We continue the publication of the magazine version of the book by M.Yu. Tikhomirov "Limited liability company: A practical guide to applying the law in the new edition"<*>. The author consistently explains the procedure for applying the new edition of the Law “On Limited Liability Companies”, established by federal laws that entered into force from May 2008 to January 2010. A comparative analysis of the new provisions of the Law with the edition of previous legal norms is carried out, and practical recommendations are given. . This issue analyzes the issues of organizing company management.

<*>Tikhomirov M.Yu. Limited liability company: A practical guide to applying the law in the new edition. M.: Publishing house. Tikhomirova M.Yu., 2010.

Control system

The names of management bodies in limited liability companies, the principles of their formation and activities largely coincide with the corresponding rules on management bodies of joint-stock companies, which is explained by the similarity of the legal nature of these companies. At the same time, the possibility of some strengthening of collective principles in the management bodies of limited liability companies, provided by the Law, may well be implemented in specific charters of business companies of this type.

The fundamentals for organizing management in a limited liability company are established in Article 32 of the Law, which is currently applied as amended by Law No. 312-FZ.

The supreme body of the company is the general meeting of participants. It can be sequential or extraordinary.

All participants have the right to attend the general meeting, take part in the discussion of agenda items and vote when making decisions. Provisions of the charter or decisions of the company’s bodies that limit these rights of participants are void.

Each participant has a number of votes at the general meeting proportional to his share in the authorized capital of the company, except for cases provided for by the Law.

The charter of the company upon its establishment or by introducing amendments to it by decision of the general meeting adopted unanimously by all participants may establish a different procedure for determining the number of their votes. Amendments and exclusions of the provisions of the charter establishing such a procedure are carried out by decision of the general meeting, adopted unanimously by all participants.

So, by defining the structure of the management bodies of a limited liability company, the Law vests the powers of the supreme body in the general meeting. This follows from the very legal nature of a limited liability company: such a legal entity is created by paying for the shares of its participants, of which the authorized capital is made up. Consequently, each of the participants, the total number of which should not exceed 50, has the right to manage the affairs of the company. This is precisely what explains the imperative rule of the Law on the nullity of any provisions of the charter or decisions of the company’s bodies that limit the rights of participants established in paragraph 1 of Art. 32 of the Law.

At the same time, by providing for the unconditional opportunity for each of the company’s participants to participate in the general meeting, the Law proceeds from the fact that the weight of their votes and their influence on the formation of the meeting’s decision may be different. It seems quite logical that the number of votes belonging to each participant is proportional to his share in the authorized capital of the company.

However, attention should be paid to the peculiarity of a limited liability company provided for by the Law. As you know, Federal Law No. 208-FZ of December 26, 1995 “On Joint-Stock Companies” establishes: each ordinary share of the company provides the shareholder - its owner with the same amount of rights (Article 31). This predetermines the principle of determining the number of votes of shareholders when making decisions at the general meeting.

The law, establishing the general principle for determining the number of votes, allows for the participants of a limited liability company to provide in the company's charter a different procedure for determining their number. The introduction of such a procedure in the charter, as well as its amendment and exclusion from the charter, must be accepted unanimously by all participants of the company. The dispositive nature of this legal norm can be regarded as a definite step by the legislator towards strengthening collective principles in management.

When the founder of a company is one person, he exercises the competence of the company in the form of his individual management decisions.

The company's charter may provide for the formation of a board of directors (supervisory board). The procedure for the formation and activities of this body, as well as the procedure for terminating the powers of members of the board of directors (supervisory board) and the competence of the chairman of the board of directors (supervisory board) are determined by the charter.

A board of directors (supervisory board) is required to be created in joint stock companies in which the number of owners of voting shares is equal to 50 or exceeds this number (Article 64 of the Law on Joint Stock Companies).

The law legalized the possibility of creating a board of directors (supervisory board) also in limited liability companies. In many ways, the procedure for the formation and functions of the board of directors (supervisory board) of a limited liability company are similar to the procedure for the formation and functions of similar bodies in joint-stock companies.

As the practice of joint-stock companies shows, boards of directors (supervisory boards) are sometimes created in companies whose number of participants is less than 50. Therefore, there is experience in the operation of such boards in relatively small companies. The need for their creation was dictated by the territorial dispersion of the company's participants and the desire to quickly resolve fundamental issues of the company's activities that were not within the exclusive competence of the general meeting.

Members of the collegial executive body of a limited liability company cannot constitute more than 1/4 of the composition of the board of directors (supervisory board). A person performing the functions of the sole executive body of a company cannot simultaneously be the chairman of the board of directors (supervisory board).

By decision of the general meeting of the company's participants, members of the board of directors (supervisory board) during the performance of their duties may be paid remuneration and (or) reimbursed for expenses associated with the performance of these duties. The amounts of these remunerations and compensations are established by a decision of the general meeting of participants.

In accordance with Law No. 312-FZ, paragraphs two and three of clause 2 of Art. 32 of the Law, which previously regulated the competence of the board of directors (supervisory board) of the company. Currently, the relevant relations are regulated by the norms of the new paragraph 2.1 of this article.

The competence of the board of directors (supervisory board) of the company is determined by its charter in accordance with the Law. The charter may provide that the competence of the board of directors (supervisory board) of the company includes:

• determination of the main directions of the company’s activities;
• formation of the executive bodies of the company and early termination of their powers, as well as the adoption of a decision on the transfer of powers of the sole executive body to a commercial organization or individual entrepreneur (manager), approval of such a manager and the terms of the agreement with him;
• establishing the amount of remuneration and monetary compensation for the sole executive body of the company, members of the collegial executive body, and the manager;
• making decisions on the company's participation in associations and other associations of commercial organizations;
• appointment of an audit, approval of the auditor and determination of the amount of payment for his services;
• approval or adoption of documents regulating the organization of the company’s activities (internal documents of the company);
• creation of branches and opening of representative offices of the company;
• resolving issues of approval of transactions in which there is an interest, in cases provided for in Article 45 of the Law;
• resolving issues of approval of major transactions in cases provided for in Article 46 of the Law;
• resolving issues related to the preparation, convening and holding of a general meeting of company participants;
• other issues provided for by the Law, as well as the charter of the company and not within the competence of the general meeting of participants of the company or the executive body of the company.

If a limited liability company, in accordance with its charter, forms a board of directors (supervisory board), the competence of this body must be established in the charter in accordance with paragraphs 1 - 11, clause 2.1 of Art. 32 and other provisions of the Law. Thus, the dispositive rule on the possibility of forming a board of directors (supervisory board), if implemented, gives a mandatory character to the provisions of paragraphs 2.1 and 2.2 of Art. 32 of the Law.

If the resolution of issues related to the preparation, convening and holding of a general meeting of participants is assigned by the charter to the competence of the board of directors (supervisory board), the executive body of the company acquires the right to demand the holding of an extraordinary general meeting of participants.

Members of the board of directors (supervisory board), the person performing the functions of the sole executive body, and members of the collegial executive body who are not members of the company may participate in the general meeting with the right of an advisory vote.

The above provisions of paragraph 3 of Art. 32 of the Law did not undergo changes in 2008 - 2009. The conclusion about a certain strengthening of collectivist principles in the activities of limited liability companies is confirmed by the provision of the Law on the possibility of participation in the general meeting of participants of such a company with the right of an advisory vote of members of the board of directors (supervisory board) and representatives of executive bodies who are not participants in the company.

Management of the current activities of the company is carried out by the sole executive body or the sole executive body and the collegial executive body. The executive bodies of the company are accountable to the general meeting of participants and the board of directors (supervisory board) (clause 4 of article 32 of the Law).

The law does not contain strict rules on the name of the executive body, which allows participants to independently determine the name of their executive body in the company’s charter. For collegial executive bodies, the most typical names are “board”, “directorate”, “executive directorate”, for sole executive bodies - “director”, “executive director”, etc.

The accountability of any executive bodies to the general meeting and the board of directors (supervisory board) of the company (if the latter is formed) has been established. The forms of control over the activities of the executive body can be different and are regulated both by the company’s charter and by its internal documents. However, measures of influence applied to members of the executive body (in particular, dismissal) are regulated by labor legislation, primarily by the Labor Code of the Russian Federation<1>.

<1>See: Commentary on the Labor Code of the Russian Federation / Ed. M.Yu. Tikhomirov. M.: Tikhomirov M.Yu. Publishing House, 2002 - 2006 (http://www.urkniga.ru).

Comparing the Law, for example, with the German Civil Code<2>, it can be noted: in accordance with this regulation, members of the board may be dismissed from office at any time while retaining their right to a set remuneration. The charter may provide that dismissal from office is permitted only if there are serious grounds, in particular gross violation of duties or inability to properly conduct business.

<2>Civil law. M.: International Center for Financial and Economic Development, 1996. Part 1.

Clause 5 of Art. 32 of the Law contains a mandatory norm prohibiting the transfer of voting rights by a member of the board of directors (supervisory board), a member of the collegial executive body to other persons, including other members of the board of directors (supervisory board), other members of the collegial executive body of the company.

This seemingly indisputable provision would not require comment if the Law itself (Article 42) did not provide for the right of company participants to transfer the powers of the sole executive body to the manager. Article 32 of the Law states that the right to vote cannot be transferred to anyone. The meaning of Article 42 is the right to transfer not individual powers, but the overall competence of the sole executive body. This right of transfer must be regulated by a special agreement, provided that such a possibility is provided for by the charter of the company.

The company's charter may provide for the formation of an audit commission (election of an auditor) of the company. In companies with more than 15 participants, the formation of an audit commission (election of an auditor) is mandatory. A member of the audit commission (auditor) may also be a person who is not a member of the company.

The functions of the audit commission (auditor), if provided for by the company's charter, can be performed by an auditor approved by the general meeting who is not connected by property interests with the company, members of the board of directors (supervisory board), with the person performing the functions of the sole executive body of the company, members of the collegial executive body and participants.

Members of the audit commission (auditor) cannot be members of the board of directors (supervisory board), a person performing the functions of the sole executive body, and members of the collegial executive body of the company.

Unlike a JSC, in a limited liability company, the formation of an audit commission (election of an auditor) is mandatory only if the number of its participants is more than 15. Therefore, companies with a smaller number of participants are not required to form this internal audit body. At the same time, the charters may provide for the formation of an audit body with a smaller number of participants.

The principles of the formation and activities of the audit body in both JSC and LLC are largely similar. In particular, the Law on Joint Stock Companies and the Law almost literally coincide with the provisions that members of the audit commission (auditor) of a company cannot simultaneously be members of the board of directors (supervisory board) and hold positions in the management bodies of the company. And this is natural, since control over financial and economic activities must be exercised regardless of the organizational and legal form of the legal entity.

General meeting of company participants

The rules on the competence of the general meeting of company participants are established in Article 33 of the Law.

The competence of the general meeting is determined by the company's charter in accordance with the Law. These rules of paragraph 1 of Art. 33 are valid in the previous edition. Realizing the right of participants to take direct part in managing the affairs of the company (Article 8 of the Law), the general meeting is precisely such a management body that takes into account the votes of each of the participants, even if, when deciding on a particular issue, the company participant remains in the minority.

The competence of the general meeting of participants is determined not only by the charter of a particular company, but also by the Law that establishes the relevant rules, based on the provisions of Article 91 of the Civil Code of the Russian Federation. Of course, society participants have the right to independently determine what issues they will consider at their meetings. However, they do not have the right to exclude from the charter issues that, according to the Law, should be resolved only by the general meeting.

This last point about the exclusive competence of the general meeting is important because the rights of participants to manage the affairs of the company must be real.

From July 1, 2009, paragraph 2 of Art. 33 of the Law, containing a list of issues falling within the competence of the general meeting, is applied in a new edition (see Law N 312-FZ). In addition, Law No. 205-FZ supplemented subclause 13 of clause 2 of Art. 33 of the Law with the words “or the charter of the company” and set out the last paragraph of paragraph 2 of this article in the new wording.

The competence of the general meeting of company participants includes:

• determining the main directions of the company’s activities, as well as making decisions on participation in associations and other associations of commercial organizations;
• changing the company's charter, including changing the size of the authorized capital;
• formation of the executive bodies of the company and early termination of their powers, as well as the adoption of a decision on the transfer of powers of the sole executive body to a manager, approval of such a manager and the terms of the agreement with him, if the charter does not include the resolution of these issues within the competence of the board of directors (supervisory board);
• election and early termination of powers of the audit commission (auditor) of the company;
• approval of annual reports and annual balance sheets;
• making a decision on the distribution of the company’s net profit among the company’s participants;
• approval (acceptance) of documents regulating the internal activities of the company (internal documents);
• making a decision on the placement of bonds and other issue-grade securities by the company;
• appointment of an audit, approval of the auditor and determination of the amount of payment for his services;
• making a decision on the reorganization or liquidation of the company;
• appointment of a liquidation commission and approval of liquidation balance sheets;
• resolving other issues provided for by the Law or the company's charter.

Real participation in management lies in the fact that the Law defines a list of the most fundamental issues in the life of society, which are considered exclusively by its supreme body - the general meeting. They are indicated in the last paragraph of paragraph 2 of Art. 33. Part of them, provided for in subparagraphs 2, 5 - 7, 11 and 12 of paragraph 2 of Art. 33, etc., as well as issues referred to the exclusive competence of the general meeting of participants in accordance with the Law, cannot be attributed by the charter to the competence of other management bodies of the company.

However, simply listing the issues that should be considered at the general meeting is not enough to ensure the real right of a company participant to participate in the management of its affairs. Therefore, the Law (last paragraph of paragraph 2 of Article 33) contains another important provision regarding the inadmissibility of transferring issues that are the exclusive competence of the general meeting to other management bodies. This refers to the board of directors (supervisory board), the collegial executive body (if these bodies are formed), as well as the general director (director) of the company. It should be kept in mind: the audit commission is not a management body.

The absence of such a provision could lead to the fact that as a result of the delegation of powers of the general meeting to other management bodies, participants may find themselves in a situation where they are actually removed from the management of the company.

The non-exclusive competence of the general meeting includes those specified in paragraph 2 of Art. 33 issues that may be referred by the charter to the competence of other management bodies (they are listed in subparagraphs 1, 4, 8 - 10, 13, paragraph 2 of this article).

The company's charter is a purely creative document. Unfortunately, in practice there are often cases when participants are uncritical of the draft section of the charter, which defines the issues considered by the general meeting. As a result, overloading the competence of the general meeting with secondary issues that are not of a fundamental nature may adversely affect their prompt resolution. And vice versa: when determining the competence of the general meeting, one should take into account the characteristics of a specific organization, enterprise (property complex), and the common interests of all participants in the company. For the contents of the charter of a limited liability company, see Art. 12 of the Law.

The more powers the general meeting has, the less the scope of competence of other management bodies will be. In this regard, it is advisable to find a “golden mean” that allows the board of directors (supervisory board) and the general director (director) to function fully without reducing their responsibility for resolving relevant issues of company management.

