General partnerships

In accordance with § 105 of the State Civil Code, full partnerships (offene Handelsgesellschafi) are recognized as trade partnerships as associations of persons conducting business activities under a common company name and bearing unlimited property liability for the obligations of the partnership. The French Commercial Code of 1999, as the main feature of a general partnership (societe en pot collectif), also indicates that its participants have the status of a merchant and bear unlimited and joint liability for the debts of the partnership. Creditors of a general partnership have the right to foreclose on the property of a participant only if the property of the partnership is insufficient (subsidiary liability of participants).

In the USA, a partnership is considered as an association of persons not bound by special formalities to carry out activities aimed at making a profit. The creation and operation of a general partnership is regulated by the Uniform Partnership Act, recommended in 1914 and currently in force in the 1992 edition (Uniform Partnership Act). Currently adopted in all states except Louisiana, which has a French legal system. The partnership is formalized by a document “under seal”, but in some cases recognition of the existence of the partnership is based on the interpretation of the intentions of the parties.

Internal relations in a general partnership are determined by the fact that it is primarily an association of persons. All participants have the right and obligation to conduct the affairs of the partnership, and it is not permitted to transfer the management of the partnership’s affairs to third parties with the exclusion of participants. Conducting affairs that do not go beyond the normal activities of the partnership may be entrusted to one or more participants of the partnership. To carry out transactions outside the scope of normal activities, the consent of all participants is required. The personal nature of relations in a general partnership determines the grounds for termination of the partnership.

Any participant has the right to act in civil transactions on behalf of a general partnership, unless an agreement between the participants entrusts the management of the partnership’s affairs to one or more partners. The partnership is liable for its obligations, and if its property is insufficient, the partners of the partnership are jointly and severally liable.

Limited partnerships

An association of persons for carrying out commercial activities is also a limited partnership. Participants in a limited partnership can be both individuals and legal entities. A limited partnership is an association of persons to conduct business under its own company name, in which at least one participant bears full responsibility for the obligations of the partnership (complementary), and the liability of at least one participant is limited to his contribution to the property of the partnership (limited partner). This definition of a limited partnership (Kommanditgesellschaft) is given in § 161 of the State Technical University. A similar characterization is given to limited partnerships (societe en commandite simple) in the French Commercial Code of 1999.

In the laws of England and the United States, a limited partnership corresponds to a limited liability partnership. The Uniform Limited Partnership Act of 1916, as amended in 1976 and adopted in most US states, formulated the basic requirements for organizing a partnership and defined the rights and obligations of its participants. A limited partnership can be created by at least two persons. The limited partner, as a rule, does not participate in the management of the partnership, and his name is not indicated in the name. Article 2245 of the Civil Code of Quebec states that a limited partner has the right to take actions simple operation necessary to conduct the affairs of the partnership if the general partners are unable to fulfill their powers.

Internal relations in a limited partnership in the State Technical University are regulated by dispositive norms.

The legislation of foreign countries provides for the possibility of creating other types of partnerships. § 230-237 of the GTU regulates relations related to the formation of a secret partnership. By its nature it is close to a limited partnership.

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A special group of employees involved in the operational work of trading partnerships are traveling agents (voyageurs), sales representatives (representants) and sales agents (pto-cicrs). These employees, when performing representative functions, are required to have professional representative certificates.

An agreement between an entrepreneur and the above representatives can be concluded either in writing or orally. Persons who do not have a written contract must be guided by the general rules established in Law No. 73-4 of January 2, 1973 (Articles 751-1-751-15, 795-1^. In a fixed-term or open-ended contract, as a rule, provides for: the nature of the services provided or the goods sold; the region where the representative activity is carried out; the list of clients to whom the services are provided; employees have the right to reimbursement of expenses associated with travel. Employees of this category may represent the interests of one or more entrepreneurs, unless otherwise. not specified in the agreement. However, they are prohibited from carrying out trade transactions in their own interests and at their own expense.

The rights and obligations of attorneys (sales agents) who are not in an official relationship with the entrepreneur are determined as follows. Trade representation can be carried out by persons registered as commercial agents in the office of the commercial court or the grand court.

Sales agents in accordance with Art. 1 of Decree No. 58-1345 of December 23, 1958 recognizes persons who, not being employees, independently and in the form of a trade are engaged in concluding transactions for the purchase and sale, hiring or provision of services on behalf and at the expense of industrial entrepreneurs or merchants. An agreement between counterparties can only be concluded in writing. It can be urgent or indefinite.

The sales agent is obliged to fulfill the assignment personally accepted. At the same time, the agent has the right to hire any other agent at his discretion, to whom he himself will pay remuneration. The sales agent has the right to transfer the execution of the order to another (third) person only with the consent of the principal, but at the same time he is responsible for the choice of this person.

A sales agent must perform his duties at a high level professional level(Article 4 of Law No. 91-593 of June 25, 1991 U. At the same time, the agreement must provide for the creation necessary conditions agent to perform duties.

The order can be special or general. Depending on this, the sales agent carries out his actions on one, several or all trade transactions.

According to the French Civil Code (FCC), the sales agent must carry out the assignment in accordance with the instructions of the principal (Art. 1989). If a sales agent has performed any actions beyond the scope of his power of attorney, then in the event of negative consequences he is not liable only if the actions were approved by the principal or performed with his tacit consent. 8

A sales agent can enter into contracts with several principals simultaneously. However, to carry out an order from a competing company, the consent of the principal with whom the agreement was previously concluded and is currently in force is required. A sales agent may carry out commercial transactions in his own interests and at his own expense in parallel with the fulfillment of obligations under the contract.

The sales agent is obliged to provide the principal with the necessary information and a report on the work done (Article 1993 of the Federal Civil Code). 9

In accordance with Art. 5 of Law No. 91-593, a sales agent has the right to receive remuneration according to the quantity and quality of work performed under the contract. If the contract does not regulate the payment of remuneration in any cases, then the remuneration is paid in accordance with the existing practice of payment in such cases. When there is no such practice, remuneration is determined based on reasonable limits taking into account the work performed.

A sales agent has the right to compensation for expenses incurred and to compensation for losses incurred in connection with the execution of an order in the absence of his fault (Articles 1999, 2000 of the Federal Civil Code).

