Partnership with full responsibility. General partnership and its characteristics

Russian legislation, through regulatory legal acts, fully regulates the existence of any type of partnership, from creation to liquidation. Today we propose to discuss the topic of the creation and existence of commercial partnerships within the framework of the laws of the Russian Federation.

General partnership - what is it?

In the Russian Federation, there are several types of partnerships: full, faith, economic, share, etc. This is a kind of transformation of the family community. Today, the full description of a partnership is similar to that of a business partnership, and its full regulations from creation to liquidation are regulated by the Civil Code of the Russian Federation, Art. 69-81.

His partners are full comrades among themselves. Within the framework of such an enterprise, all participants bear joint and several (equal) liability and, if circumstances and the state of affairs so require, are liable for obligations with their property and personal funds, regardless of the date of entry into the community. Therefore, this form of record keeping implies the perfect trust of the participants in relation to each other. Participants can be commercial organizations (legal entities) or individual entrepreneurs.

Authorized capital of a general partnership

The basis for agreements between members of an economic partnership or limited partnership is the constituent documents (only an agreement, there is no charter in this form of community), where, among other things, the amount of the authorized capital (hereinafter referred to as the CC) is fixed, which consists of the contributed funds from each of its members. The volume of the Criminal Code determines the profitable side of the enterprise, the obligations and responsibilities of the parties. Legal norms on the amount of the Criminal Code are regulated by the norms of the law on economic communities. At the same time, the contribution of each participant to the MC can be any, according to internal agreements. The minimum amount of the Criminal Code, depending on the form (on faith, economic, etc.), is 100-1000 minimum wages.

Number of participants in a general partnership

A minimum of two participants can create such a partnership, between which responsibilities are distributed. Responsibility before the law and creditors is borne by each participant equally, regardless of his form and time of entry into the ranks of the community: on faith, share, etc. If the composition has changed over time and there is only one participant left in it, such a community must be liquidated in accordance with the provisions of Russian legislation .

Management bodies of a general partnership

Legislation gives freedom to such communities in terms of governance. In general, there are three types:

1. General management of all matters and issues, distributed among the participants.
2. At the general meeting, one manager is elected, who acts on behalf of all participants.
3. Any member of such a partnership assumes control as needed.

When voting, each participant has only one vote. But in any case, the manager does not have the right to act on behalf of the company in his personal interests or in the interests of third parties. In addition, he is fully responsible for his actions to other members of the community and constantly and fully informs all members of the state of affairs.

Economic full partnership - the essence

According to the regulatory legal acts of the Russian Federation, there are two types of economic partnership: on faith (limited) and full. The main principle of conducting such a partnership is a commercial direction, which provides that all members bear joint and several subsidiary liability for the obligations of the community with their property and funds. Those. it's a contract community.

Federal Law on full partnership

Participants in a full partnership bear joint and several liability with their property for the obligations of the partnership. A participant in a full partnership who is not its founder is liable on an equal basis with other participants for obligations that arose before he joined the partnership. A participant who left the partnership is liable for the obligations of the partnership that arose before the moment of its withdrawal, along with the remaining participants, within two years from the date of approval of the report on the activities of the partnership for the year in which he retired from the partnership.

Withdrawal of a participant from a general partnership[edit wiki text]Each participant has the right to withdraw from the PT, while if an agreement is concluded to prohibit withdrawal from the PT, then it is considered null and void. Art. 78 of the Civil Code “Consequences of the withdrawal of a participant from a general partnership”: “1. A participant who has withdrawn from a general partnership shall be paid the value of a part of the partnership's property corresponding to the share of this participant in the share capital, unless otherwise provided by the founding agreement. By agreement of the departing participant with the remaining participants, the payment of the value of a part of the property may be replaced by the issuance of property in kind. The part of the property of the partnership due to the departing participant or its value is determined according to the balance sheet, compiled, except for the case provided for in Article 80 of this Code, at the time of its withdrawal. In the event of the death of a participant in a full partnership, his heir may enter into a full partnership only with the consent of the other participants. A legal entity that is the legal successor of a reorganized legal entity that participated in a full partnership is entitled to join the partnership with the consent of its other participants, unless otherwise provided by the founding agreement of the partnership. Settlements with the heir (legal successor) who has not joined the partnership are made in accordance with paragraph 1 of this articles. The heir (legal successor) of a participant in a full partnership shall be liable for the obligations of the partnership to third parties, for which, in accordance with paragraph 2 of Article 75 of this Code, the retired participant would be liable, within the limits of the property of the retired participant in the partnership that has passed to him.

