What is this form of ownership - a general partnership, the purpose of its creation. Full partnership: constituent documents
- the right to get acquainted with all documentation on the conduct of business, regardless of whether he is authorized to conduct the affairs of the partnership. Waiver of this right or its limitation, including by agreement of the participants of the partnership, is void;
- the right to act on behalf of the partnership, except for cases where the constituent agreement provides otherwise;
- the right to withdraw from the partnership by declaring refusal to participate in it. An agreement between the participants of a partnership to waive the right to withdraw from the partnership is void;
- the right to receive the value of part of the property of the partnership corresponding to the share of the participant in the event of his departure from the partnership.
A participant in a general partnership is obliged to:
- participate in the activities of the partnership in accordance with the terms of the founding agreement;
- make a contribution to the share capital in the manner and within the time limits established by the Civil Code and the constituent agreement;
- without the consent of the other participants, do not carry out transactions on their own behalf in their own interests or in the interests of third parties that are similar to those that constitute the subject of the partnership’s activities.
Composition of participants in a general partnership in principle must remain unchanged throughout its existence. In the event of the departure of one of the partners, the partnership may continue its activities if this is provided for by the founding agreement of the partnership or the agreement of the remaining participants. A special case in which the mandatory existence of an agreement between the remaining participants is provided for is the exclusion of any of the participants from the general partnership. Participants in a general partnership have the right to demand in court the exclusion of any of the participants from the partnership by unanimous decision of the remaining participants and if there are serious grounds for this, in particular due to a gross violation of his duties by this participant or his revealed inability to conduct affairs wisely. Provided, however, that the partnership remains at least two participants.
New participants in a general partnership can only be accepted with the consent of the other participants and only as legal successors of the retired participants. The Civil Code of the Russian Federation provides for the possibility of admitting into the partnership the heirs of a retired participant and the legal successor of a reorganized legal entity that was a participant in the partnership before the reorganization (clause 2 of Article 78 of the Civil Code). Along with this, a participant is allowed to transfer his share not only to another participant in the partnership, but also to a third party, if the consent of the other participants is obtained (Article 79 of the Civil Code).
In the usual case, the withdrawal of a participant, if it does not entail its liquidation, leads to a proportional increase in the participation shares of the remaining participants, unless otherwise provided by the constituent agreement or other agreement of the participants (Clause 3, Article 78 of the Civil Code).
Functions of the bodies of a general partnership performed by its participants. The management of the partnership’s activities is carried out by them by general agreement, i.e. unanimously. This deviation in favor of the cooperative principle is caused by the special legal nature of partnerships, which imply an equal risk of liability for the partners, regardless of the size of the contribution made. Nevertheless, the law allows the participants of a general partnership to provide in the constituent agreement for cases when decisions are made by a majority vote. Each participant has one vote, however, the constituent agreement may provide for a different procedure for determining the number of votes of its participants (depending on the contribution made, other circumstances determining the role of the participant in the activities of the partnership).
There are no executive bodies in a general partnership. Each participant in a general partnership has the right to act on behalf of the partnership, unless the constituent agreement establishes that all its participants conduct business jointly, or the conduct of business is entrusted to individual participants.
When conducting the affairs of a partnership jointly by its participants, the consent of all participants of the partnership is required for each transaction.
If the management of the affairs of a partnership is entrusted by its participants to one or some of them, the remaining participants, in order to carry out transactions on behalf of the partnership, must have a power of attorney from the participant (participants) who is entrusted with the management of the affairs of the partnership.
The peculiarities of conducting the affairs of a particular partnership are determined by its constituent agreement, familiarity with the provisions of which, as a general rule, is not the responsibility of other participants in civil transactions. They have the right to rely on the usual procedure for conducting business in the partnership established by the Civil Code. Hence, in relations with third parties, the partnership does not have the right to refer to the provisions of the constituent agreement limiting the powers of the partnership participants, except in cases where the partnership proves that the third party at the time of the transaction knew or should have known about the lack of the right of the partnership participant to act on behalf of partnership (paragraph 4, clause 1, article 72 of the Civil Code).
