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.

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 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.

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 The Moment of Transfer of a Share in a Share Capital of a Limited Liability Company in the Order of Hereditary Succession

2012 ◽  
pp. 297-301
Author(s):  
A. V. Remizova
Keyword(s):  
Limited Liability ◽  
Limited Liability Company ◽  
Share Capital ◽  
Established Procedure ◽  
The Moment ◽  
A Share

This article analyzes established procedure of inheritance of a share in a share capital of a limited liability company, detection of the problem differences between the moment of transfer of a share in a share capital of a limited liability company to the heirs of a deceased participant from the moment of transfer of rights and duties оf a participant to the heirs.

scholarly journals Glosa do wyroku Sądu Najwyższego z dnia 28 lutego 2017 r. (I CSK 127/16, LEX nr 2297403)

2019 ◽  
Vol 28 (2) ◽  
pp. 137 ◽  
Author(s):  
Małgorzata Dumkiewicz
Keyword(s):  
Real Estate ◽  
Supreme Court ◽  
Limited Liability ◽  
Time Limit ◽  
Legal Issue ◽  
Limited Liability Company ◽  
Share Capital ◽  
The Supreme Court ◽  
Estate Property

<p>The commented judgement concerns significant legal issue, namely the consequences of ineffective lapse of a six-month time limit for notification of share capital increase in a limited liability company, in respect of in-kind contributions in the form of real estate (property), that have been made before that time limit. Article 256 § 3 of the Code of Commercial Companies refers to respective application of Article 169 of the Code of Commercial Companies in respect to the registration of an amendment to the company deed. In the commented judgement, the Supreme Court explained how the above-mentioned reference should be interpreted in the case of the increase of share capital in a limited liability company for an in-kind contributions in the form of the share in the ownership of a property.</p>

Effectiveness of clauses restricting equity transfer in articles of association of limited liability companies using fuzzy AHP: A data analysis of related cases in China from 2010 to 20191

2021 ◽  
pp. 1-12
Author(s):  
Peng Chen ◽  
Yingzhi Nie
Keyword(s):  
Fuzzy Ahp ◽  
Limited Liability ◽  
Limited Liability Company ◽  
Analytic Hierarchy ◽  
Legal Norms ◽  
The Past ◽  
Analytic Hierarchical Process ◽  
Closed Characteristics ◽  
A Company ◽  
External Equity

Based on the company cases published in China over the past ten years, both theoretical methods and Artificial intelligence technologies were applied to analysis cases data on the effectiveness of clauses restricting equity transfer in articles of association of limited liability companies (LLCs). With its unique characters based on shareholders and strong vitality, limited liability company (LLC), as the “evergreen tree” among the market players, is a company form adopted by many investors. Nevertheless, due to its prominent closed characteristics, equity transfer has become a bottleneck for the development of LLCs. According to this paper, it is necessary to distinguish between the effectiveness of clauses restricting internal and external equity transfer in articles of association of LLCs. Fuzzy Analytic Hierarchical Process (AHP) is utilized for which involves process of analytic hierarchy modelled with utilizing theory of fuzzy logic. Moreover, instead of being confined to the existing legal norms, the judgment standard of clauses restricting equity transfer in articles of association of LLCs should be comprehensively measured by the golden rules, i.e. “fairness”, “autonomy” and “operability”.

Ustawowe i umowne prawo pierwokupu przysługujące dzierżawcy nieruchomości rolnych – wybrane problemy prawne

2021 ◽  
pp. 375-394
Author(s):  
Aneta Suchoń
Keyword(s):  
Real Estate ◽  
Agricultural Land ◽  
Third Party ◽  
Agricultural System ◽  
Business Activity ◽  
Legal Regulations ◽  
Legal Problems ◽  
Agricultural Support ◽  
The Right ◽  
In The Beginning

The article aimed to determine whether the legal regulations in the field of the statutory and contractual pre-emption right of a tenant of agricultural real estate provide adequate protection to dependent owners in terms of the possibility of acquiring such land and conducting business activity on it. Secondly, the paper indicated legal problems related to statutory and contractual pre-emption right of a tenant of agricultural real estate and suggested how those problems could be handled. In the beginning, the considerations focused on the statutory pre-emption right for agricultural real estate. It referred to a subjective and objective scope of the right in question, and an attempt was made to determine whether the leased land can be sold to a third party due to the obligation to run a farm in person (only the sale contract allows for exercising the pre-emptive right). Failure to perform the indicated obligations might result in the case being referred to the court by the National Center for Agricultural Support. The second part of the article discussed the contractual pre-emption right for agricultural real estate. The author pointed out the possible concurrence of the statutory pre-emption right of the National Support Centre for Agriculture and the contractual pre-emption right of the lessee. The paper also referred to the problems related to implementing this right due to the requirements that the buyer must meet. In summary, the author, among other things, pointed out the fact that the importance of the statutory pre-emption right of the tenant of agricultural real estate had been diminishing over the years. The position of the lessee of agricultural land in terms of purchasing agricultural land is weakening. Currently, in practice, tenants may rarely use the pre-emption right. The author proposed the introduction of a provision to the Act on Shaping the Agricultural System on an additional consent of the National Support Centre for Agriculture for the sale of real estate under a lease.

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 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.

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