5. Full and limited partnerships.

Full and limited partnerships in developed countries market economy don't have widespread. General partnerships, as a rule, are family associations of 2-3 people, for example father and son, brothers and sisters who inherited the business of their parents. However, there are also many general partnerships consisting of professionally related persons, for example, a pharmacist and a pharmacist. According to statistics from the French Union of Pharmacists, joint operation of pharmacies was carried out by general partnerships in 694 cases (data as of December 31, 1983 T.U. In total, as of April 1, 1986, 17,998 general partnerships were registered in France. Limited partnerships (both simple and joint stock) are less popular in France: difficulties are caused by the presence of two categories of participants in them. The number of limited partnerships from July 1, 1981 to April 1, 1986 decreased from 3,760 to 1,257.

French law prohibits a limited partner from acting on behalf of the partnership (§ 27, 28 FTC). If the limited partner nevertheless acts as a representative of the partnership, he will bear liability on an equal basis with those participants who are liable unlimitedly and jointly.

As noted, a participant in a general partnership cannot engage in entrepreneurial activities that compete with the partnership. For a limited partnership, this rule is valid only for participants who are jointly and severally liable. In their entrepreneurial activities, limited partners are not bound by the fact of participation in the partnership.

The distribution of profits in a limited partnership must be proportionate to the amount of the contribution. However, as a rule, the memorandum of association specifies specific shares of profit. Naturally, the share of jointly and unlimitedly responding participants should be higher than the share of limited partners, which is explained by the risk taken and personal efforts to conduct a common business. At the same time, one should not assume that taking on the risk of doing business in a limited partnership makes other participants powerless, authorized only to receive their share in the form of dividends. Obviously, limited partners must be given the right to control the activities of the partnership in which they have invested their money (or other property contribution). Limited partners have the right to control the activities of the partnership, i.e., receive information about the results of activities for the year. The founding agreement may define the time frame within which limited partners can become acquainted with the affairs.

If there is no such provision in the agreement, then the limited partners become acquainted with the financial balance of the partnership at the end of each financial year. They must be given at least 15 days to review the information and documents. General partners are given the right to information to a much greater extent - they have the right to familiarize themselves with the documents of the partnership at any time and control its current activities. 10

External relations of a limited partnership are formed primarily by general partners, although the law also grants limited powers to limited partners. For example, general partners have the right to participate in the management of the partnership. In France, general partners have the exclusive right to conduct the affairs of the partnership.

However, as in a general partnership, it is not necessary for all general partners to conduct the affairs of the partnership. They can appoint a manager (or managers) from among themselves, who are given the authority to manage the affairs and represent the partnership. The scope of powers of managers is determined by the transactions usually carried out and necessary for the business activities of the partnership. Completion of a transaction by a manager in his own interests imposes obligations on the partnership to a third party unless it is proven that this person knew that the manager was going beyond the powers given to him.

Particularly difficult is resolving the issue of transactions made by managers in their own interests.

In practice, the property of a limited liability partnership is transferred to the management of the general partner and, as a rule, is not separated. Therefore, doubts arise as to what means the general partner made the transaction in his own interests - with his own money or with the funds of the partnership. It is assumed that transactions made in his own interests are carried out by the general partner at his own expense. Other full comrades must prove the opposite. The fact that a general partner conducts the affairs of the partnership using his property does not mean that this property is included in the property of the partnership. 11

Limited partners, in principle, are not allowed to manage the grandfathered partnership and represent on its behalf. However, the danger of some of their participation in management still exists. Thus, according to Italian law, to appoint a manager from among the general partners, not only the consent of all general partners is required, but also the approval of the limited partners, who represent the majority of the capital invested by all the limited partners. In a French limited partnership, amendments to the articles of association require the consent of all general partners and a majority of limited partners representing more than 50% of the total contribution of limited partners to the capital of the partnership.

One of the central issues in the life of a limited partnership is the question of its property, methods of formation and use. The legislation of most foreign countries, which recognizes a limited partnership as a legal entity, considers it the subject of property rights.

The main duty of a limited partner in relation to the partnership is to make the agreed contribution, while general partners are also obliged to personally participate in the conduct of the affairs of the partnership. The limited partner's contribution must be of some material value. The law does not allow the provision of services as a contribution of a limited partner. French law has a rule that stipulates that the contribution of a limited partner cannot be represented by professional knowledge, skills and abilities.

The time of contribution in the agreement on the establishment of a partnership may be established at the discretion of the contracting parties. This time does not necessarily coincide with the creation of the limited partnership. However, if the partnership incurs expenses that require the mobilization of all its financial capabilities, the limited partner is obliged to make his full contribution. Failure to fulfill this obligation may entail unfavorable property consequences for the limited partner: interest may be collected from him (legal or stipulated by the contract), and he may also be required to compensate the partnership for losses.

The purpose of the partnership is to generate profit as a result of business activities. As a rule, the procedure for distribution of profits is established in the agreement on the establishment of the partnership. In the absence of such an indication in the contract, dispositive provisions of the law apply.

Each member of the partnership has the right to a share in the profits in proportion to his interest, which means his initial contribution, subsequent contributions and his share in covering the expenses of the partnership. When distributing profits, the unequal position of general partners and limited partners is taken into account. The higher level of risk of general partners should also be reflected in the decision on the distribution of profits.

The liability of a limited partner is limited to the amount of his contribution, while the liability of a general partner is unlimited. At the same time, general partners have greater opportunities to influence the activities of the partnership. Consequently, the increase or decrease in profits depends more on the general partners than on the limited partners. Thus, to some extent, their economic opportunities are equalized.

The property of a limited partnership is the basis of its business activities and the first, but not the only, level of responsibility. Creditors do not have the right to satisfy their claims from the property of general partners until it is established that it is impossible to recover from the separate property of the partnership. In relation to a limited partner, the question of liability to the creditors of the partnership does not arise at all: the limited partner made his contribution, and his liability is limited only to the amount of the contribution. Creditors of a limited partnership can present claims to the limited partner only if he has not fully made the contribution stipulated by the agreement. In this case, the amount that can be collected from him does not exceed the amount of the unpaid part of the deposit.