3. If one of the participants left the partnership, the shares of the remaining participants in the joint capital of the partnership increase accordingly, unless otherwise provided by the founding agreement or other agreement of the participants.”

Advantages:

The possibility of attracting additional funds;

Trust from creditors.

Flaws:

Settlement of debts from personal property .

Limited partnership (limited partnership)- a commercial organization based on share capital, in which there are two categories of members: general partners and limited partners. General partners carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with all their property. Limited contributors are responsible only for their contribution to the development of something (business or project). Currently, this organizational and legal form is practically not used.

Brand name limited partnership must contain either the names (names) of all general partners and the words "limited partnership" or "limited partnership", or the name (name) of at least one general partner with the addition of the words "and company" and the words "limited partnership" " or "limited partnership", and if the name of the contributor is present in the name of the limited partnership, then such contributor becomes a general partner.

A limited partnership is created and operates on the basis of a constituent agreement. The memorandum of association must contain the following information: the name of the partnership; its location; the procedure for managing the activities of the partnership;

conditions on the size and composition of the share capital of the partnership; conditions on the size and procedure for changing the shares of each of the general partners in the share capital; conditions on the amount, composition, timing and procedure for making contributions by general partners, their liability for violation of obligations to make contributions; conditions on the total the amount of contributions made by contributors.

In the foundation agreement, the founders undertake to create a legal entity, determine the procedure for joint activities to create it, the conditions for transferring their property to it and participating in its activities. The agreement also defines the conditions and procedure for the distribution of profits and losses among the participants, management of the activities of a legal entity, withdrawal of founders (participants) from its composition.

Members. Only individual entrepreneurs and (or) commercial organizations can be full participants in a limited partnership. The number of participants must not be less than two. Contributors can be citizens, legal entities, institutions (unless otherwise provided by law).

A general partner has the right: participate in the management of the affairs of the partnership; receive information about the activities of the partnership; take part in the distribution of profits;

receive, in the event of liquidation of the partnership, part of the property remaining after settlement with creditors, or its value; withdraw from the partnership at any time.

A general partner is obliged: make contributions in the manner, amount, methods and terms stipulated by the constituent documents; do not disclose confidential information about the activities of the partnership; participate in the activities of the partnership in accordance with the terms of the founding agreement; refrain from making on their own behalf and in their own interests or in the interests of third parties persons of transactions similar to those that constitute the subject matter of the partnership.

An investor in a limited partnership has the right to: receive part of the partnership's profit due to its share in the share capital, in the manner prescribed by the founding agreement; get acquainted with the annual reports and balance sheets of the partnership;

at the end of the financial year, withdraw from the partnership and receive its contribution in the manner prescribed by the memorandum of association; transfer its share in the share capital or part of it to another investor or third party.

The depositor is obliged: contribute to the share capital. The contribution is certified by a certificate of participation issued to the contributor of the partnership.

Governing bodies. The management of the activities of a limited partnership is carried out by general partners. Contributors are not entitled to participate in the management and conduct of business of a limited partnership, to act on its behalf otherwise than by proxy. They do not have the right to challenge the actions of general partners in managing and conducting business of the partnership. The meeting of general partners is the highest governing body. At the meeting, each general partner has one vote, unless otherwise provided by the memorandum of association, and decisions are taken unanimously (unless otherwise provided by the memorandum of association). Each general partner has the right to act on behalf of the partnership, unless the memorandum of association establishes that all general partners conduct business jointly, or the conduct of affairs is entrusted to individual participants. When the affairs of the partnership are jointly conducted by its general partners, the consent of all participants in the partnership is required for the conclusion of each transaction. entrusted with the management of the affairs of the association.

