Difference between general and limited partnership.
Economic partnerships are commercial organizations with share capital divided into shares. The contribution to the property of a business partnership can be money, securities, other things or property rights or other rights that have a monetary value.
Business partnerships can be created in the form of a general partnership and a limited partnership (Fig. 6). Partnership participants can be individual entrepreneurs and (or) commercial organizations.
General partnership- this is a partnership whose participants (general partners), in accordance with the concluded agreement, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with all the property belonging to them. A person can be a member of only one general partnership.
A general partnership is created and operates on the basis of a constituent agreement, which is signed by all its participants - general partners. The constituent agreement must contain the following information: name and location of the partnership; the procedure for managing it; conditions 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 deposits;
deposits. The agreement provides for the procedure joint activities on the creation of a partnership, the conditions for the transfer of property to it and participation in its activities, the conditions and procedure for the distribution of profits and losses between participants, the conditions for the withdrawal of founders (participants) from the partnership.
Management of the activities of a general partnership is carried out by general agreement of all participants. In some cases, the constituent agreement may provide that the decision is made not by all participants, but by a majority of votes. Each participant in a general partnership
has the right to act on behalf of the partnership, but when a participant jointly conducts the affairs of the partnership, the consent of all participants in the general partnership is required to complete the transaction. Without this, a participant in a general partnership does not have the right to make, on his own behalf, in his own interests or in the interests of third parties, transactions similar to those that constitute the subject of the partnership’s activities.
The profits and losses of a general partnership 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. Participants in a full partnership jointly and severally bear subsidiary (additional) liability not only with their share in the share capital, but also with their property for the obligations of the partnership. A participant may withdraw from a general partnership by declaring his refusal to participate in the partnership at least 6 months before the actual withdrawal (except in special circumstances).
A general partnership is liquidated in accordance with civil law for legal entities, as well as if one participant remains in the partnership.
Limited partnership - This is a partnership consisting of two groups of participants - general partners and investors. General partners carry out business activities on behalf of the partnership itself and bear unlimited and joint liability for its obligations. Investors make contributions to the property of the partnership, bear the risk of losses only within the limits of their contributions and do not participate in entrepreneurial activity.
A limited partnership is created and operates on the basis of a constituent agreement, which is signed by all general partners. The agreement contains data similar to a general partnership, as well as information about fellow investors.
Investors do not have the right to participate in the management and conduct of the affairs of the limited partnership, or to challenge the actions of their general partners in the management and conduct of the affairs of the partnership. The contribution of fellow investors is certified by a certificate. The investor has the right to receive a portion of the profit in proportion to his contribution, to familiarize himself with the annual reports and balance sheet of the partnership. At the end of the financial year, the investor can withdraw from the partnership and receive his contribution in accordance with the memorandum of association.
A limited partnership is maintained if at least one general partner and one investor remain in it. Upon the departure of all investors, the limited partnership is transformed into a general partnership. When a partnership is liquidated, investors have a priority right over general partners to receive contributions from the property of the partnership, which remains after satisfaction of the creditors' claims
1.2 Business companies: limited liability companies and additional liability companies.
Business companies include limited liability companies, additional liability companies and joint stock companies. a brief description of the first two forms of societies are shown in Fig. 7.
Limited Liability Company(LLC) is a company created by one or more persons, authorized capital which is divided into shares in accordance with the constituent documents. Participants bear the risk of loss to the extent of their investment. The number of participants in an LLC can be from 1 to 50 (citizens and legal entities).
The constituent documents are the constituent agreement and the Charter (if there is only one founder, then only the Charter). In the constituent agreement, the founders determine the procedure for joint activities for its creation, the composition of the founders (participants), the size of the authorized capital and the size of the share of each participant, the size and composition of contributions, the procedure and timing of their contribution to the authorized capital, the responsibility of participants for violation of the obligation to make contributions, conditions and procedure for participants to withdraw from it.
LLC Charter must contain:
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full and abbreviated corporate name of the LLC;
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information about the location;
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information about the composition and competence of the company, including issues related to
simyh to exclusive competence general meeting of participants, about
the procedure for making decisions by the company's bodies, including on issues related to
by which decisions can be made unanimously or qualified
by a large majority of votes;
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information on the amount of authorized capital;
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information about the size and nominal value of each participant’s share;
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rights and obligations of participants;
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information about the procedure and consequences of participants leaving the company;
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information on the procedure for transferring a share (part of a share) to another person;
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information on the procedure for storing company documents and providing information
formations to society participants and other persons;
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other information in accordance with Federal law(about branches and
representative offices).
