Public and non-public joint-stock companies (NJSC and PJSC) - classification, comparison and transition. Non-public joint stock company: charter, registration

Requests for obtaining information related to the creation and subsequent operation of an OJSC are not the most common on the Internet. Usually people wander into texts about OJSC by mistake, confusing it with LLC or even with the United Arab Emirates. But if you came here specifically to find useful information for business development, you probably know that OJSC is no longer just a business, but a business in an elegant tuxedo.

A little about the name

First of all, those who are thinking about creating a joint-stock company should erase from memory the very name "JSC", which has not officially existed for almost four years, although it is still used by inertia.

In 2015 federal law No. 99, modifications were made to Chapter IV of the Civil Code of the Russian Federation. Modifications affected many aspects of the creation and operation legal entities, including joint-stock companies. In particular, joint-stock companies were divided into two types - public and non-public. So OJSCs turned into PJSCs, and CJSCs into NAOs.

PJSC, NAO, OOO

If we imagine the form of doing business in the form of a pyramid or ladder, then its first step will be an LLC. This does not mean that you need to start with an LLC. This means that in the form of an LLC device there are those foundations that can consistently develop into other forms of doing business.

Three pillars of registering a serious business

LLC structure- this is one or more founders (up to 50 people), between whom the authorized capital is divided. The division of profits takes place in accordance with the Charter of the company and the owner of a larger share does not always receive a larger percentage of the profits. Co-founders have the right to alienate their shares, subject to the preemptive right of other co-founders.

Structure of the NAO- up to 50 people of shareholders, who together create the authorized capital. Or vice versa - the authorized capital divided into shares creates up to 50 shareholders. Simply put, the authorized capital is created by a group of people who contribute according to their financial capabilities. In this case, the profit is divided depending on the number and volume of shares. The shareholder has the right to alienate his shares subject to the preferential right of other shareholders.

PJSC structure- this is the free number of founders who create the authorized capital on the same principle as the shareholders of NAO. At the same time, the number of shareholders of a PJSC can be limited only by common sense, since the main difference between PJSC and LLC and NAO is the right to freely issue and sell shares to the public. Profit in PJSC is distributed depending on the volume and value of shares.

Note! PAOs, or open partnerships, as they were called immediately after the collapse of the USSR, became the progenitors of the post-Soviet oligarchy. During the period when the Soviet economy was collapsing, former leaders, party workers, secretaries of regional and district committees of the party and other enterprising citizens became the founders of the first open partnerships built on the bones of once prosperous enterprises. Having become, as a result of privatization, the owners of dying plants and factories, they offered former employees to acquire shares, which, as the enterprises recovered, should have brought income. However, plants and factories did not recover, and party bosses calmly created other types of business. Until now, many current pensioners still have shares and certificates for participation in the privatization of once famous industrial facilities.

Who needs what

From the point of view of the Criminal Code, there are not so many differences between the “pyramid” and the PJSC. Both those and others sell pieces of paper, which they promise to turn into money over time. Those who manage to keep the promise become solid entrepreneurs. Those who fail, fall into the zone of interest of law enforcement agencies. Therefore, the limitations of common sense when issuing shares are very important.

Otherwise, PAO is one of the best forms of doing business for both start-up entrepreneurs and market sharks.

There is an opinion that the creation of a PJSC is the prerogative of already established and successful businessmen for whom it makes no sense to study the law and run around with folders to various authorities, registering a PAO. The best way for them is to conclude an agreement with a company that provides intermediary services for the registration of legal entities.

Certainly it is very good way, but the fact is that PAOs are created not only by the Rothschilds, but also by third-year students, for whom every ruble is worth its weight in gold. They collect the necessary 100,000 rubles authorized capital with the world on a string, turning its creditors into shareholders of the future PJSC. Their future income is just an idea, but sometimes a brilliant idea. To put this idea into practice, they need funds that will not pay off immediately, and therefore the option of obtaining a loan is not for them. the best way there will be the creation of PJSC with the possibility of raising funds through the sale of shares.

raising funds for business development;
possibility of access to international market in order to attract foreign shareholders.