Article 34 of the Law, which establishes specific rules for holding the next general meeting of participants in a limited liability company, remains in effect in its previous wording. There are no such norms in the Civil Code of the Russian Federation. This article combines imperative norms that establish mandatory rules for a business company and dispositive norms that refer the resolution of certain issues to the general meeting of company participants. Relations arising in connection with the annual general meeting of shareholders are regulated in the same way (Article 47 of the Law on Joint Stock Companies).

The next general meeting is held within the time limits specified by the company's charter, but not less than once a year. The next general meeting is convened by the executive body of the company.

The charter must determine the date for holding the next general meeting, at which the annual results of the company’s activities are approved. The said general meeting must be held no earlier than two months and no later than four months after the end of the financial year.

Article 34 must be read in conjunction with other rules established by other articles of Chapter IV of the Law. As already noted, the status of the general meeting of participants (regular and extraordinary) as the highest body of the company is determined by the rules of Article 32. The competence of the general meeting, including exclusive ones, is regulated by Article 33. The procedure for convening and holding a general meeting, and making decisions, is determined by the rules of Article 36 - 38.

The right to participate in managing the affairs of the company in the manner established by the Law and the charter of a limited liability company is one of the most important (fundamental) rights of its participants (Article 8 of the Law). Therefore, at the next general meeting of LLC participants, all its participants (their representatives) have the right to be present with a casting vote and participate in the discussion of issues on the agenda. Provisions of the charter or decisions of bodies that limit these rights of company participants are void, i.e. are invalid and not subject to application from the moment the charter is approved, appropriate amendments are made to it, or similar decisions are made. Such provisions do not entail legal consequences and do not create, change or terminate legal relations.

It is mandatory that the next general meeting be held at least once a year. The law allows for such a meeting to be held more often if the LLC participants establish the appropriate rules in the charter.

The right to convene the next general meeting of LLC participants, as a general rule, belongs to the executive body of the company. This rule is formulated as a mandatory norm, however, in the case provided for by the Law and the charter of the company, the corresponding powers are exercised by the board of directors (supervisory board) (clause 2.2 of Article 32 of the Law).

The law does not determine which executive body of the company convenes the general meeting - sole or collegial. Therefore, in the case of formation in a company in addition to a sole collegial executive body, this issue must be clearly resolved in the charter.

Convening a general meeting is not only a right, but also an obligation of the executive body (or the board of directors (supervisory board), if the relevant powers have been transferred to it). Therefore, when the date of its holding approaches, the executive body is obliged to notify all participants of the company about this no later than 30 days before the date of its holding and take other actions provided for in Article 36 of the Law.

The deadline for holding the annual general meeting (at which the annual results of the company’s activities are approved) must be established in the charter of the LLC (for other requirements for the company’s charter, see Article 12 of the Law). This rule is imperative. At the same time, in paragraph two of Art. 34 of the Law contains a dispositive norm - the date of the meeting can be set within a certain time range, but no earlier than two months and no later than four months after the end of the financial year. The introduction of specific rules on the timing of the annual general meeting depends on a number of conditions, in particular the volume of financial and economic activities of the company, its structure (presence of branches, representative offices, other structural units), the existence of relationships of dependence, the complexity of economic ties, etc.

For joint stock companies, the timing of the annual general meeting is also determined by the charter, but such a meeting must be held no earlier than two months and no later than six months after the end of the company’s financial year (Article 47 of the Law on Joint Stock Companies).

In foreign and domestic practice, the term “financial year” is used to designate the period for which annual reporting is prepared. For example, in the UK there are two financial year end dates - 31 March and 31 December. In the US, for the vast majority of companies, December 31 is the end of the fiscal year, which corresponds to the “tax year.”

The legislation of the Russian Federation on accounting operates with the concept of “reporting year”. According to Article 14 of the Federal Law of November 21, 1996 N 129-FZ “On Accounting”<3>The reporting year for all organizations is the calendar year - from January 1 to December 31 inclusive.

<3>NW RF. 1996. N 48. Art. 5369; 1998. N 30. Art. 3619; 2002. N 13. Art. 1179; 2003. N 1. Art. 2, 6; N 2. Art. 160; N 22. Art. 2066; N 27 (part I). Art. 2700; 2006. N 6. Art. 636; N 45. Art. 4635.

The first reporting year for newly created organizations is considered to be the period from the date of their state registration to December 31 of the corresponding year, and for organizations created after October 1 - to December 31 of the following year. Data on business transactions carried out before the state registration of organizations (for example, related to the formation of authorized capital, purchase of equipment, rental of premises, etc.) are included in their financial statements for the first reporting year. Accounting statements are prepared for the reporting year. For the preparation of financial statements, the reporting date is considered to be the last calendar day of the reporting period. Accordingly, for the preparation of annual financial statements, the reporting date is December 31.

Decisions at the next general meeting of LLC participants are made according to the rules established by Articles 37, 38 and others of the Law, as well as in the charter of the relevant company.

Article 35 of the Law is devoted to the extraordinary general meeting of company participants. In 2008 - 2009, no changes were made to this article. Before the Law came into force, the rules on an extraordinary general meeting of an LLC were not regulated by the civil legislation of the Russian Federation. At the same time, similar rules on the extraordinary general meeting of shareholders were established by Article 55 of the Law on Joint Stock Companies.

In accordance with paragraph 1 of Art. 35 an extraordinary general meeting is held in cases specified by the charter, as well as if its holding is required by the interests of the company and its participants.

An extraordinary general meeting, like a regular one, is the highest body of the company (Article 32 of the Law) and exercises the competence of the general meeting established in Article 33 and others of the Law, as well as in the charter of the company. At the same time, it is hardly advisable to include within the competence of the extraordinary general meeting the consideration of issues that are logical to be considered at the annual general meeting (for example, on the approval of annual reports and annual balance sheets, etc.).

A specific list of grounds for convening and holding an extraordinary general meeting of an LLC must be established in the charter of the relevant company (for requirements for the charter, see Article 12 of the Law). In addition, the Law (clause 1 of Article 35) allows the following: if holding an extraordinary general meeting is required by the interests of the company or its participants, the extraordinary general meeting is held in other cases. Thus, it is impossible to establish a closed (exhaustive) list of grounds for convening and holding an extraordinary general meeting in the company’s charter.

The initiative to convene an extraordinary general meeting may belong to the entities exhaustively listed in the first paragraph of clause 2 of Art. 35 of the Law. An extraordinary general meeting is convened by the executive body of the company on its initiative at the request of the board of directors (supervisory board), audit commission (auditor), auditor, as well as members of the company holding in the aggregate no less than 1/10 of the total number of votes. Other persons do not have the right to initiate the convening of an extraordinary general meeting.

The rule that the company's participants, who collectively hold at least 1/10 of the total number of votes of the participants, have the right to demand an extraordinary general meeting, in our opinion, cannot be interpreted broadly. Based on the literal interpretation of this rule, it does not apply to the case when one LLC participant has the specified number of votes. We will find confirmation of this conclusion, in particular, in paragraph 4 of Art. 37 of the Law: a meeting convened by the participants of the company is opened by “one of the participants who convened this meeting.” In addition, according to paragraph 1 of Art. 35 an extraordinary meeting is held, in particular, in cases where the interests of the company's participants require it. Therefore, the interests of only one of the participants, even with 1/10 of the total number of votes, should not be considered as a basis for holding an extraordinary general meeting.

The explained rule was established by the Law in order to ensure the interests of a minority of participants in the company and allows its participants, whose shares in the authorized capital of such a business company are relatively small, to actually participate in the management. This is one of the differences between an LLC and a joint stock company, where the interests of large investors are protected to a greater extent. For comparison, we can recall: a similar issue in the joint stock legislation of the Russian Federation is resolved differently. The Law on Joint Stock Companies provides for the right of shareholders (shareholders) owning at least 10% of voting shares to demand the convening of a general meeting of shareholders (Clause 1, Article 55). In other words, in a joint stock company, a general meeting can be convened on the initiative of either one or several shareholders who have a sufficient number of votes for this purpose.

Foreign legislation on corporations provides for the possibility of participants in business companies with a smaller number of votes than the number of votes established by law to demand an extraordinary general meeting if this is necessary in the interests of their organization. For example, according to Art. 122 of the German Shareholders' Law, the right to demand the convening of a general meeting belongs to shareholders whose participation in the company's fixed capital is at least 1/20 of the amount (5%) of the size of this capital, and by the company's charter the required amount of the applicants' total participation in the fixed capital can be reduced and amount to less 5%. The right to demand the convening of an extraordinary general meeting is also enjoyed, according to Article 394 of the Commercial Code of the Republic of Poland, by shareholders representing at least 1/10 of the authorized capital, although the specified amount may be reduced by the articles of association.

The law does not allow the possibility of establishing in the charter less than what is specified in paragraph 2 of Art. 35, the number of votes required for the LLC participants to have the right to demand the convening of an extraordinary meeting.

The executive body of the company is obliged, within five days from the date of receipt of the request to hold an extraordinary general meeting, to consider this request and make a decision on whether to hold it or to refuse it. The decision to refuse can be made by the executive body of the company only if:

• the procedure established by law for submitting a request to hold an extraordinary general meeting of company participants was not followed;
• none of the issues proposed for inclusion on the agenda of the extraordinary general meeting of the company's participants falls within its competence or does not comply with the requirements of federal laws.

If one or more issues proposed for inclusion on the agenda of an extraordinary general meeting do not fall within the competence of the general meeting or do not comply with the requirements of federal laws, these issues are not included in the agenda.

Thus, the right to make a decision on holding an extraordinary general meeting, as a general rule, belongs to the executive body of the company (sole or collegial), depending on the competence of which executive body this right is assigned by the charter of the limited liability company. This right is at the same time the responsibility of the executive body. If this body does not make a decision to convene an extraordinary general meeting within the established period or a decision is made to refuse to hold it, the board of directors (supervisory board), the audit commission (auditor), the auditor, participants who have in the aggregate no less than than 1/10 of the total number of votes,

• depending on who owns the initiative to convene the corresponding extraordinary general meeting (clause 4 of article 35 of the Law).

The law does not clearly define the content of the requirement to convene an extraordinary general meeting. It seems that it should include the exact wording of the issues to be submitted for decision at the extraordinary meeting, the motives that led to the raising of these issues, and a proposal on the form of the initiated extraordinary general meeting, the date and time of its holding. At the same time, the requirement emanating from the company’s participants must also contain information about the size of their shares in the authorized capital of the LLC.

The request to hold an extraordinary general meeting is sent to the executive body of the company authorized to convene it. The form of holding an extraordinary meeting (joint presence or absentee voting) is established by a decision of the executive body in accordance with the form proposed by the initiator of the meeting. Such a requirement is considered by the executive body within five days, and if within this period the decision to convene an extraordinary general meeting is not made by it, the rules established in paragraph 4 of Art. 35 of the Law.

In paragraph 2 of Art. 35, the imperative norm establishes only two grounds for the executive body to make a decision to refuse to hold an extraordinary general meeting of company participants, which are not subject to a broad interpretation.

Since paragraph 2 refers to the compliance of issues to be included in the agenda with the requirements of federal laws, it is unacceptable to evaluate these issues for compliance with the requirements of by-laws. In case of refusal to include certain issues on the meeting agenda due to the non-compliance of such issues with the requirements of federal laws, it is advisable to attach a document containing a professional expert assessment of these issues from a legal point of view to the decision on refusal. This may be the opinion of the legal service or the company's legal adviser, or the opinion of an independent lawyer. The competence of the general meeting of company participants is determined according to the rules of Articles 32, 33, etc. of the Law, as well as the company’s charter.

In accordance with the specified criteria, a decision is made to hold or refuse to hold an extraordinary general meeting. A special rule has been established in the event that one or more issues proposed by the initiator of an extraordinary general meeting for inclusion on the agenda do not fall within the competence of the general meeting or do not comply with the requirements of federal laws. Such issues are not included on the agenda, although the executive body of the company is still required to make a decision on holding an extraordinary general meeting.

The executive body of the company does not have the right to make changes to the wording of issues proposed for inclusion on the agenda of an extraordinary general meeting, or to change the proposed form of its holding.

Along with the issues proposed for inclusion on the agenda of the extraordinary general meeting of the company's participants, the executive body, on its own initiative, has the right to include additional issues in it.

Consequently, the wording of issues proposed for inclusion on the agenda of an extraordinary general meeting must be retained in the wording proposed by its corresponding initiator. The form of holding an extraordinary general meeting proposed by the initiator of the meeting (joint presence or absentee voting) cannot be changed. However, the executive body of the company has the right, in addition to the issues proposed by the initiator of the meeting, to include any additional issues on the agenda of the extraordinary general meeting on its own initiative. Their topics are determined only at the discretion of the body convening the extraordinary meeting.

In paragraph 3 of Art. 35 of the Law establishes the maximum period during which (starting from the day the executive body receives the corresponding request) a meeting must be held. If a decision is made to hold an extraordinary general meeting, it must be held no later than 45 days from the date of receipt of the request for its holding.

The subject of consideration of an extraordinary general meeting is usually issues that are subject to prompt resolution, so the deadline for holding it is quite strict. The specified period includes the five-day period for making a decision on holding a meeting, established by paragraph 2 of Art. 35, as well as the deadlines provided for in Article 36 of the Law.

If, within five days from the date of receipt of the request to hold an extraordinary general meeting of LLC participants, the executive body did not make the corresponding decision or refused to hold it, the convening of the meeting has the right to be carried out directly by the bodies or persons who sent the necessary request to the executive body. In this case, they must follow the instructions of Article 36 of the Law, and the executive body of the company is obliged to provide the initiators with a list of company participants with their addresses.

The costs of preparing, convening and holding such a general meeting may be reimbursed by decision of the general meeting at the expense of the company.

If convening an extraordinary general meeting is subsequently deemed necessary or appropriate by the company's participants, the extraordinary or regular general meeting has the right to decide to compensate the initiator (initiators) of convening the extraordinary meeting for the costs associated with its preparation, convening and holding. This compensation is made at the expense of the company's own funds.

The general meeting also has the right not to approve the actions of the initiator of an extraordinary general meeting, for example, in cases where the company's participants consider that the issues submitted for consideration are not significant for the company's activities or their decision could not be resolved promptly, but at the next general meeting. In these cases, the costs of holding an extraordinary general meeting of company participants may not be reimbursed to the bodies or persons who demanded its holding.

The procedure for convening a general meeting of company participants is determined in detail by Article 36 of the Law. This article in 2008 - 2009 generally did not change, with the exception of paragraph 3, which, starting from July 1, 2009, is in force as amended by Law N 312-FZ. Similar rules are contained, for example, in Articles 52, 53, etc. of the Law on Joint Stock Companies.