Property separation of a general partnership is relative. On the one hand, it is expressed in the presence of his own property. The constituent agreement, along with general information for this document (clause 2 of Article 52 of the Civil Code), must necessarily contain conditions on the size and composition of the partnership’s share capital; on the size and procedure for changing the shares of each participant in the share capital; on the size, composition, timing and procedure for making contributions; on the responsibility of participants for violation of obligations to make contributions. The partnership is required to account for its property on an independent balance sheet and have at least one bank account for conducting monetary transactions.
On the other hand, the profits and losses of a general partnership do not become the property of the partnership (accordingly, they are attributed to its property), but 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 to exclude any of the partnership participants from participating in profits or losses is not permitted.
In the cases specified by law (for example, when the partnership has signs of bankruptcy or may acquire such in the case of distribution of profits, as well as in the case when the value of net assets becomes less than the size of the share capital), the distribution of profits is prohibited.
Independent property liability of a general partnership accordingly it is also relative. Of course, the partnership is liable to its creditors with the property assigned to it, but the resulting losses of the partnership are ultimately distributed proportionally among its participants. In addition, if the partnership has insufficient property, the participants jointly and severally bear subsidiary liability with their property for the obligations of the partnership. Moreover, even a former participant bears such responsibility 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. Of course, we are talking only about the obligations that arose during the period of his participation in the partnership. And a participant who is not a founder (accepted by way of succession or alienation of a share) is liable on an equal basis with other participants for obligations that arose before his entry into the partnership (clause 2 of Article 75 of the Civil Code).
Such high requirements for the responsibility of a participant are designed to ensure the financial stability of the partnership in circulation, its reliability in the eyes of creditors, due to which the law prohibits anyone from being a participant in more than one general partnership (Clause 2 of Article 69 of the Civil Code).
On the contrary, the partnership is not liable for the obligations of its participant. Therefore, foreclosure on a participant’s share in the joint capital of a general partnership for the participant’s own debts is allowed only if there is a lack of other property to cover the debts. Creditors of such a participant have the right to demand from the general partnership the allocation of a part of the partnership’s property corresponding to the debtor’s share in the share capital in order to foreclose on this property. Foreclosing on property corresponding to a participant's share in the joint capital of a general partnership terminates his participation in the partnership, but does not cancel his liability for the obligations of the partnership provided for for a retiring participant (Article 80 of the Civil Code).
Business name of the general partnership must contain either the names (names) of all its participants and the words “full partnership”, or the name (name) of one or more participants with the addition of the words “and company” and “full partnership”.
Liquidation and reorganization of a general partnership have the following features. A general partnership, in addition to the general grounds for liquidation, can also be liquidated in the event that only one participant remains in its composition. However, the Civil Code grants such a participant the right to transform such a partnership into a business company within 6 months. A general partnership is also subject to liquidation in the event of the departure of any of its participants, unless the founding agreement of the partnership or the agreement of the remaining participants stipulates that the partnership will continue its activities.
A general partnership is an association of entrepreneurs on an economic basis to engage in joint financial and commercial activities within the framework of existing legislation.
According to Part 1 of Art. 69 of the Civil Code of the Russian Federation, such a partnership is considered to be a community whose participants engage in business activities exclusively jointly. All obligations undertaken by one of them and not fulfilled by him must be fulfilled by the others. Having assumed specific obligations, the participants are obliged to respond to them not only with joint, but also with personal funds, which represents a huge inconvenience for themselves, but insures clients using the services of this association.
When joining a community, you need to be prepared for the fact that it will not be possible to become a member of any other similar organization. Each association has its own corporate name, which can consist of the names of all its participants with the addition of the phrase “full partnership” or the name of one participant with the addition of the same phrase or “company”.