Legends and myths of the Internet

It is not known with whom light hand a story appeared on the Internet that a PJSC can be registered only after the preliminary registration of a NJSC, followed by bringing the documentation and authorized capital to the level of registration of a PJSC. At the same time, the authors of such statements without embarrassment refer to Art. 7.1 Law Russian Federation about joint-stock companies. It is difficult to imagine in what state one should read Article 7.1 in order to see what is not there.

Unfortunately, articles written by semi-professionals or even non-professionals copying each other have proliferated on such a scale that they have come to the attention of acting lawyers. The latter, instead of studying the law, believed Internet myths, and the courts flooded the lawsuits of the founders of PJSC demanding that the bans be lifted. government agencies to issue their shares. Appeal proceedings flooded Supreme Court The Russian Federation, which repeatedly explains in its decisions that such statements are a misinterpretation of the law.

Advice! If you open an article that claims that a PJSC cannot immediately receive the status of a public company, then immediately close it. It was written by a layman from jurisprudence. If the intermediary firm that you contacted for the provision of services related to the registration of a PJSC assures you that you must first register a NAO, immediately refuse its services, and at the same time write a complaint to the Ministry of Justice.

Cons of PAO

The main disadvantage of PJSC was named a little higher - this is the possibility of turning the issue of shares into a method of fraud.

That is why slightly higher requirements are applied to PJSC than to LLC or NAO in terms of being controlled by law enforcement and tax authorities. This reduces the risk of transformation of a joint-stock company into another pyramid scheme.

Forms of control over PJSC activities are:

annual audits;
publication of the results of economic and financial activities PAO.

Where to begin

talking legal language, you need to start with Ad Ovo, that is, with the name. The legislation provides for certain requirements for the name of PJSC:

It must include a mandatory mention of publicity.
It must be respectable, must not contain profanity, insults, any mention of racial discrimination, etc.
The title must be in Russian.

Having decided on the name, you need to decide on the following:

with the contribution of each shareholder;
with the appointment of the General Director;
with a choice of legal PAO addresses. It can be either the residence of one of the shareholders or a rented premises.

Authorized capital

The minimum allowable authorized capital of a PJSC is 100,000 rubles. Without this amount, it is pointless to start the registration procedure.
It should be remembered that the origin of the amount of the authorized capital is the shares owned by the participants. Since PJSC is an open organization, not only the founders, but also third parties have the right to acquire shares.

Since the authorized capital is formed at the expense of shares, in the course of its activities, PJSC UK may increase by the amount of acquired shares or profit on them, but cannot fall below 100,000 rubles.

Charter of PJSC

As in an LLC or NJSC, the Charter is the main constituent document of a PJSC, reflecting the direction and forms of its activities. It is the charter that provides for all the characteristics of the issue of shares and the subsequent actions of PJSC for the accrual and payment of dividends.

You don't have to reinvent the wheel. The world is full type specimens charter of PAO. When owning English language at the Intermediate level, you can also use foreign templates.

PAO administration

PJSC management is a collective of shareholders. PAO administration is:

Board of Directors elected by the general meeting of shareholders.
CEO of PAO.
Audit Commission of PJSC.

PJSC can carry out any type of activity that is legal in the territory of the Russian Federation. A restrictive condition is the impossibility of PJSC carrying out more than one type of activity. If the chosen type of activity requires mandatory state licensing, then the corresponding license is issued after the registration of PJSC.

Registration steps

Application for registration.
Payment of state duty.
Documents confirming the existence of a legal address. A house book, an extract from the cadastre or a lease agreement are suitable.
Notarized copies of documents proving the identity of each of the founding shareholders.
It is advisable to immediately provide the data of the selected accountant, so as not to waste time later on making changes to the constituent documents.

PJSC registration is a rather long and laborious process, so you should be patient. Or still think about an intermediary firm that will do everything for you.

Civil Code of the Russian Federation Article 97. Public joint-stock company

ConsultantPlus: note.

If on 07/01/2015 the charter and name of a joint-stock company established before 09/01/2014 indicates that it is a PJSC in the absence of signs of publicity, such a joint-stock company must register a share prospectus or change the charter by 07/01/2020, excluding the public status from the name (FZ of 06/29/2015 N 210-FZ).

