Valery, the general rules for the liquidation of a legal entity are established by Article 61 of the Civil Code of the Russian Federation.
1. Liquidation of a legal entity entails its termination without transfer in the order of universal succession of its rights and obligations to other persons.
2. A legal entity is liquidated by decision of its founders (participants) or a body of the legal entity authorized by the constituent document, including due to the expiration of the period for which the legal entity was created, with the achievement of the purpose for which it was created.
3. A legal entity is liquidated by a court decision:
1) at the request of a state body or local government body, to which the right to file a claim for the liquidation of a legal entity is granted by law, in the event that the state registration of a legal entity is declared invalid, including in connection with gross violations of the law committed during its creation, if these violations are irreducible character;
2) at the request of a state body or local government body, which has the right to file a claim for the liquidation of a legal entity, if the legal entity carries out activities without the appropriate permit (license) or in the absence of mandatory membership in a self-regulatory organization or a certificate of registration required by law admission to a certain type of work issued by a self-regulatory organization;
3) at the claim of a state body or local government body, to which the right to file a claim for the liquidation of a legal entity is granted by law, in the event that the legal entity carries out activities prohibited by law, or in violation of the Constitution of the Russian Federation, or with other repeated or gross violations of the law or other legal acts;
4) at the claim of a state body or local government body, to which the right to file a claim for the liquidation of a legal entity is granted by law, in the case of systematic implementation by a public organization, social movement, charitable and other foundation, religious organization of activities that contradict the statutory goals of such organizations;
5) at the claim of the founder (participant) of a legal entity in the event of the impossibility of achieving the goals for which it was created, including in the event that the implementation of the activities of the legal entity becomes impossible or is significantly hampered;
6) in other cases provided for by law.
4. From the moment a decision is made to liquidate a legal entity, the deadline for fulfilling its obligations to creditors is considered to have occurred.
5. By a court decision on the liquidation of a legal entity, its founders (participants) or the body authorized to liquidate the legal entity by its constituent document may be assigned responsibilities for carrying out the liquidation of the legal entity. Failure to comply with a court decision is the basis for the liquidation of a legal entity by an arbitration manager (clause 5 of Article 62) at the expense of the legal entity’s property. If a legal entity does not have enough funds for the expenses necessary for its liquidation, these expenses are borne jointly by the founders (participants) of the legal entity (clause 2 of Article 62).
6. Legal entities, with the exception of legal entities provided for in Article 65 of this Code, may be declared insolvent (bankrupt) by a court decision and liquidated in cases and in the manner provided for by the legislation on insolvency (bankruptcy).
The general rules on the liquidation of legal entities contained in this Code apply to the liquidation of a legal entity in bankruptcy proceedings in cases where other rules are not established by this Code or the legislation on insolvency (bankruptcy).
The simplest option, if the LLC has no debts, is voluntary liquidation. Here we need to negotiate. If there are creditors, only bankruptcy. Alternatively, you can buy out (sell) a share in the LLC to one of the participants and thereby disperse peacefully.
The situation when a society consists of two participants (founders) is initially difficult in itself and contains the possibility of insoluble or difficult to resolve disputes and contradictions. And here it is not so important whether the shares of participants are equal or unequal. In both cases, conflicts may arise between participants, which can complicate the activities of the society, or even make it impossible. By the way, the above also applies to joint stock companies consisting of two shareholders.
It is better to avoid such a situation. One day it may happen that a misunderstanding or even a quarrel arises between the participants - of a personal or work nature. Sooner or later, any dispute between these people will move into the area of corporate governance and control over the activities of the company. Then the participants will find themselves in a situation where decision-making in society will be blocked - after all, each participant has an equal number of votes with the other participant. It will become impossible to make a decision.
In judicial practice, cases on the need for judicial resolution of issues of the company's activities due to hostility between participants with equal shares are very numerous: most often, disputing participants appeal the minutes of general meetings, decisions illegally taken at such meetings, company transactions actually completed without the consent of the second participant, or they ask the court to make a decision for them (Resolution of the 10th AAC dated December 1, 2016 in case No. A41-9229/16).
Courts in such cases are based on factual circumstances and rules of law. Let’s say the charter provides for unanimous decision-making at a general meeting, and the second participant was absent. Either the minutes of the general meeting were falsified and the second participant provided evidence of this fact. Everything is more or less clear here.
However, this is only one side of the coin. There is also a second side, when a corporate conflict between two participants turns into a dispute about the liquidation of the company, the exclusion of a participant from the company, or is accompanied by bankruptcy of the company. Let's consider such situations in more detail.
In the Review of Judicial Practice of the RF Armed Forces for the 1st quarter of 2014, the Judicial Collegium for Economic Disputes indicated that in a situation where the level of mistrust between members of a company owning equal shares reaches a critical level, from their point of view, and the position of none of them they are not obviously unlawful, it is advisable to consider the possibility of continuing corporate relations, which could result in the participants making a decision to liquidate the company or one of the participants making a decision to withdraw from it with the corresponding legal consequences provided for by the LLC Law and the company’s constituent documents. Claims for exclusion of another participant from the society in such a situation cannot be satisfied.