Authorized capital- the amount of funds provided by the owners to ensure the statutory activities of the enterprise. Its size is fixed in the Charter of the enterprise and is subject to registration in the prescribed manner.
The authorized capital of a limited liability company is made up of contributions from its participants and determines the minimum amount of the company's property that guarantees the interests of its creditors, in accordance with the Law “On Limited Liability Companies”.
The minimum amount of the authorized capital of an LLC as of the date of state registration must be at least 100 times the minimum wage (minimum wage). The size of the participant's share in the authorized capital is determined as a percentage or as a fraction, as determined by the Charter. Contributions to the authorized capital of an LLC can be money, securities, things, property rights and other rights that have a monetary value. There may be restrictions on the types of property that cannot be a contribution to the authorized capital.
Each participant must make his contribution within the period established by the memorandum of association. This period cannot exceed one year from the date state registration. At the time of registration, the founders must pay at least 50% of the authorized capital. An increase in the authorized capital is possible only after full payment of its initial amount. It is possible at the expense of the company’s property, additional contributions of participants or third parties, unless prohibited by the Charter.
Supreme body limited liability company is general meeting participants. The company's charter may provide for the formation of a board of directors (supervisory board) of the company. Management of current activities is carried out by the sole executive body of the company or by the manager under an agreement with the company and the collegial executive body. In a company with more than 15 participants, an audit commission must be created or an auditor must be elected.
A limited liability company can be voluntarily reorganized in the form of merger, accession, division, spin-off and transformation. The liquidation of an LLC can be carried out in accordance with the Civil Code of the Russian Federation, the Federal Law “On Limited Liability Companies” or by decision of an arbitration court to declare insolvency (bankruptcy).
Thus, a limited liability company is a type of capital association that does not require the mandatory personal participation of its members in the affairs of the company.
Additional liability company(ALC) is a company whose authorized capital is divided into shares of sizes determined by the constituent documents.
Such a company is a type of limited liability company: it is subject to all general rules. However, there is important feature of these companies - if the property of a given company is insufficient to satisfy the claims of its creditors, the participants of the company can be held liable for property, and jointly with each other, but the amount of this liability is limited - it does not apply to all of their personal property, but only to part of it, i.e. . the same multiple size and amount of deposits made for everyone (for example, three times, etc.). From this point of view, such a society occupies an intermediate place between societies and partnerships.
The corporate name of this company must specify the fact of additional responsibility.
The constituent documents of this company are the constituent agreement and the Charter.
Limited partnership closed type, including participants who bear full property liability for the obligations of the partnership, as well as investors whose liability is limited to the amount of the contribution made.
Distinctive features of a limited partnership are the difference in the degree of economic responsibility between the founders - general partners and investors, as well as the resulting differences in their legal capacity. Unlike general partners, investors do not have the right to act on behalf of the partnership, they do not take part in managing the activities of the partnership and do not even have the right to challenge the actions of general partners in the conduct of its affairs. However, in the event of liquidation of the partnership, investors have a priority right over general partners to return contributions from the property of the partnership.
A faith partnership consists of two groups of participants. Some of them carry out entrepreneurial activities on behalf of the partnership and at the same time bear additional unlimited liability with their personal property for its debts jointly and severally with each other, that is, in essence they are general partners and, as it were, constitute a full partnership within a limited partnership. Other participants (investors, limited partners) make contributions to the property of the partnership, but are not liable with personal property for its obligations. Since their contributions become the property of the partnership, they bear only the risk of loss and therefore do not risk as much as general partners. While retaining, first of all, the right to receive income on their contributions, as well as to information about the activities of the partnership, they are forced to fully trust the participants with full responsibility regarding the use of the partnership’s property. Hence the traditional Russian name limited partnership, limited partnership.
IN in a certain sense A limited partnership can be considered a type of general partnership, in which it becomes possible to use the additional capital of investors, rather than general partners. This explains the extension to general limited partners of the rules on participants in general partnerships (Article 82 of the Civil Code of the Russian Federation), and to limited partners - essentially, the rules on participants in business companies (capital associations).