Founders and constituent documents
The founders of this association can be individual entrepreneurs and commercial firms. The main constituent document is the constituent agreement, the signing of which is mandatory for all participants.
- name of the organization being created;
- the address where it is located;
- in what order the activities will be carried out;
- the amount of total contributions;
- the amount of the share contribution of each participant;
- time of payment of entrance fees;
- penalties for violation of this agreement.
In accordance with the constituent agreement, a legal entity is created, the procedure for carrying out general work is decided, and the conditions for the existence of the property of this legal entity are discussed. persons, as well as the conditions on the basis of which the partners carry out their activities.
In addition, the contract is intended to determine the terms under which anticipated profits and losses will be distributed. The agreement also specifies how the procedure for joining and leaving the partnership will proceed.
Number, rights, duties and responsibilities of participants
The main condition for creating such an association is the presence in it at least two participants. Their rights and obligations are determined by the constituent agreement, as well as the amount that each of them is ready to contribute to the common treasury, the so-called share capital.
When making any decision, the general partners proceed from the interests of each of them; each has one vote on the council. The exception is cases when the presence of a vote for all participants is not provided for in the constituent document; in this case, all decisions are made as a result of counting a majority of votes.
In addition to the above, each of them has the right to:
- receiving income, the amount of which is commensurate with the amount of the deposit;
- participation in all affairs of a legal entity;
- obtaining information about the work of the partnership, its financial condition and constituent documents;
- obtaining information regarding the distribution of profits received;
- property remaining after reorganization;
- exit from the association at any time convenient for him.
The responsibility of each general partner is distributed among everyone, regardless of the amount of contribution. This condition assumes that all participants are responsible for each other’s actions not only with their deposits, but also with their personal property.
In addition, they are obliged:
- allocate part of financial assets for investment in share capital;
- pay at least 50% of the total capital upon entry and pay the rest as soon as possible;
- If it is impossible to fully pay the entire amount specified in the constituent document, the participant undertakes to pay a 10% penalty, calculated from the amount of the remaining debt and designed to compensate for the losses of the other partners incurred in the process of existing with incomplete capital.
- keep information related to the work of the organization secret if common interests require it;
- actively participate in all types of community activities;
- not to carry out transactions similar to transactions in which all members of the partnership must take part, on their own behalf.
Activity goals
The purpose of this association is to facilitate entrepreneurial activity in various fields. Thanks to the common capital, the resulting legal entity can conduct business much better than any of the partners could do individually.
Clients' trust in the partnership is higher than in individual representatives of a similar business. The community's activities may be related to construction, the development of new technologies, tailoring on an industrial scale, and the like.
You can learn the procedure for conducting business of such an organization in accordance with the Civil Code of the Russian Federation from the following video:
Controls
The association is managed by all the comrades who formed it, unless otherwise stated in the constituent document. All participants have one vote and have the right to act on behalf of the others. The exception is when the contract stipulates in advance the joint management of all matters.
In this case, when making another transaction that requires a decision, a council of all comrades is assembled.
When conducting business on behalf of the majority, each participant practicing this approach must have a power of attorney signed by the others. If the trust in one of the members is shaken, his powers may be terminated by a court decision, about which a corresponding entry is made in the constituent agreement.
The partnership does not have any management bodies as such, since in most cases the participants act on a common behalf.
Registration procedure
To register, you must provide the following information and documents:
- name of the future organization;
- the type of activity you plan to engage in;
- information on the size of the authorized capital, including the procedure for its payment;
- information about the chosen taxation system;
- permanent address where the organization is located (it is allowed to indicate the address of rented or non-residential premises);
- information about the founders, as well as copies of constituent documents.
In this case you will need to pay approx. 4 thousand rubles. The application for opening is signed by an authorized person and certified by a notary.