The rules of Article 36 of the Law apply equally to the procedure for convening the regular (Article 34) and extraordinary general meeting of LLC participants (Article 35). Most of the norms in this article are imperative, but it also contains dispositive norms.

The body or persons convening the general meeting are obliged to notify each participant of the company about this no later than 30 days before it is held by registered mail to the address indicated in the list of participants of the company, or in another way provided for by the charter.

The body or persons who have the rights and obligations associated with convening a general meeting of LLC participants may be a sole or collegial executive body, a manager (if the powers of the sole executive body have been transferred to it), a board of directors (supervisory board), an audit commission (auditor), auditor, participants holding in aggregate at least 1/10 of the total number of votes.

The next general meeting of LLC participants is convened by the executive body (Article 34 of the Law) or the manager (Article 42 of the Law), if the powers of the sole executive body of the company have been transferred to him and the powers to convene the next meeting are not assigned by the charter to the competence of the collegial executive body.

The same are the subjects of the right to convene an extraordinary general meeting of company participants, with the exception of the case specified in paragraph 4 of Art. 35 of the Law, when the Law transfers the powers to convene such a meeting to its corresponding initiator - the board of directors (supervisory board), the audit commission (auditor), the auditor, participants holding in the aggregate no less than 1/10 of the total number of votes.

In paragraph 1 of Art. 36 of the Law imperatively establishes the obligation of holders of the authority to convene a general meeting of company participants to personally notify all company participants of the meeting within the period specified in this paragraph. Unless the charter of the LLC provides for another method of such notification, it is carried out in the manner specified in this paragraph.

Clause 2 of Art. 36 determines the content of the notice of a general meeting and establishes the rules for forming its agenda.

The notice must indicate the time and place of the general meeting, as well as the proposed agenda.

Any member of the company has the right to make proposals to include additional issues on the agenda of the general meeting no later than 15 days before it is held. Additional issues, with the exception of those that do not fall within the competence of the general meeting or do not comply with the requirements of federal laws, are included in the agenda.

All participants have the right to make proposals for the inclusion of additional issues on the agenda of the general meeting, regardless of the number of votes they have. The main condition here is compliance with the 15-day period established in this norm before the date of the relevant general meeting.

Additional issues proposed by the company's participants must be included in the agenda of the convened general meeting of the company's participants if two conditions are met: the relevant proposals have been submitted (i.e. become known to the body or persons convening the meeting) no later than 15 days before the day of the meeting general meeting; additional issues fall within the competence of the general meeting and comply with the requirements of federal laws.

Additional issues proposed for inclusion in the agenda of the convened general meeting, if the above conditions are met, are included in the agenda of the meeting exactly in the wording in which they were introduced by the company's participants. The law directly prohibits the body or persons convening the general meeting from changing the wording of the issues proposed for the agenda.

The body or persons convening the general meeting do not have the right to make changes to the wording of additional issues proposed for inclusion on its agenda.

Under the changes in the agenda of the convened general meeting, which are discussed in paragraph four of clause 2 of Art. 36 of the Law, first of all, one should understand the changes associated with the inclusion of additional issues on the agenda, as discussed above. In addition, the body or persons convening the meeting, in cases permitted by law, may make other changes to the initial agenda of the general meeting, for example, if this is due to the nature of the additional issue included in the agenda.

If changes are made to the initial agenda of the convened general meeting, the body or persons convening the relevant meeting are obliged to notify all members of the company about these changes no later than 10 days before the date of convening the general meeting. Apparently, in this case, the word “notify” means the obligation of the relevant body or person to have evidence of sending messages about changes to the agenda, dated no later than the specified period. The method of such notification may be determined in the company's charter, and if the charter does not establish the corresponding rules, then each notification is sent by registered mail.

When considering complaints from company participants about the refusal to satisfy their demands for convening an extraordinary meeting or for including additional issues on the agenda of the meeting, the courts must take into account that the list of grounds on which a company participant may be refused to satisfy the said requirements is contained in Articles 35 and 36 The law is comprehensive. If the refusal to satisfy such demands is given on grounds not provided for by the Law, then the court must recognize it as unlawful and oblige the company (board of directors) to fulfill the relevant requirements of the participant - to convene an extraordinary general meeting, add additional issues to the agenda of the meeting (clause 21 of Resolution No. 90/14).

In paragraph 3 of Art. 36 of the Law provides for the requirements for information and materials that all members of the company must receive in preparation for the general meeting, the rules for their presentation and familiarization with the information contained in them. The changes made to this paragraph by Law No. 312-FZ boil down to the fact that in the first paragraph of this paragraph the words “in the constituent documents of the company or draft constituent documents” are replaced with the words “in the charter of the company or draft charter.”

Information and materials to be provided to the company's participants when preparing the general meeting of the company's participants include the annual report, the conclusions of the audit commission (auditor) and the auditor based on the results of the audit of annual reports and annual balance sheets, information about the candidate (candidates) for the executive bodies, the board of directors (supervisory board) and the audit commission (auditors), draft amendments and additions to the charter, or a new draft charter, draft internal documents of the company, as well as other information (materials) provided for by the charter.

In this list, established in the first paragraph of clause 3 of Art. 36, information and materials are named that should, on the one hand, be considered as minimally necessary when holding a regular general meeting, for example an annual one (the first three types of materials), and on the other - as optional depending on the issues included in the agenda of the next or extraordinary general meeting of participants of a limited liability company (other types of information and materials and, if necessary, the first three types).

If a different procedure for familiarizing company participants with information and materials is not provided for by the charter, the body or persons convening the general meeting are obliged to send them information and materials along with a notice of the general meeting, and in the event of a change in the agenda, the relevant information and materials are sent along with the notice about such a change.

The specified information and materials must be provided to all members of the company for review in the premises of the executive body within 30 days before the general meeting. The company is obliged, at the request of a participant, to provide him with copies of these documents. The fee charged by the company for providing these copies cannot exceed the costs of their production.

The procedure for familiarizing company participants with the information and materials specified in the first paragraph of clause 3 of Art. 36, can be defined in the company's charter. Otherwise, the rules formulated in paragraph two of this clause apply.

The rule on familiarization of LLC participants with materials and information established in paragraph three of clause 3 of Art. 36 of the Law means that 30 days before the start of the general meeting and subsequently until the date of its convening, the specified materials and other information must be located on the premises of the executive body of the company in a place accessible to all participants. This rule corresponds to the provisions of Article 50 of the Law, which defines the general rules for storing company documents.

In accordance with paragraph 4 of Art. 36, the company's charter may provide for shorter periods than those specified in this article. This dispositive rule applies to all deadlines specified in the article. Only one limitation applies here: the terms provided for in the charter cannot be longer than those established in Article 36 of the Law.

Article 36 regulates in great detail the procedure for convening a general meeting of company participants. If, during the preparation of a meeting, deviations from its norms are made, the legality of the meeting can be established only if all participants (representatives of participants) are registered at such a meeting.

The procedure for holding a general meeting is regulated by Article 37 of the Law. The changes made to this article by Law No. 312-FZ concern only paragraphs 6 and 8, which have been in effect since July 1, 2009 in a new edition.

The Civil Code of the Russian Federation does not contain rules on the procedure for holding a general meeting of LLC participants, indicating only that the competence of the management bodies of such a business company, as well as the procedure for making decisions by these bodies, are determined in accordance with the Civil Code of the Russian Federation, the Law on Limited Liability Companies and the charter of the company (clause 2 Article 91 of the Civil Code of the Russian Federation). At the same time, the detailed nature of the legal regulation of the procedure for holding a general meeting of LLC participants is adopted by the Law from the joint stock legislation of the Russian Federation (Articles 47, 49, 56 - 63 of the Law on Joint Stock Companies).

According to paragraph 1 of Art. 37 the general meeting is held in the manner established by the Law, the charter of the company and its internal documents. To the extent not regulated by the Law, the company's charter and internal documents, the procedure for holding a general meeting is established by a decision of the general meeting of the company's participants.

Article 37 of the Law establishes a uniform procedure for holding both regular and extraordinary general meetings of participants in a limited liability company. In accordance with paragraph 1 of Art. 37, this procedure is regulated by the Law, the charter of the relevant company and its internal documents (for example, regulations on the general meeting of LLC participants, regulations of the general meeting, regulations on the procedure for making decisions by the general meeting and the rules for their execution, etc.).

If during the general meeting it turns out that the norms of the Law and the documents listed above are not enough to determine any procedural or other aspects, the general meeting itself has the right to resolve the issues that arise according to the rules established by it. It is only important that these rules do not contradict the relevant provisions of the Law, charter and internal documents of the company.

Before the opening of the general meeting, registration of arriving members of the company is carried out.

Participants have the right to participate in the general meeting in person or through their representatives. Representatives of participants must present documents confirming their proper authority. A power of attorney issued to a representative must contain information about the represented and the representative (name or designation, place of residence or location, passport details), and be drawn up in accordance with the requirements of paragraphs 4 and 5 of Art. 185 of the Civil Code of the Russian Federation or certified by a notary.

An unregistered company participant (representative of a company participant) is not entitled to take part in voting.

Thus, paragraph 2 of Art. 37 of the Law establishes an imperative rule according to which registration of those arriving at the general meeting is mandatory. Registration always precedes the opening of the general meeting. LLC participants should proceed from this rule when developing the relevant provisions of the charter and its internal documents. Failure to register a participant or his representative deprives the relevant person of the right to participate in voting at the general meeting.

The law directly provides for the possibility of participation in the general meeting both personally and through a representative, without in any way limiting the right of choice of company participants. Moreover, they are not prohibited, if necessary, from replacing their representative and entrusting the exercise of their powers at the general meeting to a new representative. In the charter and internal documents of the company, it is also advisable to resolve these issues in the spirit of discretionary regulation inherent in this norm of the Law.

Representation relations can be based on a power of attorney, an indication of the law, or an act of an authorized state body or local government body. According to paragraph 2 of Art. 182 of the Civil Code of the Russian Federation are not representatives of persons acting, although in the interests of others, but on their own behalf (for example, commercial intermediaries, bankruptcy trustees, executors of inheritance, etc.), as well as persons authorized to enter into negotiations regarding possible the future of transactions.

A power of attorney is a written authority issued by one person to another for representation before third parties. The law requires compliance with paragraphs 4 and 5 of Art. 185 of the Civil Code of the Russian Federation when drawing up a power of attorney. A power of attorney issued by a citizen who is a member of the company can be certified by the organization in which he works or studies, the housing maintenance organization at his place of residence, the administration of a hospital hospital if the citizen is undergoing treatment there. A power of attorney on behalf of a legal entity (participant of a limited liability company) is issued signed by its director or another person authorized to do so by its constituent documents, with the seal of this organization attached.

If for some reason the principal does not fulfill these conditions, the power of attorney must be given a notarial form.

Clause 3 of Art. 37 of the Law contains an indication of the opening time of the general meeting: it opens at the time specified in the notice of the general meeting of company participants or if all company participants have already been registered earlier.

Consequently, provided that all participants of the company (their representatives) have completed the registration procedure (clause 2 of Article 37), the general meeting can be opened at any time after the end of registration until the time specified in the notice of the meeting (about this notification see Article 36 of the Law).

In accordance with paragraph 4 of Art. 37, the general meeting is opened by the person performing the functions of the sole executive body of the company, or by the person heading the collegial executive body. A general meeting convened by the board of directors (supervisory board), audit commission (auditor), auditor or participants is opened by the chairman of the board of directors (supervisory board), chairman of the audit commission (auditor), auditor or one of the participants who convened it.

The next general meeting is opened by the person performing the functions of the sole executive body, or by the person heading the collegial executive body of the company. Specific rules about this are established in the charter and internal documents of the relevant LLC. If the functions of the sole executive body of the company in accordance with Article 42 of the Law are transferred to the manager, the general meeting is opened by an individual who is the manager or the head of the management organization (trusted person of the management organization). An extraordinary general meeting, convened on the initiative of its executive body, also opens.

An extraordinary general meeting of LLC participants, convened not by the executive, but by another body or persons specified in paragraph 2 of Art. 35, according to the rules of paragraph 4 of Art. 37 of the Law is opened by the person heading the body or speaking on behalf of the participants who convened this general meeting (Article 35 of the Law), or by another person who convened this general meeting (an auditor or auditor of the company).

The person opening the general meeting elects a chairman from among the company's participants. Unless otherwise provided by the company's charter, when voting on the issue of electing a chairman, each participant in the general meeting has one vote, and the decision on this issue is made by a majority vote of the total number of participants entitled to vote at this general meeting (Clause 5, Article 37 of the Law ).

The chairman is elected only from among the LLC participants. Second sentence of paragraph 5 of Art. 37 for voting on the issue of electing the chairman of the meeting establishes an exception to the general rule of decision-making by participants, according to which each of them has a number of votes proportional to its share in the authorized capital (Article 32 of the Law). When electing a chairman at a general meeting, participants vote, not shares in the authorized capital. However, the dispositive norm of the Law allows for the possibility of stipulating rules in the company's charter in comparison with those set out in it. This can only be done in the charter, and not in the corresponding internal document of the company.

The executive body organizes the keeping of minutes of the general meeting of company participants.

The minutes of all general meetings are filed in a minutes book, which must be made available to any participant for review at any time. At the request of the participants, they are given extracts from the minutes book, certified by the executive body.

Thus, the obligation to organize the maintenance of minutes of the regular and extraordinary general meeting of the company’s participants is clause 6 of Art. 37 of the Law entrusts the executive body of the company. If there are simultaneously two types of executive bodies in a company, the charter must determine which of them (sole or collegial) is responsible for organizing the maintenance of minutes of the general meeting.

Unlike the joint stock legislation of the Russian Federation, which regulates in detail the requirements for the content and rules for drawing up the minutes of the general meeting of shareholders (Article 63 of the Law on Joint Stock Companies), the Law leaves the resolution of these issues at the discretion of the LLC participants. As a guideline, we can recommend using the rules of this article, taking into account, of course, the characteristics of an LLC.

The minutes of the general meeting are documents that have legal significance. Therefore, their proper registration and storage in accordance with the rules accepted in a particular society must be taken very carefully.

Minutes of the general meeting of LLC participants are among the documents subject to mandatory storage (Article 50 of the Law) at the location of the sole executive body of the company or in another place accessible and known to all its participants.

Law No. 312-FZ supplemented paragraph 6 of Art. 37 of the Law in paragraph three, the norms of which are designed to ensure improved awareness of society participants. No later than within 10 days after drawing up the minutes of the general meeting, the executive body or other person who kept the said minutes is obliged to send a copy of the minutes of the general meeting to all participants of the company in the manner prescribed for notification of the general meeting.

Not always all participants (their representatives) are present at general meetings. Therefore, the application of the above rules will make it possible to promptly inform participants who were absent at the meeting about the decisions made by the general meeting. In addition to familiarizing yourself with copies of the minutes of general meetings, participants also have the right to familiarize themselves with the originals of these documents according to the rules of paragraph 4 of Art. 50 of the Law.