Investors of a limited partnership have the right to “withdraw” from the partnership at the end of the financial year and receive their contribution in the manner prescribed by the founding agreement, as well as the right to transfer a share or part of a share in the joint capital of the partnership to the investor or a third party. Investors of a limited partnership enjoy a preferential right to purchase a share or part thereof over third parties.
The law regulates the possibility of transferring a share (part of a share) of an investor to another investor or a third party, and not to a general partner (Article 85 of the Civil Code of the Russian Federation), although the possibility of transferring a share (part of a share) from an investor to a general partner cannot be ruled out by a unanimous decision of other general partners. A unanimous decision in this case is necessary, since this entails a change in the share participation of the general partners in his share capital.
A special feature of limited partnerships is that the inclusion of the investor’s name in the company name of the limited partnership automatically leads to his transformation into a full partner in the sense of unlimited and joint liability with his personal property for the debts of the limited partnership (Article 82 of the Civil Code of the Russian Federation).
All of the above explains the fundamental possibility of applying the rules on general partnership to a limited partnership (Article 82 of the Civil Code of the Russian Federation). Indeed, in property transactions, general partners always act directly on behalf of the limited partnership. Therefore, the only one founding document limited partners, as in a general partnership, there remains a constituent agreement signed by all general partners (Article 83 of the Civil Code of the Russian Federation). It determines the procedure for managing the affairs of a limited partnership, which is carried out exclusively by general partners. In this sense, managing the affairs of a limited partnership completely coincides with managing the affairs of a general partnership. Investors not only do not take part in managing the affairs of limited partners, but also do not have the right to challenge the actions of general partners (Article 84 of the Civil Code of the Russian Federation).
The memorandum of association of limited partners must contain, among others: necessary conditions condition on the total amount of contributions of limited partners. Consequently, both general partners and investors must take part in the formation of property of limited partners. The law does not determine the ratio of contributions of limited partners and general partners, considering this a matter for the participants themselves. General partners must decide for themselves what additional capital from limited partners the partnership will require for its normal functioning.
A limited partnership is liquidated on the grounds of liquidation of the general partnership, as well as upon the departure of all investors from it. In the latter case, the remaining general partners have the right, instead of liquidation, to transform it into a general partnership (Article 86 of the Civil Code of the Russian Federation).
General partners in a limited partnership essentially form a general partnership within the limited partnership, their legal status determined by the norms of legislation on participants in a general partnership. Moreover, the Civil Code of the Russian Federation determines that the rules of the Code on general partnerships are applied to limited partnerships, if this does not contradict special rules on limited partnerships (Article 82 of the Civil Code of the Russian Federation).
Thus, a limited partnership can be considered a type of general partnership, in which it becomes possible to attract capital from third parties - investors.
Economic partnership – This is a form of collective entrepreneurship, which is represented by a commercial enterprise with an authorized capital divided into shares (contributions) of founders (participants), where each participant bears equal financial responsibility regardless of the size of his contribution. Partnerships are the owners of their property. Minimum size of the authorized capital business partnerships in Belarus it is established by law and amounts to 400 euros.
Business partnerships are classified into full and limited partnerships.
Full A partnership is recognized, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activity on behalf of the partnership and, if there is insufficient property, bear joint liability for its obligations with all the property belonging to them. General partners, jointly and severally with each other, bear subsidiary liability with their property for the obligations of the partnership.
Advantages full partnership:
Possibility of accumulating significant financial and material resources in a relatively short time;
The right of each member of a general partnership to engage in business activities on behalf of the partnership;
Attractive for creditors, since the members of a general partnership bear unlimited liability for the obligations of the partnership.
Flaws full partnership:
The absence of special trusting relationships between general partners can lead to the rapid disintegration of this organizational and legal form;
A general partnership cannot be a “one person company”;
Each member of a general partnership bears full and joint unlimited liability for the obligations of the partnership, i.e. in the event of bankruptcy, each member is responsible not only with the contribution, but also with personal property.
Limited partnership is a type of general partnership with the following features:
Consists of two groups of participants: general partners and investors. General partners carry out business activities on behalf of the partnership itself and bear unlimited and joint liability for the obligations of the partnership. Investors (limited partners) make only contributions to the property of the partnership, but are not liable with their personal property for its obligations. The use of capital from third parties (investors), raising additional funds not at the expense of the property of general partners is an advantage of a limited partnership compared to a general one;
The inclusion of the investor’s name in the company name of the partnership automatically leads to its transformation into a full partnership, primarily in the sense of unlimited and joint liability with one’s personal property for the debts of the partnership;
The investor does not have the right to participate in the management of the affairs of the limited partnership and act on its behalf, but he has the right to get acquainted with the results of the financial activities of the partnership.
