposed to introduce a legal definition of corporate rights, setting it out as follows: corporate rights are the object of civil law, which is a set of rights of a person whose share is determined in the authorized capital (property) of a business organization, a person in the management of a business organization, receiving a certain share of profits (dividends) of the organization and assets in the event of liquidation of the latter in accordance with the law, as well as other powers provided by law and statutory documents.

The Decision of the General Meeting of Members in a Non-Public Business Company: Concept and Types

2020 ◽  
Vol 2 (2) ◽  
pp. 148-169
Author(s):  
V. K. Andreev ◽  
◽  
V. A. Kondratiev ◽  
Keyword(s):  
Civil Rights ◽  
General Meeting ◽  
Business Community ◽  
Positive Law ◽  
State Register ◽  
Business Results ◽  
Starting Point ◽  
Business Entities ◽  
State Registration ◽  
A Company

Introduction. The article examines the features of holding general meetings of members in non-public business companies, in particular questions about the place of decisions of general meeting in the system of legal facts, their relationship with the deal and the contract. The ability to use digital technology in decision making. Theoretical Basis. Methods. The article is based on an analysis of the norms of positive law, primarily the Civil Code and the Laws on Company Business. Results. The authors conclude that the starting point in the activities of a non-public business company is the acquisition and exercise of their civil rights and the fulfilment of duties, and not a legal relationship that includes civil rights and civil duties as a necessary element. In addition, the decision of a general meeting, despite having many features in common, is not a deal. The decision of a general meeting, acting as an act of individual regulation, is in fact an act of a legal entity, and not a decision of the business community. The authors proposed a classification of decisions of meetings of business entities, depending on the method of their adoption, the possibilities being: the unanimously adoption by all participants of the company; decisions of the meeting of members of a company being adopted by a majority, or a qualified majority, of votes; decisions of the meeting of members of a company to change its charter, reorganization and liquidation of the company, requiring state registration in the unified state register of legal entities. The decision of a general meeting can be made either in person or in absentia, or a combination of the two. The decision of the meeting adopted in absentia will be valid, despite the absence of any special document establishing the procedure for its adoption. Discussion and Conclusion. Decisions of general meetings are actions of participants in a business company concerning legal consequences, including civil rights and obligations, in cases specified by law, and binding on all persons entitled to participate in the meeting, as well as other persons, whether required by law or having some other involvement.

PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN UKRAINE: MODERN REALITIES AND PROSPECTS

2017 ◽  
Author(s):  
Yuliia Tovstohan ◽  
◽  
Serhii Ivanov ◽  
Keyword(s):  
Intellectual Property ◽  
Civil Rights ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Current System ◽  
General Procedure ◽  
Legal Protection ◽  
General Concept ◽  
Scientific Article ◽  
Definition Of

The scientific article examines the modern mechanism of protection of intellectual property rights in Ukraine. Attention is paid to the historically first using of the concept of intellectual property rights in international law and the shortcomings of this definition. The legal definition of this concept contained in the Civil Code of Ukraine is analyzed. It is concluded that the legislative enshrinement of intellectual property rights is evidence of its recognition by the state, and such a right applies to special objects, the list of which is enshrined at both national and international levels. The question of the relationship between the concepts of "protection" and "defense" of civil rights is covered. The main groups of approaches of scientists to the solution of this problem are indicated. An approach that defines "protection" as a general concept for "defense" is supported, where "protection" is a broader concept that covers the term "defense". Emphasis is placed on the fact that although these legal categories are related, they cannot be identified. The main features that distinguish these concepts are listed, and the features of "defense" as an independent concept are highlighted. There are given examples of definition of the concept of protection of intellectual property rights given by scientists. Based on these definitions, the main features of this term are summarized. The issue of forms of protection (jurisdictional and non-jurisdictional) has been studied. The general and special order within the jurisdictional form is distinguished. It is noted about the peculiarities of self-defense as a non-jurisdictional form. The focus is on the judicial (general) procedure for protection of intellectual property rights as the main one. Possible ways of protection (civil, administrative, criminal, and criminal) are analyzed. The problems and shortcomings of the current system of legal protection and protection of intellectual property rights in Ukraine are analyzed. Both reports from international partners and research by Ukrainian scientists were used. The authors outline ways to solve existing problems. The conclusions of the study are formulated and the possibility of further scientific research in this area is indicated.