Liquidation and reorganization
These procedures are carried out in accordance with Art. 61 Civil Code of the Russian Federation. In addition, this association may be recognized as liquidated if if all members leave it or it consists of one member. The remaining partner has the right to transform the organization into a business company, acting in accordance with the Civil Code of the Russian Federation. This transformation can be carried out no later than 6 months after the actual disappearance of the community.
In addition, liquidation can occur if it is provided for in the memorandum of association. In other cases, the existence of an organization is considered indefinite and not subject to either reorganization or liquidation.
Advantages and disadvantages
A general partnership has both advantages and disadvantages. Fortunately, there are much fewer of the latter, but they still exist.
So, the advantages of the legal form are:
- Additional funds. Thanks to the admission of new members to the association, it receives a lot of additional funds that can be used for the further development of business activities.
- Confidence. Potential creditors trust such an organization more than firms.
The only, but very significant, disadvantage is the need to pay general debts from your own pocket. Comrades always risk not only their common property, but also their personal property.
An example of the functioning of an organization
As an example, we can cite an association organized, for example, by individual entrepreneurs N. I. Ivanov, V. V. Sokolov and E. P. Myagkova on March 1, 2003. These entrepreneurs formed the general partnership “Ivanov and Co” for the purpose of producing knitted clothing.
During the first period of work, the profit was at least 30,000 rubles. Half of it was distributed in proportion to the amount of earnings, and the rest was divided equally among all participants, as agreed in the memorandum of association.
Recently, it is almost impossible to find such a community, but in the past it was this organizational and legal form of doing business that was most widely used, especially on the American continent and in Russia in the 19th century.
Comparison with a partnership of faith
In addition to full partnerships, there are also limited partnerships, which are also called limited partnerships. The main difference between them is the need to pay bills with personal property if we are talking about the full option, and the absence of such a need in the second case.
Faithful partners always risk exclusively their own contributions, but their personal property remains intact.
If several comrades in faith have joined the full association, the latter do not take any active part in business activities, but are obliged to promptly pay entrance and other fees.
The community of faith has the right to carry out any commercial activity that does not contradict the law, take part in charity, provide marketing and consulting services, and create conditions for the use of the latest scientific and technical innovations.
Other important nuances
Exit from such an organization is unlimited. The participant who leaves the association is paid compensation equal to the estimated value of that part of the joint property to which he can claim. By agreement of the parties, compensation may be replaced by receipt of property in kind.
For example, a friend may demand the return of a personal car, computer, household and agricultural equipment. The amount due is determined based on the balance, which is compiled immediately after the decision to withdraw is made.
In the event of the death of a partner, his property is transferred to his heirs. Moreover, the latter cannot become members of the organization without the permission of all its participants.
As the number of comrades decreases, the size of the share capital increases. The exception is cases specified in the constituent document.
A general partnership is one of the oldest forms of partnerships. Nowadays it is not often used, 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 business activities. 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 characteristics:
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 business activities;
The liability of all participants is unlimited.
There are rules for those who want to become a member of a general partnership. According to the law, individual entrepreneurs can become one, like any other (in accordance with Article 66 of the Civil Code).
When choosing a name for a general partnership, it should be noted that it must contain the words “full partnership” and the names of all participants, or the names of several participants, but then be sure to add the words “full partnership” or “company”. An example of a general partnership is the imaginary company “Ivanov and Company”.
Required documents
A general partnership, the constituent documents of which must be provided 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 expenses and methods of managing the organization.
Each participant is required to sign a memorandum of association that contains the following information:
Name that complies with the law;
Location;
The procedure for managing the partnership;
Amount, composition and timing of deposits;
Liability for violation of contract.
The memorandum of association has several purposes. It contains clauses defining the relationship between general partners. Moreover, the agreement specifies the terms of the partnership’s work with other organizations. Like any document, the contract is drawn up in accordance with the law and must include all points. It is in writing, compiled in the form of one document and signed by each participant.
Name of the general partnership
There is no requirement in the law that the agreement must be in the form of a single document. However, this is a mandatory condition when submitting it for registration. Moreover, when presenting the contract to third parties, it is mandatory to show a single document.