The minimum and maximum sizes of the share capital are not limited.

Profit and loss Limited partnerships are distributed among its participants in proportion to their shares in the share capital, unless otherwise provided by the constituent agreement or other agreement of the participants. An agreement on the elimination of any of the participants in the partnership from participation in profits or losses is not allowed. will not exceed the amount of the share capital.

The partnership is responsible for its obligations with all its property. In case of insufficiency of the property of the company, the creditor has the right to present a claim against any general partner or all at once to fulfill the obligation (subsidiary liability). a partner who has withdrawn from the partnership shall be liable for the obligations of the partnership that arose before the moment of his withdrawal, on an equal footing with the remaining participants within two years from the date of approval of the report on the activities of the partnership for the year in which he withdrew from the partnership.

Legislative framework[edit wiki text]

So, in the near future, creating a limited liability company will not be as easy as it is now. The minimum amount of authorized capital for an LLC is increased fifty times. It is clear that not all start-ups, and indeed already operating, enterprises will be able to afford such a size. What to do? Will everyone have to register themselves as individual entrepreneurs. But what about those whose business is built on corporate principles.

And here comes the time to remember the forgotten forms of doing business, so unpopular at the moment, as a general partnership and partnership in faith.

It is noteworthy that in the draft Civil Code, the norms on these organizational and legal forms practically did not undergo any changes.

General partnership

First of all, we will consider the main features of a general partnership. Beginning entrepreneurs, for sure, will be most interested in knowing how a general partnership differs from such a common form as a limited liability company. Let's compare from a practical point of view.

These are the main distinguishing features of a general partnership that distinguish it from a limited liability company. For more details, see Art. Art. 69 - 81 of the Civil Code of the Russian Federation.

Limited partnership (limited partnership)

In addition, there are also limited partnerships (Articles 82-86 of the Civil Code of the Russian Federation). A limited partnership is very similar to a general partnership. But it has a number of features that bring it closer to a limited liability company. There are two types of participants in a limited partnership: general partners and contributors (limited partners). General partners are subject to the rules on a full partnership, they participate in the management of the partnership, conduct business on its behalf. Investors are not allowed to manage affairs, they only make a contribution and are entitled to receive part of the profit due to his share in the share capital. But they are responsible not with all their property, but only with a contribution to the share capital, this makes them look like participants in a limited liability company.

simple partnership

A simple partnership, unlike a general partnership and a limited partnership, is not a type of legal entity. This is not an organization, this is a type of contract (Chapter 55, Part II of the Civil Code of the Russian Federation).

Under a simple partnership agreement (agreement on joint activities), two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another goal that does not contradict the law. Only individual entrepreneurs and (or) commercial organizations can be parties to a simple partnership agreement concluded for the implementation of entrepreneurial activities.

Therefore, you cannot immediately start your business with a simple partnership, you must first at least register as an individual entrepreneur.

A simple partnership is a form of partnership for conducting joint business activities. At the same time, the property invested in the business is not separated, as in the case of legal entities (there it becomes the property of the legal entity itself), but remains in the ownership of comrades (in common shared ownership). Everything received in the future from joint activities also goes to the common shared property of the comrades.

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A general partnership is one of the oldest forms of partnerships. Nowadays, it is used infrequently, but some entrepreneurs still prefer it. Those who decide to organize a general partnership, which should be prepared in advance, are advised to familiarize themselves with the rules for registering an organization.

What is a general partnership

A general partnership is one of the types in which the participants enter into an agreement in accordance with entrepreneurial activity. Each participant (or general partner) is fully responsible for the entrusted property, that is, bears unlimited liability.

The Civil Code regulates a general partnership, which is indicated by the following features:

Created on the basis of a contract;

General partners are obliged to personally participate in the activities of the organization;

Have the same rights as legal entities;

The main goal is to carry out entrepreneurial activities;

The liability of all participants is unlimited.

There are rules for those who want to become a member of a general partnership. By law, individual entrepreneurs can become them, like any other (according to Article 66 of the Civil Code).