If a simple limited partnership is close in nature to a limited liability partnership, then a joint-stock limited partnership combines the features of a full and joint-stock partnership. In a joint stock limited partnership there are general partners and shareholders. The property liability of a limited shareholder is limited to the amount of the value of the shares owned by him.

Introduction. 3
1. Civil law and related branches of law regulating the scope of action legal entities in France. 7
2. The ability of French criminal law to influence various types legal entities. 9
3. Analysis of the characteristics of a legal entity with a representative office in commercial activities under French law. 11
4. Trade partnerships. 15
5. Full and limited partnerships. 17
6. Analysis of the practice of regulating the activities of legal entities in France based on a study of bankruptcy procedures. 22
Conclusion. 30
References: 32
Regulatory acts: 32
Literature used: 34

In German law, legal entities under private law are divided into unions and institutions.

Unions are associations of persons distinctive features which are:

Pursuing a common goal determined by the members of the association;

A structure that ensures organizational unity;

The independence of the existence of the association from the change of persons included in it.

Unions, in turn, are divided into economic unions (§ 22 GGU), main goal – entrepreneurial activity for profit-making purposes, and non-economic unions (§ 21 GGU). Economic unions include trade partnerships recognized as subjects of law and regulated by special legislation. Non-economic unions include such associations of persons that pursue so-called ideal goals: political, scientific, social, charitable, etc. Such associations become subjects of property rights and obligations insofar as this is necessary to achieve “ideal” goals.

Behind non-economic unions currently hide various associations and associations of entrepreneurs, representatives of financial capital, which determine the direction economic policy relevant sectors of the economy.

Institutions are legal entities created on the basis of a unilateral transaction by a private person, who develops a constituent act that defines both the purpose of creating the institution and the property allocated to achieve this goal.

Institutions and institutions of public law should be distinguished from institutions of private law. In Germany, these include state financial and credit institutions, transport companies and communications companies. Institutions of public law are also the Federal Bank and state savings banks.

Institutions of public law are usually created by special normative act. It should be noted that a number of norms regulating the position of private law institutions are clearly of a public law nature (§ 80, 85.87 GTU). In some German states, public law institutions are regulated partially or even entirely by regulations civil law on institutions of private law.

Legal entities under private law in France are also divided into several types.

The main types are partnerships and associations. IN general outline This division of legal entities in France is similar to the division of legal entities in Germany into economic and non-economic unions.

A partnership is an agreement by virtue of which two or more persons agree to make something common property, with the intention of sharing the benefits or extracting the savings that may result from this (Article 1832 of the Federal Civil Code). Any partnership, except for a secret one, enjoys the rights of a legal entity (Article 1842 of the Federal Civil Code).

A partnership is considered trading if the subject of its activity is the execution of trade transactions. Special significance In the economic life of France there are various types of commercial partnerships, the activities of which are currently regulated by the law on commercial partnerships of 1966. Among trading partnerships, the leading place is occupied by joint-stock companies and limited liability partnerships, used as organizational forms not only of private capitalist, but also state-owned enterprises. They are also widely used by mixed enterprises.

Associations are associations of persons whose activities are aimed at achieving social, cultural, scientific, and charitable goals. If commercial partnerships are legally established, and civil partnerships judicial practice were recognized as subjects of civil law in early XIX century, the property of a legal entity was recognized for associations only at the beginning of the 20th century, and the state retained the right to control the activities of such associations, recognizing their special legal capacity.

French law did not accept the institution of establishment. Judicial practice recognizes the legal personality of institutions only by recognizing the legal personality of a certain union, that is, an association of people.

A special place among legal entities in France is occupied by the groupement d'interet economlque (GlE), legalized in 1967 in order to create an organizational form for such monopolistic associations, the activities of which, without being directly related to making a profit, are aimed at fully promoting production and commercial activity members of the association through the implementation of a unified economic policy throughout the association, concentrating resources on the most promising sectors. For such associations, neither the form of association nor the form of partnership could be effectively used.

New look a legal entity is created on the basis of an agreement between two or more individuals and legal entities. The content of the agreement is determined by the parties, since the number of mandatory norms of law is reduced to a minimum. The activities of associations do not necessarily have to be aimed at generating and distributing profits, which is distinctive feature partnerships

Although GlE is recognized as a legal entity, it is exempt from corporate tax. Tax benefits are also provided for the transformation of other types of legal entities into this organizational form. The GlE form was received immediately after its legalization wide application, especially in cases of unification of capitalist enterprises for the purpose of joint sale of goods, joint provision of services, specialization and cooperation of production. Enterprises operating in the form of a GIE are not subject to prohibitive regulations (Clause 1, Article 85 of the Treaty of Rome).

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Full partnership.

France - “societe en nom collectif” - legal entity.

Germany - “offene Handeligesellshift” (O.H) - not legal. face

England - “unlimited partnership” - not legal. face

USA - “unlimited partnership” - not legal. face

In France, a general partnership is regulated by the law on commercial partnerships (67-68), in Germany - by the GTO norms, in England - by the law of 1890 plus precedents, in the USA - by the uniform law of unlimited partnership of 1916 + corresponding laws in various states.

A general partnership is an association of persons that conducts trade or is engaged in another type of activity under a single company name.

Each of the founders of the partnership is liable for its debts with all of its property. Liability is established jointly and severally.

The partnership is built on trust (fiduciary) relationships => not entirely stable.

Contractual partnership => a change of founders entails amendments to the agreement.

A partnership is created from the moment the agreement is concluded, even if it is subject to registration.

The founders of the partnership bear unlimited liability for debts with all their property (plus that property that is not contributed to the partnership) => creditors can contact any founder with demands for repayment of the debt => compensation of shares from partners.

All founders of the partnership are: managers, i.e. may conduct business and enter into transactions with third parties, unless otherwise provided in the agreement.

France. A general partnership in its name must contain the names of all founders or one, indicating the existence of the others, plus “full partnership”.

A general partnership is a legal entity => creditors must first address their claims to the partner himself and only if there is a lack of property - ... property. Profits and losses are divided proportionally...

Germany. A general partnership is not a legal entity. A partnership can, under its own name, enter into civil and commercial legal relations, have property, and be a plaintiff and defendant in court.

For compulsory execution in relation to property - a special executive document directed against the partnership.

The partnership is subject to registration.