In addition, the investor of the limited partnership:
Has the right to receive his share of the partnership’s profits;
Has the opportunity to freely withdraw from the partnership with the receipt of his contribution;
Can transfer his share or part thereof either to another investor or to a third party without obtaining the consent of the partnership or general partners;
Upon liquidation of the partnership, it has a priority right over the general partners to receive their contributions or their cash equivalent from the property of the partnership after satisfying the claims of other creditors.
Limited partnerships have the same advantages and disadvantages as general partnerships. An additional advantage is that they can attract funds from investors to increase their capital.
The provisions on general partnership and limited partnership are enshrined in the Civil Code of the Russian Federation. A general partnership is the oldest of all organizational and legal forms of business partnerships and companies.
In this form, the personal element is most clearly expressed and, on the contrary, there is no limitation on the liability of participants for the obligations of the partnership. Therefore, the use of the general partnership form is associated with increased risk for its participants. However, it is precisely this disadvantage that is closely related to the advantages of a general partnership, which make it a very attractive form of entrepreneurship.
Since the claims of the creditors of a general partnership are guaranteed not only by the share capital, but also by the personal property of the partners, it, as a rule, does not experience any particular difficulties in obtaining a loan and inspires confidence among commercial partners, since the property risk assumed by its participants indicates the seriousness their intentions and the credibility of the enterprise. It is also important that in relation to general partnerships the legislation contains relatively few mandatory requirements, allowing participants to regulate their relationships in the most acceptable way for them. Organizational structure A general partnership is extremely simple and requires virtually no administrative costs. Finally, general partnerships are not subject to any requirements regarding the publication of operating results and reporting documents.
A general partnership is a corporation whose participants (general partners), in accordance with an agreement concluded between them, engage in entrepreneurial activities on behalf of the partnership and are responsible for its obligations with the property belonging to them. Legal or individual can be a participant in only one general partnership.
A general partnership is created and operates on the basis of a constituent agreement, which is signed by all its participants. The foundation agreement of a general partnership must contain, in addition to the mandatory ones, the following information:
the size and procedure for changing the shares of each participant in the share capital;
the size, composition, timing and procedure for making contributions;
conditions of liability of participants for violation of obligations to make deposits.
Article 71 of the Civil Code of the Russian Federation talks about management in a general partnership. According to this article, the management of the activities of a general partnership is carried out by the general consent of all participants. The founding agreement of a partnership may provide for cases when a decision is made by a majority vote of the participants. Each participant in a general partnership has one vote, unless the constituent agreement provides for a different procedure for determining the number of votes of its participants. Each participant in the partnership, regardless of whether he is authorized to conduct the affairs of the partnership, has the right to familiarize himself with all documentation on the conduct of affairs. Waiver of this right or its limitation, including by agreement of the participants of the partnership, is void.
Each of the participants 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 that 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.
In relations with third parties, the partnership does not have the right to refer to the provisions of the founding agreement that limit the powers of the partnership participants, except in cases where the partnership proves that the third party knew or should have known at the time of the transaction that the partnership participant did not have the right to act on behalf of the partnership. name of the partnership.
In Art. 73 of the Civil Code establishes the following obligations of a participant in a general partnership. 1.
A participant in a general partnership is obliged to participate in its activities in accordance with the terms of the constituent agreement. 2.
A participant in a general partnership is obliged to make at least half of his contribution to the joint capital of the partnership by the time of its registration. The rest must be paid by the participant within the time limits established by the constituent agreement. If this obligation is not fulfilled, the participant is obliged to pay the partnership 10% per annum on the unpaid part of the contribution and compensate for the losses caused, unless other consequences are established by the constituent agreement. 3.
A participant in a general partnership does not have the right, without the consent of the other participants, to carry out transactions on his own behalf in his own interests or in the interests of third parties that are similar to those that constitute the subject of the partnership’s activities.
If these rules are violated, the partnership has the right, at its choice, to demand from such participant compensation for losses caused to the partnership or the transfer to the partnership of all benefits acquired through such transactions.
