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.

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 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 Features Of The Organization And Holding Of The General Meeting Of Participants Of Limited And Additional Liability Companies

2021 ◽  
pp. 55-64
Author(s):  
V.Ye. Sikora
Keyword(s):  
General Meeting ◽  
Legal Regulation ◽  
Legal Analysis ◽  
Current State ◽  
Legal Nature ◽  
The Right ◽  
Relationship Of ◽  
The Relationship ◽  
A Company ◽  
Broad Understanding

The article establishes the current state of legal regulation of corporate relations in the context of the organization and holding of the general meeting of participants of limited and additional liability companies. The legal nature and content of the right to participate in the management of a limited/additional liability company through the prism of comparative legal analysis of the works of modern scientists are studied. Based on the above, it is installed the relationship of a broad understanding of the concept of company management and its components, including those related to the functioning of the general meeting of participants. It is established that the general meeting of participants of a limited/additional liability company plays the most important role in the management of the company. The essence of the right to participate in the general meeting of participants of a limited/additional liability company is clarified and its content is determined. Emphasis is placed on the direct dependence of the right of actual participation of a participant of a limited/additional liability company in the general meeting on the latter’s awareness of the time and place of their holding. The peculiarities of the organization and holding of the general meeting of the participants of the limited/additional liability company are analyzed. The procedure for forming the agenda of the general meeting of participants of a limited/additional liability company is determined. The procedure for notifying the convening and venue of the general meeting is described. The peculiarities of holding a general meeting of participants by a company with one participant are determined. Based on the study, conclusions were made about the overall effectiveness of the mechanisms provided by current legislation, which establish the procedure for organizing and conducting the general meeting of participants of a limited/additional liability company. At the same time, attention is paid to the need to finalize certain provisions of the special Law, taking into account the needs and problems that arise in practice, and in order to consolidate the relevant developments at the legislative and local levels (in the company’s charter).

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 Implementing a Person's Right to Privacy When Using Their Biometric Material

2019 ◽  
Vol 12 (5) ◽  
pp. 38
Author(s):  
Alsu Machmutovna Khurmatullina ◽  
Evgeniy Batyrovich Sultanov ◽  
Rimma Rashitovna Amirova ◽  
Olga Mikhailovna Smirnova
Keyword(s):  
Russian Federation ◽  
Legal Status ◽  
Personal Data ◽  
Legal Regulation ◽  
Structural Method ◽  
Right To Privacy ◽  
Scientific Methods ◽  
The Russian Federation ◽  
The Law ◽  
The Right

The significance of regulating people's personal data in the context of implementing each person's right to privacy of personal life and family life becomes especially crucial for the purposes of ensuring biogenetical safety of people in Russia. This requires raising the issue of implementing the right to privacy in the context of the biotechnological revolution. The special legal significance of this issue in the Russian Federation is connected with the passing of such laws as the Law "On personal data" and the Law "On state genome registration in the Russian Federation". This article analyzes the legal status of biometric personal data. We note the need for legal regulation of the protection of biometric information as confidential data. The results of this research are based on using the following methods: universal dialectical method of scientific cognition, as well as general scientific methods based on it (description, analysis, synthesis, induction, deduction, comparison, analogy, generalization) and specific scientific methods (comparative law method, systematic structural method and formal law method).

scholarly journals Legal regulation of human anatomical materials transplantation of people

2020 ◽  
Vol 4 (4) ◽  
pp. 213-218
Author(s):  
Nataliya Yuzikova
Keyword(s):  
Health Care ◽  
Legal Status ◽  
Ethical Issues ◽  
Social Issues ◽  
Legal Regulation ◽  
Two Dimensions ◽  
Potential Health ◽  
Legal Literacy ◽  
The Law ◽  
The Right