From the moment the agreement is signed, the participants in the general partnership must fulfill their rights and obligations. However, for third parties it comes into force only after registration. Registration of the constituent agreement 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.”
Responsibilities of participants
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 general partnership cannot 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 required to make at least half of their contribution to the capital by the time the partnership is registered. The remaining portion 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 constituent agreement.
Participants' rights
The founders of a general partnership have the right to leave the partnership before the specified period. In this case, the person must 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 can be expelled from the partnership by court if the other participants vote for it. In this case, he is paid the value corresponding to his share in the capital. The shares of retired participants are transferred by succession, but the remaining partners must vote for the successor. The composition of the comrades can be changed without expelling anyone. In this case, the share in the joint capital is transferred to another participant or a third party. To carry out the operation, the consent of the other comrades is required.
Liquidation of a general partnership
Since a general partnership is highly dependent on each partner, there are many events that can lead to its dissolution. Naturally, the death of a partner 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:
An appeal by creditors to one of the participants in order to recover property;
Legal proceedings against one of the comrades;
Declaring the participant bankrupt.
A general partnership has the right to continue its activities if such a clause is specified in the constituent agreement.
If the number of participants is reduced to one, then the participant has 6 months to convert 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 investors (limited partners). They assume the risk for losses that are associated with the activities of the partnership. The amounts depend on the deposits made. Limited partners do not participate in business activities. Unlike general partners, investors can be not only individual entrepreneurs and commercial organizations, but also legal entities.
Limited partners have the right:
Receive profit according to the share in the share capital;
Require annual reports on the work of the partnership.
There are a number of restrictions that apply to depositors. They cannot become state bodies, as well as local government bodies. They have no right to act on behalf of the partnership, except by proxy.
Production cooperative as a form of collective entrepreneurship
One form of collective entrepreneurship 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 they 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 a debt, everyone is responsible for repaying it in an amount predetermined by the charter.
The advantage of this form of entrepreneurship is that profits are distributed in accordance with labor input. Property is also distributed if the production cooperative has been liquidated. The maximum number of members is not limited by law, which allows the creation of cooperatives of any size. Each participant has equal rights and one vote, which stimulates member interest 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.
23. Civil legal status of a general partnership.
GENERAL PARTNERSHIP a business partnership is recognized, the participants of which, firstly, carry out entrepreneurial activities on behalf of the partnership and, secondly, are subsidiarily liable for its obligations with the property belonging to them.
A general partnership (legal entity) is fundamentally different from simple partnership(Article 1041 of the Civil Code), because the latter is a joint activity agreement.
That. the entrepreneurial activity of one participant is recognized as the activity of the partnership as a legal entity; If there is insufficient property of the partnership to pay off its debts, creditors have the right to demand satisfaction from the personal property of any of the participants (or all of them). Here, under a transaction concluded by one participant, another may be liable, and with all his personal property. However, such liability is possible only if the partnership itself has no property (i.e. on a subsidiary basis). Property liability is borne by both the founding partners and the partners who entered into it after its creation(including for debts incurred before they join the partnership), and dropped out of the partnership(for obligations arising before its disposal, within two years after drawing up the report for the year of disposal). Property liability cannot be eliminated or limited by agreement of the participants. If a participant in a general partnership does not have personal property, and therefore creditors, in order to cover his personal debts, foreclose on his share in the joint capital of the partnership, his participation in the partnership is terminated.
The relationship between full comrades is personal-confidential nature(partnerships appeared, for example, as a form of family entrepreneurship).
The liability of general partners with personal property leads to two consequences:
Requirements for share capital partnerships become unnecessary, because The property of the partners becomes a guarantee for creditors. Therefore, the law does not require a mandatory minimum of property, although he must still have a certain share capital.