ConsultantPlus: note.

Joint-stock companies created before 09/01/2014 and meeting the criteria of PJSC are recognized as such, regardless of whether this is indicated in their name. For exceptions to this rule and for the waiver of public status, see the Federal Law of 05.05.2014 N 99-FZ.

1. A public joint-stock company (clause 1 of article 66.3) is obliged to submit for inclusion in a single State Register legal entities information about the trade name of the company, containing an indication that such a company is public.

A joint-stock company has the right to submit, for entry into the unified state register of legal entities, information on the firm name of the company, containing an indication that such a company is public.

A joint-stock company acquires the right to publicly place (by open subscription) shares and securities convertible into its shares, which can be publicly traded on the terms established by laws on valuable papers ah, from the date of entering in the unified state register of legal entities information about the trade name of the company, containing an indication that such a company is public.

2. The acquisition by a non-public joint-stock company of the status of a public company (paragraph 1 of this article) shall entail the invalidity of the provisions of the charter and internal documents of the company that are contrary to the rules on a public joint-stock company established by this Code, the law on joint-stock companies and laws on securities.

3. In a public joint-stock company, a collegial management body of the company is formed (paragraph 4 of Article 65.3), the number of members of which cannot be less than five. The order of formation and the competence of the specified collegiate body management are determined by the law on joint-stock companies and the charter of a public joint-stock company.

4. Responsibilities for maintaining the register of shareholders of a public joint stock company and performing the functions of the counting commission are carried out by an organization that has a license provided for by law.

(see text in previous edition)

5. In a public joint stock company, the number of shares owned by one shareholder, their total nominal value, as well as the maximum number of votes granted to one shareholder cannot be limited. The charter of a public joint-stock company cannot provide for the need to obtain someone's consent to alienate the shares of this company. No one may be granted the right to pre-emptively acquire shares of a public joint-stock company, except for the cases provided for by

On September 1, 2014, some changes in the Civil Code of the Russian Federation came into force. There was a division of joint-stock companies into two types, according to the principle of the possession of certain characteristics by organizations. The first type is public joint-stock companies. Such organizations are more open. The second type is non-public joint-stock companies, they are more closed, but at the same time the management system in them is less strict. Instead of the usual abbreviations, new ones appeared, such as NAO and PAO. You can read more about public and non-public joint-stock companies in this article.

Public Joint Stock Company

This is the name of those enterprises whose shares have a public circulation in accordance with the legislative acts on securities. This may be access to stock exchanges, emission for the purpose of generating income, etc. Also, the publicity of a joint-stock company is determined by the fact that the statutory documents state that the organization is open in one form or another. The control of such firms is more stringent due to the fact that they may affect the interests of third parties, because citizens can purchase shares in these organizations. For example, a supervisory board of five people must be present as a supervisory body. It should also be noted that all United Joint Stock Companies (OJSC), based on the new legislation, become public. Moreover, new changes in the legislation provide for openness and transparency of data related to the owners of securities issued by PJSC. They also have a number of additional nuances and innovations, for example, a society will be considered public, provided that the number of its members exceeds five hundred. More detailed information is set out in the first paragraph of Article 66.3 of the Civil Code of the Russian Federation.

Non-public joint stock company

This is an enterprise whose participants are strictly defined, information about these persons is recorded at the time of the organization's creation. The innovation allows you to correct and amend the charter of the organization, form management bodies, influence the board of directors and the meeting of shareholders on various issues by voting. All CJSCs, as well as some LLCs, will now be called non-public.

It is important to note the lower obligations in relation to the owners of securities, which are borne by a non-public joint-stock company. Responsibility to depositors is less than in the case of open organizations. This is due to the fact that a non-public joint-stock company has a limited number of securities owners, a strictly limited statutory documents. Speaking more plain language, participants are initially warned of all risks and possible losses. Often shares in such companies are not issued at all, and such enterprises are partly the result of privatization or the consequence of a peculiar model of management with equity participation to delegate responsibility.