However, as judicial practice shows, depending on the specific circumstances of the case, the likelihood of satisfying an application to exclude one of the two participants in the event of a corporate conflict is not completely reduced to zero.
Determination of the RF Armed Forces dated July 20, 2015 N 305-ES15-2706:
The courts of three instances rejected a company participant’s claim to exclude the second participant, pointing out that the mutual claims of the participants indicate a corporate conflict and a desire to resolve it by depriving the other participant of the legal rights to a share, which is unacceptable.
The Supreme Court did not agree with the conclusions of the courts in the case, because An equal distribution of shares between the parties to a corporate conflict is not in itself an unconditional basis for refusing a claim to exclude a participant from the company.
The exclusion of a participant is a special corporate method of protecting rights, the purpose of which is to eliminate obstacles to the normal activities of the company caused by the behavior of one of the participants.
In a situation of equal distribution of shares between two participants, the court must assess the violations committed by each participant and analyze the adverse consequences that have arisen for society.
A claim for the expulsion of one participant cannot be satisfied in the case when such a demand is made by another participant in respect of whom there are also grounds for expulsion.
Resolution of the Eleventh Arbitration Court of Appeal dated October 28, 2014 in case No. A55-5927/2014, Decision of the Arbitration Court of the Krasnoyarsk Territory in case No. A33-19931/2016 dated December 6, 2016: in case of a ratio of shares (50/50), the exclusion of a participant can be applied only in exceptional cases if it is proven that a participant in the company has grossly violated his duties or the behavior of the participant makes it impossible or complicates the activities of the company.
A claim for the liquidation of a company consisting of two participants with shares of 50%. The statement is motivated by the presence of a long-term corporate conflict in the Company and the inability of the Company to carry out normal business activities.
The court of first instance rejected the claim, the appeal and cassation decided to liquidate the company.
Resolution of the Arbitration Court of the Volga District dated October 7, 2016 in case No. A57-30921/2015:
Liquidation of a legal entity as a method of resolving a corporate conflict is possible only if all other measures are taken to resolve the corporate conflict and remove obstacles to the continuation of the activities of the legal entity (exclusion of a participant in the legal entity, voluntary withdrawal of a participant from the membership of the legal entity, election of a new person, exercising the powers of the sole executive body, etc.) are exhausted or their use is impossible.
The absence of a corporate community between participants and the impossibility of making a joint decision on the management of the company, taking into account the distribution of votes in equal shares, do not contribute to the possibility of maintaining the activities of the Company, taking into account the goals of economic feasibility and profit-making. There are no other ways to resolve a corporate conflict between the Company's participants.
In relation to a company consisting of two participants with shares of 50% of the authorized capital, bankruptcy procedures are carried out. One of the participants appealed the decision to include the claim of one of the creditors in the register. The complaint was returned by the court due to the fact that the interested participant did not have the status of a representative of the participants.
Determination of the Supreme Court of the Russian Federation dated June 14, 2016 in case No. 304-ES15-20105:
The opening of bankruptcy proceedings gives the representatives of the debtor's participants the rights of persons participating in the case. A representative of the debtor's participants is recognized, including a person elected by the debtor's participants to represent their legitimate interests.
Within the meaning of the provisions of bankruptcy legislation, the purpose of limiting the direct participation of all participants of the debtor in the case of its insolvency and the possibility of them carrying out any actions only through a representative is to prevent the uncoordinated participation of a large number of participants of the debtor with relatively small shares.
In the case under consideration, the participants of the debtor Spiridonov S.V. and Ulyankin V.I. have equal shares in the authorized capital. At the same time, the corporate conflict that has arisen between them significantly complicates the initiated selection of a representative to participate in bankruptcy procedures.
In such a situation, the absence of Spiridonov S.V. the status of a representative of the debtor's participants should not interfere with the exercise of his right to judicial protection, including the consistent defense of his legal position against the unjustified, in his opinion, inclusion of the creditor's claim in the register.
It all depends on the rules for making decisions by the company, prescribed in the Charter. If the Charter of the Company or the legislation on LLC provides for unanimous voting on a certain issue, the distribution of shares 50/50 or 60/40 (30/70, etc.) will not play a role. In this case, the situations will be similar to those described above.
If a majority of votes is sufficient to make a decision, such a decision will be made by the participant with a larger share. However, this will almost always entail an appeal of the decision or its consequences by the second participant on other grounds, incl. based on abuse of rights (Resolution of the 8th AAS dated December 29, 2016 in case No. A46-9252/2015). Often there are demands for the exclusion of such a participant (Resolution of the Arbitration Court of the North Caucasus District in case No. A32-1325/2016 dated November 10, 2016, Resolution of the Arbitration Court of the Moscow District in case No. A41-63802/2014 dated January 28, 2016, arbitration decision Court of the Kostroma Region in case No. A31-78/2016 dated July 20, 2016).
Of course, there is no universal “recipe” for eliminating the difficulties associated with participation in societies of only two people. Unless we create such societies. This is, of course, a joke.