Meaning explained mandatory indication in the corporate name of the general partnership names (company names) of its participants. Based on it, counterparties will be able to assess the potential solvency of the partnership. Therefore, a partnership may list the names of its wealthiest members by adding the words “and company, general partnership.”
Founding document: Articles of incorporation, which must be signed by all participants.
Are common: name, location, procedure for managing activities (for any constituent documents); the obligation to create a legal entity, the procedure for joint activities for its creation, the conditions for the transfer of property and participation in its activities, the conditions and procedure for the distribution of profits and losses between participants, the management of the activities of the legal entity, the withdrawal of founders (participants) from its composition (for articles of association).
Special: provisions on the procedure for the formation and use of share capital.
Business management can carry out both everyone of the participants, and according to their will, reflected in the agreement, by all participants together or one or more of the most experienced participants. In the latter case, the remaining participants of the partnership, if it is necessary to carry out transactions on behalf of the general partnership, must receive a power of attorney from those partners who are entrusted with the conduct of affairs by the founding agreement. However, if these persons are incapable of reasonably conducting the affairs of the partnership, grossly violate their duties or do not comply with the interests of the partnership, the partners who do not conduct business have the right to seek in court the termination of the authority to conduct affairs granted to other partners.
Counterparties are not required to know about possible restrictions on the powers of individual partners; it is enough for them to make sure that they are dealing with a general partner. Therefore, transactions with any partner are recognized as valid unless the partnership proves that the counterparty knew or should have known about the limitation of powers (for example, by familiarizing itself with the contents of the constituent agreement).
In cases of withdrawal or death of any of the participants, recognition of one of them as missing, incapacitated or partially incapacitated, insolvent (bankrupt) or liquidation, as well as in the event of a participant’s creditors foreclosure on his share in the joint capital of the partnership, it entails the termination of its activities, if the constituent agreement does not provide otherwise. If the partnership continues to operate on these grounds, changes must be made and registered to the contents of the constituent agreement.
Those. general partnership is being liquidated under the above circumstances, on general grounds for liquidation and in cases where one participant remains (he can, however, within 6 months in the prescribed manner transform the partnership into a business company while retaining personal property liability for 2 years).
Rights.
In addition to general powers (Article 67 of the Civil Code), a general partner has the right get acquainted with all documentation on business management partnerships, incl. in cases where he is not authorized to conduct business.
Transfer your share in the share capital or part thereof to another partner or a third party - only with the consent of the other partners.
Leave the partnership by refusing to participate in it. The comrade must declare his desire at least 6 months in advance. In a general partnership created for a certain period, exit is possible if there are good reasons. Upon exit, the participant has the right to demand the issuance of part of the property, a proportional share in the share capital.
Responsibilities.
Contribution of treasure to common property.
Refraining from making transactions in one’s own interests or in the interests of third parties ( refraining from competition with the partnership).
Violation of duties serves as the basis for a claim for compensation for losses caused to the partnership and the exclusion of such a partnership from the list of participants in court. At exception from the partnership the former participant is also paid the value of part of the common property, proportional to his share in the share capital.
In the event of the death of an individual or reorganization of a legal entity, entry into a general partnership by their heirs or legal successors is allowed only with the consent of the remaining participants. For legal entities, the constituent agreement may establish some exceptions. Legal successors who are not accepted into the partnership or who do not want to join it receive the value of its share, but at the same time the risk of liability to creditors within the limits of the transferred property.
General partnership - this is a business partnership, the participants of which, firstly, carry out business activities on behalf of the partnership, and, secondly, subsidiarily (sometimes they speak of jointly-subsidiary) bear responsibility for its obligations all their property.
The relationships between the participants in such a partnership are personal-confidential nature due to the nature of such legal entity. It is no coincidence that general partnerships initially appeared and developed primarily as a form of family entrepreneurship. If there is insufficient property of a particular participant in the partnership to pay off his debts creditors have the right to demand satisfaction from the personal property of any of the participants (or all of them together). In this case, personal property liability for the debts of the partnership is borne by those participants who entered the partnership after its creation (including for obligations that arose before their entry), as well as those who left the partnership, and this personal liability cannot but be eliminated , nor limited by agreement of the participants.