A general partnership in Germany is a “relative legal entity”. In relation to third parties: the creditor addresses either the PT or its participants.

At the end of each business year, based on the balance sheet - profit and loss => share of each founder. Profit is attributed to the founder's share, losses are written off from the share => from the annual profit, each founder is due, first of all, 4% of his share (if the annual profit is not enough =>% will be reduced by the decision of the founders). The amount can be issued or added to the share.

The founder of a general partnership can be not only an individual, but also a legal entity.

England. “Partnership with unlimited liability” (PNO) is a legal relationship between persons that can be proven by everyone possible ways=> the creation agreement can be concluded in any form, also verbally.

PNO is not a legal entity, but acts under a general company.

PNO is not registered. Each founder, being a manager, acts as an agent of the partnership on the basis of an agency agreement, which is not actually concluded, but is assumed => the agent cannot go beyond the powers that are given to him.

USA. PNO is not a legal entity, but judicial practice recognizes the right of ownership of property, can be a plaintiff and defendant in court (procedural standing) => creditors first turn to the PNO, and then to the participants (as a general rule).

PNO is not registered => the status of the founders can only be determined from the name.

There are senior partners and junior partners. The senior partners manage the affairs.

Partnership is a transitional form from individual to collective entrepreneurship.

Small and medium-sized enterprises are created in the form of PNO professional principle?

There are no public reporting of PT in countries where PT is not a legal entity, PT is not subject to taxation, the founders pay income tax.

About negative traits We won’t talk, because... they are visible to the naked eye (increased responsibility, increased degree of risk, along with all one’s property, solidarity of responsibility “one for all, and all for one”). All these features inherent in a general partnership, of course, at first glance do not seem entirely convenient for the purpose of doing business. But, nevertheless, general partnerships are created, operate, and are regulated by law.

Positive features (advantages) of partnership.

1. Simplicity of formation (it is enough to conclude an agreement between the participants for the partnership to be created. In those countries where general partnerships are not legal entities, registration is sometimes not required, and even where it is required, the partnership is still considered created from the moment the conclusion of an agreement between the participants. This is the simplicity of the formation. The law does not contain any requirements for the content of the agreement; the participants themselves determine its content. The only thing they cannot refuse is unlimited liability and solidarity. all participants bear unlimited joint and several liability for the debts of the general partnership, this entry will not have legal force, because the law requires otherwise.)

2. Lack of public reporting (general partnerships as opposed to joint stock companies do not publish annual reports on economic activity. And the reports are internal documentation of the partnership, but of course it is convenient for the participants themselves to determine the volume of property, the volume of contributions and the areas of activity in which the partnership operates.)

3. (This is a very important positive feature.) In those countries where a general partnership is not a legal entity, it is not a legal entity. subject of taxation. This means that the participants themselves pay taxes, like income taxes. Therefore, general partnerships, of course, can act with a greater degree of efficiency, but this does not mean that they can evade taxes. Actually, they did not appear. subjects of taxation...., the participants themselves will have to report to the tax office. But there is no need to prepare tax returns or contact the tax office. Where a general partnership is a legal entity, it is subject to taxation with all the ensuing consequences.

4. (This is not for all countries) In Germany, participants in a general partnership can be not only citizens ( individuals), but also legal entities. And this opportunity provided by the legislation allows the creation of new business structures, even several joint-stock companies or joint-stock companies and limited liability partnerships or joint-stock companies and several citizens can create a general partnership for one of the areas of activity. In Germany, a general partnership is not a legal entity, although it is a relatively legal entity, at least not all rules of legal entities are applicable to it, including with regard to taxation.

All these features are attractive when creating general partnerships, despite the very high risk their activities.

Limited partnerships (limited partnerships)

France - societe en commandite (governed by the law on commercial partnerships) [subjects are legal entities]

Germany - Kommanditgesellschaft (K.G.) (regulated - GTU) [not yavl. Yu.L.]

England - Limited partnership (limited partnership, it corresponds to a limited partnership) (there is a special law of 1907) [not Yu.L.]

USA - Limited partnership (there is a uniform law on Limited partnership in 1913, then reissued in 1976, last revised in 1986) Currently, more than 30 states have this law latest edition. [not yavl. Yu.L.].

Spain - a limited partnership is a legal entity.

A limited partnership is an association of persons in which there are two categories of persons: 1- general partners who bear unlimited joint liability and 2- limited partners - investors who risk only their contribution.

Limited partnerships arose in the Middle Ages, since such associations were mainly created in the field of maritime trade and the shipowner invited investors to participate with their contributions in some risky enterprise (cargo delivery, etc.). Investors trust the shipowner to risk all their property, hence the name limited partnership. But if this enterprise was successful, the corresponding amount was paid to the share of deposits.

In all countries, general partnership laws apply to general partners.

In the doctrine and legislation of France there are different approaches in relation to the concept of "society".

According to Art. 1832 of the Federal Civil Code, a company is considered as a contract by virtue of which persons agree to transfer property or professional knowledge to a common enterprise for the purpose of dividing income or realizing the savings that may follow from this. The article also specifically notes that in cases provided for by law, it can be established on the basis of the will of one person. Members of the company accept responsibility for losses.

In the classical sense, a company is considered as an association of two or more persons who, by virtue of an agreement, agree to provide property for a common enterprise and unite common efforts for the purpose of subsequent division of profits. In cases provided for by law, it can be created by the will of one person. Analyzing the classical concept of society, modern French jurists rightly note that “based on this concept, society should consist of at least two members, but over the past twenty-five years the number of firms with a single member has increased (individual limited liability enterprise (E1Zh1.) or joint stock simplified type society (STS), thereby calling into question the classical definition."

French law knows the following types of trading (commercial) companies: joint-stock company, simplified joint-stock company, LLC, one-person limited liability company, general partnership, limited partnership, European company.

The societies are called trade (commercial), if their activity is to conduct commerce, i.e. purchases for resale. Full and limited partnerships, LLC And JSC are recognized as merchants regardless of the commercial or non-commercial purpose of the transactions they conclude.

Partnerships and societies are civilian, if their activities are not related to commercial activities. They are most widespread in the areas of handicraft production, real estate, agriculture, liberal professions, as well as in intellectual fields. The legal status of commercial companies differs from legal status civil societies, cooperatives, societies without the formation of a legal entity, the activities of which are not regulated by trade legislation.

