Dependent companies CC Article 105 106. Dependent business company. Organizational and legal forms of subsidiaries and affiliates

In the Civil Code and in the federal laws "On Joint Stock Companies" and "On Companies with limited liability» sets out the provisions on the status of subsidiaries (DHO) and dependent (ACO) business companies.

Primarily a subsidiary business company does not represent a special type of commercial organization. A feature of the legal status of subsidiaries is their relationship with the "parent" (controlling) companies or partnerships. Only a business company can be a subsidiary, and a business company and a business partnership can be a controlling (“parent”) company.

In accordance with paragraph 1 of Art. 105 of the Civil Code, companies are recognized as subsidiaries if they have at least one from the following circumstances:

the predominant participation in its authorized capital of one company or partnership in comparison with other participants;
an agreement concluded between the company and another company or partnership on managing the affairs of the first;
otherwise, it is possible for one company or partnership to determine the decisions taken by another company. If the main economic company (partnership) has

the right to issue binding instructions to the DHO, then it shall be jointly and severally liable with the DHO for transactions concluded in pursuance of such instructions.

DHO is not liable for the debts of the main economic company (partnership).

Applied to DRL debts are recognized as such if:

a business entity or partnership (the "parent company") has a majority stake in the authorized capital of the DHO;
an appropriate agreement has been concluded between the DHO and the parent company on the execution of the instructions of the company (partnership) by the DHO;
The "parent society" has the ability to determine the decisions made by the DHO in some other way.

The main company (partnership) is liable for the debts of the DHO,

in the DHO, instructions received from the company (partnership) were executed, which led to losses, and this right is provided for in the contract or the charter of the subsidiary;
due to the fault of the main company (partnership), the DHO became bankrupt. At the same time, the main company (partnership), in case of insufficient property of the DHO, bears subsidiary liability for its debts.

A company is recognized as a WCO if another (predominant, participating) economic company has more than 20% of the authorized capital of the first company or if another (predominant) company has more than 20% of the voting shares of the first company. At the same time, a company that has acquired more than 20% of the authorized capital of another LLC or more than 20% of the voting shares of a joint-stock company is obliged to immediately publish information about this in the press, where data on state registration legal entities.

Such relations of dependence of one society on another do not give rise to mutual or additional liability for debts. ZHO often mutually participate in each other's capital, and their participation may be the same. Participants (shareholders) of a subsidiary have the right to demand compensation from the parent company (partnership) for losses caused through its fault to the subsidiary.

The concepts of a subsidiary and a subsidiary should not be confused. In accordance with paragraph 7 of Art. 114 of the Civil Code, a subsidiary may be created only for operations with state and municipal property. A subsidiary is a unitary enterprise created by another unitary enterprise by transferring to the subsidiary under the established procedure a part of its property for economic management.

The founder approves the charter of the subsidiary and appoints its head.

The system of interrelated companies - the main "parent" and subsidiary (or subsidiaries) - received the name "holding" in American law, "concern" in German law, and Russian law- “financial-industrial group”. However, neither the holding, nor the concern, nor the financial and industrial group (FIG) are in themselves independent objects of law, or legal entities. In Russia, it is allowed to create a financial-industrial group in the form of an independent JSC - such a group can become a legal entity.

Article 105. Subsidiary business company

1. A business company is recognized as a subsidiary if another (main) business company or partnership, by virtue of its predominant participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise, has the ability to determine decisions made by such a company.

2. A subsidiary company is not liable for the debts of the main company (partnership).

The parent company (partnership), which has the right to give instructions to the subsidiary, including under an agreement with it, instructions that are mandatory for it, is jointly and severally liable with the subsidiary for transactions concluded by the latter in pursuance of such instructions.

In case of insolvency (bankruptcy) of a subsidiary due to the fault of the main company (partnership), the latter bears subsidiary liability for its debts.

3. Participants (shareholders) of a subsidiary company have the right to demand compensation by the main company (partnership) for losses caused through its fault to the subsidiary company, unless otherwise provided by laws on business companies.

Article 106. Dependent business company

1. A business company is recognized as dependent if another (predominant, participating) company has more than twenty percent of the voting shares of a joint-stock company or twenty percent of the charter capital of a limited liability company.

2. A business company that has acquired more than twenty percent of the voting shares of a joint-stock company or twenty percent of the authorized capital of a limited liability company is obliged to immediately publish information about this in the manner prescribed by laws on business companies.

3. Limits of mutual participation of business companies in the authorized capital of each other and the number of votes that one of such companies can use on general meeting participants or shareholders of another company are determined by law.

Commentary on Articles 105-106

Provisions of Articles 105, 106 Civil Code RF on subsidiaries and affiliates are almost completely reproduced in the norms of Article 6 of the Federal Law "On Limited Liability Companies" and Article 6 of the Federal Law "On Joint Stock Companies".

According to the above rules, a company may have subsidiaries and dependent companies with the rights legal entity on the territory of the Russian Federation, established in accordance with federal laws, and outside the territory of the Russian Federation - in accordance with the legislation of a foreign state at the location of a subsidiary or dependent company, unless otherwise provided by an international treaty of the Russian Federation.