Participants of a general partnership – individual entrepreneurs and commercial organizations. A person can be a member of only one general partnership.
The liability of general partners for the debts of the partnership with personal property leads to:
no special requirements for share capital, because the most important guarantee of repayment of debts is the property of each of the partners. Share capital – the totality of property contributed during the creation of the partnership.
this explains the significance of the mandatory indication in the corporate name of the names of its participants. But you can specify the names of some participants and add " and a company, a general partnership.”
A general partnership is created on the basis constituent agreement.
Business management can be carried out : by each participant, by all participants jointly, by one or more participants. A transaction concluded by any of the participants in the partnership is valid if the partnership cannot prove that the counterparty to the transaction knew or should have known about the lack of authority of a particular participant.
Each participant has the right:
read all the documentation for the management of partnership affairs;
transfer your share in the share capital partnership to another partner or a third party with the consent of other comrades ;
leave the partnership (by notifying your comrades six months in advance) and demand the issuance of a part of the property to him, proportional to his share in the share capital. In this case, he continues to be liable for the obligations of the partnership that arose before the moment of his retirement for 2 years;
Each participant is obliged:
making a contribution to common property;
refraining from competition with the partnership, i.e. making transactions in one’s own interests and in the interests of 3 persons, if these transactions are similar to those that form the subject of the partnership’s activities;
Upon expulsion from the partnership the former participant is paid the value of part of the common property, proportional to his share in the share capital.
Changing the composition of participants due to withdrawal or death, recognition as missing, incapacitated, partially capable, insolvent, liquidation of a legal entity participating in the partnership – termination of the partnership , unless otherwise provided by the institution. agreement.
The activities of the partnership are terminated if the remaining 1 participant.
Profit and loss are distributed among their participants in proportion to their shares in the share capital, unless otherwise provided by the agreement.
Commentary on Article 75
1. The liability of participants in a general partnership, provided for in the commented article, is mandatory and cannot be changed by agreement of the parties. The liability of the participants in a general partnership is not unlimited, since the law establishes that it is subsidiary.
According to Art. 399 of the Civil Code, this means that the participants in a general partnership bear responsibility in addition to the liability of the general partnership, which is the main debtor, and the creditor’s claims can be brought against them if the claim against the main debtor has not been satisfied due to lack of funds.
For the obligations of a full partnership, liability is primarily the property of the partnership itself; the liability of the participants for their personal property is additional, subsidiary, therefore, by virtue of the commented article, foreclosure on property belonging to individual participants can be brought by creditors of the partnership only if at least one of the following conditions is present: actual insolvency of the partnership, recognition of the partnership as insolvent by the court, liquidation of the affairs of the partnership. Direct enforcement of penalties against individual participants without recourse to the partnership is unacceptable. It also follows that the recognition of a general partnership by an insolvent debtor does not entail the mandatory recognition of all partners as insolvent debtors.
Each member of a general partnership jointly and severally bears subsidiary liability to third parties - creditors of the partnership as expressly prescribed by law. As for the internal distribution of responsibility between the members of the partnership, it is determined by agreement of the parties. If the founding agreement of a general partnership does not provide for the internal distribution of responsibility for the obligations of the partnership, then it should be distributed in proportion to the share of participation of each of them in the losses of the partnership. Therefore, a partner who has fully paid the claims made against him for the obligations of the partnership has the right to reclaim (recourse) against the other partners the amount he paid minus the share of responsibility falling on him, i.e., the liability of the participants within the partnership is shared in nature.