When choosing a name for a general partnership, it should be noted that it must contain the words “general partnership” and the names of all participants, or the names of several participants, but then it is imperative to add the words “general partnership” or “company”. An example of a general partnership is the imaginary firm Ivanov and Company.

Required documents

A general partnership, the constituent documents of which must be submitted for registration, is created on the basis of a constituent agreement. In it, the founders determine their participation in the activities of the partnership, agree on the costs and methods of managing the organization.

Each member is required to sign a memorandum of association that contains the following information:

The name corresponding to the legislation;

Location;

The procedure for managing the partnership;

Size, composition and terms of making deposits;

Liability for breach of contract.

The memorandum of association has several purposes. It contains clauses defining relations between full partners. Moreover, the contract specifies the terms of the partnership with other organizations. Like any document, the contract is drawn up in accordance with the law and must include all clauses. It is in writing, drawn up in the form of a single document and signed by each participant.

Name of general partnership

There is no requirement in the law that the contract must be in the form of a single document. However, this is a prerequisite when providing it for registration. Moreover, when presenting the contract to third parties, it is mandatory to show a single document.

From the moment of signing the contract, the participants in a general partnership must fulfill their rights and obligations. However, for third parties, it comes into force only after registration. Registration of the memorandum of association takes place in accordance with the Law on Registration of Legal Entities. The name must comply with all rules. An example of a general partnership with the correct name is "Abzal and K".

Member Responsibilities

A general partnership, the constituent documents of which were signed by all participants, imposes rights and obligations on them. This is important to know. Participants in a full partnership may not be members of more than one partnership. By law, they do not have the right to make transactions on their own behalf without the consent of others. Everyone is obliged to make at least half of their contribution to the capital by the time of registration of the partnership. The remaining part is paid within the period specified in the contract. Each partner is obliged to participate in the activities of the organization in accordance with the rules specified in the memorandum of association.

Participant rights

The founders of a general partnership have the right to leave the partnership before the specified period. In this case, a person is obliged to declare his desire at least 6 months in advance. If a general partnership was created for a certain period, then exit is possible only for a good reason.

A participant may be expelled from the partnership in a judicial proceeding if the other participants voted for it. In this case, he is paid the value corresponding to his share in the capital. The shares of the retired participants are transferred in the order of succession, but the rest of the comrades must vote for the successor. The composition of comrades can be changed without exclusion of anyone. In this case, the share in the share capital is transferred to another participant or a third party. To carry out the operation, the consent of the other comrades is necessary.

Liquidation of a general partnership

Since a general partnership is highly dependent on each participant, there are many events that can lead to its liquidation. Naturally, the death of a member is the reason for the termination of the partnership. If the partner is a legal entity, its liquidation will serve as the basis for the liquidation of the organization.

Other reasons are:

Appeal of creditors to one of the participants in order to recover property;

Legal proceedings against one of the comrades;

Declaring a member bankrupt.

A general partnership has the right to continue its activities if such a clause is specified in the memorandum of association.

If the number of participants has decreased to one, then the participant has 6 months to transform the general partnership into a business entity. Otherwise, it is subject to liquidation.

What is a limited partnership

General and limited partnerships differ in several respects. A limited partnership, which is also called a limited partnership, differs from a full partnership in that it includes not only general partners, but also contributors (limited partners). They take the risk for losses that are associated with the activities of the partnership. The amounts depend on the contributions made. Limited partners do not take part in entrepreneurial activities. Unlike general partners, investors can be not only individual entrepreneurs and commercial organizations, but also legal entities.

Partners have the right to:

Get profit according to the share in the share capital;

Require annual reports on the work of the partnership.

There are a number of restrictions applicable to contributors. They cannot be state bodies, as well as local governments. They do not have the right to act on behalf of the partnership, except by proxy.

Production cooperative as a form of collective entrepreneurship

One form of collective enterprise is called a cooperative. A general partnership, in contrast, has more restrictions in terms of participants. Participants in a production cooperative cannot be individual entrepreneurs, but personally work in the cooperative. Each member has one vote, regardless of the size of the contribution.