Depending on the basis of origin, French law differs statutory trading companies And contractual trading partnerships. The first include joint-stock companies and LLCs, and the second include full and limited partnerships.

A joint stock company (voege apopouche, BA) is the most common form for large businesses in France, which must have at least seven founders and at least seven shareholders. The minimum amount of authorized capital is 37 thousand euros. A joint stock company may have a two- or three-tier structure (meeting of shareholders - administrative council (board, directorate) - supervisory board). As a general rule, the administrative council of a joint-stock company must consist of at least three members. However, if there is a supervisory board, the administrative board may consist of one person, provided that the capital of the company does not exceed 37 thousand euros. The maximum composition of the administrative council is 12 members, if the supervisory council consists of five members. Shareholders and members of the administrative council can be both individuals and legal entities who are holders of shares. The supervisory board appoints the administrative board, which elects the chairman-president, and if the company's capital is at least 72 thousand euros, two general managers (directors). To announce a public subscription for shares, you must have an authorized capital of at least 225 thousand euros, and for closed joint-stock companies that do not announce a subscription - 37 thousand euros.

Creation of JSC is carried out by its founders, who can be both individuals and legal entities bearing property and criminal liability for improper conduct of the process of creating a joint-stock company.

The first stage of establishing a company is to develop the charter of the joint-stock company, and the second is to convene a meeting of future shareholders, at which its charter is approved, the founders’ report on the creation of the authorized capital (at least half of the authorized capital must be paid by the time of registration), the bodies of the joint-stock company provided for by law are formed . The final stage The creation of a company is its registration in the Commercial Register.

It is important to note that the property of a JSC is completely separate from the property of shareholders, and personal creditors of individual shareholders cannot make claims on the property of a JSC.

The fact of registration of a JSC is subject to publication; In addition, registration under French law serves as the main evidence of compliance with the legal requirements governing the process of creating a joint-stock company. Moreover, only from the moment of registration the company is considered a legal entity and can issue shares. Persons acting on behalf of a company that is at the stage of creation bear joint and unlimited liability for transactions concluded before the creation of the JSC. Liability can be changed only if the newly created company assumes the fulfillment of the obligations of the above persons.

The system of bodies of a legal entity depends on its organizational and legal form. Structure of JSC bodies is the most flexible, since the legislation provides for the possibility of choosing between the following organizational structures:

• 1) general meeting, board (administrative council), chairman of the board (president, general director);
• 2) general meeting, supervisory board, board of directors (board of directors) or general director.

Control over the reporting of the JSC is carried out by its auditors.

Board (administrative council) is the body whose competence includes most issues related to the activities of the company. In addition, the administrative council manages affairs and performs the functions of external representation.

French legislation sets requirements and restrictions regarding the size of the administrative council. Thus, the minimum composition of the board is three members, the maximum is 18.

Only a shareholder with registered shares can be a member of the administrative or supervisory board.

A legal entity can also be a member of the administrative council. The term of office of board members is determined by the charter of the joint-stock company, but cannot exceed six years.

The Administrative Council resolves the following issues: managing enterprises owned by the company, drawing up annual financial reports, concluding purchase and sale transactions, hiring personnel, opening branches and representative offices, developing and making strategic decisions regarding the activities of the company.

In addition, the board is vested with the powers of external representation.

The responsibility of members of the administrative council is regulated in a special way. If the company's creditors want to hold the latter liable for the damage caused, they must prove the illegality of their actions in managing the company.

The administrative council is usually headed by a president and two general managers.

The administrative council of the company elects a president, upon whose proposal general managers are appointed. The president carries out operational management of the company and external representation, and managers facilitate the functioning of the joint-stock company and, like the president, are vested with representative powers. The appointment and removal of members of the board are carried out by the supervisory board.

Thus, the significant role of the board is determined by determining the main directions of the JSC’s activities.

Most important function supervisory board consists of monitoring the activities of the board (administrative council), as well as the appointment and recall of members of the board (administrative council). In addition, the supervisory board checks annual report, provides loans to members of the supervisory and administrative boards.

The law prohibits simultaneous participation in the administrative and supervisory boards, since the latter is vested with control and coordinating functions.

Typically, members of the supervisory board are elected at a general meeting of shareholders. In some cases, the charter may provide for the right of certain shareholders to appoint up to 1/3 of the supervisory board. If the number of employees of the enterprise exceeds 500 people, then 1/3 of the council members must include representatives of the company’s employees.

The Supervisory Board is a collegial body whose decisions are made by the majority of those present. The internal regulations or charter approved by the company may provide for different procedures for making decisions by the supervisory board. To resolve current issues, the possibility of absentee voting via video conference or by exchanging letters by fax or telephone messages is allowed.

The supervisory board is headed by the chairman and his deputies. Members of the council have the right to create a committee from among themselves, vested with the authority to externally represent the company, enter into personal employment agreements with members of the administrative council, resolve issues of providing loans to members of the administrative council, etc.

The Supervisory Board carries out the functions of monitoring the reports of the administrative council, the books of the company, checks the available commodity values, etc.

The charter may establish restrictions on certain types activities that require the consent of the supervisory board. The law prescribes the need to obtain permission from the supervisory board for all transactions related to collateral, sureties and guarantees.

General Meeting of Shareholders - supreme body A joint stock company within which ordinary shareholders can influence the affairs of the company.

The general meeting of shareholders is convened on the initiative of the administrative board or commissioners or at the request of shareholders owning shares in the amount of at least 1/10 of the authorized capital of the joint-stock company. Voting rights are determined by the par price of the shares.

The General Meeting of Shareholders meets at least once a year and reviews the annual financial reports presented by the administrative council and commissioners, the volume and state of affairs of the joint-stock company, approves the decision to reduce or increase the authorized capital, to conclude large transactions - more than 50% of the company's assets, to terminate activities of the society.

Regular general meetings are recognized as valid only if 25% of shares with voting rights are represented at them. An extraordinary general meeting is considered valid if it is attended by shareholders with at least 5% of voting shares. Each share carries the right to one vote.

An extraordinary general meeting of shareholders approves changes to the charter, elects members of the board and members of the supervisory board of the company and its branches located in France.

