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 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 Corporate Rights Of The Spouses: The Essence Of The Legal Regime

2019 ◽  
pp. 103-113
Author(s):  
N.D. Vintoniak
Keyword(s):  
Legal Regulation ◽  
The Other ◽  
Legal Regime ◽  
Share Capital ◽  
Corporate Rights ◽  
Marital Property ◽  
Shared Property ◽  
The Law ◽  
The Right ◽  
A Company

The article is devoted to the question of legal regulation of corporate rights of spouses. The issues of the legal regime of marital property as well as the essence of the legal regime of spouses’ corporate rights have been discussed. It has been justified that upon investing marital property into the authorized share capital of a corporation which one of the spouses has ownership rights in, the rights of rem become the law of obligation (vinculum iuris). The law of obligation, incurred between spouses upon investing part of the shared property into company’s authorized share capital to participate in the authorized share capital, is based on the claim rights. It is noted that since the moment the company is registered with the State Registrar of Companies, such a company becomes a participant of civil law relations. The predetermined contribution (consisting of marital property) invested into the authorized share capital of a corporation becomes the property of the mentioned legal entity and is not subject to shared property of the spouses. Therefore, marital property as joint owned property becomes sole and separate property of the corporation. It has been proved that taking into account the indivisibility and the personalized nature of corporate rights, corporate rights cannot be subject to shared property of the spouses. This statement is supported by the fact that having the other spouse as a shareholder will lead to the increase in the number of shareholders. It has been explained that the legal regime of spouses’ corporate rights is subject to special legal regime, namely transformation of property rights. For that 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.

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 PENCATATAN PERUBAHAN DIREKSI DI KEMENTERIAN TERKAIT SEBAGAI DASAR PENYELESAIAN SENGKETA KEWENANGAN DIREKSI

2020 ◽  
Vol 28 (3) ◽  
pp. 369
Author(s):  
Maleakhi W. Sitompul
Keyword(s):  
Human Rights ◽  
Board Of Directors ◽  
Limited Liability ◽  
Third Parties ◽  
Limited Liability Company ◽  
Legal Provisions ◽  
Starting Point ◽  
The Board Of Directors ◽  
The Right ◽  
A Company

Research on the recording of changes to directors in the relevant Ministry, namely the Ministry of Law and Human Rights, aims to examine whether the authorized Directors in a company are Directors registered at the Ministry of Law and Human Rights. In addition, it is also to examine whether the provisions of Law no. 40 of 2007 concerning Limited Liability Companies and / or the Company's Articles of Association is sufficient to resolve disputes of authority in the event of a dispute regarding the composition and number of directors in a company, which one has the right to act against other parties. Disputes regarding the composition and authority of the Board of Directors in a limited liability company often become disputes in court, even though Indonesia's positive legal provisions have provided clear and firm rules about who the Board of Directors can represent in and out of court. Based on research, it can be seen that the starting point is from the provisions in Law No. 40 of 2007 Articles 29 and 98, changes in the members of the board of directors can only be effective for third parties, as from the date the changes are recorded in the Company Register by the Minister of Law and Human Rights in accordance with Law No. 40 of 2007 Articles 29 and 98.

scholarly journals Legal mechanisms for the implementation of corporate rights by public law entities

2020 ◽  
pp. 309-313
Author(s):  
Konstantin Leonov
Keyword(s):  
Local Governments ◽  
Supervisory Board ◽  
Legal Regulation ◽  
Public Law ◽  
The State ◽  
Corporate Rights ◽  
A Value ◽  
Communal Property ◽  
The Right ◽  
Authorized Capital

The state is the largest owner of corporate rights. Entities operating on the basis of state ownership only, as well as entities whosestate share in the authorized capital exceeds fifty percent or is a value that provides the state with the right to decisive influence on economicactivity are recognized as economic entities of the public sector of the economythese subjects. Instead, the subjects of economicsector of the economy are entities that operate on the basis of communal property only, as well as entities in the authorized capital ofwhich the share of communal property exceeds fifty percent or is a value that provides local governments with the right to decide impacton the economic activities of these entities.There are two main features of corporate rights of the state in the subjects of public law: 1) management of such corporate rightsis carried out in the manner prescribed by a separate law; 2) the purpose of managing the corporate rights of the state is to meet stateand public needs.In 2016, Ukraine underwent a reform that resulted in a significant strengthening of the legal regulation of the activities of supervisoryboards in companies in the authorized capital of which more than 50 percent of shares (stakes) belong to the state. In particular,an important novelty was that the majority of members of the supervisory board in such companies must be independent members ofthe supervisory board. Thus, in relation to the corporate rights of the state, the legislator has established a number of special restrictions.In particular, the corporate rights of the state are prohibited to transfer to companies for the formation of their authorized capital, exceptfor the transfer to the authorized capital of state joint stock companies and state holding companies. This restriction is aimed at preventingcovert privatization or withdrawal of corporate rights from state ownership.Significant strengthening of legal regulation of supervisory boards in companies in the authorized capital of which more than50 percent of shares (stakes) belong to the state, resulted in the introduction of the provision that the majority of members of the supervisoryboard in such companies must be independent members of the supervisory board. An independent member of the SupervisoryBoard has equal rights and responsibilities with other members and independently decides on voting on all issues on the agenda of theSupervisory Board meeting.