For cases when some of its participants are absent from the general meeting for one reason or another, the imperative norm established in paragraph 7 of Art. 37 of the Law: a general meeting at which at least one participant (representative of a participant) of the relevant company is absent has the right to make decisions only on agenda items known to all participants of this company (to which the relevant issues were communicated in accordance with paragraphs 1 and 2 of Article 36 Law).

If all participants are present at this general meeting, it has the right to resolve any issues, including those that were not communicated to the participants in the prescribed manner.

In paragraph 8 of Art. 37 of the Law establishes special and general rules for making decisions by the general meeting.

Decisions on the issues specified in subclause 2 of clause 2 of Art. 33 of the Law, as well as on other issues determined by the charter of the company, are adopted by a majority of at least two-thirds of the votes of the total number, unless the need for a larger number of votes to make such a decision is not provided for by the Law or the charter of the company.

Decisions on the issues specified in subclause 11, clause 2, art. 33 are adopted unanimously.

Other decisions are made by a majority vote, unless the need for a larger number of votes to make such decisions is provided for by the Law or the charter of the company.

Thus, by a qualified majority of at least two-thirds of the votes, decisions are made to change the charter of the company, including to increase or decrease the size of its authorized capital, as well as on other important issues specified in the charter, except in cases where the Law or the charter to resolve the relevant issues require a larger number of votes. When counting, the votes of all members of the company are taken into account, and not just those present at the general meeting when making the relevant decision.

In paragraph two of clause 8 of the Law “On Limited Liability Companies”, Law No. 312-FZ replaces the words “subparagraphs 3 and” with the word “subparagraph”. Thus, the requirement for unanimous adoption by the general meeting of decisions on amendments to the constituent agreement is excluded here. Let us remind you that subparagraph 3 of paragraph 2 of Art. 33 of the Law became invalid on July 1, 2009, since starting from this date, limited liability companies should not have a constituent agreement as a constituent document (see also paragraph 5 of Article 11 of the Law).

Therefore, at present, decisions on the reorganization or liquidation of the company are made unanimously by all LLC participants. The law does not allow the possibility of providing in the charter other rules for making decisions on issues requiring unanimity. At the same time, the list of issues that require a unanimous decision by all participants in the company may be expanded in the charter.

By a simple majority of the total number of votes of all participants in the company (and not just the votes of participants registered at the general meeting), any decisions can be made, except for those specified in paragraphs one and two of clause 8 of Art. 37 of the Law. This general rule always applies, except in cases where the need for a larger number of votes to resolve certain issues is provided for by the Law or the charter of the company. The number of votes required to make such decisions that is less than specified in the norm in question (for example, a simple majority of votes of participants registered at the general meeting, etc.) cannot be determined in the charter.

According to paragraph 9 of Art. 37 of the company's charter may provide for cumulative voting on issues of electing members of the board of directors (supervisory board), members of the collegial executive body and (or) members of the audit commission.

This dispositive norm allows for the possibility of providing in the charter of an LLC for cumulative voting when making decisions on the issues specified in it. Such questions are set out in an exhaustive list. This circumstance does not imply the possibility of expanding this list in the charter of a particular company.

In cumulative voting, the number of votes belonging to each participant is multiplied by the number of persons who must be elected to the body of the company, and the participant has the right to cast the resulting number of votes entirely for one candidate or distribute them between two or more candidates. The candidates who receive the largest number of votes are considered elected.

In case the charter of the company on certain issues does not define the voting procedure (secret or open), the dispositive norm of paragraph 10 of Art. 37 provides for the general rule that the general meeting makes decisions by open voting.

Article 38 of the Law, which defines the rules for making a decision at the general meeting through absentee voting (by poll), remains in effect in its previous wording. It determines the rules for making decisions by the general meeting of LLC participants by polling them without holding a general meeting. There are no such rules in the Civil Code of the Russian Federation. At the same time, Article 38 of the Law adopted certain norms regulating relevant relations in joint-stock companies (Article 50 of the Law on Joint-Stock Companies).

In accordance with paragraph 1 of Art. 38 of the Law, a decision of a general meeting can be made without holding a meeting (joint presence of participants to discuss issues on the agenda and make decisions on issues put to vote) by conducting absentee voting (by poll) by exchanging documents by post, telegraph, teletype, telephone, electronic or other communication that ensures the authenticity of transmitted and received messages and their documentary evidence.

In contrast to shareholder legislation, which imposes more stringent requirements for absentee voting (in particular, the mandatory use of a ballot of the established form for such voting), paragraph 1 of Art. 38 of the Law allows for absentee voting through the exchange of documents. This refers to any documents provided for such cases by the relevant internal document of the limited liability company. The use of ballot papers is not prohibited.

The term "authenticity" comes from the Greek word "authentikos", meaning authenticity, correspondence to the original, original source. For example, authentic are texts composed in one or more languages, considered as equally authentic and having equal legal force.

The rules for making decisions at the general meeting are determined by the relevant corporation independently, taking into account the rules established in the article in question. At the same time, decisions cannot be made through a survey on the approval of annual reports and annual balance sheets (subclause 6, clause 2, article 33 of the Law), i.e. on one of the mandatory issues on the agenda of the annual general meeting. Theoretically, other issues included in the agenda of such a general meeting in an LLC can be resolved through a poll, although this is hardly justified. For comparison, we note: paragraph 2 of Art. 50 of the Law on Joint Stock Companies prohibits making decisions on the issues specified in this paragraph through absentee voting.

Clause 2 of Art. 38 of the Law establishes two special rules applied when making a decision at the general meeting of an LLC by poll:

• for such cases, the application of the norms established in paragraphs 2 - 5 and 7 of Art. 37 of the Law;
• the application of the deadlines established in paragraphs 1 - 3 of Art. is excluded. 36 of the Law.

The remaining rules of the relevant regulations are mandatory.

The procedure for conducting absentee voting is determined by an internal document of the company, which must provide for the mandatory notification of the proposed agenda to all participants, the opportunity for all participants to familiarize themselves with all the necessary information and materials before voting, the opportunity to make proposals for the inclusion of additional issues on the agenda, and the mandatory notification to all participants before the beginning of voting on the amended agenda, as well as the end date of the voting procedure.

According to the given norms of paragraph 3 of Art. 38 of the Law, an LLC has the right and at the same time the obligation to regulate the procedure for conducting absentee voting in its internal document. This may be an independent document containing local norms, specifically dedicated to the regulation of relevant relations. At the same time, it is more appropriate to regulate the procedure for conducting absentee voting when making decisions at a general meeting in a separate section of an internal document of general significance (for example, in the regulations on the general meeting of company participants, regulations of the general meeting, etc.).

A list of mandatory requirements for the content of the specified internal document or section of the company’s internal document has also been established. When preparing it in terms of establishing the deadlines for the exchange of information specified in Article 38 of the Law, one can be guided as certain guidelines, in particular, by Resolutions of the Government of the Russian Federation of March 24, 2006 N 160 “On approval of standards for the frequency of collection from mailboxes, exchange, transportation and delivery written correspondence, as well as control deadlines for sending written correspondence"<4>, dated April 15, 2005 N 222 “On approval of the Rules for the provision of telegraph communication services”<5>, dated April 15, 2005 N 221 “On approval of the Rules for the provision of postal services”<6>.

<4>NW RF. 2006. N 14. Art. 1540.
<5>NW RF. 2005. N 17. Art. 1557.
<6>NW RF. 2005. N 17. Art. 1556.

Article 39 of the Law contains special rules governing the adoption of decisions on issues within the competence of the general meeting by the sole participant of a limited liability company. In 2008 - 2009, no changes were made to this article.

In a limited liability company consisting of one participant, all issues within the competence of the general meeting cannot objectively be resolved except by the sole participant.

In accordance with Article 39 of the Law, in a company consisting of one participant, decisions on issues within the competence of the general meeting are made by a single participant individually and are documented in writing. In this case, the provisions of Articles 34 - 38 and 43 of the Law do not apply, with the exception of those relating to the timing of the annual general meeting.

Thus, for companies with one participant, the application of the norms contained in these articles of the Law is excluded: any other solution is incompatible with the very organization of a business company that has only one participant. However, the provisions regarding the timing of the annual general meeting for companies with a single participant continue to apply. The fact is that within the time limits established by Article 34 of the Law, the annual results of the LLC’s activities must be approved.

Sole executive body

Article 40 of the Law reveals the content of the status of the sole executive body of the company. Due to the relatively small number of LLC participants, the formation of such a body allows the company to act very dynamically.

Clause 1 of this article is applied from July 1, 2009 as amended by Law No. 312-FZ. The changes made to this paragraph correspond to the provisions of the new paragraph 2.1 of Art. 32 of the Law, which establishes that if a board of directors (supervisory board) is formed in an LLC, its competence includes, in particular, the formation of the executive bodies of the company and the early termination of their powers.

The sole executive body of the company (general director, president, etc.) is elected by the general meeting for a period determined by the charter, unless the charter places the resolution of these issues within the competence of the board of directors (supervisory board). The sole executive body may also be elected not from among the company's participants.

We are talking about the executive body, which is obliged to prepare and implement decisions of the general meeting and promptly resolve specific organizational, financial and economic issues. This is one person vested with the appropriate powers on behalf of the company. The names of the sole executive body are different - general director, president, executive director, etc. There are no restrictions in the choice of its names in the Law.

The executive nature of a sole body is expressed in the very procedure of its formation. As a general rule, he is elected by the general meeting. The corresponding competence of the general meeting is established in subparagraph 4 of paragraph 2 of Art. 33 of the Law, and the procedure for voting and decision-making - subparagraphs 7, 8, 10 of Art. 37.

Most often, one of the company participants is elected as the sole executive body. This allows him to better understand the affairs of society and more fully assess the mood and behavior of its participants. After all, it is precisely this type of society that is characterized by the personally open nature of the relationships between its participants.

It is possible that, for reasons of professional preparedness and business qualities, a more suitable candidate for exercising the powers of the sole executive body would be an outsider who is not a member of the company. The law allows for the election of such a person as the executive body of the company (Clause 1, Article 40 of the Law). We can only recommend that you consider the program of activities more carefully and evaluate the real abilities of the candidate.

An agreement between the company and the person performing the functions of the sole executive body is signed on behalf of the company by the person who chaired the general meeting at which the person performing the functions of the sole executive body was elected, or a participant authorized by the decision of the general meeting, or, if the resolution of these issues is attributed to the competence of the board of directors (supervisory board), its chairman or a person authorized by a decision of the board of directors (supervisory board).

The stability of the relationship between the company and the director (general director) is fully met by the agreement between them, under which in the second paragraph of clause 1 of Art. 40 of the Law implies an employment contract. The concept of an employment contract is defined in Article 56, and the requirements for its content are in Article 57 of the Labor Code of the Russian Federation. It can be concluded for a period established by the charter of the organization or by agreement of the parties (Part 2 of Article 59 of the Labor Code of the Russian Federation).

Currently, labor legislation does not oblige in all cases to conclude a fixed-term employment contract with the head of the organization. Therefore, when determining the term of an employment contract with a person performing the functions of the sole executive body, both a definite and an indefinite period can be established in the company’s charter.

In any case, this period must be clearly established in the charter, and its compliance is mandatory for the company until appropriate changes are made to the charter. The term of a fixed-term employment contract must be sufficient for the development and full use of the competence of the sole body.

The rights and responsibilities of the head of the organization in the field of labor relations are determined by the Labor Code of the Russian Federation, laws and other regulatory legal acts, the constituent documents of the organization, and the employment contract. The specifics of regulating the work of the head of an organization are established by Articles 273 - 280 of the Labor Code of the Russian Federation.

An employment contract with the head of an organization can be terminated not only on the general grounds provided for in the articles of Chapter 13 of the Labor Code of the Russian Federation. Article 278 provides additional grounds for terminating an employment contract with the head of an organization.

An employment contract with the head of an organization can also be terminated on the following grounds:

• in connection with the removal from office of the head of the debtor organization in accordance with insolvency (bankruptcy) legislation;
• in connection with the adoption by an authorized body of a legal entity, or the owner of the organization’s property, or a person (body) authorized by the owner of a decision to terminate the employment contract;
• on other grounds provided for in the employment contract.

In the event of termination of an employment contract with the head of an organization in connection with the adoption by an authorized body of a legal entity, or the owner of the property, or a person (body) authorized by the owner of a decision to terminate the employment contract in the absence of guilty actions (inaction) of the manager, he is paid compensation in the amount determined by the employment contract , but not less than three times the average monthly earnings.

In accordance with Article 280 of the Labor Code of the Russian Federation, the manager has the right to terminate the employment contract early by warning the employer (the owner of the organization's property, his representative) in writing no later than one month in advance.

The law allows alternative options for signing an employment contract with a manager on behalf of the company - either a person who was the chairman of the general meeting of participants, or a participant who was instructed by the general meeting to sign the agreement. The authority to sign the latter is certified by a special decision of the general meeting. If the sole executive body is formed by the board of directors (supervisory board) of the company, the agreement is signed by the chairman or other duly authorized representative of the board of directors.

In paragraph 2 of Art. 40 of the Law contains a mandatory rule that only an individual can act as the sole executive body of a company. It reflects the features of an LLC with a relatively small number of participants. For this reason, such a company does not require a complex management structure inherent in large joint-stock companies.

This rule is typical, since it is designed to create sole executive bodies in all or most cases. Only one clause has been established regarding the possibility of transferring the powers of such bodies to a manager (Article 42 of the Law), who can be not only an individual, but also a legal entity.

The law defines the powers of the sole executive body of the company. The list of his powers is in paragraph 3 of Art. 40 is set out not as exhaustive, but as partially fixed and open, allowing the scope of powers of such a body to be established, taking into account the tasks and specifics of the company’s activities.

Sole executive body of the company:

• acts on behalf of the company without a power of attorney, including representing its interests and making transactions;
• issues powers of attorney for the right of representation on behalf of the company, including powers of attorney with the right of substitution;
• issues orders on the appointment of company employees to positions, on their transfer and dismissal, applies incentive measures and imposes disciplinary sanctions;
• exercises other powers not assigned by the Law or the company's charter to the competence of the general meeting of the company's participants, the board of directors (supervisory board) of the company and the collegial executive body of the company.

Let us explain these powers. The sole executive body acts on behalf of the company without any power of attorney within the competence established in the charter and the employment contract with it. His activities include representing the interests of the company in government bodies, in court, in relations with partners, with credit and other organizations, as well as in payment and other documents emanating from the company signed by him.

The sole executive body enters into contracts and makes other transactions, opens current and other accounts in banks, manages the property and financial resources of the company within its competence.

To assess the legality of the decisions of the sole executive body on transactions, it is useful to take into account the explanations contained in paragraph 32 of the Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation.”