Unless otherwise provided by special legislation or charter, decisions are made by a majority vote.

Control of the activities of a joint stock company is carried out by commissioners who check the documentation prepared by the administrative council, as well as the annual report.

Commissioners are elected by the general meeting of shareholders for a period of six financial years, during which they cannot be recalled, but are entitled to leave early under certain conditions.

Commissioners are vested with fairly broad powers: obtaining necessary information from officials of the company, checking the books of the company and its branches, attending general meetings of shareholders and board meetings, checking cash and inventory, etc.

Commissioners bear property liability to society and third parties for damage caused as a result of errors or negligence.

The size of the authorized capital must be defined in the charter, as well as the share of each shareholder in the joint-stock company. When creating a company, at least 50% of the nominal value of the shares must be paid (Article K225-3 of the Federal Civil Code).

Shareholders have the right to make property as a contribution, which is also a guarantee of protecting the interests of creditors.

Minimum authorized capital, established by law, - 225 thousand euros for a company with a public subscription and 37 thousand euros for a company with a closed subscription.

An increase or decrease in the authorized capital can only be carried out on the basis of a decision of the general meeting of shareholders.

Under French law, shares issued by a company are securities, the turnover of which is carried out through stock exchanges or banks. Shares can be either registered or bearer.

The name and surname of the shareholder must be indicated in the book of the joint-stock company, as well as on the share itself. The assignment of rights from a registered share is carried out by means of an endorsement on the form of the share, the transfer of this document and the entry of the owner’s name in the book of the joint-stock company.

The right to issue preferred shares must be recorded in the company's charter. Preferred shares must provide their owner with certain privileges, such as the right to receive a dividend.

Preferred shares, as a rule, do not provide voting rights at general meetings of shareholders, and upon liquidation of the company, holders of preferred shares usually receive amounts less than holders of common shares.

Issuing bonds is one of the ways to finance a company, since it is actually a creditor of the joint-stock company carrying out a loan relationship.

French law is familiar with convertible bonds, the owners of which have the right to exchange them for shares or require the provision of shares in accordance with the established conditions of the bond issue.

Simplified joint stock company (societe par actions simplified - SAS) is a relatively new legal form of joint stock company, existing in French law since 1994 and lately has become widespread.

The advantages of a simplified joint-stock company are that legislation minimally regulates decision-making and the enterprise management process. In addition, the legislation does not establish a minimum amount of authorized capital, which makes it possible for such companies to exist with an authorized capital of one euro. The minimum number of shareholders is one. Decisions are made in accordance with the charter, and shareholders may have unequal votes. In such a JSC, a foreign individual or legal entity may be the only participant. Important feature What distinguishes a simplified JSC from a JSC is significant freedom in organizing management and regulating the distribution of internal powers. For foreign participants, the sold out type of company is a branch, 100% maintained by the parent company.

A limited liability company (societe a responsabilite limitee - SARL) is quite common in France as an organizational and legal form for small and medium-sized businesses. However, the law does not establish minimum requirements to the authorized capital, the size of which is determined solely by the charter. A legal entity can also be a participant in an LLC. The number of participants is a minimum of two and a maximum of 100.

In case of exceeding established by law limit on the size of the company, it must be liquidated within one year.

A limited liability company cannot have as its sole member another LLC consisting of a single member.

An individual who is the only participant in the company exercises powers in accordance with general standards FTC, except special norms, established by the Decree of the State Council of March 23, 1967. This Decree provides for the conditions for exemption from general rule on registration in the Official Bulletin of civil and commercial announcements.

In case of violation of the rules established by law, the company of one participant is subject to liquidation. If violations arise as a result of the merger of all shares of a company that consists of more than one participant in one participant, the demand for liquidation cannot be made later than one year after such merger. In any case, the court may agree to provide maximum term, equal to six months, to resolve the situation. The court cannot order dissolution if the matter has been finally settled on the day the court makes its decision.

Insurance companies and savings societies carrying out operations involving capital investments cannot be created in the form of an LLC.

Before signing the constituent documents, the company's participants must fulfill the requirement of paragraph. 4 tbsp. L.223-7 FTC - add cash into a deposit to pay for the authorized capital and receive a depository certificate. According to French law, an LLC is a statutory trading partnership, therefore, when it is created, the charter must be signed by all participants (Article L.223-6 FTC). It should be clarified that it can be drawn up in simple written form. The charter must be accompanied by a list of transactions carried out on behalf of the company in the process of creation, indicating the corresponding obligations of the company in relation to each of them. The signing of constituent documents entails the acceptance of obligations by the company after its registration (paragraph 2 of article 26 of the Decree of March 23, 1967).

• - publication of a notice of the establishment of a company in the mandatory announcement bulletin;
• - transfer of the company’s constituent documents to the office of the Commercial Court;
• - making an entry about the LLC in the Trade Register.

As a result of the above actions, the LLC acquires legal personality. This is followed by automatic publication of civil and trade announcements in the Official Gazette, which at this stage does not affect the acquisition of legal personality by the company, since the company is recognized as legal personality only after registration in the Trade Register.

Registration of constituent documents is carried out by the Center for Enterprise Accounting of the Tax Service, which also does not affect the acquisition of legal personality by the company. This registration is carried out upon presentation of two original constituent documents indicating the date and signatures of all participants.

The Center for Enterprise Registration, after a formal verification of applications, sends an application for the creation of a company to each interested body. Thus, the Trade Register, after contacting it from the Center for Enterprise Registration, is obliged to issue an extract confirming the registration of the company. As a result, the procedure for creating a company is carried out within four days: registration, as a rule, takes one day, and three days are needed to work with the documents of the Center for Enterprise Accounting.

French legislation establishing the minimum amount of authorized capital is developing very dynamically. For example, previously, to establish a company, 50 thousand francs were required, and then 7 thousand 500 euros, but now the minimum authorized capital in France has become symbolic - it is possible to create a company with an authorized capital of one euro. On the one hand, the reduction in the size of the authorized capital led to a simplification of the creation procedure, and on the other hand, the risks associated with the implementation of the company’s business activities increased significantly. For example, the head of a company with insufficient capital, as a rule, is forced to apply for a company loan and act as a guarantor. In addition, as a result of similar innovations associated with reducing the minimum amount of authorized capital, in France

Cases of liability claims against the managers of such companies have become more frequent.