The following methods can be suggested as options that can help smooth out possible difficulties:
Define in the company's charter a clear procedure for making decisions, including describing the required number of votes to make each type of decision;
Define initially unacceptable decision-making situations in the charter or agreement of participants;
Involve a predetermined intermediary (mediator) in resolving contradictions. The need and procedure for attracting a third party must be specified in the charter or agreement of the participants;
If the participants cannot independently decide on a candidate for the director of the company (for example, each of them wants to manage the affairs of the company independently or proposes a candidate in which there is a personal interest) - invite a professional manager. Regarding a professional manager, the recommendations are the same as in the case of a mediator - describe the selection procedure in advance and in detail;
Determine clear criteria for transactions by the company;
Determine the procedure for the parties to act in the event of irresolvable contradictions: provide for the withdrawal of any participants from the company with appropriate compensation, division of the company or liquidation.
Also, with certain exceptions, what is written is useful to companies consisting of three participants (shareholders) with equal shares (1/3 / 33.3 percent), of four participants (shareholders) with equal shares (1/4 / 25 percent), of five participants (shareholders) with equal shares (1/5/20 percent) and so on.
If your legal dispute or other dispute, contractual work or any other form of activity concerns the issues discussed in this or other of our material, we recommend that you check and make sure that your legal position complies with the latest changes in practice and legislation.
We will be happy to provide you with legal assistance regarding minimizing legal risks and available opportunities. We will try to find a solution that suits you.
Yana Polskaya
Of the existing types of legal entities, the easiest one is to open a limited liability company (LLC). And here the question arises - how to distribute shares between participants...
The first thing that comes to mind is that the shares are distributed equally, that is, 50 to 50. And what came to mind was realized.
Time passes, the company gains momentum and begins to bring in good profits. The participants of the company are also two persons, one of them is also the director. Accordingly, profits in the form of dividends are divided equally. It will be good if things continue like this...
However, there are often cases when conflicts and friction arise between participants with equal shares - someone thinks that he works more, but for some reason the profits are divided equally, or suspicions arise that the partner-director is engaged in financial fraud, etc. From suspicions, things can easily turn to mutual accusations, or even open conflict.
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And then the parties begin to wonder what the agreement with a 50% share gives them.
The activities of LLCs are regulated by the Federal Law “On Limited Liability Companies”. According to this law, most strategic issues, including distribution of profits, making major transactions, appointment and dismissal of directors, etc. decided by the general meeting of participants. And in order to make any decision, it must be voted for by a majority of the total number of votes of the company's participants, that is, participants with more than 50% of the share.
In the case under consideration, if the first participant votes for and the second votes against, then the controversial decision is considered not adopted. That is, a participant who is not a director of the company will no longer be able to replace the previously appointed director, he will not “pull through” decisions on the payment of dividends, and will not be able to resolve any issue at all if another participant is against it. It is almost impossible to make any controversial decisions in business equally.
The same applies to the other participant. But at least having the director's chair behind him puts him in a much better position than his partner.
What happens next? As a rule, those who consider themselves deprived initiate various inspections at the enterprise, begin litigation, and try to drive partners who have worked for years from the company. It operates on the principle - if I don’t get it, then let no one get it... The result is paralysis or complete destruction of the business, serious losses, friends turned into enemies, endless checks and mutual “dumpings” of compromising material can lead to a tarnished reputation, or even criminal charges affairs. That is, there are no winners, there are only losers...
There is no doubt that with skillful actions in the event of a brewing conflict and timely involvement of professionals, negative consequences can be minimized. Here a lot will depend on the skills and efficiency of the lawyers. But this is already a war. And as you know, a bad peace is better than a good quarrel...
Another disadvantage of a business with equal shares 50/50 is the difficulty of selling it. Few people will want to buy 50%, because this is not a controlling stake. It will be possible to sell a company only with the consent of both owners, and if a conflict arises, it will be difficult to achieve.
The most popular reasons for conflicts in an enterprise with 50/50 shares:
In order to avoid such a situation, it is necessary to think through a lot at the stage of creating a company.
First, try to avoid a 50/50 split. If you can’t do otherwise, try 49/49, and give 2% to a person you trust unconditionally. He, if anything, will be your arbiter. If there is no such person, then pay special attention to the company’s charter. The constituent documents of a company should be handled by professionals. They can help create provisions in the bylaws that will help avoid stalemates. For example, it is possible to provide for the possibility that the vote of the chairman at a meeting of shareholders in the event of equality of votes will be decisive. In this case, the chairman automatically changes; first he appoints a candidate from one founder, then from another.
Secondly, the charter should describe in detail the powers of the director and, if possible, limit his decision-making alone. But don’t overdo it, otherwise the company’s activities will simply come to a standstill. Pay due attention to the employment contract with the director, as well as job descriptions. It is possible to periodically approve the company's budget, and spend strictly within the approved budget. Regular audits of financial and economic activities independent of any of the participants will also not hurt.
Also describe in detail the procedure for distributing profits and under what conditions the company has such an obligation unconditionally.
That is, initially you need to build a business in such a way, mainly by drawing up the necessary documents, so that none of the partners could be tempted to “dump” the other.
In general, they say correctly that friendship based on business is better than business based on friendship.