The sole executive body ensures the preparation and submits to the board of directors (supervisory board) or the general meeting of participants an annual report, an annual balance sheet, proposals for the distribution of net profit between participants, informs about current financial and economic activities, organizes the implementation of decisions of the general meeting, the board of directors (supervisory board) council).

The sole executive body may be elected to the board of directors (supervisory board), but does not have the right to head it. He manages the company's personnel, approves the organizational structure and staffing, organizes accounting and ensures the preparation and timely submission of accounting and statistical reports on the company's activities to the tax authorities and state statistics authorities.

One of the rights of the sole executive body is to issue powers of attorney for the right of representation on behalf of the company. This may be necessary if the body itself is unable to directly fulfill certain powers or if there is a desire to ensure broader and more flexible activities of the company in external relations - with counterparties, state and municipal bodies, etc. The above also applies to a power of attorney with the right to delegate to one or another person the corresponding powers to perform specific actions and sign documents (on representation and powers of attorney, see Articles 182 - 189 of the Civil Code of the Russian Federation, as well as Article 5 of the Law).

The powers of the sole executive body in the field of labor relations are especially highlighted. This is explained by his position as a person in charge of the personnel service in the company and directly resolving a number of issues in organizing labor relations. We are talking about such powers as appointment, transfers, dismissal, application of incentive measures, and disciplinary measures. All these actions are determined by orders or other local acts of the executive body and must strictly comply with the rules introduced by the Labor Code of the Russian Federation.

Unfortunately, in practice, violations of labor legislation in commercial organizations are not uncommon, when employment contracts are not drawn up when hiring, labor safety rules, working hours and rest hours are not observed. Such cases have recently increasingly become grounds for bringing the perpetrators to legal responsibility.

The law provides for the exercise by the sole executive body of other powers in addition to those listed above. If a set of fixed powers is mandatory (it cannot be ignored or narrowed), then the range of “other” powers makes it possible to reflect to the maximum extent the specific conditions of the activity of the company and its sole executive body. In this case, one condition must be observed: it is unacceptable to include in the competence of the sole executive body powers that fall within the competence of other bodies of the company - the general meeting of company participants, the board of directors (supervisory board) and the collegial executive body of the company. To do this, you should once again carefully read Articles 32 - 39 of the Law and the provisions of the company’s charter regulating the activities of these bodies.

It can be recommended to include in the list of “other” powers such powers of the sole executive body in the field of personnel relations, such as determining the procedure for delineating functions between employees of the company’s apparatus, taking measures to improve their qualifications, etc.

Various specific powers of the body are possible in the financial, property, organizational, and production spheres of the company’s activities, taking into account its specifics.

When determining the competence of the sole executive body of the company, it is important to keep in mind the provisions contained in Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 14, 1998 No. 9 “On some issues of application of Article 174 of the Civil Code of the Russian Federation when the bodies of legal entities exercise powers to carry out transactions”<7>.

From the content of Article 174 of the Civil Code of the Russian Federation it follows: if the powers of a body of a legal entity to carry out a transaction are limited by the constituent documents in comparison with how they are defined in the law, and when carrying out the transaction, the specified body went beyond these restrictions, the transaction may be declared invalid by the court in a lawsuit the person in whose interests the restrictions are established, in cases where it is proven that the other party to the transaction knew or should have known about these restrictions. In this regard, Article 174 of the Civil Code of the Russian Federation does not apply in cases where a body of a legal entity acted in excess of the powers established by law. In these cases, one must be guided by Article 168 of the Code.

In legal relations involving legal entities, it should be kept in mind: Article 174 of the Civil Code of the Russian Federation can be applied in cases where the powers of a body of a legal entity are definitely limited by its constituent documents. The presence of these restrictions established in other documents that are not constituent documents cannot be the basis for the application of this article.

When exercising its powers, the sole executive body must act in good faith and reasonably. In accordance with Article 277 of the Labor Code of the Russian Federation, the head of the organization bears full financial responsibility for direct actual damage caused to the organization. In cases provided for by federal laws, the head of the organization compensates the organization for losses caused by his guilty actions. In this case, the calculation of losses is carried out in accordance with civil law.

The procedure for the activities of the sole executive body of the company and its decision-making is established by the charter, internal documents, as well as an agreement concluded between the company and the person performing the functions of its sole executive body.

In the given norms of paragraph 4 of Art. 40 of the Law refers to the activities of the sole executive body, the procedure for the implementation of which must be precisely established. Then it is possible to achieve stability in work, clarity of relationships both between employees and between employees and members of society. As a study of practice shows, poorly regulated procedures for a manager’s activities reduce the effectiveness of such activities and give rise to difficulties in the relationships between partners, contradictions and mistakes.

The procedure for the activities of the sole executive body of the company is established:

• the charter, which should contain the main provisions;
• internal documents that can be called organizational and functional (for example, regulations of the general meeting of company participants, regulations on the board of directors (supervisory board), rules for decision-making in the company, including the sole executive body, regulations on the company’s personnel, regulations on the collection procedure, processing and use of information in society, regulations on the general director, etc.);
• an agreement between the company and the person performing the functions of the sole executive body (employment contract).

In practice, it is important to ensure that the established procedure for the activities of the sole executive body is observed not only by this body itself, but also by other bodies of the company, its participants and personnel.

Collegial executive body

Article 41 of the Law is devoted to the collegial executive body of the company. Law No. 312-FZ, paragraph one of paragraph 1 of this article was supplemented with a second sentence. The rest of the article has not changed.

According to the first paragraph of clause 1 of Art. 41 of the Law, if the company’s charter provides for the formation, along with the sole executive body of the company, of a collegial executive body of the company (board, directorate and others), then such a body is elected by the general meeting of the company’s participants in the number and for the period determined by the company’s charter. The company's charter may provide for the assignment of issues of the formation of a collegial executive body of the company and the early termination of its powers to the competence of the board of directors (supervisory board) of the company.

It is impossible not to notice certain inconsistencies between the norms of Article 41 of the Law and the Civil Code of the Russian Federation. According to paragraph 1 of Art. 91 of the Civil Code of the Russian Federation, in a limited liability company an executive body (collegial and (or) sole) must be created, i.e. The Code allows for the possibility of forming in society: simultaneously sole and collegial executive bodies; only a collegial or only a sole executive body. As follows from paragraph 1 of Art. 41, the Law limits the application of these rules of the Civil Code of the Russian Federation, allowing the possibility of the existence of a collegial executive body only simultaneously with the sole executive body, i.e. in this case, there is a conflict between two special rules (clause 1 of article 91 of the Civil Code of the Russian Federation and clause 1 of article 41 of the Law) regulating the fundamentals of organizing management in a limited liability company.

According to paragraph 3 of Art. 87 of the Civil Code of the Russian Federation The law should regulate the legal status of a limited liability company, as well as the rights and obligations of its participants, i.e. The Code does not imply that the Law can regulate otherwise than in the Civil Code of the Russian Federation the fundamentals of organizing management in such a business company. In addition, in paragraph 2 of Art. 3 of the Civil Code of the Russian Federation, which defines the hierarchy of acts of civil legislation, directly states: the norms of civil law contained in federal laws adopted in accordance with the Civil Code of the Russian Federation must comply with the Code.

Similar, but more detailed than the rules of the article under consideration, the rules governing the activities of the collegial executive body are contained in the joint stock legislation of the Russian Federation (Article 70 of the Law on Joint Stock Companies). Those of them that do not contradict the essence of the relations regulated by Article 41 and other relevant provisions of the Law can, if necessary, be applied by analogy to a limited liability company.

A collegial executive body may be formed in an LLC for the purpose of carrying out the ongoing management of its activities. This body is accountable to the general meeting, and in companies where a board of directors (supervisory board) is formed, to the board of directors (clause 4 of article 32 of the Law).

Only an individual, who may not be a member of the company, can be a member of the collegial executive body.

The number of members of the collegial executive body and their term of office must be specified in the charter of the relevant corporation. The charter may also regulate other fundamental relations related to the functioning of this body. Based on the provisions of the charter, more detailed regulation of the activities of the collegial executive body is carried out in the corresponding internal document of the company (clause 2 of article 41 of the Law).

The collegial executive body may be elected by the general meeting of the company's participants (or formed by the board of directors (supervisory board), if this is provided for by the company's charter). When establishing a company (Article 11 of the Law), the composition of this body is elected by the founders of the relevant business company. Paragraph two of paragraph 1 of Art. 41 of the Law establishes a mandatory rule according to which only an individual can be a member of a collegial executive body.

A member of the collegial executive body may not be a member of the company. The literal interpretation of this rule allows us to state that theoretically the entire composition of the board or directorate can be represented by persons who are not participants in the relevant limited liability company. However, in practice, it is hardly advisable for a collegial body to consist entirely of outsiders, with the exception of cases when it comes to subsidiaries and dependent companies (Article 6 of the Law).

The collegial executive body of the company exercises the powers assigned by the company's charter to its competence.

If a collegial executive body is formed in a limited liability company, the charter must clearly delineate the competence of all management bodies operating in the company. Moreover, it is advisable to establish the powers of these bodies, if possible, in exhaustive (closed) lists that do not allow broad interpretation. In the process of practical activities of these bodies, this will help avoid contradictions and conflicts.

The functions of the chairman of the collegial executive body of the company are performed by the person performing the functions of the sole executive body of the company, except for the case where the powers of the sole executive body of the company are transferred to the manager.

If the powers of the sole executive body in accordance with Article 42 of the Law are transferred to the manager (individual or organization), the Law does not prohibit the election of the chairman of the collegial executive body at a general meeting of the company's participants or as a result of voting of members of the collegial executive body elected in the prescribed manner.

Based on paragraph 2 of Art. 41 of the Law, the procedure for the activities of the collegial executive body and its decision-making is established by the charter and internal documents of the company.

The law does not clearly distinguish which provisions on the collegial executive body are established in the charter, and which are established by the internal documents of the company. It seems that in practice we can proceed from the fact that the charter regulates the most general, fundamental relations associated with the formation and functioning of the relevant body, which should be regulated in more detail in an internal document such as a regulation on the board (directorate, executive directorate, etc. ).

Typically, the regulations on the board (or other relevant body) establish general rules about the status of this body; the composition of the board and the procedure for electing its members; on remuneration of board members; about the rules of doing business; on liability for violations committed by members of the board in the performance of official duties; on the procedure for conducting board meetings and making decisions at them, the legal force of these decisions and the procedure for their execution; providing reports to the general meeting of company participants, as well as the board of directors (if this body is formed in the company); preparation and approval of annual reports and balance sheets; about the responsibilities of the board in extreme economic situations; record keeping and other relations subject to regulation in the relevant internal document of the company.

According to Article 281 of the Labor Code of the Russian Federation, federal laws and the constituent documents of the organization may apply to members of the collegial executive body who have entered into an employment contract the features of labor regulation established by Chapter 43 of the Labor Code of the Russian Federation for the head of the organization. Federal laws may establish other features of labor regulation for heads of organizations and members of collegial executive bodies of these organizations.

Manager

The transfer of powers of the sole executive body of the company to the manager is regulated by Article 42 of the Law. Law No. 312-FZ sets out this article in a new edition. The reference to the fact that the company has the right to transfer the powers of its sole executive body to the manager only if such a possibility is expressly provided for by the company’s charter has been excluded. This innovation allows, in the absence of relevant provisions in the charter, to quickly resolve the issue of attracting a professional manager, for example, in the event of early termination of an employment contract with a person who performed the functions of the sole executive body.

In accordance with paragraph 1 of Art. 42 the company has the right to transfer, under an agreement, the exercise of the powers of its sole executive body to the manager.

The practical implementation of the power to transfer the powers of the sole executive body to the manager is referred to the non-exclusive competence of the general meeting, which decides to transfer the powers of the sole executive body to the manager, approves such a manager and the terms of the agreement with him, unless these powers are assigned by the company’s charter to the competence of the board of directors (supervisory council).

Rules similar to those established in Article 42 of the Law are also provided for in joint stock legislation, which allows for the possibility of transferring the powers of the sole executive body of a joint stock company to a manager - an organization or an individual entrepreneur.

A company that has transferred the powers of the sole executive body to a manager exercises civil rights and assumes civil responsibilities through a manager acting in accordance with federal laws, other regulatory legal acts of the Russian Federation and the company's charter.

The manager can be either an individual registered in the prescribed manner as an individual entrepreneur and acting on the basis of a certificate of making an appropriate entry in the Unified State Register of Individual Entrepreneurs, or a legal entity (management organization). Society has the right to decide this issue itself.

Based on the company’s decision, an agreement with the manager is prepared and signed. It is no coincidence that the law says that not any citizen can be a manager, but only one who is an individual entrepreneur (subclause 2, clause 2.1, article 32). Entrepreneurial activity without the formation of a legal entity, in contrast to work for hire, involves independently organized initiative activity of the subject at his own risk without subordination to the labor regulations adopted in a particular organization<8>.

<8>See: Tikhomirov M.Yu. Individual entrepreneur: legal status and types of activities. 3rd ed., rev. and additional M.: Publishing house Tikhomirov M.Yu., 2009 (http://www.urkniga.ru).

Consequently, the legislator in this case intends to establish not labor, but civil law relations.

An agreement with a management organization on transferring to it the powers of the sole executive body of the company is by its nature a civil law agreement. It contains individual elements of contracts of assignment, trust management of property, paid provision of services, gratuitous use (for example, of company property provided to the manager), etc. Therefore, this agreement should be classified as a mixed civil law contract (Article 421 of the Civil Code of the Russian Federation). If desired, such an agreement can be concluded with a citizen-entrepreneur.

An agreement with the manager is signed on behalf of the company by the person who chaired the general meeting of the company's participants, who approved the terms of the agreement with the manager, or a participant authorized by the decision of the general meeting, or, if the resolution of these issues falls within the competence of the board of directors (supervisory board), its chairman or person , authorized by a decision of the board of directors (supervisory board).

Thus, a civil contract with a manager is signed by the same persons as an employment contract with a person performing the functions of a sole executive body (clause 1 of Article 40 of the Law).

Appealing decisions of company management bodies

Article 43 of the Law is devoted to appealing decisions of governing bodies. At the same time, from paragraph 1 of this article, Law No. 205-FZ excluded the second and third sentences, which contained the following rules: “Such an application may be submitted within two months from the day when the company participant learned or should have learned about the decision made. In the event, if a company participant took part in the general meeting of company participants that adopted the appealed decision, the said application may be filed within two months from the date of adoption of such a decision.” Currently, the rules on the deadlines for appealing decisions of company management bodies are grouped in the new paragraph 4 of the article under consideration.

Analogues of the rules contained in Article 43 of the Law are available in the Law on Joint Stock Companies (for example, in Article 49, which defines, in particular, the rules for appealing decisions of the general meeting of shareholders). The rules established in paragraphs 1 and 2 of Art. 43 of the Law are mainly borrowed from shareholder legislation.