An achievement of modern French law is the ability to use the Internet to carry out procedures related to registration business entities in France. Of course, the ability to send applications, acts and other documents to the Register of Merchants and Companies electronically significantly reduces the time and simplifies the procedure for creating a company.

The state provides financial support to enterprises that are on the verge of bankruptcy or having financial difficulties, providing their founders with interest-free loans, and also implements other support measures provided for by French legislation. Important measures to finance the economic sector are provided for by the Law of July 26, 2005 on Confidence and Modernization of the Economy.

Mandatory details of the charter are data on the company name, location of the company, the amount of share capital, as well as the amount of contribution of each participant, including in kind.

If the company is not created within six months after making the first contribution or if it is not registered in the Commercial Register within this period, the depositors have the right to present individual requirements return of deposits. In such cases, the manager, if he represents all the depositors, can demand a refund from the custodian of deposits. If the members then decide to form the company again, he must make deposits again.

Future members of the company may decide that contacting a commissioner-appraiser to evaluate contributions in kind will not be mandatory if the value of the contribution in kind does not exceed the amount established by law, and if the total value of all contributions in kind does not exceed half of the authorized capital.

If the commissioner for the assessment of contributions did not take part in the assessment or the value of the contributions differs from that proposed by the commissioner, the LLC participants bear joint and several liability with respect to third parties for five years in the amount of the value recognized for contributions in kind from the moment of creation of the company.

It is prohibited to exempt any of the participants from making a contribution. The possibility of paying dividends depends on the amount of capital.

The main function of the LLC charter is regulation of internal relations between its participants. According to modern legal doctrine common in France, the charter of an LLC is an organizational contract. The provisions of the charter that regulate relations with third parties and establish the structure of the company are mandatory.

Alienation of company shares to third parties who are not members of the company is possible only with the consent of the majority of the company's participants, representing at least half of the shares, unless the charter provides for the need for the consent of more than half of the participants.

If a company accepts more than one participant, the company and each participant of the company are notified about the draft inclusion of the participant. If the company has not informed the participants of its decision within three months, starting from the last notification provided for by the above rule, consent to join is considered acquired.

If the company refuses to accept a participant, the remaining participants are obliged, within three months, starting from the moment of refusal, to purchase shares at a price determined in accordance with Art. L.1843-4 FGK. This article provides that in all cases where the alienation of the rights of a participant in the company's share or the redemption of these rights by the company itself is envisaged, the value of these rights in the event of a challenge is determined by an expert appointed by the parties, or, in the absence of agreement between them, by a ruling of the chairman of the court, issued on an expedited basis. form and without the possibility of appeal.

In addition, in France, judicial practice has developed that limits the competence of the court, which considers cases related to the assessment of the rights of a participant in a company’s share or the purchase of these rights by the company itself. An expert can be appointed only in the manner provided for in Art. ЛЛ 843-4 FGK, and the court hearing the case does not have the right to appoint an expert on its own.

The main obligation of an LLC participant is to make a contribution to the authorized capital of the company. In addition, participants have the right to participate in general meetings, the right to vote at general meetings, the right to information, to receive profit and part of the property upon liquidation of the company, alienation of a share and its transfer by inheritance. The rights of company participants can be either limited or expanded by the charter of the LLC. The special rights vested in individual members must be set out in the articles of association. French judicial practice allows the recognition of the right of participants to challenge decisions of the general meeting, as well as to leave the company.

Each participant must have a special document - a share certificate confirming his right to membership in the company, which, with the consent of all participants, can be alienated or inherited.

External representation of the company and management of LLC affairs carried out by managers. Participants of the company have the right to independently determine the number of managers, the duration and scope of their rights, the possibility of creating any committees, councils, etc. In relation to transactions with third parties, managers have unlimited rights.

According to French law, the functions of managers can only be exercised by French citizens.

The supreme body of the LLC is general meeting of participants. The procedure for convening, holding and competence of the general meeting are determined by the charter of the company. Decisions are made by a majority vote of participants representing more than 50% of the company's capital. If the specified majority is not obtained, a reconvening of the meeting is required, at which decisions are made by a majority of votes, without taking into account the capital represented. It is allowed to hold a general meeting by correspondence and written surveys. Decisions to amend the charter are made by participants representing 3/4 shares. The control functions of LLCs are carried out by commissioners.

The procedure for liquidation and reorganization is similar to the discussed procedure established for joint-stock companies.

The limited liability company of one person (eShgerpve ishrevoppeNe a gevropzalbkyo Ntkoe - ESHI.) has become most widespread among small enterprises. EAT is a derivative form of LLC, different from last topic that such a company in France operates according to rules modified for one participant.

The law does not establish requirements for the minimum amount of authorized capital, which makes it possible in practice to organize such a company with minimal costs. The participant bears liability limited to the size of the authorized capital, and if the number of participants increases, this company must be transformed into an LLC.

Full partnership (BOS1e1e ep pot sones^e - 51ChS). Members of such a partnership are jointly and severally liable with all their property, and the partnership itself is not subject to public reporting. The partnership is recognized as a legal entity and has the ability to appoint a person who is not a member as its director; There is no minimum authorized capital required by law.

The partnership will be created on the basis of a constituent agreement. The legislation provides the participants with the opportunity to regulate internal relations at their own discretion.

The general name of the partnership must include the names of all partners or several of them and an indication of the legal form of the partnership - a general partnership.

Participants in a partnership can be both individuals and legal entities who have the same rights and obligations of a participant in the partnership as individuals. In addition, criminal and civil liability is applied to legal entities - participants of the partnership.

The partnership's property consists of contributions from its participants, the amount of which is established by the constituent agreement and determines the share of participation of each participant in the partnership. However, participation shares cannot be paid for in securities. Changes in the monetary value of the partners' contributions depend on the profits and losses arising from the activities of the partnership. In the event of a decrease in the amount of the contribution due to losses incurred by the partnership, the participant does not bear the obligation to restore the specified contribution to the original amount.

The property of a general partnership is separate from the property of each partner and belongs to the partnership itself as a legal entity. Partnership property secures the rights of the partnership's creditors, but not the personal creditors of its participants.