Terminology changes in accordance with legislation

As mentioned above, all enterprises referred to as JSCs are now called public joint stock companies. The changes also apply to other organizational and legal forms. CJSC is a non-public joint-stock company. The latter will also include some LLCs, but subject to the availability of the necessary features.

In addition, all firms established before the legislation was updated do not have to undergo any re-registration procedures. This rule only applies if there is no need to make any adjustments to the registration data. For example, the relocation of companies to another office or a change in the type of activity may be the basis for a change in legal form. It should be noted that it may be necessary to change the articles of association in accordance with the new legislation, if necessary. As for the new abbreviations in the names, the non-public joint-stock company is abbreviated - NAO, public - PJSC.

Information about the owners of securities

Both in the case of a public and in the case of a non-public company, the register of shareholders must be maintained by an independent competent organization. Otherwise, there is a risk of getting a fine and bringing additional checks on your company. This rule was introduced in October 2013. The choice of a registrar company that will maintain the register of shareholders is a very important decision. Before accepting it, you should make sure that the company to which you entrust this task is fairly conscientious, has good experience in this area and has been operating for a long time. Otherwise, there is a risk of various problems and additional litigation. It is also recommended to look at the clients of such companies. The more serious these firms, the better for you. The decisions of all meetings must be included in the register by the company that takes responsibility for maintaining it.

Nominal capital

These are the funds of the enterprise formed by issuing securities. They are also called authorized or share capital due to the fact that their size is specified in the charter of the organization. This is the amount invested by the participants to ensure the statutory activities of the company. The amount of these funds is fixed in the constituent documents of the organization in accordance with applicable laws. Based on the Civil Code, share capital is the smallest amount of funds that guarantee solvency to creditors. The law provides for the possibility of increasing the nominal capital. This is possible if at least two-thirds of the participants vote for such a decision and subject to the laws provided for in specific cases. As funds in the share capital, property can be contributed in the form of Money and their in-kind equivalents, such as property. In the case of depositing funds in another form or in the form of a property right, they are evaluated using an independent examination.

Statutory document of the NAO

When creating a non-public JSC, you must have various papers and completed forms with you. The charter of a non-public joint-stock company is a key document. It contains all the information about the organization, it tells about its property, participants and their rights, about the activities of the formed enterprise, etc. In case of problems and disputes, the Charter will be the supporting document in legal proceedings. Therefore, it must be written in such a way that it does not contain loopholes and flaws that can be used in court against the organization. When drawing up the Charter, it is recommended to study in detail all legislative acts, one way or another related to the activities of the organization, or contact lawyers who have experience in this area or specialize in the development of such documents.

Statutory document of PJSC

The charter in such enterprises is in many respects similar to a similar document of a non-public joint-stock company. Exception - it must state that the organization is open. For example, the procedure for issuing shares, their circulation, entering the stock exchanges is indicated, the dividend payment policy is prescribed. It may also prescribe the procedure for the circulation and issue of other securities, but it must be possible to convert such bills into shares. In general, the Charter of a public joint stock company should be developed even more responsibly than in the case of the NAO. This is due to the high potential liability and obligations to shareholders, which, in fact, can be anyone. This means that the risk of claims from various individuals and legal entities and representatives of the state in the case of PJSC is much higher. The development of documentation requires a responsible approach and the work of specialists.

Authorized capital of NAO

When forming the authorized capital, the basic legal acts will be the Civil Code of the Russian Federation and Federal Law 208 “On Joint Stock Companies”.

According to the Civil Code of the Russian Federation, these include organizations whose nominal capital is divided into a certain number of securities. Members of the company cannot incur losses or liabilities in excess of the value of the securities they own.

In this case, when the authorized capital of a non-public joint-stock company is considered, securities cannot be placed openly. The share of promissory notes owned by the owner may be limited by statutory documents. The number of votes granted to one bearer of securities may also be indicated. In this case, the minimum authorized capital of a joint-stock company must be equal to at least one hundred minimum wages (minimum wages).

Authorized capital of a public joint stock company

In the situation with PAO, the rules similar to the previous case apply. Key acts will be latest editions Civil Code of the Russian Federation and Federal Law 208 “On Joint Stock Companies”.