In paragraph 1 of Art. 43 provides for the right of a participant in a limited liability company to appeal decisions of the general meeting of company participants, as well as the grounds for such an appeal. A decision of the general meeting of company participants, adopted in violation of the requirements of the Law, other legal acts of the Russian Federation, the company's charter and violating the rights and legitimate interests of a company participant, may be declared invalid by the court upon the application of a company participant who did not take part in the voting or voted against the contested decision.

Consequently, an appeal against the decision of the general meeting by a company participant is allowed if:

• the decision of the general meeting was made in violation of the requirements of the Law, other legal acts of the Russian Federation, and the company’s charter;
• the decision violates the rights and legitimate interests of a company participant.

A company participant who did not take part in voting at the general meeting (for example, due to absence at the meeting) or voted against the relevant decision can exercise the right to appeal a decision of the general meeting.

An appeal is made by filing a corresponding application with the court. In the application, the interested member of the company must provide information about the existence of the above grounds for appealing the decision and about his position when voting or about his absence at the general meeting that adopted the appealed decision.

Paragraph 22 of Resolution No. 90/14 draws attention to the following: if a decision of a general meeting of company participants is appealed on the grounds of violation of the procedure for convening a meeting established by Law (untimely sending of information to participants, violation of the procedure and deadlines for forming the agenda of the meeting, etc.), such a meeting may be recognized as competent if all participants participated in it (clause 5 of Article 36 of the Law).

The court has the right, taking into account all the circumstances of the case, to uphold the appealed decision if the vote of the participant who filed the application could not influence the voting results, the violations committed are not significant and the decision did not cause losses to this participant in the company.

Thus, despite the proof of the violations specified in paragraph 1 of Art. 43 of the Law, the court has the right to uphold the appealed decision if the following conditions are simultaneously met:

• the vote of the company member appealing the decision could not change the voting results at the general meeting;
• the violations committed by the appealed decision are insignificant;
• losses as a result of the decision of the general meeting are not caused to the company participant who is appealing the decision or to the company.

If the presence of the first and third of these conditions is easy to confirm or refute with the help of objective facts, establishing the materiality or insignificance of the violation is entirely at the discretion of the court. It seems, however, that if the decision of the general meeting of company participants directly contradicts federal legislation or the company’s charter, then such a violation should not be considered insignificant, no matter what exactly the deviation from the normative rules is expressed in.

In cases where the parties involved in a dispute considered by the court refer to the decision of the general meeting of participants of the company in support of their claims or objections to the claim, but the court has established that this decision was made with significant violations of the law or other legal acts (in violation of the competence of this body , in the absence of a quorum, etc.), the court must proceed from the fact that such a decision has no legal force (in whole or in the relevant part), regardless of whether it was challenged by any of the company participants or not, and allow dispute, guided by the law (clause 24 of Resolution No. 90/14).

The experience of foreign legislation containing rules on appealing decisions of the bodies of a joint-stock company is interesting. Thus, Article 413 of the Commercial Code of the Republic of Poland provides that a decision of a general meeting made in violation of the law or the charter can be challenged by filing a claim in court against the joint-stock company. In addition to the board, supervisory board, audit commission and individual members of the listed bodies, each shareholder who voted against the decision and, after its adoption, demanded that his objection be recorded in the minutes, enjoys the right to bring such a claim. Shareholders who were not allowed to participate in the general meeting without proper grounds, as well as other shareholders who were not present at the meeting, if there were violations of the procedure for convening it or decisions were made on issues not included in the agenda, can also bring a claim. The above provisions of Polish legislation provide greater opportunities to correct decisions of the general meeting than the Law and the Law on Joint Stock Companies<9>.

ConsultantPlus: note.

The current legislation of Russia recognizes legal entities as independent participants in economic relations. Companies can exercise their rights only through official representatives. Since impersonal actions will be considered insignificant, it is necessary to form LLC management bodies in all cases.

During the development of constituent documents, owners determine their structure, type, scope of authority, as well as the procedure for interaction and responsibility. All provisions of the charter must comply with the general principles of domestic law, the requirements of the Civil Code of the Russian Federation and Federal Law 14-FZ of 02/08/98.

LLC management bodies and their legal characteristics

The owners of a business company will have to resolve issues of organizational structure independently. In this case, it will be necessary to take into account the specifics of legal regulation. Parliamentarians took the path of combining imperative and dispositive norms. Strict regulation is established in relation to making key decisions, but when building an internal system, participants have enough freedom. Four types of formations deserve special attention.

Founders meeting

Law 14-FZ gives this body the highest competence, formalizing the procedure for making each new decision. Convening members of the company is permitted on a scheduled or extraordinary basis. In the first case, the collection of full owners is carried out within a pre-agreed timeframe and is the responsibility of the head of the company. Meetings should take place at least once a year. When setting a date, you should take into account the rule that the meeting cannot be held earlier than 2 and later than 4 months from the date of expiration of the financial year.

The right to raise the issue of emergency collection is given to both the participants themselves and the head of the enterprise. Implement a mechanism upon the occurrence of events specified in the charter. The exception is the interests of the company itself, or a separate group of its founders. In this case, the rationale may be different.

Control

A collegial body is formed for the purpose of promptly resolving issues related to current activities. They create a structure in the form of a board of directors or a supervisory commission. The competence of the body often duplicates the functions of the general meeting, therefore, when creating it, it is necessary to pay great attention to the regulatory framework. The list of powers can be expanded or narrowed. The key task of the council is to ensure the interests of the owners and control the efficiency of activities. The procedure for appointing members to positions, the principles of decision-making, as well as the rules for disbanding are enshrined in the charter. Creating this element in the system is optional.

Director and board

The direct management of the company is carried out by the director. The appointment of an official is made at a general meeting of owners. Powers are granted for the period established by the charter and an employment contract is concluded. Since September 2014, owners of business companies have the opportunity to appoint several heads of the organization at once. Each of the managers acts independently, but in the interests of the company. The functions of the sole executive body can be performed by a manager (specialized agency or entrepreneur).

1. The supreme body of the company is the general meeting of the company's participants. The general meeting of company participants may be regular or extraordinary.

All company participants have the right to attend the general meeting of company participants, take part in the discussion of agenda items and vote when making decisions.

Provisions of the company's charter or decisions of the company's bodies that limit the specified rights of the company's participants are void.

Each company participant has at the general meeting of company participants a number of votes proportional to his share in the authorized capital of the company, except for cases provided for by this Federal Law.

The charter of the company upon its establishment or by introducing amendments to the charter of the company by decision of the general meeting of the company's participants, adopted unanimously by all the company's participants, may establish a different procedure for determining the number of votes of the company's participants. Amendments and exclusions of the provisions of the company's charter establishing such a procedure are carried out by decision of the general meeting of the company's participants, adopted unanimously by all the company's participants.

2. The charter of the company may provide for the formation of a board of directors (supervisory board) of the company.

(see text in the previous edition)

The procedure for the formation and activities of the board of directors (supervisory board) of the company, as well as the procedure for terminating the powers of members of the board of directors (supervisory board) of the company and the competence of the chairman of the board of directors (supervisory board) of the company are determined by the charter of the company.

Members of the company's collegial executive body cannot constitute more than one-fourth of the composition of the board of directors (supervisory board) of the company. A person performing the functions of the sole executive body of a company cannot simultaneously be the chairman of the board of directors (supervisory board) of the company.

By decision of the general meeting of the company's participants, members of the board of directors (supervisory board) of the company during the period of performance of their duties may be paid remuneration and (or) compensation for expenses associated with the performance of these duties. The amounts of these remunerations and compensations are established by a decision of the general meeting of the company's participants.

2.1. The competence of the board of directors (supervisory board) of the company is determined by the charter of the company in accordance with this Federal Law. The company's charter may provide that the competence of the board of directors (supervisory board) of the company includes:

1) determination of the main directions of the company’s activities;

2) the formation of the executive bodies of the company and the early termination of their powers, as well as the adoption of a decision on the transfer of powers of the sole executive body of the company to a commercial organization or individual entrepreneur (hereinafter referred to as the manager), approval of such a manager and the terms of the agreement with him;

3) establishing the amount of remuneration and monetary compensation for the sole executive body of the company, members of the collegial executive body of the company, and the manager;

4) making decisions on the company’s participation in associations and other unions of commercial organizations;

5) appointment of an audit, approval of the auditor and establishment of the amount of payment for his services;

6) approval or adoption of documents regulating the organization of the company’s activities (internal documents of the company);

7) creation of branches and opening of representative offices of the company;

8) resolving issues of approval of transactions in which there is an interest, in cases provided for in Article 45

9) resolving issues of approval of major transactions in cases provided for in Article 46 of this Federal Law;

10) resolving issues related to the preparation, convening and holding of a general meeting of company participants;

11) other issues provided for by this Federal Law, as well as issues provided for by the charter of the company and not within the competence of the general meeting of participants of the company or the executive body of the company.

2.2. If the resolution of issues related to the preparation, convening and holding of a general meeting of the company's participants is referred by the company's charter to the competence of the board of directors (supervisory board) of the company, the executive body of the company acquires the right to demand the holding of an extraordinary general meeting of the company's participants.

3. Members of the board of directors (supervisory board) of the company, the person performing the functions of the sole executive body of the company, and members of the collegial executive body of the company who are not participants in the company may participate in the general meeting of participants of the company with the right of an advisory vote.

4. Management of the current activities of the company is carried out by the sole executive body of the company or the sole executive body of the company and the collegial executive body of the company. The executive bodies of the company are accountable to the general meeting of the company's participants and the board of directors (supervisory board) of the company.

5. The transfer of voting rights by a member of the board of directors (supervisory board) of the company, a member of the collegial executive body of the company to other persons, including other members of the board of directors (supervisory board) of the company, other members of the collegial executive body of the company, is not permitted.

6. The charter of the company may provide for the formation of an audit commission (election of an auditor) of the company. In companies with more than fifteen participants, the formation of an audit commission (election of an auditor) of the company is mandatory. A person who is not a member of the company can also be a member of the audit commission (auditor) of the company.

The functions of the audit commission (auditor) of the company, if provided for by the company's charter, can be performed by an auditor approved by the general meeting of the company's participants, who is not connected by property interests with the company, members of the board of directors (supervisory board) of the company, with the person performing the functions of the sole executive body of the company, members the collegial executive body of the company and the participants of the company.

Members of the audit commission (auditor) of the company cannot be members of the board of directors (supervisory board) of the company, a person performing the functions of the sole executive body of the company, and members of the collegial executive body of the company.

A limited liability company is a legal entity organized by one or more founders. Its authorized capital consists of shares of the founders, which is recorded in the documentation. Legislation regulates the procedure for creating and managing a company.

Basic LLC management body for most legal entities of the presented type, it is often limited to two positions. This is the general director and chief accountant of the company. But the full structure looks much more extensive. Management bodies are appointed or elected upon establishment. Their structure is specified by law. It will be discussed further below.

Structure of governing bodies

When in the form of a limited liability company, there are certain requirements established by law. In addition to contributing their shares to the authorized capital, the founders are required to appoint or select the main bodies that will manage their enterprise.

Their structure is quite extensive, although in many societies it can be simplified.

The governing bodies of the LLC are the following structural entities:

1. First of all, the participants (or one founder, if only his funds were used to form the authorized capital) exercise control over their organization.
2. In addition to the founders, experienced specialists are hired for management positions. If there are several of them, they form a board of directors (supervisory board). In some businesses, these positions may be eliminated. They are not mandatory.
3. Another management body is the collegial board.
4. To exercise control over other managers, the founders of the company can resort to the services of an auditor or auditor.

You should learn more about each of these structural divisions. Each of them plays a role in the effective operation of the company.

General meeting of founders

Founders' meeting. Each participant who has contributed his share to the authorized capital of the enterprise has the right to make decisions on the directions of his company’s activities. If there are several founders, they meet at certain intervals to resolve major issues regarding the functioning of their organization.

Such fees may be regular or extraordinary. Each founder has the right to vote, the weight of which is determined by the size of the share contributed by him in the process of founding the enterprise.

The main document regulating meetings of founders is the charter. It defines the competence of this body, as well as other structural units.

Competence of the meeting of founders

Supreme governing body of LLC has a number of rights that fall within their exclusive competence. First of all, this includes questions about the main direction of the company’s functioning, decisions about association or participation with other organizations.

The meeting of the company’s founders can also change the provisions of the charter, including the structure of the company’s balance sheet. They amend the organization's creation agreement. This body appoints executors who will exercise control over the rest of the company’s personnel.

The board of founders elects and terminates the work of the auditor and auditor, and approves the information provided in the annual reports. Based on these data, based on the results of the reporting period, a decision is made on the distribution of net profit.

The supreme governing body regulates the internal affairs of their company. It can place bonds and other securities.

If necessary, the board of founders has the right to reorganize or liquidate its company, appoint members of the liquidation commission, and approve financial matters under these conditions.

Structure of LLC management bodies includes such a unit as the board of directors. When creating the charter, the founders form it. This document also stipulates the procedure for appointing performers to the presented position.

The founders stipulate the terms of reference and procedures of the supervisory board. The main ones are making decisions on the future direction of the company’s work, adopting and approving internal documents, concluding transactions in which the company entrusted to them is interested in by law.

Also, the supervisory board organizes a regular or extraordinary meeting, decides on its conduct and convocation of participants. The board of directors prepares documentation that is provided to the founders. At the meeting, this body can participate in the discussion of main issues with an advisory right to vote.

Such LLC management body, as a board of directors, has a range of powers. In addition to the rights listed above, he can form executive bodies, as well as terminate their activities ahead of schedule. The supervisory board also determines their powers. He sets the amount of remuneration for the sole executive and collegial managers.

The board of directors may decide to merge with other commercial organizations. He also has the right to create branches and representative offices.

In addition, the supervisory board appoints an audit, approving the candidates they have selected for the main positions. He approves the amount of their remuneration for the audit services provided.

Executive agency

Collegial management body in LLC represented by the directors and the board. But the current activities of the company can also be managed by a sole executive. This body is accountable to the meeting of founders and the supervisory board. The sole executive may be the president, general director or other manager. He is elected at a general meeting. The duration of his powers is specified by the charter.

An agreement is concluded between the company and the person carrying out sole executive activities. For a collegial body, the founding council also establishes its powers and quantitative composition. Internal documents are also issued for this purpose.

A collegial body may consist only of individuals. They do not have to be the Chairman of the collegial governing body is the sole executive. Sometimes these functions are transferred to the manager.

Powers of the executive body

Responsibility of LLC management bodies regulated by the charter and internal documentation. is charged with a number of powers. Since the collegial managers are headed by a chairman, he has a number of special powers.

A sole executor can represent the interests of the company without a power of attorney, act on its behalf and make transactions. In addition, he gives powers of attorney for representational activities.