The article considers the legal basis for transplantation of human anatomical materials. The range of legal, ethical, social issues is outlined along with different approaches to legal regulation in the field of transplantology. It has been proved that the legal regulation of transplantation of anatomical materials to a person provides normative consolidation of the legal status of the recipient, donor, doctor and other subjects of this process. The main factors that determine the legal regulation of transplantation in Ukraine are identified, which are divided into two groups: previously formed and emerged recently. The stages of legal regulation of public administration in the field of transplantation are analyzed. The legal support of transplantation of human anatomical materials in Ukraine, which is carried out in accordance with the "encouraging voluntary approach". This characterizes the "presumption of disagree-ment." Ethical issues related to donation and awareness of potential health risks are disclosed. It is estab-lished that the right to dispose of anatomical materials belongs to the holder of this right such may be delegated or after death decided by a certain group of persons in accordance with the law. Within the framework of ensuring the formation and implementation of state policy in the field of health care, the Law of Ukraine "On the use of transplantation of human anatomical materials" was analyzed. Problems that exist in the field of health care in Ukraine, it is advisable to solve in two dimensions: legal and moral and ethical. The legal dimension provides for the adoption of relevant legal acts, first of all, the codified normative legal act - the Medical Code of Ukraine, the Law of Ukraine "On Voluntary Medical Insurance". When addressing the moral and ethical issues of transplantation, it is necessary to create an effective mechanism to protect the rights of donors, recipients and medical staff. Also, it is important to focus on improving the legal literacy of society, through information and scientific support in this area.

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 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 Legal Regulation Prospects in the Context of the Hypothesis of Technology Development of Transhumanism

2019 ◽  
Vol 1 (85) ◽  
pp. 115-127
Author(s):  
М. В. Карчевський
Keyword(s):  
Legal Status ◽  
Technology Development ◽  
Relevant Information ◽  
Legal Regulation ◽  
Significant Activity ◽  
Use Of Technology ◽  
The Law ◽  
Informational Environment ◽  
Effective Development ◽  
The Right

Dangerous forecasts of technology development require an analysis of the prospects for legal regulation in this area. With the help of the method "task-method-provision", legal regulation perspective tasks are formulated in the context of the hypothesis of the technology transhumanism development.The development of technologies cannot be banned. Despite the risk of danger, the absolute prohibition of the transhumanism development technologies is impossible. The law should provide incentives for the socially effective use of technology and minimization of the risks of technology abuse. A separate task of legal regulation should be limiting the destructive effects of global corporations.Legal regulation should ensure the maximum diversification of technological decisions. Technology should not be limited, but on the contrary become as diverse as possible. If the law is to create conditions / requirements to create as many different technology solutions as possible, this will effectively prevent the development of negative impacts. For example, well-known negative scenarios for the implantation epidemic (inflicting harm to mankind due to a violation of the work of all implanted devices) or "black mucus" (destroying planetary biomass by nanobots implementing the program of self-reproduction) will simply be impossible, due to the guaranteed availability of alternative technical solutions.The solution of the problems of the implementation of morphological and reproductive freedom and the legal status of a physical person whose ability is reinforced with the help of transhumanism technologies will be required. Hypothetically, these problems do not seem complicated. The first is solved by finding a balance between the realization of the right of a particular person and the need to ensure overall security, stability and development. The second one is realized by adding certain aggravating or mitigating circumstances, restrictions on the occupation of certain positions, accomplishment of work, etc.So far as monitoring the development and use of certain technologies will require an effective monitoring system, the analysis of legally relevant information will be much more complex and will require fundamentally new professional competencies. The traditional division of tasks between lawyers and specialists will be extremely ineffective. There will be convergence of legal and technical sciences. The solution of the question of the definition and development of new types of legal professions will be required. In this case, the wording of new laws should be made technologically neutral. It is this approach that will ensure the necessary stability of legal regulation in the conditions of rapid changes in technological reality.The significance of the global problem becomes a matter of legal safeguards for the effective development of the informational environment. Huge amounts of information accumulated by humanity in the process of life will obviously require new legal mechanisms. Existing rights to ownership of information and intellectual property rights are likely to be supplemented by new institutions resembling the right to use subsoil and the right to archaeological activity. The set of these issues should be considered as the establishment of a coordinate system for the future legal assessment of both artificial intelligence and technologically advanced people, since it is precisely in this area that the overwhelming part of their socially significant activity will take place.

Sign in / Sign up

Export Citation Format

Share Document