One or more managers may act as managers of a general partnership. In the sphere of relations between participants, the manager has the right to make any decisions in the interests of the participants. The head of a legal entity that is a member of a general partnership bears civil and criminal liability before

provided for all general partners, and the legal entity itself - joint and several liability.

A general partnership has the right to acquire any property rights.

Internal relations general partnerships related to the conduct of business, management, decision-making procedures, distribution of profits, participation in covering losses, are regulated mainly by dispositive norms. For example, unless otherwise provided by the agreement, each participant in the partnership has the right to conduct business. A person who is not a participant in the partnership and is authorized by the agreement to conduct such affairs has the right to perform on behalf of the partnership only actions that are usual for such affairs.

Actions that are not usual for the conduct of the affairs of the partnership are carried out only with the consent of all its participants.

Unless otherwise provided by agreement, each participant has the right to vote regardless of the size of his contribution. Decisions are made by a majority of votes determined in the agreement.

The procedure for distribution of profit is also determined by the contract, and in the absence of appropriate instructions, profit is distributed in proportion to the contributions of the partners.

External relations general partnerships related to representation and liability for debts to the partnership’s creditors are mainly regulated by mandatory norms of law.

Any participant can act as a representative to third parties, unless otherwise provided by the agreement. If the agreement provides for one or more participants as a representative, their names are subject to publication. The legislation does not establish any restrictions regarding the scope of the representative’s powers.

The partnership itself is liable for its obligations in the amount of its property, as well as all participants with their personal property. The liability of all participants is unlimited and joint. It is prohibited to include in the contract conditions to exclude the property liability of any participant.

Persons who have retired from the membership of a general partnership are liable to creditors if the corresponding obligation arose during their membership. In this case, the former participants bear unlimited joint and several liability.

The possibility of holding former participants accountable is limited by law for a period of five years from the date of registration in the trade register of the fact of withdrawal from the partnership.

The protection of creditors' rights is ensured by the rule stating that persons who joined a general partnership after its registration are liable to third parties for the obligations of the partnership, regardless of the time they arose.

Limited partnership on shares. French law allows for the creation of mixed types of partnerships, consisting of one or more types of trading partnerships.

One of the most common types of mixed trading partnerships in France is the limited partnership on shares.

According to Art. L.1226-1 FTC A limited partnership with shares must have capital divided into shares. Such a company is founded by one or more general partners, who act as entrepreneurs and bear unlimited and joint liability for the obligations of the company, and by limited partners, who have the status of shareholder and are liable for losses only to the extent of the value of their contributions.

The number of limited partners cannot be more than three.

One of the bodies of a limited partnership on shares is its control, whose powers must be reflected in the charter. In fact, the manager performs the functions inherent in the administrative council of a joint stock company. The law limits the age of the manager. According to Art. L.226-3 FTC it cannot exceed 65 years. If the age threshold is exceeded, the manager is obliged to resign.

The composition of the general meeting of participants and the supervisory board of the company must be reflected in the charter.

The charter of a limited company based on shares must provide age restrictions for members of the supervisory board. Thus, upon reaching 65 years of age, a member of the supervisory board cannot exercise external representation and act on behalf of the company in relations with third parties.

The next general meeting appoints one or more commissioners. The Supervisory Board constantly monitors the activities of the company.

Changes to the charter are made with the consent of all general partners, and the need to amend the charter as a result of an increase in capital must be established by the manager.

Conversion a limited company on shares in a JSC or LLC is possible only on the basis of a decision of an extraordinary general meeting of shareholders with the consent of the majority of limited participants.

Thus, the legal regulation of the activities of limited partnerships on shares is carried out on the basis of the rules established by French legislation for limited partnerships and joint stock companies, with the exception of the rules governing the legal status of the administrative board, supervisory board, management of these companies, and also provided that they are compatible with special provisions provided by the FTC.

A simple limited partnership (societe en commandite simple - SCS) is recognized as a legal entity and is subject to public reporting. Some participants in such a partnership are liable with all their property (full partners), others - only with their contribution to the partnership (limited partners); There is no minimum authorized capital required by law.

The procedure for creating a limited and full partnership is similar in many ways. To register these partnerships, it is necessary to provide an agreement that includes information on the total amount of contributions of all participants, the share of each participant, limited partner or general partner in the distribution of profits and losses. The rights of each participant to the fixed capital are proportional to his contributions made upon the creation of the partnership or during its existence. Contributions from fishing activities cannot be made into fixed capital, but are the basis for the provision of shares giving the right to participate in the

byliakh and net assets, with the imposition of the obligation to participate in losses.

The legal status of a limited partnership has much in common with the legal status of a general partnership. A limited partnership is an association of persons operating in economic activity under a common firm. General partners conduct business and represent the limited partnership, answering for its obligations within the framework of unlimited and joint liability. The entrepreneurial risk of limited partners is limited by the size of their contribution. In addition, limited partners cannot conduct the affairs of the partnership, nor be its representatives. Under French law, limited partners can be both natural and legal persons.

Mandatory details of a limited partnership agreement include information on the amount of the individual contribution of each general partner and each limited partner, as well as the total amount of contributions of all participants.

The company name of the partnership must contain the names of one or more partners and an indication of the legal form of the partnership. The names of general partners are registered in the commercial register. A limited partner bears unlimited and joint liability along with his general partners only if his name is included in the business name of the partnership.

Despite the fact that limited partners are deprived of the right to conduct partnership affairs, they have fairly broad powers. For example, a limited partnership agreement may provide for the possibility for limited partners to enter into transactions related to the internal management of the partnership’s affairs. Moreover, limited partners have rights aimed at strengthening their influence on the activities of the partnership: they have the right not only to get acquainted with the books and documentation of the partnership, but also to object to certain actions complete comrades.

Limited partners do not have the right to represent the partnership even if they have a power of attorney. This requirement is established by law, and failure to comply with it entails unlimited property liability of the limited partner jointly and severally with the general partners for obligations from transactions concluded on the basis of a power of attorney.

• Basic principles of Russian and French law: textbook / ed. G. Esakova, N. Mazeka, F. Melin-Sukramanyena. M.: Prospekt, 2012. P. 362. (author of Chapter 9 - M. Menzhyuk).
• See: SHI.: legifrance.gouv.fr/
• Right there.