In the civil code, a production cooperative is called an artel, since profit depends on the labor contribution of the participant, and not on his contribution. In the case of debt, everyone is responsible for its repayment in the amount predetermined by the charter.

The advantage of this form of entrepreneurship is that the profit is distributed in accordance with the labor contribution. Property is also distributed if the production cooperative has been liquidated. The maximum number of members is not limited by law, which allows you to create cooperatives of any size. Each participant has equal rights and one vote, which stimulates the interest of members in the activities of the organization.

The minimum number of members is limited to five. The downside is that this greatly limits the possibility of creating a cooperative.

Articles 69-81 of the Civil Code are devoted to the legal status of general partnerships. A general partnership has both common features of a legal entity and a business partnership, as well as special features. Let's name their distinguishing features.

1. Participants in a general partnership are general partners, i.e. individual entrepreneurs and (or) commercial organizations. Any person can be a participant in only one full partnership (clause 2, article 69 of the Civil Code). However, this rule does not prohibit the participant of the partnership from conducting his own entrepreneurial activity, subject to paragraph 3 of Art. 73 GK. The above rule prohibits full partnerships that are entrepreneurs from competing with the activities of the partnership in the commodity market, i.e., “to make transactions on their own behalf in their own interests or in the interests of third parties that are similar to those that are the subject of the partnership’s activities.”

Otherwise, the partnership has the right, at its choice, to demand from such a participant compensation for the losses caused to the partnership or the transfer to the partnership of all the benefits acquired from such transactions (paragraph 3 of article 73 of the Civil Code).

2. A participant in a general partnership is obliged to personally participate in its activities in accordance with the terms of the memorandum of association. At the same time, the Civil Code of the Russian Federation (Article 73) does not establish any sanctions for the passive behavior of a comrade in the affairs of a partnership. Therefore, we agree with the opinion that systematic non-participation in the affairs of the partnership can be regarded as a gross violation, which is the basis for the exclusion of such a participant from the partnership in accordance with paragraph 2 of Art. 76 GK. On the other hand, a partner may actually be released from the obligation to personally participate in the affairs of the partnership.

In this regard, the question arises: is it possible, using the structure of the memorandum of association, to release a comrade from such participation? In our opinion, no. The rule of paragraph 1 of Art. 73 of the Civil Code is an imperative norm, and therefore the memorandum of association, by virtue of paragraph 1 of Art. 422 of the Civil Code must comply with the rules binding on the parties, established by law and other legal acts (imperative norms) in force at the time of its conclusion. The provisions of Art. 1, 421 of the Code on freedom of contract, since the freedom of participants in civil transactions (general partners) is limited by the operation of an imperative norm.

3. Participants of a full partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership (clause 1 of article 75 of the Civil Code). First of all, we note that the liability of general partners in relation to the liability of the partnership is subsidiary. In the literature, it is widely believed that it (responsibility) occurs only if the property of the partnership is insufficient. This opinion appears to be erroneous.

Indeed, such a condition is not provided for in Art. 75 of the Civil Code and does not follow from the general rule of paragraph 1 of Art. 399 GK. By virtue of paragraph 1 of Art. 399 To bring to subsidiary liability, it is sufficient for the main debtor to satisfy the creditor's claims or for the creditor's failure to receive a response to the claim within a reasonable time.

The joint nature of the liability of general partners means that the creditor of the partnership has the right to present a claim both to all partners jointly, and to any of them separately, both in full and in part of the debt (clause 1 of article 323 of the Civil Code of the Russian Federation).

In order to protect the interests of the creditor, the Civil Code of the Russian Federation (clause 2, article 75) contains a rule according to which a participant in a general partnership who is not its founder is liable for the debts of the partnership on an equal basis with other participants for obligations that arose before his entry into the partnership. Moreover, partners who left the partnership are also liable for the obligations of the partnership that arose before the moment of its withdrawal, on an equal basis with other remaining participants, for two years from the date of approval of the report on the activities of the partnership for the year in which he left the partnership. A very hard rule!

