Civil legislation of the Russian Federation provides for such a procedure as the reorganization of legal entities. What is its specificity? What are the ways to carry out this procedure?
What is a reorganization of a legal entity?
Before considering the methods of reorganization of legal entities provided for by the legislation of the Russian Federation, we will examine what the corresponding term means. Its interpretation is given directly in the provisions of regulatory sources of law, the main of which is the Civil Code of Russia. In accordance with its provisions, the reorganization of a legal entity should be understood as a process in which a legal entity in one way or another transfers its own powers to another business entity.
It should be distinguished, in particular, the transformation in the form of a merger - when several firms consolidate their rights and responsibilities, from a process such as reorganization by spin-off, in which the original business entity does not cease to conduct core business. There are other varieties of reorganization - later in the article we will consider them in more detail.
It should be noted that the process of liquidation of an enterprise is completely different from the point of view of law . Its result is the deletion of the record of the company as active in the state registry. However, liquidation, reorganization are processes that, one way or another, can be interconnected within the framework of transformations of the enterprise management structure, holdings. Therefore, their consideration can in many cases be carried out in the same context.
There are 2 types of reorganization - voluntary and forced. Consider their features in more detail.
What is a voluntary reorganization?
The appropriate type of reorganization is carried out in accordance with the decision adopted by the management of the company. In this case, options are possible in determining the future format of doing business. So, for example, if reorganization by merger is planned, the business entities that participate in this process enter into a special agreement, within which the procedure for the procedure in question is fixed, as well as the principles for the distribution of shares in the company being formed (or for establishing the volume of shares that are transferred to ownership of one or another co-owner).
What is a coercive organization?
This type of reorganization involves the adoption of a decision in accordance with which the procedure in question is implemented by a competent authority or a court. The reason for the forced reorganization may be, for example, the need to organize the settlement of a company with creditors through the sale of property, which is subject to distribution between other business entities.
Reorganization Classification
What are the ways to reorganize legal entities? The legislation of the Russian Federation provides for a classification according to which 5 relevant procedures are distinguished:
- merger of firms;
- joining one company to another;
- division of the company;
- the selection of the enterprise;
- business transformation.
A merger is a combination of 2 or more business entities in one structure. At the same time, each of the merged firms ceases to operate. As soon as a new legal entity is registered with the Federal Tax Service, the merger reorganization procedure is considered completed.
The procedure for reorganization of a legal entity may involve the merger of one company or several to another. Moreover, each of the firms, which is part of a different structure, ceases to operate. In addition, the termination of a legal entity by means of reorganization in the form of a merger involves the transfer of the company, which included the relevant business entity, of its rights and obligations. The procedure under consideration is considered completed as soon as the Federal Tax Service of the Russian Federation enters into the state register information that all affiliated companies have ceased their activities.
The procedure for the reorganization of a legal entity may also imply separation, which is a procedure for the formation on the basis of the company of other business entities that receive legal independence.
The next option for the transformation of the enterprise is the allocation. It involves the formation on the basis of the company of new legal entities that become independent business entities from it. This procedure is considered complete as soon as the Federal Tax Service registers all business entities separated from the company.
The next kind of reorganization is transformation. This procedure involves the termination of one legal entity and the subsequent creation on its basis of a new business entity. As soon as the Federal Tax Service of the Russian Federation completes the state registration of a new company, the procedure in question is considered completed.
These are the main ways of reorganization of legal entities, reflecting the widespread classification. Which specific ones can be selected is determined by the specifics of a particular type of business, the obligations of the company, the priorities of its owners - the list of factors that can affect their preferences can be very impressive.
Classification of reorganizations: rights and obligations of business entities
The classification of reorganizations can be carried out on other grounds. For example, from the point of view of determining the scope of those rights and obligations that go from a reorganized company to successors. So, they can be transferred to another business entity:
- in full;
- partially - despite the fact that only a certain amount of rights and obligations passes to other assignees;
- partially subject to the distribution of the initially full amount of rights and obligations that belonged to the company.
In the general case, the first variant of the distribution of rights and obligations characterizes such procedures as reorganization by transformation, merger, and also accession. The second is in the separation. The third - when highlighting.
Reorganization Documentation
During the implementation of the reorganization, the following documents may be formed:
- separation balance sheet;
- transfer deed.
In this case, the first document is formed if separation or separation is carried out. The second - if reorganization is carried out in the form of accession, merger or transformation. One way or another, both of these documents should reflect information on the obligations of economic entities involved in the process of business transformation.
The main stages of the reorganization
Having examined the types and methods of reorganization of legal entities, we now study the specifics of the stages within which the corresponding procedure is carried out. In the general case, the sequence of actions of business entities that are involved in the reorganization will be as follows.
First of all, competent persons - for example, the board of directors of a business company, decide on the transformation of a business. Further, the Federal Tax Service is notified that the organization will be implemented. In this case, the tax authorities should be informed that the management of the company decided to transform the enterprise within 3 days after its adoption.