A company is a subsidiary if another (main) economic company (partnership), by virtue of its predominant participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise, has the ability to determine decisions made by such a company.

A subsidiary company is not liable for the debts of the main company (partnership).

The parent company (partnership), which has the right to give the subsidiary company binding instructions for the latter, shall be jointly and severally liable with the subsidiary for transactions concluded by the latter in pursuance of such instructions. The parent company (partnership) is considered to have the right to give the subsidiary company binding instructions for the latter only if this right is provided for in the agreement with the subsidiary company or the charter of the subsidiary company.

In case of insolvency (bankruptcy) of a subsidiary due to the fault of the main company (partnership), the latter bears subsidiary liability for its debts. The insolvency (bankruptcy) of a subsidiary is considered to have occurred through the fault of the parent company (partnership) only in the case when the parent company (partnership) used the said right and (or) opportunity in order to commit an action by the subsidiary, knowing in advance that insolvency (bankruptcy) will occur as a result of this ) of the subsidiary.

Shareholders and members of a subsidiary have the right to demand compensation from the parent company (partnership) for losses caused through its fault to the subsidiary. Losses are considered to be caused through the fault of the main company (partnership) only in the case when the main company (partnership) used its right and (or) opportunity in order to commit an action by the subsidiary, knowing in advance that as a result of this, the subsidiary will incur losses.

A company is recognized as a dependent company if another (predominant) company has more than 20 percent of the voting shares of the first company.

A company that has acquired more than 20 percent of the voting shares of the company is obliged to immediately publish information about this in the manner determined by the federal body executive power by market valuable papers and the federal antimonopoly authority.

3. The limits of mutual participation of economic companies in each other's charter capitals and the number of votes that one of such companies may use at a general meeting of participants or shareholders of another company are determined by law.

Commentary on Article 106 of the Civil Code of the Russian Federation

The provisions of Articles 105 and 106 of the Civil Code of the Russian Federation on subsidiaries and affiliates are almost completely reproduced in the norms of Article 6 of the Federal Law "On Limited Liability Companies" and Article 6 of the Federal Law "On Joint Stock Companies".

According to the above rules, a company may have subsidiaries and dependent companies with the rights of a legal entity on the territory of the Russian Federation, created in accordance with federal laws, and outside the territory of the Russian Federation - in accordance with the legislation of a foreign state at the location of the subsidiary or dependent company, unless otherwise provided by international agreement of the Russian Federation.

A subsidiary company is not liable for the debts of the main company (partnership).

A company is recognized as a dependent company if another (predominant) company has more than 20 percent of the voting shares of the first company.

A company that has acquired more than 20 percent of the company's voting shares is obliged to immediately publish information about this in the manner determined by the federal executive body for the securities market and the federal antimonopoly body.

In accordance with the provisions and norms of the current legislation, subsidiaries and dependent companies are distinguished as legally independent entities economic law. Having a separate legal entity with all the details (seal, bank account etc.), such organizations are not always free to make decisions, which in many cases are determined by the main economic company (or partnership).

What are subsidiaries and affiliates

The basic provisions that define the concept of subsidiaries and affiliates, which are used in legal practice, are set out in the Civil Code of the Russian Federation. Here are given not only distinctive features from each other, but also differences with the main economic society, allowing to determine legal status each of these organizations. This may be required, for example, when signing contracts or resolving legal disputes.

Which legal entities are recognized as subsidiaries

Article 67 of the Civil Code of the Russian Federation provides an exhaustive definition of a subsidiary company (DC). In order for an organization to meet this requirement, it must:

the presence of a contribution of another company (main organization) to the authorized capital as a predominant participant;
the presence of a civil law contract between the main structure and the subsidiary.

According to legislative norms, the main organization (OK) takes part in the management of the subsidiary, not only because of the predominance in statutory fund but also according to the memorandum of association. There are other ways in which you can have a significant impact on the activities of a subsidiary:

inclusion of representatives of the main company in management team"daughters";
consolidation of statutory provisions, according to which the main organization can issue binding instructions.

Dependent business company

Legislation provides clarification regarding dependent companies (SO) - according to federal law No. 14 of February 8, 1998 "On Limited Liability Companies", an organization is recognized as a CA if another company acquires (or already owns) more than 20% of its authorized capital. By law, having made such a transaction, the OK is obliged to publish information in a specialized press - the journal "Bulletin of State Registration".

Distinctive features

There are several provisions on which the DC and the ZO differ from each other. The legislation defines two main features:

The main company for the CA can only be a business company - JSC or LLC, for a subsidiary it can also be a general or command partnership.
In relation to subsidiaries, there is no minimum amount of predominant participation, and for dependent companies, the “lower bar” is at the level of 20%.

Organizational and legal forms of subsidiaries and affiliates

When considering this issue, it should be taken into account that DC and CA are not autonomous organizational and legal forms of commercial structures, but special legal states. It can be:

additional liability companies;
joint-stock companies;
limited liability companies.