And one more aspect of the responsibility of the participants in a general partnership for its obligations. Agreement of full partners on the limitation or exclusion of liability under Art. 75 of the Civil Code, negligible. This rule indicates that the imperative norm of the law cannot be changed by private agreement.

4. As a general rule, managerial functions in a full partnership are carried out with the consent of all participants (Article 71 of the Civil Code). However, the memorandum of association may provide for cases where the decision is taken by a majority vote of the participants. Such an exception allows the participants of the partnership to reach a specific decision in disputable situations, since it is not always possible to reach a unanimous decision of all participants on some fundamental issues.

Literal interpretation of the rule of paragraph 1 of Art. 71 of the Civil Code allows us to conclude that these exceptions are applicable to individual cases. In other words, the general rule of a unanimous decision remains valid even in cases where the memorandum of association contains conditions for a decision to be taken by a majority of votes.

Since the Civil Code of the Russian Federation provides for the possibility of making a decision by a majority of votes, there is no prohibition, in our opinion, to establish in the contract a rule that on certain issues of managing the activities of a general partnership, the relevant decisions are made by a qualified majority of votes of the participants.

When counting the votes of participants in a general partnership, one should be guided by the rule that each general partner has one vote. A different procedure for determining the number of votes of participants in a partnership may be provided for by the founding agreement. 5. The Code (Article 72 of the Civil Code) distinguishes between the management in a partnership and the conduct of business in a general partnership. Conducting business means representing the interests of the partnership in relations with third parties. The Code offers a choice of three models for conducting business in a general partnership: a) each participant in the partnership has the right to act on behalf of the partnership (general rule); b) all participants in the partnership conduct business jointly; c) the conduct of affairs is entrusted to individual participants. The last two options for doing business can be provided for by the memorandum of association.

When conducting business of a general partnership, its participants, representing the interests of the partnership in relations with third parties, act as bodies of a legal entity. And although in relation to business partnerships, the Civil Code does not call them (general partners) the body of the partnership, nevertheless they perform these functions. By virtue of paragraph 1 of Art. 53 of the Civil Code, a legal entity acquires civil rights and assumes civil obligations through its bodies.

We believe that general partners, taking into account different models of doing business in a general partnership, are the bodies of a general partnership acting in accordance with the law, other legal acts and the memorandum of association. There are features of their formation, but they are unlikely to affect the functional affiliation of the participants in the partnership to the bodies of the legal entity. At the same time, we are not inclined to extend the regime of the institution of representation to the bodies of a legal entity in general and to participants in a general partnership in particular. There are no representative relations between a legal entity and its bodies, which are the subject of regulation by the norms of Ch. 10 GK.

Each partnership model has its own advantages and disadvantages. So, the first model gives the right to each participant of the partnership to act on behalf of the partnership. This can be considered, on the one hand, as a plus, on the other, as a minus, since such a democratic way of doing things will lead to anarchy.

On the contrary, the second model is designed to ensure the coordination of actions of all participants in a general partnership. The idea is not bad, but in reality its implementation is fraught with significant difficulties. Even the personal-confidential nature of a full partnership is not capable of guaranteeing absolute unity of opinions and votes.

6. List of duties of general partners provided for in Art. 73 of the Civil Code, is not exhaustive. For example, a general partner is obliged to participate in the distribution of losses (clause 1, article 74 of the Civil Code).

In addition, additional obligations of participants in a general partnership may be provided for by the constituent agreement.

Along with the obligation of a participant in the partnership to participate in the activities of the partnership, Art. 73 of the Civil Code obliges a general partner to make at least half of his contribution to the share capital of the partnership by the time of its registration. The share capital is a type of property of the partnership, formed at the expense of the contributions of the founders of the partnership. Therefore, it (capital) represents the total value of all contributions registered (fixed) in the memorandum of association and expressed in rubles, which the founders of the general partnership decided to combine when creating the partnership.