In the person of the chairman, the director can issue orders related to the appointment of various employees to positions. He also resolves issues regarding their transfer and dismissal. The sole executor may take measures to impose disciplinary sanctions or rewards.

Inspector and Auditor

Controlling LLC management body, who is called an auditor or auditor, is elected at a meeting of the founders. The number of its members is determined by the charter. This body can conduct financial and business audits at any time and has access to relevant documentation.

The auditor must check annual reports and balance sheets before approval at the general meeting. The meeting of founders cannot accept such documents without an audit.

Having considered each LLC management body, you can understand their area of ​​competence. The structure in each company can be simplified, but in its entirety it includes all the services listed above.

According to Article 91 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) and Article 32 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as the Law on Limited Liability Companies), the supreme governing body of the company is the general meeting of participants society.

All company participants have the right to attend the general meeting of company participants, take part in the discussion of agenda items and vote when making decisions.

Constituent documents or decisions of the company's management bodies cannot limit the specified rights of company participants. Such provisions of the constituent documents of the company or decisions of the management bodies are void.

Each company participant has a number of votes at the general meeting of company participants, proportional to his share in the authorized capital of the company, with the exception of cases provided for by the Law on Limited Liability Companies.

The charter of the company upon its establishment or by introducing amendments to the charter of the company by decision of the general meeting of the company's participants, adopted unanimously by all the company's participants, may establish a different procedure for determining the number of votes of the company's participants. Amendments and exclusions of the provisions of the company's charter establishing such a procedure are carried out by decision of the general meeting of the company's participants, adopted unanimously by all the company's participants.

The general meeting of company participants may be regular or extraordinary.

According to Article 34 of the Law on Limited Liability Companies, the next general meeting of the company's participants is held within the time limits specified by the company's charter, but not less than once a year. The next general meeting of the company's participants is convened by the executive body of the company.

The company's charter must determine the date for holding the next general meeting of the company's participants, at which the annual results of the company's activities are approved. The said general meeting of company participants must be held no earlier than two months and no later than four months after the end of the financial year.

According to paragraph 1 of Article 35 of the Law on Limited Liability Companies, an extraordinary general meeting of company participants is held in cases determined by the company’s charter, as well as in any other cases if the holding of such a general meeting is required by the interests of the company and its participants.

An extraordinary general meeting of the company's participants is convened by the executive body of the company. The initiative to convene an extraordinary general meeting of the company's participants belongs to: the executive body of the company, the board of directors (supervisory board) of the company, the audit commission (auditor) of the company, the auditor, as well as the company's participants, who in the aggregate have at least one tenth of the total number of votes of the company's participants ( Resolution of the Federal Arbitration Court (hereinafter referred to as FAS) of the Central District of December 27, 2004 in case No. A64-1254/04-8).

According to Article 35 of the Law on Limited Liability Companies, the executive body of the company is obliged, within five days from the date of receipt of the request to hold an extraordinary general meeting of company participants, to consider this requirement and make a decision on holding an extraordinary general meeting of company participants or to refuse to hold it. A decision to refuse to hold an extraordinary general meeting of company participants can be made by the company’s executive body only in the following cases:

If the procedure established by the Law on Limited Liability Companies for submitting a request to hold an extraordinary general meeting of company participants is not followed;

If none of the issues proposed for inclusion on the agenda of the extraordinary general meeting of the company's participants falls within its competence or does not comply with the requirements of federal laws.

Please note that the specified list of grounds for refusal to hold an extraordinary general meeting of company participants is exhaustive (clause 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 90, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 of December 9, 1999 “On some issues of application of the Federal Law “ About limited liability companies").

Moreover, if one or more issues proposed for inclusion on the agenda of an extraordinary general meeting of company participants do not fall within the competence of the general meeting of company participants or do not comply with the requirements of federal laws, these issues are not included in the agenda.

The executive body of the company does not have the right to make changes to the wording of issues proposed for inclusion on the agenda of the extraordinary general meeting of the company's participants, as well as to change the proposed form of holding the extraordinary general meeting of the company's participants.

Along with the issues proposed for inclusion on the agenda of the extraordinary general meeting of the company's participants, the executive body of the company, on its own initiative, has the right to include additional issues in it.

If a decision is made to hold an extraordinary general meeting of the company's participants, the meeting must be held no later than forty-five days from the date of receipt of the request for its holding.

If within a five-day period a decision has not been made to hold an extraordinary general meeting of the company's participants or a decision has been made to refuse to hold it, the extraordinary general meeting of the company's participants may be convened by bodies or persons demanding its holding (Resolution of the Federal Antimonopoly Service of the Moscow District dated January 14 2004 in case No. KG-A40/10775-03).

In this case, the executive body of the company is obliged to provide the specified bodies or persons with a list of company participants with their addresses.

The costs of preparing, convening and holding such a general meeting may be reimbursed by decision of the general meeting of company participants at the expense of the company.

The decision of an extraordinary meeting of company participants may be declared invalid if such a meeting is convened and held by unauthorized persons (Resolution of the Federal Antimonopoly Service of the West Siberian District dated September 28, 2004 in case No. F04-6811/2004 (A70-4918-11).

Preparation for holding a general meeting includes several stages:

Making a decision to hold a meeting;

Notification of company participants about the meeting;

Submission of proposals by company participants on the formation of the agenda of the general meeting;

Providing information and materials to society members.

As previously mentioned, the decision to hold a general meeting, as a general rule, is made by the executive body of the company.

In accordance with Article 36 of the Law on Limited Liability Companies, the executive body or persons convening a general meeting of company participants are obliged to notify each company participant about this no later than thirty days before it is held by registered mail to the address indicated in the list of company participants, or in any other way provided for by the company's charter. The company's charter may provide for a shorter notice period.

The notice of a general meeting must indicate the time and place of the general meeting of the company's participants, as well as the proposed agenda.

Note!

Untimely notification (failure to notify) a company participant about the date of the general meeting is grounds for declaring the decision of the general meeting of company participants invalid (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District of October 11, 2005 in case No. A79-10720/2004-SK2-10477, Resolution of the FAS East Siberian District dated April 19, 2005 in case No. A19-10279/04-6-Ф02-1545/05-С2, Resolution of the Moscow District FAS dated June 21, 2005 in case No. KG-A40/4964-05).

In accordance with paragraph 2 of Article 36 of the Law on Limited Liability Companies, any participant in the company has the right to make proposals to include additional issues on the agenda of the general meeting of company participants no later than fifteen days before it is held.

Additional issues are included in the agenda of the general meeting of company participants. Issues that do not fall within the competence of the general meeting of company participants or do not comply with the requirements of federal laws are not subject to inclusion on the agenda. This list of reasons for not including issues on the agenda is exhaustive (paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 90, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 of December 9, 1999 “On some issues of application of the Federal Law “On Limited Liability Companies” ).

The body or persons convening the general meeting of company participants does not have the right to make changes to the wording of additional issues proposed for inclusion on the agenda of the general meeting of company participants.

If, at the proposal of the company's participants, changes are made to the initial agenda of the general meeting of the company's participants, the body or persons convening the general meeting of the company's participants are obliged to notify all company participants no later than ten days before it is held about the changes made to the agenda by registered mail. by letter to the address indicated in the list of participants of the company, or in another way provided for by the charter of the company.

Information and materials to be provided to the company's participants when preparing the general meeting of the company's participants include the company's annual report, the conclusions of the audit commission (auditor) of the company and the auditor based on the results of checking the annual reports and annual balance sheets of the company, information about the candidate (candidates) for the executive bodies of the company, the board of directors (supervisory board) of the company and the audit commission (auditors) of the company, draft amendments and additions to the constituent documents of the company, or draft constituent documents of the company in a new edition, draft internal documents of the company, as well as other information (materials), provided for by the company's charter (Resolution of the Federal Antimonopoly Service of the Central District of October 1, 2004 in case No. A35-2632/04-C9).

If a different procedure for familiarizing the company's participants with information and materials is not provided for by the company's charter, the body or persons convening the general meeting of the company's participants are obliged to send them information and materials along with a notice of the general meeting of the company's participants, and in the event of a change in the agenda, the relevant information and materials are sent along with notification of such change.

The specified information and materials must be provided to all company participants for review at the premises of the executive body of the company within thirty days before the general meeting of the company’s participants. The company is obliged, at the request of a company participant, to provide him with copies of these documents. The fee charged by the company for providing these copies cannot exceed the costs of their production.

Please note that violation of the preparation and holding procedure may lead to the invalidation of the decision of the general meeting (Resolution of the Federal Antimonopoly Service of the Volga Region dated November 25, 2003 in case No. A49-2372/03-96АО/21).

At the same time, according to paragraph 5 of Article 36 of the Law on Limited Liability Companies, in the event of a violation of the procedure for convening a general meeting of company participants established by Article 36 of the Law on Limited Liability Companies, such a general meeting is recognized as competent if all participants of the company participate in it.

The general meeting of the company's participants is held in the manner established by the Law on Limited Liability Companies, the company's charter and its internal documents. To the extent not regulated by the Law on Limited Liability Companies, the company's charter and internal documents of the company, the procedure for holding a general meeting of company participants is established by a decision of the general meeting of company participants.

The Law on Limited Liability Companies provides for two procedures for holding a meeting: in person (Article 36) and in absentia (Article 37).

In-person meeting.

Before the start of the general meeting, registration of arriving members of the company is carried out.

Clause 2 of Article 37 of the Law on Limited Liability Companies establishes the right of private members of the company to participate in the general meeting in person or through their representatives. Representatives of company participants must present documents confirming their proper authority. A power of attorney issued to a representative of a company participant must contain information about the represented person and the representative (name or designation, place of residence or location, passport details), be drawn up in accordance with the requirements of paragraphs 4 and 5 of Article 185 of the Civil Code of the Russian Federation or certified by a notary.

An unregistered company participant (representative of a company participant) is not entitled to take part in voting.

The general meeting of company participants opens at the time specified in the notice of the general meeting of company participants or, if all company participants are already registered, earlier.

The general meeting is opened by the person performing the functions of the sole executive body of the company, or the person heading the collegial executive body of the company. The general meeting of the company's participants, convened by the board of directors (supervisory board) of the company, the audit commission (auditor) of the company, the auditor or participants of the company, is opened by the chairman of the board of directors (supervisory board) of the company, the chairman of the audit commission (auditor) of the company, an auditor or one of the participants of the company who convened this general meeting.

The person opening the general meeting of the company's participants elects a chairman from among the company's participants.

Unless otherwise provided by the company's charter, when voting on the issue of electing a chairman, each participant in the general meeting of the company's participants has one vote, and the decision on this issue is made by a majority of votes of the total number of votes of the company's participants who have the right to vote at this general meeting.

The general meeting of company participants has the right to make decisions only on agenda items communicated to company participants in accordance with paragraphs 1 and 2 of Article 36 of the Law on Limited Liability Companies. The exception is cases when all members of the company participate in the general meeting. In this case, the general meeting has the right to make decisions on agenda items that were not sent to the participants in preparation for the meeting.

Decisions on the issues specified in subparagraph 2 of paragraph 2 of Article 33 of the Law on Limited Liability Companies, as well as on other issues determined by the charter of the company, are made by a majority of at least two-thirds of the total number of votes of the company's participants, if a larger number of votes is necessary for adoption such a decision is not provided for by the Law on Limited Liability Companies or the company's charter.

Decisions on the issues specified in subparagraphs 3 and 11 of paragraph 2 of Article 33 of the Law on Limited Liability Companies are made unanimously by all participants of the company.

Other decisions are made by a majority vote of the total number of votes of the company's participants, unless the need for a larger number of votes to make such decisions is provided for by the Law on Limited Liability Companies or the company's charter.

The company's charter may provide for cumulative voting on issues of electing members of the board of directors (supervisory board) of the company, members of the collegial executive body of the company and (or) members of the audit commission of the company.

In cumulative voting, the number of votes belonging to each member of the company is multiplied by the number of persons who must be elected to the body of the company, and the participant of the company has the right to cast the resulting number of votes entirely for one candidate or distribute them between two or more candidates. The candidates who receive the largest number of votes are considered elected.

Decisions of the general meeting of the company's participants are made by open voting, unless a different procedure for making decisions is provided for by the company's charter.

When holding a general meeting, the executive body of the company organizes the keeping of minutes of the general meeting.

The minutes of all general meetings of company participants are filed in a minutes book, which must be provided to any company participant for review at any time. At the request of the company's participants, they are given extracts from the minutes book, certified by the executive body of the company.

Absentee general meeting of participants.

The decision of the general meeting of company participants can be made without holding a meeting (the joint presence of company participants to discuss agenda items and make decisions on issues put to vote) by conducting absentee voting (by poll). Such voting can be carried out by exchanging documents through postal, telegraphic, teletype, telephone, electronic or other communications that ensure the authenticity of transmitted and received messages and their documentary evidence.

The decision of the general meeting of company participants on the issues specified in subparagraph 6 of paragraph 2 of Article 33 of the Law on Limited Liability Companies (on approval of annual reports and annual balance sheets) cannot be made by absentee voting (by poll).

The procedure for conducting absentee voting is determined by an internal document of the company, which must provide for the mandatory notification of the proposed agenda to all participants in the company, the possibility of familiarizing all participants of the company with all the necessary information and materials before voting, the opportunity to make proposals for the inclusion of additional issues on the agenda, and the mandatory notification to all members of the company before the start of voting on the amended agenda, as well as the end date of the voting procedure.

The Law on Limited Liability Companies specifically highlights the procedure for making decisions in a company consisting of one participant.

In accordance with Article 39 of the Law on Limited Liability Companies, in such a company, decisions on issues within the competence of the general meeting of company participants are made by the sole participant of the company individually and are drawn up in writing. In this case, the provisions of Articles 34, 35, 36, 37, 38 and 43 of the Law on Limited Liability Companies do not apply, with the exception of the provisions relating to the timing of the annual general meeting of company participants.

Note!

A decision of a general meeting affecting the rights of company participants may be declared invalid if significant violations of the law were committed during the general meeting (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated September 27, 2005 in case No. A43-17901/2004-1-641). Members of the company who were not present at the meeting or voted against such a decision have the right to appeal such a decision (Resolution of the Federal Antimonopoly Service of the Far Eastern District of December 7, 2004 in case No. F03-A51/04-1/3779).

In accordance with Article 43 of the Law on Limited Liability Companies, such an application can be filed within two months from the day the company participant learned or should have learned about the decision made. If a company participant took part in the general meeting of company participants that adopted the appealed decision, the said application may be filed within two months from the date of adoption of such a decision.

In this case, the court has the right, taking into account all the circumstances of the case, to uphold the appealed decision if the vote of the company participant who filed the application could not influence the voting results, the violations committed are not significant and the decision did not cause losses to this company participant.

In accordance with Article 33 of the Law on Limited Liability Companies, the competence of the general meeting of company participants is determined by the company's charter.