The authorized capital of a public company consists of shares acquired by the owners at their original cost at the time of issue. The par value of the securities must be the same. Just like the rights of shareholders, which should be equal. The size of the authorized capital can either increase or decrease in accordance with the current market situation. This happens through the issuance of additional securities or through the purchase of own shares from large investors. The authorized capital must include at least 1000 minimum wages.

PAO members

In this case, the participants will be all the owners of the shares of the company. Any citizen of the Russian Federation who has reached the age of 18 can become a PJSC participant. Shareholders bear no legal and liability for the actions of society, but only have certain rights. For example, they can take part in the general meeting and vote. The only possible losses for the owners of securities are associated with the value of shares or dividends.

NAO members

The procedure for membership in organizations of this type is different from PJSC. Only participants in a non-public joint-stock company will be founders. This is due to the peculiarities of the regulation of such firms. The founders will also be shareholders, and their bonds do not extend beyond this organization. Participants cannot be more than fifty people, otherwise NAO must be reorganized into a public joint stock company.

Reorganization from one form to another

The legislation provides for the possibility of changing one legal form to another. On the example of the transformation of NJSC into PJSC, the following obligations that arise before the organization can be distinguished:

Increase in the authorized capital to the required minimum (1000 minimum wages).
Development of documents confirming the change in the rights of shareholders.
Issue of shares.
Complete inventory.
Involvement of an auditor.
Development of a new charter and related documentation.
Re-registration in the Unified State Register of Legal Entities.
Transfer of property to a new legal entity.

Registration: public and non-public joint-stock companies

The first step is to choose an organizational legal form, public joint stock company or another type, in accordance with the needs of the organization being created. Next, you need to prepare everything Required documents: an agreement between the founders, if there is more than one person, then - documents on the types and types of shares, their value and quantity. After that, a charter is developed, which includes:

The name of the organization in full and in the form of abbreviations, in the case of a public company, this should be reflected in the name.
Legal address.
Number and price of shares at par.
Types of issued shares.
The rights of shareholders owning one or another category of shares.
The cost of the authorized capital.
The procedure for holding various meetings, voting and decision-making.
The powers and decision-making algorithm of the governing bodies - in accordance with applicable law.

Now you need to register the company with the local tax authority, which one depends on the city and region in which the registration is made. It is necessary to fill in and provide all the required documents, certify them with a notary and pay a fee. Registration will be done within 5 business days. Then you will have exactly 30 days to issue and register shares, and you will also need to choose a company to hold the register of shareholders.

It should be noted that the process of registration and creation of joint-stock companies is a very responsible decision. Problems with documentation and various forms can arise even when registering an individual entrepreneur, so you should not save on creating a future organization; if any difficulties arise, it is recommended to contact competent specialists in the tax, legal and financial fields. The right organizational and legal form is the first step on the way to successful business, and this choice should be made as deliberately as possible.

12.10.2018

Despite the fact that the rules on public and non-public companies have been in force for more than three years, our readers often ask about which companies are public and which are not, and what are the main differences between them. Our new article will answer these questions and allow you to more fully understand this problem.

Definition of concepts. Main distinguishing features

The concepts of both public and non-public companies are given in the Civil Code of the Russian Federation and in the law on joint-stock companies. If we analyze the articles of the above normative acts, we can draw the following conclusions.

Public Joint Stock Company (hereinafter - PJSC)- this is a legal entity created for profit, having in the Charter an indication of its publicity, with a capital of at least 100,000 rubles, consisting of the nominal value of shares (and securities convertible into shares), placed through an open subscription and freely circulating on the market valuable papers.

Unlike him, non-public society- this is a legal entity created for profit, with an authorized capital of at least 10,000 rubles, consisting of the nominal value of shares or shares that are not subject to free placement and circulation on the market.

Many lawyers argue that the main difference between the two forms is the possibility of free circulation on the market for shares (and shares) of a legal entity. All other signs are secondary . Indeed, the state can even tomorrow increase the size of the authorized capital of a non-public company to 500,000 rubles, and of a public company to 1,000,000. However, it will never change order of treatment shares or shares. Therefore, it is he (that is, order) that is the watershed along which the main difference between a public society and a non-public one passes.