The current legislation does not contain a rule on the minimum amount of the share capital of a business partnership. In our opinion, this absence can hardly be regarded as a gap. On the contrary, based on the nature of business partnerships, we consider it inappropriate to establish a legislative minimum size of the partnership's share capital. The specified amount must be determined by the founders of the economic partnership independently.

The share capital of a business partnership does not perform a guarantee function aimed at ensuring the interests of creditors. With regard to business partnerships, it is important for creditors who are general partnerships and what their property status is.

By and large, the authorized capital of business companies also does not perform the function of a guarantee, if only because its size in most cases is not capable of ensuring the interests of creditors.

7. As a general rule (Article 74 of the Civil Code), the profits and losses of a general partnership are distributed between its participants in proportion to their shares in the share capital. However, a different rule may be formulated in the memorandum of association or in another agreement of the participants. For example, depending on the personal participation of partners in the activities of the partnership, general partners may agree on a different proportion of the distribution of profits and losses. At the same time, the Civil Code does not allow the agreement of the participants on the elimination of any of the general partners from participation in profits or losses. Such an agreement is void.

The Code (clause 2, article 74) prohibits the distribution of profits between general partners if, as a result of the losses incurred by the partnership, the value of its net assets becomes less than the size of its share capital. This prohibition is valid until the value of net assets exceeds the amount of share capital.

At the same time, the legislator pursues the only goal - to have a stimulating effect on the participants in a general partnership so that they show a minimum interest in maintaining the solvency of the partnership, at least to the level of its share capital. But this rule is hardly capable of in any way affecting the fate of the partnership, as well as the business relations of the partnership with creditors. The main guarantee of the interests of creditors is the subsidiary liability of general partners for the obligations of the partnership.

8. Change in the composition of participants in a general partnership(Article 76 of the Civil Code). The Code defines the circumstances, the presence of which may affect the fate of a business partnership, as well as the consequences of a change in the composition of participants in a general partnership. Such circumstances include: exit or death of any of the participants in a full partnership; recognition of one of the comrades as missing, incapacitated or partially incapacitated; recognition of a general partner as insolvent (bankrupt), opening reorganization procedures in respect of one of the participants by a court decision, liquidation of a legal entity participating in the partnership; foreclosure by a creditor of one of the participants on a part of the property corresponding to his share in the joint capital of the partnership. Thus, the Code distinguishes between a change in the personal composition of participants in a general partnership and the property status of a participant.

These circumstances are grounds for the liquidation of a full partnership (Article 81 of the Civil Code). In practical terms, the question of a voluntary or forced method of liquidating a partnership deserves attention. Here is what F. M. Polyansky writes, the author of the commentary of paragraph 2 of Ch. 4 of the Code: "Each of these circumstances is the basis for the forced liquidation of the partnership, unless otherwise provided by its constituent agreement or agreement of the remaining participants." As you can see, listed in Art. 76 of the Civil Code, the circumstances serve, in the opinion of the named author, as the basis for the forced liquidation of a full partnership.

We do not fully agree with this opinion. Paragraph 2 of Art. 61 of the Civil Code establishes the grounds for the voluntary and forced liquidation of a legal entity. Forced liquidation of a legal entity is carried out by a court decision on the grounds, a list of which is given in paragraph 2 of Art. 61 GK. An analysis of this norm shows that the indicated grounds for the liquidation of a legal entity are heterogeneous: one group of grounds is a violation by a legal entity of the provisions of the law, other legal acts, the other group is not associated with such violations.

In our opinion, the phrase “in other cases provided for by this Code” means that the Code may provide for other grounds for the liquidation of a legal entity; and it is not necessary that they constitute any violations.

In the case under consideration (Article 76 of the Civil Code), when the remaining participants in the general partnership did not make a unanimous decision on the existence of the partnership, there are grounds for the liquidation of the partnership. Such liquidation may be voluntary, that is, by decision of the participants in the full partnership. In turn, the court decision on the liquidation of a full partnership on the grounds specified in paragraph 1 of Art. 76 of the Civil Code, testifies to the existence of disagreements between the remaining full partners. Therefore, at the request of one of them, the court has the right to make a decision on the liquidation of the full partnership. To put it bluntly: the situation that arises in this case is not simple (for example, nine comrades are in favor of maintaining the partnership, and one is against it).