Paragraph 2 of Article 33 of the Law on Limited Liability Companies includes the following within the exclusive competence of the general meeting of company participants:

Determining the main directions of the company’s activities, as well as making decisions on participation in associations and other associations of commercial organizations (Resolution of the Federal Antimonopoly Service of the West Siberian District dated October 26, 2004 in case No. F04-7675/2004(5748-A45-12);

Changing the charter of the company, including changing the size of the authorized capital of the company (Resolution of the Federal Antimonopoly Service of the Moscow District dated August 16, 2004 in case No. KG-A40/6214-04);

According to paragraph 2 of Article 32 of the Law on Limited Liability Companies, the charter of the company may provide for the formation of a board of directors (supervisory board) of the company.

The competence of the board of directors (supervisory board) of the company is determined by the charter of the company in accordance with the Law on Limited Liability Companies.

The company's charter may provide that the competence of the board of directors (supervisory board) of the company includes:

Formation of executive bodies of the company, early termination of their powers;

Resolving issues regarding the execution of major transactions in cases provided for in Article 46 of the Law on Limited Liability Companies;

Resolving issues regarding the execution of transactions in which there is an interest, in cases provided for in Article 45 of the Law on Limited Liability Companies;

Resolving issues related to the preparation, convening and holding of a general meeting of company participants. If the resolution of issues related to the preparation, convening and holding of a general meeting of the company's participants is referred by the company's charter to the competence of the board of directors (supervisory board) of the company, the executive body of the company acquires the right to demand the holding of an extraordinary general meeting of the company's participants.;

Resolution of other issues provided for by the Law on Limited Liability Companies.

The procedure for the formation and activities of the board of directors (supervisory board) of the company, as well as the procedure for terminating the powers of members of the board of directors (supervisory board) of the company and the competence of the chairman of the board of directors (supervisory board) of the company are determined by the charter of the company.

It seems that if the board of directors has not been formed, but the charter provides for its creation, the powers of the board of directors should be transferred to the general meeting. To avoid conflict situations, this provision may be enshrined in the company’s charter.

The Law on Limited Liability Companies establishes restrictions on combining management positions in the company. Members of the company's collegial executive body cannot constitute more than one-fourth of the composition of the board of directors (supervisory board) of the company. A person performing the functions of the sole executive body of a company cannot simultaneously be the chairman of the board of directors (supervisory board) of the company.

By decision of the general meeting of the company's participants, members of the board of directors (supervisory board) of the company during the period of performance of their duties may be paid remuneration and (or) compensation for expenses associated with the performance of these duties. The amounts of these remunerations and compensations are established by a decision of the general meeting of the company's participants.

Members of the board of directors (supervisory board) of the company who are not members of the company may participate in the general meeting of the company's participants with the right of an advisory vote.

Transfer of voting rights by a member of the board of directors (supervisory board) of the company, to other persons, including other members of the board of directors (supervisory board) of the company, members of the collegial executive body of the company, is not permitted.

Members of the board of directors (supervisory board) of a company, when exercising their rights and performing their duties, must act in the interests of the company in good faith and reasonably.

Members of the board of directors (supervisory board) of a company are liable to the company for losses caused to the company by their guilty actions (inaction), unless other grounds and the amount of liability are established by federal laws. In this case, members of the board of directors (supervisory board) of the company who voted against the decision that caused losses to the company or who did not take part in the voting are not liable.

When determining the grounds and amount of liability of members of the board of directors (supervisory board) of the company, the usual conditions of business turnover and other circumstances relevant to the case must be taken into account.

The company or its participant has the right to file a claim for compensation for losses caused to the company by a member of the board of directors (supervisory board) of the company.

A decision of the board of directors (supervisory board) of a company made in violation of the requirements of the Law on Limited Liability Companies, other legal acts of the Russian Federation, the company's charter and violating the rights and legitimate interests of a company participant may be declared invalid by the court upon the application of this company participant.

Let us recall that at the end of 2005, the Ministry of Economic Development and Trade of the Russian Federation submitted to the Government of the Russian Federation a revised concept for the development of corporate legislation for the period until 2008. One of the directions for reforming corporate legislation will be the development of mechanisms to prevent and resolve corporate conflicts. Another area is to ensure civil liability of members of the board of directors and managers for losses caused to the company.

According to Article 32 of the Law on Limited Liability Companies, the management of the current activities of the company is carried out by the sole executive body of the company or the sole executive body of the company and the collegial executive body of the company. The executive bodies of the company are accountable to the general meeting of the company's participants and the board of directors (supervisory board) of the company.

In accordance with paragraph 1 of Article 40 of the Law on Limited Liability Companies, the sole executive body of the company (president and others) is elected by the general meeting of the company's participants for a period determined by the company's charter.

An agreement between the company and the person performing the functions of the sole executive body of the company is signed on behalf of the company by the person who chaired the general meeting of the company's participants, at which the person performing the functions of the sole executive body of the company was elected, or by a participant in the company authorized by the decision of the general meeting of the company's participants (Resolution FAS Central District dated August 10, 2004 in case No. A09-832/03-5-4).

The sole executive body can be either a participant in the company or an independent person. According to Article 275 of the Labor Code of the Russian Federation, an employment contract with the head of an organization is concluded for a period established by the constituent documents of the organization or by agreement of the parties.

Laws, other regulatory legal acts or constituent documents of an organization may establish procedures preceding the conclusion of an employment contract with the head of the organization (conducting a competition, election or appointment to a position, etc.).

A person performing the functions of the sole executive body of the company, who is not a member of the company, may participate in the general meeting of the company's participants with the right of an advisory vote.

Only an individual can act as the sole executive body of a company, with the exception of the case provided for in Article 42 of the Law on Limited Liability Companies, according to which the company has the right to transfer under an agreement the powers of its sole executive body to the manager, if such a possibility is expressly provided for by the charter of the company.

An interesting point of view was expressed by the FAS of the East Siberian District in the Resolution of September 21, 2004 in case No. A74-1923/04-K1-F02-3861/04-C2, according to which, if the charter of the company does not contain a ban on the transfer of powers of the sole executive body to the manager, then the transfer of powers of the sole executive body to the manager does not contradict the law.

The competence of the sole executive body is generally established by Article 40 of the Law on Limited Liability Companies. The functions of the sole executive body are set out in more detail in the company's charter. Sole executive body of the company:

Without a power of attorney, acts on behalf of the company, including representing its interests and making transactions;

Issues powers of attorney for the right of representation on behalf of the company, including powers of attorney with the right of substitution;

Issues orders on the appointment of company employees to positions, on their transfer and dismissal, applies incentive measures and imposes disciplinary sanctions;

Exercises other powers not assigned by the Law on Limited Liability Companies or the company's charter to the competence of the general meeting of the company's participants, the board of directors (supervisory board) of the company and the collegial executive body of the company.

The procedure for the activities of the sole executive body of the company and its decision-making is established by the charter of the company, internal documents of the company, as well as an agreement concluded between the company and the person performing the functions of its sole executive body.

Please note that decisions on the appointment and termination of powers of a manager fall only within the competence of the general meeting of company participants (Resolution of the Federal Antimonopoly Service of the West Siberian District dated December 15, 2004 in case No. Ф04-8696/2004(6998-А03-11).

At the same time, a company participant does not have the right to independently terminate the contract with the person acting as the sole executive body. Making such a decision falls within the competence of the general meeting (Article 33 of the Law on Limited Liability Companies).

The decision of the sole executive body of the company or the manager, taken in violation of the requirements of the Law on Limited Liability Companies, other legal acts of the Russian Federation, the charter of the company and violating the rights and legitimate interests of a participant in the company, in accordance with Article 43 of the Law on Limited Liability Companies may be recognized invalid by the court at the request of this member of the company (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 8, 2004 in case No. A38-3985-14/69-2004).

The sole executive body of the company and the manager, when exercising their rights and performing their duties, must act in the interests of the company in good faith and reasonably.

The sole executive body of the company, as well as the manager, are liable to the company for losses caused to the company by their guilty actions (inaction), unless other grounds and the amount of liability are established by federal laws.

When determining the grounds and amount of liability of the sole executive body of the company, as well as the manager, the usual conditions of business turnover and other circumstances relevant to the case must be taken into account.

The company or its participant has the right to file a claim for compensation for losses caused to the company by the sole executive body of the company or the manager.

At the same time, members of the company, when applying for judicial protection, act within the interests of the company (Resolution of the Federal Antimonopoly Service of the Ural District dated December 24, 2003 in case No. F09-1180/03-GK).

In accordance with Article 41 of the Law on Limited Liability Companies, if the charter of the company provides for the formation, along with the sole executive body of the company, of a collegial executive body of the company (board, directorate and others), such a body is elected by the general meeting of participants of the company in the number and for the period determined charter of the company.

Only an individual can be a member of the collegial executive body, regardless of whether he is a member of the company or not.

Members of the collegial executive body of the company who are not participants in the company may participate in the general meeting of the company's participants with the right of an advisory vote.

The transfer of voting rights by a member of the collegial executive body of the company to other persons, including members of the board of directors (supervisory board) of the company, other members of the collegial executive body of the company, is not permitted.

The collegial executive body of the company exercises the powers assigned by the company's charter to its competence.

According to paragraph 1 of Article 41 of the Law on Limited Liability Companies, the functions of the chairman of the collegial executive body of the company are performed by the person performing the functions of the sole executive body of the company, unless the powers of the sole executive body of the company are transferred to the manager.

The procedure for the activities of the collegial executive body of the company and its decision-making is established by the charter of the company and internal documents of the company.

Thus, the charter of the company must set out in detail the procedure for the formation and activities of the collegial executive body of the company, as well as the competence of this body.

Members of the collegial executive body of the company, when exercising their rights and performing their duties, must act in the interests of the company in good faith and wisely.

Members of the collegial executive body of the company are liable to the company for losses caused to the company by their guilty actions (inaction), unless other grounds and the amount of liability are established by federal laws. In this case, members of the collegial executive body of the company who voted against the decision that caused losses to the company or who did not take part in the voting are not liable.

When determining the grounds and amount of liability of members of the collegial executive body of the company, the usual conditions of business turnover and other circumstances relevant to the case must be taken into account.

If several persons are responsible, their liability to society is joint and several.

In accordance with Article 44 of the Law on Limited Liability Companies, the company or its participant has the right to file a claim for compensation for losses caused by a member of the collegial executive body of the company.

A decision of the collegial executive body of the company made in violation of the requirements of the Law on Limited Liability Companies, other legal acts of the Russian Federation, the charter of the company and violating the rights and legitimate interests of a company participant may be declared invalid by the court upon the application of this company participant.

According to Article 32 of the Law on Limited Liability Companies, the charter of the company may provide for the formation of an audit commission (election of an auditor) of the company. The formation of an audit commission (election of an auditor) is mandatory in companies with more than fifteen participants.

Any person, including those who are not a member of the company, can be a member of the audit commission (auditor) of the company.

Members of the audit commission (auditor) of the company cannot be members of the board of directors (supervisory board) of the company, a person performing the functions of the sole executive body of the company, and members of the collegial executive body of the company.

In accordance with Article 47 of the Law on Limited Liability Companies, the audit commission (auditor) of the company is elected by the general meeting of the company's participants for a period determined by the company's charter.

The number of members of the company's audit commission is determined by the company's charter.

The audit commission (auditor) of the company has the right at any time to conduct inspections of the financial and economic activities of the company and have access to all documentation relating to the activities of the company. At the request of the audit commission (auditor) of the company, members of the board of directors (supervisory board) of the company, the person performing the functions of the sole executive body of the company, members of the collegial executive body of the company, as well as employees of the company are required to give the necessary explanations orally or in writing.

The audit commission's inspection of the company's financial and economic activities is an integral part of the company's internal control system.

The audit commission (auditor) of the company must carry out an audit of the annual reports and balance sheets of the company before they are approved by the general meeting of the company's participants. The general meeting of the company's participants does not have the right to approve the annual reports and balance sheets of the company in the absence of conclusions from the audit commission (auditor) of the company.

The work procedure of the audit commission (auditor) of the company is determined by the charter and internal documents of the company.

Note!

The functions of the audit commission (auditor) of the company, if provided for by the company's charter, can be performed by an auditor approved by the general meeting of the company's participants, who is not connected by property interests with the company, members of the board of directors (supervisory board) of the company, with the person performing the functions of the sole executive body of the company, members the collegial executive body of the company and the participants of the company.

To check and confirm the correctness of the company's annual reports and balance sheets, as well as to check the state of the company's current affairs, it has the right, by decision of the general meeting of the company's participants, to engage a professional auditor who is not connected by property interests with the company, members of the board of directors (supervisory board) of the company, a person performing the functions of the sole executive body of the company, members of the collegial executive body of the company and participants of the company. The issue of appointing an audit is within the exclusive competence of the general meeting of company participants (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 17, 2005 in case No. A29-2153/2004-2e).

At the request of any member of the company, it can be carried out by a professional auditor chosen by him, who must meet the above requirements (Resolution of the Federal Antimonopoly Service of the Moscow District dated August 15, 2005 in case No. KG-A41/7547-05). In the event of such an audit, payment for the auditor’s services is carried out at the expense of the company participant at whose request it is carried out. The expenses of a company participant for paying for the services of an auditor may be reimbursed to him by decision of the general meeting of company participants at the expense of the company.

The involvement of an auditor to check and confirm the accuracy of the company's annual reports and balance sheets is mandatory in cases provided for by federal laws and other legal acts of the Russian Federation. According to Article 7 of the Federal Law of August 7, 2001 No. 119-FZ “On Auditing Activities,” a mandatory audit is recognized as an annual mandatory audit of the accounting and financial (accounting) statements of an organization. Mandatory audit is carried out in cases where:

The organization is a credit organization, a credit history bureau, an insurance organization or a mutual insurance company, a commodity or stock exchange, an investment fund, a fund whose sources of funds are voluntary contributions from individuals and legal entities;

The volume of the organization's revenue from the sale of products (performance of work, provision of services) for one year exceeds the minimum wage established by the legislation of the Russian Federation by 500 thousand times or the amount of balance sheet assets at the end of the reporting year exceeds the minimum wage established by the legislation of the Russian Federation by 200 thousand times ;

Mandatory audit of these organizations is provided for by federal law.

It should be noted that the Law on Limited Liability Companies does not provide for cases of mandatory audit. In this case, if the general meeting does not make a decision to conduct an audit and the company does not fall under the criteria established by Article 7 of the Federal Law of August 7, 2001 No. 119-FZ “On Auditing Activities,” the company has the right not to conduct an audit (Resolution of the Federal Antimonopoly Service of the North-West District dated October 27, 2004 in case No. A56-33180/03).

You can find out more about issues related to legal entities at all stages of existence (from creation to liquidation) in the book by the authors of BKR-INTERCOM-AUDIT JSC “Business Societies and Unitary Enterprises”.