Profits and losses of a general partnership are distributed among its participants in proportion to their shares in the joint capital, unless otherwise provided by the constituent agreement or other agreement of the participants. An agreement to exclude any of the participants from participating in profits or losses is not permitted.
If, as a result of losses incurred by the partnership, the value of its net assets becomes smaller size its share capital, the profit received is not distributed among the participants until the value of net assets exceeds the size of the share capital.
Participants in a full partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership. A participant in a general partnership who is not its founder is liable equally with other participants for obligations that arose before his entry into the partnership.
A participant's share in the share capital of a general partnership may be subject to foreclosure. Foreclosure of 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. The part of the partnership's property subject to division or its value is determined by the balance sheet drawn up at the time the creditors present the demand for division.
Foreclosure of property corresponding to the participant’s share in the joint capital of the general partnership terminates his participation in the partnership.
A participant who has left the partnership is liable for the obligations of the partnership that arose before the moment of his withdrawal, equally with the 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.
An agreement between the participants of a partnership to limit or eliminate liability provided for in this article is void.
In cases of the withdrawal or death of any of the participants in a general partnership, the recognition of one of them as missing, incapacitated, or of limited legal capacity, or insolvent (bankrupt), the opening of reorganization procedures against one of the participants by a court decision, the liquidation of a participant in the partnership legal entity or a creditor of one of the participants forecloses on part of the property corresponding to his share in the share capital, the partnership may continue its activities if this is provided for in the founding agreement of the partnership or an agreement of the remaining participants.
Participants in a general partnership have the right to demand in court the exclusion of any of the participants in the partnership by a unanimous decision of the remaining participants and if there are serious grounds for this, in particular due to a gross violation by this participant of his duties or his revealed inability to conduct business wisely.
A participant in a general partnership has the right to withdraw from it by declaring his refusal to participate in the partnership. Refusal to participate in a general partnership established without specifying a period must be declared by the participant at least six months before the actual withdrawal from the partnership. Early withdrawal from participation in a general partnership established for a certain period is allowed only by good reason.
An agreement between participants in a partnership to waive the right to withdraw from the partnership is void.
In case of withdrawal of a participant from a general partnership, he is 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 constituent agreement.
By agreement of the retiring participant with the remaining participants, payment of the value of the property may be replaced by the delivery of property in kind.
The part of the partnership property due to the retiring participant or its value is determined according to the balance sheet compiled at the time of his departure.
In the event of the death of a participant in a general partnership, his heir may enter into a general partnership only with the consent of the other participants.
A legal entity that is a legal successor of a reorganized legal entity participating in a general partnership has the right to join the partnership with the consent of its other participants, unless otherwise provided by the founding agreement of the partnership.
If one of the participants leaves the partnership, the shares of the remaining participants in the share capital of the partnership increase accordingly, unless otherwise provided by the constituent agreement or other agreement of the participants.
A participant's share in the share capital of a general partnership can be transferred. A participant in a general partnership has the right, with the consent of its remaining participants, to transfer his share in the share capital or part thereof to another participant in the partnership or to a third party.
When a share (part of a share) is transferred to another person, the rights that belonged to the participant who transferred the share (part of the share) are transferred to him in full or in the corresponding part. The transfer of the entire share to another person by a participant in the partnership terminates his participation in the partnership.
A general partnership is liquidated on the following grounds:
by decision of its founders (participants) or a body of a legal entity authorized to do so by the constituent documents, including in connection with the expiration of the period for which the legal entity was created, upon achieving the purpose for which it was created;
by a court decision in the event of gross violations of the law committed during its creation, if these violations are irreparable, or carrying out activities without proper permission (license), or activities prohibited by law, or with other repeated or gross violations law or other legal acts (Article 61 of the Civil Code); when the only participant remains in the partnership (he has the right, within six months from the moment he became the only participant in the partnership, to transform such a partnership into a business company in the manner established by the Civil Code of the Russian Federation). A general partnership is also liquidated in the cases specified in paragraph 1 of Art. 76 of the Civil Code of the Russian Federation: in cases of death of one of the participants of a general partnership, recognition of one of them as missing, incapacitated, or partially capable, or insolvent (bankrupt), withdrawal from the participants or opening of reorganization procedures against one of the participants by a court decision , liquidation of a legal entity participating in the partnership or a creditor of one of the participants forecloses on part of the property corresponding to his share in the share capital, unless the founding agreement of the partnership or the agreement of the remaining participants stipulates that the partnership will continue its activities.