scholarly journals Impact of Social Responsibility on the Quality of Company Governance

2019 ◽  
Vol 65 (2) ◽  
pp. 21-29
Author(s):  
Ana Jurić ◽  
Aleksandra Zupanc ◽  
Tjaša Štrukelj
Keyword(s):  
Social Responsibility ◽  
Limited Liability ◽  
Added Value ◽  
Socially Responsible ◽  
Company Governance ◽  
Research Findings ◽  
Definition Of ◽  
A Company

AbstractThe central aim of the article is company governance, i.e., researching governance of a company that does not want to be only financially successful but also direct its governance toward socially responsible governance. The article begins with the definition of “theoretical backgrounds,” in which social responsibility in regard to company governance improvement in quality is explained. The article then focuses on the measurement of the quality of company governance; in the research, the selected tool chosen to evaluate the governance of the chosen company regarding social responsibility, i.e., SEECGAN index, is used. Further, the case study of a Slovenian public limited liability company is used. One of the important research findings is the recognition that the addressed part of the SEECGAN index needs to be innovated and further developed. Additional questions for the completion of the index used presents the added value of the article. This article has two limitations: 1) it focuses only on the tool chosen to evaluate the governance of the chosen company regarding social responsibility; 2) the case study is based on publicly accessible data.

scholarly journals Legal status of cryptocurrency in Asian countries

2021 ◽  
Vol 66 ◽  
pp. 96-102
Author(s):  
V.M. Logoida
Keyword(s):  
Civil Rights ◽  
Government Regulation ◽  
Legal Status ◽  
Legal Regulation ◽  
Intangible Asset ◽  
Asian Countries ◽  
Legal Nature ◽  
Liberal Approach ◽  
Definition Of ◽  
Almost All

The article is devoted to the study of the experience of legal regulation of the legal status of cryptocurrencies and transactions with them in Asian countries (except for the People's Republic of China and Asian countries - members of the Commonwealth of Independent States, as the author examined them in separate publications). In the article the author, based on the study of regulations, administrative and judicial practice of all major countries in this part of the world, emphasizes the divergent trends in cryptocurrency transactions regulation in the region, when some countries move from a liberal approach to the use of cryptocurrencies to their total ban and vice versa. It is noted that almost all countries in the region give a legal assessment of the payment function of cryptocurrencies, using regulatory or prohibitive approaches, depending on the chosen policy, which indirectly confirms their understanding of the legal nature of cryptocurrencies primarily as a means of payment. At the same time, these countries not only categorically distinguish cryptocurrencies from fiat money issued by central banks, but also mostly avoid the official definition of cryptocurrency as private (decentralized) cash, preferring to qualify them as an intangible asset, virtual asset, digital asset, financial value and even a good or service, which is currently a kind of compromise between political expediency and economic realities. The author also notes that the Asian region is characterized by very active attempts to resolve the legal status of cryptocurrencies at the legislative level, and not just administrative or judicial response to the actual legal relationship, although the progress of different countries in this matter is different. As a result, the author concludes that in the Asian countries considered in the article, there is no same view on the legal nature of cryptocurrency, its qualification as an object of civil rights, and ways to regulate transactions with it (libertarian approach, positive-cryptocurrency approach but with detailed government regulation and control or a completely restrictive policy in relation to the cryptocurrency market).

scholarly journals Concepts And Features Of The Corporate Contract

2019 ◽  
pp. 121-134
Author(s):  
R.S. Lukashov
Keyword(s):  
Civil Law ◽  
Limited Liability ◽  
Limited Liability Company ◽  
Key Factors ◽  
Legal Entity ◽  
Legal Nature ◽  
The Subject ◽  
Definition Of ◽  
Contractual Structures

The article is devoted to the theoretical and legal analyses of the place of a corporate agreement in the system of civil contracts. The article identifies the key factors that justify a separate place of the corporate agreement among existing contractual structures of civil law. The article deals with scientific views on the concept and legal nature of the corporate agreement, outlines the subject of the corporate agreement, which is concluded between the participants of the legal entity of corporate type, as well as analyzed the latest legislation on the definition of the concept, subject and content of the corporate agreement, which is concluded between the members of the limited liability company.  

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