Such a special legislative separation is caused by the desire to increase the legal protection of counterparties of subsidiaries and affiliates, subject to manipulative indirect influence on the part of the OK and the onset of the insolvency of the controlled company. With particular emphasis on SDCs, the law guards the members of these organizations, who may also suffer from the irrational management policy of the main company.

Additional Liability Company

This organizational and legal form provides for joint and several liability of participants in the same amount for all. The constituent documents determine the shares into which the authorized capital is divided and the maximum limit of personal liability with their own property for each (for example, 4 times the amount of the contribution). If one of the ALC participants goes bankrupt, the other participants distribute its additional liability among themselves, for this reason the total amount of commercial obligations to creditors remains unchanged.

Joint Stock

Authorized capital in joint stock company(JSC) is divided into a certain number of shares, certifying the rights of a shareholder. An important difference is that the shares cannot be returned upon exit from the OJSC, they can only be sold to a new shareholder (or assigned in another permitted way - donate, bequeath, etc.). There are two types of joint-stock companies - open (OJSC) and closed (CJSC), differing in the presence of shares in free sale.

Limited Liability Company

As in the case of an ALC, LLC participants are liable for losses associated with the activities of the company, but only to the extent of the value of their contributions. The law determines that in addition to the charter and memorandum of association, the organization of an LLC requires an authorized capital of at least one hundred times minimum size salary at the time of registration. According to Article 94 of the Civil Code of the Russian Federation, termination of membership in an organization implies the alienation of the share of this member.

Legal Status of Subsidiaries and Dependent Companies

The legislative framework on which subsidiaries and dependent companies rely in their activities is very extensive. In addition to the obligatory in all cases of the Civil Code of the Russian Federation, depending on the situation, these may be laws on joint-stock companies or limited liability companies. If we are talking on activities in the territory of foreign countries, then the requirements of the foreign state will also be relevant (unless otherwise provided by international treaties).

In addition, it must be taken into account that the presence of a SDE in an organization implies special requirements for accounting. In addition to your own financial statements, requires the presence of separate balance sheets for each organization, reflecting its activities for the reporting period. These indicators are included in the reporting of the main organization, receiving a consolidated (consolidated) balance sheet.

Functions and tasks

The ability of the OC to make decisions in relation to the activities of SDEs entails liability, which is imposed in case of accounts payable or in other cases. At the same time, situations are possible where subsidiaries and dependent companies:

are solely responsible;
jointly and severally share it with OK;
subsidiarily shift it to the main company.

Independence of responsibility

Regardless of the legal form, a subsidiary is not liable for the debts of the parent company. This basic provision is enshrined not only in Article 67.3 of the Civil Code of the Russian Federation, but also in other legal documents (for example, the Law "On Limited Liability Companies"). At the same time, subsidiaries and affiliates are responsible for their own transactions, in some cases sharing it with the parent company.

Joint and several liability for transactions

In the case of organizations linked by parent-subsidiary or parent-subsidiary relationships, the OK is jointly and severally liable for the debts of the SDC. The occurrence of this liability implies that the transaction was concluded at the direction of OK or with his consent. The law also considers cases where such liability cannot exist (for example, if the approval of the transaction was provided for by the statutory documents of the OK or SDC), but these situations are exceptional.

Subsidiary liability of a business company

In accordance with the current legislation (Civil Code of the Russian Federation, etc.), in the event of insolvency (bankruptcy) of SDEs, the main company bears subsidiary liability for debts. This implies that if the debtor himself cannot repay the claims of creditors, the obligation to repay the debt is transferred to the main company, which must make payments from its own funds.

Compensation for losses at the request of participants

Based on Articles 67.3 and 1064, shareholders or participants in DC and CA may claim damages from OC. They have this right if a subsidiary or dependent organization has experienced harm from the activities (or inaction) of the main company. In this case, the legislation is on the side of SDCs, which, even taking into account economic independence, are not always free to make decisions due to the predominant participation of OKs in the authorized capital.

Financial and industrial groups and holdings

The term “financial-industrial group” in the legislation means an association financial institutions With industrial enterprises for effective interaction. One of the types of FIGs is a concern that unites enterprises from one or different industries. An example is the German concern Siemens, which includes companies producing electrical engineering, electronics, power equipment, etc. At the same time, the companies within the concern combine not only their economic potential, but also their efforts in the field of marketing.

The principle of organizing a concern provides an opportunity to create vertical-type structures covering all stages of the production cycle in a particular area. Thus, Volksvagen AG brings together 342 companies in the field of car production - they take on a wide range of issues from the purchase of materials to sales finished products, That's why manufacturing process can be done much more efficiently.

Another form of association is a holding type structure, where the main "parent" company has a network of subsidiaries. Controlling stakes in each DC belong to the managing organization, so it can productively manage the overall process. The complex structure of the holding provides an opportunity for DC to create its own "daughters", which in relation to the parent company are called "grandchildren".

An example of a successful holding, where the participation of the state exceeds 50%, is Gazprom, other well-known associations in our country - Russian Railways, Russian Standard, Dalmoreprodukt. Both holdings and concerns in our country are strictly controlled by antitrust laws that regulate the objectivity of pricing for goods and services.