Losing shares during the transformation of joint stock company into limited liability company
Subject of research. This article is devoted to the analysis of the problems arising at shareholders of joint-stock companies at reorganization in the form of transformation into limited liability companies. As the study of judicial practice over the past ten years shows, there are repeatedly contro...
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| Format: | Article |
| Language: | Russian |
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Dostoevsky Omsk State University
2020-01-01
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| Series: | Pravoprimenenie |
| Subjects: | |
| Online Access: | https://enforcement.omsu.ru/jour/article/view/272 |
| _version_ | 1797873971028295680 |
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| author | Andrey V. Gabov |
| author_facet | Andrey V. Gabov |
| author_sort | Andrey V. Gabov |
| collection | DOAJ |
| description | Subject of research. This article is devoted to the analysis of the problems arising at shareholders of joint-stock companies at reorganization in the form of transformation into limited liability companies. As the study of judicial practice over the past ten years shows, there are repeatedly controversial situations in connection with the non-receipt of shares in newly created limited liability companies by shareholders as a result of the completion of such reorganizations. This is partly due to unfair behavior of majority shareholders and/or management of joint-stock companies, partly due to insufficient regulation of reorganization in the form of transformation in the legislation, which leads to problems in law enforcement.. The purpose of the article is to formulate the main directions of development of the legislation in terms of transformation of the rights of participation in corporations, concerning the constitutional principles of freedom of economic activity and protection of property rights on the basis of the analysis of existing judicial acts, doctrine and current legislation. The scientific hypothesis is that during the transformation of corporations, its participants should be provided with adequate and fair compensation for the right of participation lost as a result of the completion of the reorganization. Such compensation may exist in the form of the provision of funds or, in exceptional cases, other property (redemption of an interest) or the granting of rights to participate in the legal entity newly created as a result of the completion of the reorganization. The compensation mechanism should be based on voluntary choice; a member of the corporation shall not be disadvantaged by the terms of compensation. If the participant does not grant its participation rights for redemption, does not participate in the meeting of the participants of the corporation and does not exercise the will regarding the choice of compensation methods, the share of participation in newly created corporation is recognized as the only fair way of compensation. Transformation can't serve as a way to get rid of the so-called «dead» participants. Description of research methods and methodology. The study is based on the analysis of court decisions, which are identified by the results of monitoring of judicial practice. Information about the main scientific results. The study fully confirmed the correctness of the proposed scientific hypothesis. Conclusions. The study was conducted on the basis of judicial practice formed on disputes arising as a result of deprivation of shareholders' rights to participate in these joint-stock companies and non-receipt of shares in limited liability companies created as a result of reorganization. The study showed that this problem is relevant for all corporations as a whole. In this regard, proposals have been formulated to reform the legislation on corporations in general. |
| first_indexed | 2024-04-10T01:24:33Z |
| format | Article |
| id | doaj.art-05a16f8ca210477ea995c0f7719741f7 |
| institution | Directory Open Access Journal |
| issn | 2542-1514 |
| language | Russian |
| last_indexed | 2024-04-10T01:24:33Z |
| publishDate | 2020-01-01 |
| publisher | Dostoevsky Omsk State University |
| record_format | Article |
| series | Pravoprimenenie |
| spelling | doaj.art-05a16f8ca210477ea995c0f7719741f72023-03-13T09:40:21ZrusDostoevsky Omsk State UniversityPravoprimenenie2542-15142020-01-01349110410.24147/2542-1514.2019.3(4).91-104223Losing shares during the transformation of joint stock company into limited liability companyAndrey V. Gabov0Institute of State and Law of the Russian Academy of Sciences, MoscowSubject of research. This article is devoted to the analysis of the problems arising at shareholders of joint-stock companies at reorganization in the form of transformation into limited liability companies. As the study of judicial practice over the past ten years shows, there are repeatedly controversial situations in connection with the non-receipt of shares in newly created limited liability companies by shareholders as a result of the completion of such reorganizations. This is partly due to unfair behavior of majority shareholders and/or management of joint-stock companies, partly due to insufficient regulation of reorganization in the form of transformation in the legislation, which leads to problems in law enforcement.. The purpose of the article is to formulate the main directions of development of the legislation in terms of transformation of the rights of participation in corporations, concerning the constitutional principles of freedom of economic activity and protection of property rights on the basis of the analysis of existing judicial acts, doctrine and current legislation. The scientific hypothesis is that during the transformation of corporations, its participants should be provided with adequate and fair compensation for the right of participation lost as a result of the completion of the reorganization. Such compensation may exist in the form of the provision of funds or, in exceptional cases, other property (redemption of an interest) or the granting of rights to participate in the legal entity newly created as a result of the completion of the reorganization. The compensation mechanism should be based on voluntary choice; a member of the corporation shall not be disadvantaged by the terms of compensation. If the participant does not grant its participation rights for redemption, does not participate in the meeting of the participants of the corporation and does not exercise the will regarding the choice of compensation methods, the share of participation in newly created corporation is recognized as the only fair way of compensation. Transformation can't serve as a way to get rid of the so-called «dead» participants. Description of research methods and methodology. The study is based on the analysis of court decisions, which are identified by the results of monitoring of judicial practice. Information about the main scientific results. The study fully confirmed the correctness of the proposed scientific hypothesis. Conclusions. The study was conducted on the basis of judicial practice formed on disputes arising as a result of deprivation of shareholders' rights to participate in these joint-stock companies and non-receipt of shares in limited liability companies created as a result of reorganization. The study showed that this problem is relevant for all corporations as a whole. In this regard, proposals have been formulated to reform the legislation on corporations in general.https://enforcement.omsu.ru/jour/article/view/272reorganizationlegal entityjoint stock companylimited liability companysharestaketransformationrestoration of corporate controlprotection of rights |
| spellingShingle | Andrey V. Gabov Losing shares during the transformation of joint stock company into limited liability company Pravoprimenenie reorganization legal entity joint stock company limited liability company share stake transformation restoration of corporate control protection of rights |
| title | Losing shares during the transformation of joint stock company into limited liability company |
| title_full | Losing shares during the transformation of joint stock company into limited liability company |
| title_fullStr | Losing shares during the transformation of joint stock company into limited liability company |
| title_full_unstemmed | Losing shares during the transformation of joint stock company into limited liability company |
| title_short | Losing shares during the transformation of joint stock company into limited liability company |
| title_sort | losing shares during the transformation of joint stock company into limited liability company |
| topic | reorganization legal entity joint stock company limited liability company share stake transformation restoration of corporate control protection of rights |
| url | https://enforcement.omsu.ru/jour/article/view/272 |
| work_keys_str_mv | AT andreyvgabov losingsharesduringthetransformationofjointstockcompanyintolimitedliabilitycompany |