Another situation: the remaining participants in a general partnership have not decided to continue the activities of the partnership, but, on the other hand, do not apply to the court regarding its liquidation.

With the requirement for the compulsory liquidation of a full partnership on the grounds specified in paragraph 1 of Art. 76 of the Civil Code of the Russian Federation, the remaining general partners are entitled to apply. This statement does not contradict the meaning and content of the rule formulated in paragraph 3 of Art. 61 GK. According to the above rule, a demand for the compulsory liquidation of a legal entity may be brought to court by a state body or a local self-government body, to which the right to make such a demand is granted by law.

9. Withdrawal of a participant from a general partnership(Article 77 of the Civil Code). Any participant in the partnership has the right to withdraw from it by declaring his refusal to participate in the partnership. In order to protect the interests of the remaining general partners, the Code contains a special rule on the withdrawal of a participant from a general partnership. If the partnership is founded without specifying a term, the refusal to participate in the full partnership must be declared by the participant at least six months before the actual withdrawal from the partnership. When establishing a partnership for a certain period, early refusal to participate in a full partnership is allowed only for a good reason (for example, illness of a member of the partnership).

The Code recognizes as null and void an agreement between the participants of a partnership on the waiver of the right to withdraw from the partnership.

The consequences of the withdrawal of a participant from a full partnership are provided for in Art. 78 GK. In particular, paragraph 1 of Art. 78 grants a participant who has withdrawn from a general partnership the right to receive the value of a part of the partnership's property corresponding to the share of this participant in the share capital. However, a different principle for determining the amount of such payment may be established by the memorandum of association.

The withdrawing participant may agree with the remaining general partners on the replacement of the payment of the value of property by the issuance of property in kind. This rule is also formulated in Art. 78 GK.

The Civil Code specifically regulates procedural issues related to succession. Thus, in the event of the death of a participant in a full partnership, his heir may enter into a full partnership only with the consent of the other participants. A slightly different rule applies to a reorganized legal entity: for its entry into a partnership, the consent of other general partners is required, unless otherwise provided by the founding agreement of the partnership.

The Code contains rules on the production of settlements with an heir (successor) who has not joined the partnership. Such calculations are made in accordance with paragraph 1 of Art. 78 of the Civil Code, i.e., the heir receives the value of a part of the property of the partnership, which must correspond to the share of this participant in the joint capital of the partnership. In addition, the heir (successor) bears the risk of liability for the obligations of the partnership to third parties within two years from the date of approval of the report on the activities of the partnership (clause 2 of article 75 of the Civil Code), but within the limits of the property of the retired participant transferred to him.

10. Transfer of a participant's share in the share capital of a general partnership(Article 79 of the Civil Code). Such a transfer is carried out with the consent of the other general partners. When transferring a share (part of a share) to another person, the rights belonging to the participant who transferred the share (part of the share) are transferred to him in full or in the corresponding part.

Of course, the person to whom the share (part of the share) was transferred assumes the liability risk lying on the retired comrade (clause 2, article 75 of the Civil Code). In turn, the transfer of the entire share to another person by a participant in the partnership terminates his participation in the partnership. Moreover, this transfer entails the consequences provided for in paragraph 2 of Art. 75 GK.

11. Liquidation of a general partnership(Article 81 of the Civil Code). The Code distinguishes between general grounds for the liquidation of a legal entity (Article 61 of the Civil Code) and special ones. The latter include, for example, the case when the only participant remains in the partnership. By virtue of Art. Such a participant has the right, within six months from the moment when he became the only participant in the partnership, to transform such a partnership into a business company. Otherwise, a general partnership is subject to compulsory liquidation by a court decision (by the way, there is no violation of the law or other legal acts here). The demand for compulsory liquidation of the partnership may be sent to the court by the sole participant. However, the question arises: what if he does not do this?

As noted earlier, a general partnership may be liquidated in the cases specified in paragraph 1 of Art. 76 GK.