scholarly journals THE DOCTRINE OF “REMOVING THE CORPORATE VEIL”: A COMPARATIVE LEGAL ANALYSIS OF THE LEGISLATION AND JUDICIAL PRACTICE OF RUSSIA AND SOME ASIAN COUNTRIES

2021 ◽  
pp. 50-55
Author(s):  
T.A. Filippova ◽  
M.V. Litskas
Keyword(s):  
Legal Status ◽  
Limited Liability ◽  
People’S Republic Of China ◽  
Legal Analysis ◽  
People's Republic Of China ◽  
Republic Of China ◽  
Judicial Practice ◽  
Joint And Several Liability ◽  
Liability Structure ◽  
A Company

In this article, the authors aimed to give a comparative legal analysis of the doctrine of “removing thecorporate veil” in the context of legislation and judicial practice of the Russian Federation and some Asiancountries (People’s Republic of China, Indian Republic). In the process of studying this problem, it wasconcluded that there are similar norms in foreign legislation with Russian ones on the prohibition of usingthe legal status of a company for the purpose of abuse of law, on the prohibition of affiliation, as well as adiscussion rule on the full joint and several liability of the sole founder of a limited liability company. Inaddition, the conclusion is made about the increasing use of this doctrine in the country of an atypical legalfamily for it — the People’s Republic of China. Based on the materials of the judicial practice of the Republicof India, an attempt has been made to classify this doctrine according to the criterion of the purpose of abuse:in the case of a limited approach, the responsibility of the controlling persons is assigned in the case of theinitially fictitious purpose of creating a legal entity, and in the case of an unlimited approach — for any unfairaction using the limited liability structure of the founder (participant) of the company for its debts.

scholarly journals PROBLEMS OF INHERITANCE OF SHARE IN THE AUTHORIZED CAPITAL OF A LIMITED LIABILITY COMPANY

2020 ◽  
Vol 2 (27(54)) ◽  
pp. 47-50
Author(s):  
D.V. Ivleva ◽  
A.I. Karipova ◽  
M.A. Dusanbekova
Keyword(s):  
Civil Law ◽  
Limited Liability ◽  
Limited Liability Company ◽  
Corporate Rights ◽  
To Receive ◽  
Authorized Capital

In this paper, we present the results of a study of the most actual problems in civil law related to the inheritance of corporate rights. It seems possible, based on the analysis of forensic-arbitration practice, to receive answers to some of the most pressing problems in the pursuit of the share of the charter capital of a limited liability company

scholarly journals EXERCISING SOME CORPORATE RIGHTS BY HEIRS AND THE SPOUSE OF A MEMBER OF A LIMITED LIABILITY COMPANY

2020 ◽  
Vol 3 ◽  
pp. 36-39
Author(s):  
Inna E. Rudik ◽  
Keyword(s):  
Limited Liability ◽  
Third Parties ◽  
Limited Liability Company ◽  
Corporate Rights ◽  
Judicial Practice

Currently in judicial practice there are different approaches to understanding the scope of rights of the heirs and spouse of a participant in a limited liability company in relation to this Corporation. It makes difficult in some cases to protect the rights of these individuals who are interested in protecting the company’s assets from illegal encroachments by other participants, management, or third parties. The author substantiates the position about granting to this persons rights to invalidate decisions of the meeting and transactions of the corporation, transactions of other participants of the corporation. In this connection, were set the tasks: to determine the essence of the term “corporate share”; to develop criteria for determining the situations when the aforesaid rights should be recognized for the heirs and the spouse.

scholarly journals Participation in a Limited Liability Company as an Element of Marital Property

2020 ◽  
Vol 7 (1) ◽  
pp. 22-33
Author(s):  
Cezary Małozięć
Keyword(s):  
Limited Liability ◽  
Limited Liability Company ◽  
Marital Property ◽  
The Subject ◽  
A Company ◽  
Joint Property

AbstractThe subject of this study is the characterization of the rights and possible obligations of a spouse of a partner of a limited liability company. Participation in a company with limited liability belonging to one of the spouses sometimes enters into joint property, and in the event of the cessation of this communion, it is divided. The company’s share belongs to the inheritance property.

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.

Sign in / Sign up

Export Citation Format

Share Document