In the same time, arbitrage practice tells us about one more important detail. The law and arbitration believe that if a company does not have all the signs of publicity, but at the same time it has changed the Charter and indicated this fact in it, then it is still PAO. So, one Far Eastern company registered new charter and became a public company. At the same time, it did not register an issue prospectus and did not even begin to prepare shares for the market. Nevertheless, the Central Bank of the Russian Federation immediately held the organization liable for violating the rules for information disclosure. The company appealed against this decision in court, but the arbitration upheld the decision of the regulator. In issuing a judicial act, the arbitration explained that, despite the absence of signs of publicity, the legal entity still became PJSC from the moment this fact was indicated in the Charter. Even if it didn't issue papers. (Solution Arbitration Court Sakhalin Region in case No. А59-3538/2017 dated November 9, 2017). Thus, the main sign of the publicity of a legal entity is still a direct indication on it in the statute.

Characteristics of a non-public society

An essential feature of this form of organization of the company is the absence of free circulation of shares or shares in the market, as well as references in the Charter to publicity. The owner of securities or shares cannot sell them whenever he wants and to whom he wants. On such an operation, he must first notify the partners (and the society itself) and offer them his package or share. Accordingly, these securities and shares cannot be placed on the stock exchange. Failure to comply with this principle will result in the transaction being challenged in arbitration.

So, the owner of the shares of a non-public joint-stock company, which is a fishing enterprise, decided to part with his papers. By law and the Articles of Association, he was required to notify his company of his desire to sell the shares. However, the subject acted differently. He placed an advertisement on the local TV channel for the sale of his papers in the amount of 158 pieces. This announcement was seen by other co-owners of the joint-stock company and immediately turned to the company's management with the question: why is it violated preemptive right when buying shares? The management of the legal entity, in turn, only shrugged - for recent times none of the owners applied to the joint-stock company for the purpose of selling their shares. Then the co-owners turned to the registrar and found out that indeed one of their partners secretly sold the package to a third party. Naturally indignant shareholders appealed to the court, which recognized the transaction as illegal and transferred the rights and obligations of the acquirers to the co-owners. (Decision of the Arbitration Court of the Kamchatka Territory in case No. А24-5773/2017 dated 12/18/2017).

Further, an organization of this type can function without a Board of Directors (BOD) at all. Moreover, after 2015, when many JSCs moved into this category, they gladly liquidated the Board of Directors due to “their complete inefficiency and high cost”, and the functions of these structures were redistributed among other bodies of the legal entity. (Decision of the Arbitration Court Novosibirsk region in case No. А45-18943/2015 dated October 23, 2015). Well, about inefficiency, of course, one can argue, but the costs of maintaining the Soviets are really very high.

Next important point is that when the number of owners of securities does not exceed 50 people, the company has the right not to fully disclose information about itself. On the other hand, if the number of shareholders exceeds this figure, then the organization is simply obliged to publish its accounting and annual statements for public information. Failure to comply with this requirement leads to the fact that the management of the Central Bank of the Russian Federation immediately issues an order to the violator and requires compliance with the law. (Decision of the Arbitration Court Nizhny Novgorod region in case No. А43-40794/2017 of 01/24/2018).

Given the closed nature of the company, its size, as well as the lack of free circulation of shares on the market, the legislator allowed non-public companies to involve not only a registrar, but also a notary as a counting commission. Such "liberty" in the PAO is strictly prohibited.

Further, a certain "closeness" of the NAO also affects the procedure for purchasing securities. So, if a PJSC is subject to requirements regarding compliance with the procedure for mandatory and voluntary offers to co-owners when purchasing large blocks of shares (more than 30%), then such rules do not apply to a non-public company. Buyers of its assets are not limited to such additional procedures. At the same time, the legislator established that the general meeting and the Charter of the NAO can, in principle, limit the number of shares owned by one owner. In turn (as we will see below), this rule is no longer applicable to PAOs.

Main characteristics of PAO

As we said above, main feature PJSC is a reference to this form in the Articles of Association and the free circulation of shares on the market. However, in addition to these signs, there are others.