A limited partnership (or limited partnership) is a corporation, which is the oldest organizational and legal form of entrepreneurial activity. This corporation includes two groups of participants, whose legal status is different: general partners and investors (limited partners). General partners manage all the affairs of the partnership, but also bear unlimited liability for its obligations. Investors practically do not participate in management, however, their risk is limited by the size of their contributions to the capital of the partnership. A limited partnership arose as a modified form of a general partnership, allowing partners to raise funds from outside on less risky terms than under a loan agreement. For investors, it turned out to be attractive as an opportunity to receive income from entrepreneurial activity without personally participating in it and without risking all their property26.
According to Art. 82 of the Civil Code of the Russian Federation, a limited partnership (limited partnership) is a partnership in which, along with participants who carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with their property (general partners), there are one or more participants - investors (limited partners) who bear the risk of losses associated with the activities of the partnership, within the limits of the amounts of contributions made by them and do not take part in the partnership’s business activities. The position of general partners participating in a limited partnership and their responsibility for the obligations of the partnership are determined by the rules of the Civil Code of the Russian Federation on participants in a general partnership. As with a general partnership, a person can be a general partner in only one limited partnership.
There is also a limitation: a participant in a general partnership cannot be a general partner in a limited partnership. A general partner in a limited partnership cannot be a participant in the general partnership. This limitation is obvious, since the general partner in both the limited partnership and the general partnership bears full responsibility, which will not be so complete if he participates as a general partner in both partnerships.
The rules of the Civil Code of the Russian Federation on general partnership are applied to a limited partnership insofar as this does not contradict the rules of this Code on limited partnership.
A limited partnership is created and operates on the basis of a constituent agreement, which is signed by all general partners. The foundation agreement of a limited partnership contains:
necessary and general information for all enterprises;
the size and composition of the partnership's share capital;
the size and procedure for changing the shares of each of the general partners in the share capital;
the size, composition, term and procedure for making contributions;
conditions of liability for violation of obligations to make deposits;
the total amount of deposits made by investors.
The management of the limited partnership is carried out by the general partners. The procedure for managing and conducting the affairs of such a partnership by its general partners is established by them according to the rules of the Civil Code on general partnerships.
Investors do not have the right to participate in the management and conduct of the affairs of the limited partnership, or to act on its behalf except by proxy. They do not have the right to challenge the actions of their general partners in managing and conducting the affairs of the partnership.
A full partnership is recognized as a partnership whose participants (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with the property belonging to them (clause 1 of Article 69 of the Civil Code of the Russian Federation).
A general partnership is distinguished by the personal-trust nature of the relations between the participants, since each of them has the right to exercise a decisive influence on the affairs of the organization. We would like to remind you that such participation is allowed only in one partnership. In the interests of counterparties, it is established that its corporate name must include not only the names (titles) of participants, but also an indication of its organizational and legal form.
A general partnership is created and operates on the basis of a constituent agreement signed by its participants, because the absence of special management bodies eliminates the need for a charter. In addition to the information required for inclusion in any constituent document, the constituent agreement of a general partnership must contain provisions on the size and composition of the 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 the obligation to make deposits (clause 2 of Article 70 of the Civil Code of the Russian Federation). It is also permissible to include other conditions that reflect the peculiarities of the legal status of a particular partnership.
Management of activities is based on the principle of unanimity of all participants, unless the constituent agreement provides for cases when a decision is made by a majority vote. Each participant is usually given one vote. Business management is possible in three options:
1) each participant acts on his behalf;
2) all participants act together;
3) individual participants act on his behalf on the basis of instructions.
The second and third options for conducting the affairs of a general partnership should be recorded in the constituent agreement. The court may terminate the authority to conduct business granted to one or more participants at the request of other participants of the partnership if there are serious grounds. These may include, in particular, gross violation by an authorized person(s) of their duties or inability to conduct business wisely (P. 2 tbsp. 72 GK RF).