The admission of new members of the partnership may be carried out according to the rules and in the manner provided for in the agreement. The law does not establish any restrictions in this regard. The entry of a new member into the partnership should be considered: the admission of a new person to the existing partnership; acceptance of a new participant simultaneously with the retirement of one of the members of the partnership; assignment by one of the members of the partnership, with the consent of the remaining participants, of his right to participate in the partnership to a third party. Since joining a partnership is also entry into all property legal relations of the partnership, the new member of the partnership bears responsibility on an equal basis with the other members of the partnership, i.e. jointly and severally liable for those obligations of the partnership that arose before his entry into the partnership. This rule is not subject to change or cancellation by agreement of the parties. The fact that a new member, when he joined the partnership, did not know about the obligations of the partnership does not relieve him of liability to creditors.
3.
The commented article establishes a shortened statute of limitations for claims brought against the participants of the partnership for their debts (2 years instead of 3 years - Article 196 of the Civil Code). The established 2-year period is calculated not from the date of actual retirement, but from the date of approval of the report on the activities of the partnership for the year in which the participant left the partnership. In relation to third parties, a participant is considered to have left the partnership from the moment the relevant information is entered into the register. For claims by third parties against a participant who has left the partnership, based on a claim against the partnership, a 2-year statute of limitations is established.
The beginning of the limitation period should be considered the day of approval of the report for the year when the participant left the partnership. Upon termination of the partnership, this period must be calculated from the date of approval by the participants or the court of the report submitted by the liquidators. If the creditor's claim is refused due to the expiration of the statute of limitations, subsidiary liability does not apply.
Agreements between the participants of the partnership to limit or eliminate liability provided for by law are void (clause 3 of the commented article).
Article 76. Changes in the composition of participants in a general partnership
The commented article contains a list of cases that may lead to the termination of the partnership’s activities if the constituent agreement or subsequent agreement of the remaining participants of the partnership does not decide to continue its activities.
The withdrawal or death of any of the partners of the partnership terminates the partnership, unless there are circumstances provided for in Art. 78 Civil Code. Similar consequences are entailed by recognizing a partnership participant as missing.
A participant recognized as incompetent or partially capable cannot take direct part in the affairs of the partnership (Articles 29, 30 of the Civil Code). A participant declared insolvent (bankrupt), as a person limited in his property legal capacity, is also unable to do this.
With these circumstances, the law connects the need for a special agreement between the participants of the partnership on the continuation of its activities.
The law allows the participation of legal entities in a general partnership, and this does not exclude the possibility that reorganization procedures may be opened against them by a court decision, or the liquidation of a legal entity participating in the general partnership may take place. The occurrence of these events does not entail the termination of the partnership only if the partnership agreement provides for the possibility of continuing its activities.
It should be kept in mind that the agreement must be general. A protest by at least one of the participants makes the agreement of the others invalid. However, if the agreement contains a condition providing that the resolution on the continuation of the partnership's activities can be adopted by a majority vote, then such an agreement will be valid.
Since the share capital of a partnership belongs to it by right of ownership as a legal entity, a creditor for the personal debts of one of the participants does not have the right to foreclose on the property of the partnership. But he can foreclose on the share of the debtor participant in the share capital of the partnership. The participant’s share in the partnership capital should be understood as the participant’s right to receive that part of the partnership property that will be due to him under the division upon liquidation of the partnership’s affairs.
Expulsion of a participant from a general partnership is possible only if there are serious grounds, demands from the remaining participants and a court decision. The law does not provide an exhaustive list of grounds for exclusion. In practice, the interests of the partnership should be recognized as the main criterion; therefore, a gross violation by a participant of his duties or a revealed inability to conduct affairs wisely should be recognized as sufficient grounds for his exclusion. The exclusion of a participant from the partnership is a change in the content of the constituent agreement, therefore the law provides for the consent of all other participants of the partnership. The requirement to exclude a participant from the partnership must be filed in court. Moreover, the plaintiffs in this process are the remaining participants, and not the partnership. A court decision to exclude a participant from a general partnership acquires significance in relation to third parties who are not aware of it only after the changes are entered into the commercial register.