For example, the counting of votes and, in general, the duties of the counting commission in PJSC are performed only by a registrar with a license. No notary public can replace him. To do this, he allocates his representative, who is present at the meeting, counts the votes and certifies the decisions. (Decision of the Arbitration Court of the Voronezh Region in case No. А14-16556/2017 dated November 22, 2017). The absence of the registrar automatically leads to the invalidity of the meeting.

Further, the entity that has bought more than 30% of the voting shares must send the co-owners a mandatory offer to purchase such shares from them. If this requirement is not met, the Territorial Administration of the Central Bank of the Russian Federation issues an order to eliminate the violation of the law. (Decision of the Arbitration Court of St. Petersburg in case No. А56-37000/2016 dated 01.11.2016). There is no such requirement for a non-public company.

next feature A public company is required to have a Board of Directors. Moreover, it must include at least 5 people. As we said above, a non-public legal entity has the right to refuse this structure. The law does not prevent this.

In addition, unlike NAO, the legislator categorically prohibits limiting the number of shares owned by the owner in PJSC. So, in one of the Moscow public companies, the general meeting limited the number of shares that can be in the hands of one owner. This was done in order to prevent municipal authority concentrate a controlling stake. However, the arbitral tribunal recognized as null and void the provision of the Charter, fixing this requirement, and declared such a decision of the meeting illegal. (Decision of the Moscow Arbitration Court in case No. А40-156079/16-57-890 dated 06/14/2017).

Additional differences arising from organizational and legal forms

When characterizing public and non-public companies, many research lawyers face certain difficulties. The latter are caused by the fact that the legislator (one might say generously and not always systematically!) "scattered" them according to the Civil Code of the Russian Federation and the law on joint-stock companies. At the same time, he often preferred reference or binding norms. For example, having defined the concept of a public organization, he immediately indicated that if an LLC or JSC does not have the characteristics of such a legal entity, then it is considered non-public. Therefore, it is necessary to look for each article in the text of laws that contains a mandatory requirement for one organizational and legal form and, on its basis, derive the opposite possibility for another.

For example, the Civil Code of the Russian Federation (Article 97) clearly states that PJSC cannot give the General Meeting the authority to resolve issues that (by law) should be decided by other bodies of the company. And from this follows the conclusion that a non-public company, in turn, has the right to do this.

Or another example, the Civil Code of the Russian Federation prohibits a public company from placing preferred papers below the nominal price of ordinary shares. However, he does not say anything about NAO. Therefore, she has every right to such an operation.

If we carefully analyze other similar norms, we can conclude that, in general, they provide additional features for non-public companies. The main ones include the right of a shareholder to demand the exclusion of another co-owner from the Company if he violates the charter, the possibility of the existence of several types of preferred shares intended for voting on certain issues, and even the possibility of making a decision general meeting on issues not listed on the agenda, if all shareholders were present. Such "freedom" in PAO is unthinkable.

General features

Along with the differences between NAO and PAO, there are a number of common features. Thus, the rights of subjects to receive dividends, participate in management and property after the liquidation of the company are confirmed by their shares. In addition, companies may have several directors acting jointly or independently of each other. In the latter case, information about this must be entered into the Unified State Register of Legal Entities.

Further, participants in both public and non-public public companies has the right to conclude a corporate agreement or shareholder agreement. In accordance with this document, the owners of the company agree to exercise their rights in a certain way, or refuse to use them. However, the terms of such an agreement should not be contrary to law.

The next feature that unites PJSC and NAO is the obligation to use the services of a registrar. By the way, it was this requirement that forced many owners in 2015-2018 to abandon doing business in the form of a JSC and re-register it as an LLC.

In addition, PJSCs and non-public companies can apply to the Central Bank of the Russian Federation with a request to release them from the obligation to publicly disclose information (Article 92.1 of the JSC Law).