Along with conducting business, the participant is obliged to make at least half of his contribution to the capital of the partnership by the time of its registration. The rest is paid within the time limits established by the constituent agreement. Failure to fulfill this obligation entails payment of ten percent per annum on the unpaid part of the contribution and compensation for losses caused, unless otherwise follows from the constituent agreement. Without the consent of the remaining participants, it is prohibited to carry out transactions similar to those that constitute the subject of the partnership’s activities in their own interests or in the interests of third parties. The latter may, at its choice, demand that such a participant compensate for the losses caused or transfer to the partnership all the profit received from such transactions (clause 3 of Article 73 of the Civil Code of the Russian Federation).
The distribution of profits and losses between its participants is made in proportion to their shares in the share capital, unless otherwise provided by the constituent agreement or other agreement of the parties. At the same time, “an agreement to exclude any of the participants of the partnership from participating in profits and losses is not allowed” (clause 1 of Article 74 of the Civil Code of the Russian Federation), which is directly related to the risk of imposing unlimited liability on any of the participants for the debts of the partnership.
The minimum amount of share capital is not established by law, since the participants of the general partnership jointly and severally bear subsidiary(additional) liability for the obligations of the partnership (clause 1, article 75 of the Civil Code of the Russian Federation). They are held liable only if the general partnership as a legal entity has insufficient property. Features of joint liability are established by Art. 322–325 Civil Code of the Russian Federation. Participants in a general partnership who are not founders (original participants) are equally liable for all obligations. Departure from the partnership does not terminate liability for its obligations that arose before the moment of withdrawal or expulsion, for another two years from the date of approval of the report on the activities of the partnership for the year in which the participant left it (clause 2 of Article 75 of the Civil Code of the Russian Federation). The rules on the responsibility of participants are mandatory and cannot be changed by agreement of the parties.
A change in the composition of participants does not terminate the activities of a general partnership only if this is expressly provided for in the constituent agreement or agreement of the parties. A participant in a general partnership may, if there are serious grounds, be excluded from its membership in court by unanimous decision of the remaining participants (Clause 2 of Article 76 of the Civil Code of the Russian Federation). Voluntary withdrawal is also possible on the basis of a refusal to participate, declared at least six months before the actual withdrawal from the partnership. If the partnership was created for a certain period, then voluntary withdrawal from it is allowed only for a good reason. The retiring participant has the right to demand the cash equivalent of his share in the property of the partnership, unless otherwise provided by the constituent agreement. Payment of the value of property can be fully or partially replaced by its delivery in kind by agreement of the retiring participant with the remaining participants (Clause 1 of Article 78 of the Civil Code of the Russian Federation). The departure of a participant, as a rule, leads to an increase in the shares of those remaining in the share capital.
The corporate name of a limited partnership must contain the names (titles) of all general partners and the words “limited partnership” ("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" faith" ("limited partnership "). The inclusion of the investor's name in the business name results in him becoming a general partner with unlimited liability for his obligations.
The only constituent document of a limited partnership is the memorandum of association; it is signed only by full comrades. Investors (limited partners) can neither participate in the management of the partnership (conducting its affairs) nor challenge the actions of general partners (complementaries). The memorandum of association must, in particular, contain a provision regarding the total amount of their contributions. Relations between limited partners (investors) and general partners are based on agreements on making contributions.
The investor of a limited partnership is granted a number of rights by law (clause 2 of Article 85 of the Civil Code of the Russian Federation): to receive part of the profit due to his share in the share capital; for information about the activities of the partnership; to exit at the end of the financial year and receive your contribution; to transfer your share in the share capital or part thereof to another investor or a third party. In the latter case, other investors can exercise their preemptive right to purchase. At the same time, general partners are considered as third parties, i.e. e. do not have such a preferential right. The list of depositor rights is not considered exhaustive; the constituent agreement may also secure their other rights.
The withdrawal of all investors from the limited partnership leads to its liquidation. However, the founders have the right to transform it into a general partnership. The partnership is liquidated on faith and on the grounds provided for a general partnership. As long as one general partner and one investor (limited partner) remain in a limited partnership, it continues to exist.
When a partnership is liquidated, limited partners receive their contributions from the property remaining after settlements with creditors. The property remaining after this is distributed among general partners and investors in proportion to their shares in the joint capital. A different procedure for the distribution of this property may be established by the constituent agreement or agreement of the parties.
In general, the legal status of a limited partnership is determined by the same rules as the status of a general partnership (clause 5 of Article 82 of the Civil Code of the Russian Federation). The exception is the rules regulating the position of investors (limited partners).