The next step is the introduction by the Federal Tax Service of amendments to the Unified State Register of Legal Entities, reflecting the fact of the beginning of the enterprise transformation procedure. After - information is published in the industry magazine that a reorganization of the relevant legal entity is underway.
Further, creditors are notified in writing that the company that is their debtor is being transformed. After that, the forms of reorganization of the legal entity are directly selected.
Reorganization of legal entities according to the Civil Code of the Russian Federation: nuances
There are quite a few nuances that characterize the procedure in question. We will study them based on the Civil Code. Reorganization of a legal entity is a procedure that is carried out, as we noted above, mainly on the basis of the provisions of the Civil Code of the Russian Federation.
First of all, it is worth noting that the Civil Code of the Russian Federation allows for reorganization: with a simultaneous combination of its various forms - if this is possible from the point of view of the lack of inconsistencies of the procedure with the current law, with the participation of two or more legal entities that operate in different legal forms - again, in the event that this procedure does not violate the provisions of applicable law.
Any restrictions on legal entities in the implementation of the reorganization may be established only by law. At the same time, the regulatory legislation may determine the provisions in accordance with which a separate procedure for reorganization will be fixed:
- banks;
- insurance companies;
- clearing companies;
- financial organizations;
- trading corporations;
- investment funds;
- non-state pension funds;
- national enterprises.
We noted above that solutions to the reorganization can be based on legal acts issued by the courts. It should be noted that the founders of a business company are required to comply with the provisions of these acts. Otherwise, the corresponding procedure will be carried out by the arbitration manager - based on the norms established in the Civil Code of the Russian Federation. This option may be less preferable for business owners.
The court decision on the reorganization is the basis for the implementation of the Federal Tax Service of the Russian Federation state registration of newly formed legal entities. Its completion, as we noted above, is the main criterion for recognizing the procedure in question that has taken place.
In some cases, certain methods of reorganization of legal entities can be initiated by decision of the competent state authorities.
One of the key nuances of the relevant procedure is succession. We will study it in more detail.
Succession in the reorganization of legal entities
Succession presupposes the legal transfer of the rights and obligations of the legal entity in respect of which the reorganization is being carried out, to another business entity in the established amount. The patterns are as follows:
- when merging legal entities, the rights of each of them are received by the newly created business entity;
- upon joining - a company, which includes others, accepts their rights and obligations;
- during the division of the company, its rights and obligations pass to business entities formed on its basis;
- upon separation - the rights and obligations of the reorganized are transferred to each of the formed legal entities;
- during the transformation - the scope of rights and obligations of the new legal entity in comparison with that which characterized the activity of the former remains unchanged.
Moreover, in the cases provided for by law, rights - depending on the form of reorganization of a legal entity, rights and obligations are transferred under a deed of transfer.
It will be useful to consider the specifics of this document in more detail.
What is a transmission act?
The purpose of the deed of transfer is to determine the list of rights and obligations transferred under one procedure, such as reorganization, from one legal entity to another. The document under consideration includes the provisions in accordance with which the succession of the company is established in relation to all creditors and debtors, as well as how it can be determined taking into account possible changes in the rights and obligations of the business entity.
The deed of transfer is drawn up by the founders of the company or by the competent state body that decided to choose one form or another of the reorganization of the legal entity. The corresponding document is sent to the Federal Tax Service along with other sources, which are transferred to the tax authorities - in the framework of interaction with them in the manner prescribed by law. If the deed of transfer is not provided by the Federal Tax Service, then the department will not make the necessary changes to the state register.
Guarantees of the rights of creditors
The next most important aspect of the reorganization is the guarantee of the rights of creditors of an economic entity that changes its status in the prescribed manner. These guarantees are also established in the provisions of the Civil Code of the Russian Federation. First of all, the relevant legal entity is obliged, as we noted above, to notify the Federal Tax Service that the status of the organization is to be changed within 3 days after the decision to reorganize.
Upon receipt of this notification, tax authorities make a record in the state register that the company is being reorganized. In turn, this business entity is obliged to publish a notification about this in departmental media. The relevant document also reflects the order in which lenders can declare their claims.
In the event that they arose before the reorganized business entity first published a notice in the departmental media, the creditor has the right to judicially demand early fulfillment of the debtor's obligations or compensation for losses incurred. These requirements may be submitted by the authorized party within 30 days after the reorganized company publishes the last notice.
Claims of creditors that are put forward within the statutory period must be fulfilled before the reorganization is carried out - in the form of a merger, merger, transformation, or other type. In this case, the creditor will not have the right to demand from the debtor to repay the obligations ahead of schedule if, within 30 days from the date of presentation of the relevant requirements, he will receive security, the value of which will be deemed sufficient. The law also defines cases in which the creditor's rights, one way or another, are realized regardless of the reorganization procedure.
If the creditor’s claims are not fulfilled, his losses are not reimbursed, and sufficient security is not provided to him, then those persons who actually have the ability to manage the actions of reorganized business entities are jointly liable.
The main criteria for the sufficiency of the security of the creditor is the consent of the authorized party to accept it, as well as the existence of an irrevocable bank guarantee for the fulfillment of the obligations of the reorganized business entity.