LLC is a non-public company

If you carefully read the articles of various experts about public and non-public companies, you can come to the conclusion that almost all of them talk only about NAO and PJSC. That is, joint-stock companies. At the same time, the authors diligently avoid the issue of LLC, although the legislator attributed this organizational and legal form to non-public companies. The answer lies on the surface. A share is still a security, and a share is a kind of symbiosis of property and non-property rights, as well as obligations of an LLC participant, expressed in monetary and percentage terms. Accordingly, their legal characteristics and turnover are significantly different. And in this case, the researcher stops at a loss, because many of the signs that are characteristic of HAE do not apply to LLC at all. For example, he has no obligation to conclude an agreement with the registrar and transfer the register of owners to him for maintenance, and even more so to him does not include all the rules governing the legal status of shares.

Further, the LLC may indicate in the Articles of Association that its decisions are confirmed simple signatures participants. But in any case, the NAO must invite a registrar or a notary to the meeting. So study legal status LLC, as a non-public company, deserves a separate article.

Brief conclusions

Let us now sum up some results. First of all, the legislator has listed in some detail the features of public and non-public companies. However, at the same time, he “scattered” the norms under the Civil Code of the Russian Federation and the law on joint-stock companies, which seriously hampered their comprehensive analysis. However, he could not do otherwise. After all, novels were introduced not for theoretical researchers, but for practical application. On the other hand, corporate lawyers now need to have remarkable knowledge in this area in order to skillfully apply new provisions and prevent accidental violations of the law.

Further, giving a description of public and non-public companies, the authors of the bill brought some confusion into the theory of legal entities. So, without mentioning such a function of a legal entity as “making a profit”, and referring LLCs to non-public companies, they made it possible to put forward assumptions that even non-profit organizations may belong to this category.

In addition, by introducing the term “public”, the legislator actually created new organizational and legal form - PAO . On the other hand, his antonym - “non-public” led to the emergence of JSC (not even NAO!) instead of CJSC, but did not change the legal form of LLC at all. It is as it was LLC, and remains. This contradiction has already led to disputes among legal scholars regarding the legal nature of these terms.

On the whole, let us emphasize once again: corporate and joint-stock legislation becomes more complicated every year. Therefore, we strongly advise our readers, if questions arise in this area, to use the help of only qualified specialists specializing in this area. This will, in the end, avoid many problems.

The essence and features of public and non-public companies

In order to understand how to determine the status of a particular society, it is necessary to analyze the norms that define these categories.

public society - a joint-stock company whose shares and securities convertible into its shares:

are publicly placed (by open subscription);

and/or publicly traded under the terms and conditions of the securities laws.

The rules on public companies also apply to joint-stock companies, the charter and company name of which contain an indication that the company is public (clause 1, article 66.3 of the Civil Code of the Russian Federation).

Public company - a business company based on shares (securities), which are placed and circulated among an indefinite circle of persons. This is a society with an unlimited and dynamically changing membership. Publicity means that the corporation focuses on an unlimited circle of participants (shares are offered for sale to a wide range of people).

Public companies are characterized by a large number of diverse shareholders. In order to ensure a balance of interests of the latter, the activities of such joint-stock companies are mainly regulated by imperative norms that prescribe unambiguous, standard rules for the behavior of corporation participants. The use of standards that cannot be changed at the discretion of the prevailing members of the company guarantees the attraction of investors.

Public companies borrow on the securities market among an unlimited number of persons, they cover a large array of diverse investors: institutional (the state, banks and investment companies), collective (collective investment funds, pension funds), small individual investors. The activities of public companies are largely regulated by imperative norms designed to ensure a balance of interests of a heterogeneous and dynamically changing mass of investors. Because this type economic society, unlike non-public, there is little freedom of intra-corporate self-organization.

Non-public society - a business company that does not meet the criteria established by law for public companies. This is a limited liability company and a joint stock company that does not meet the criteria specified in paragraph 1 of Art. 66.3 of the Civil Code of the Russian Federation (Clause 2, Article 66.3 of the Civil Code of the Russian Federation).

Non-public companies are, firstly, business companies, whose shares are placed among a predetermined circle of persons and do not go public. Secondly, this category includes companies based on a low-turnover asset - a share in the authorized capital of an LLC. Such companies are focused on a limited, small, predetermined composition of participants. They can apply special mechanisms to control the personal composition of their participants and they have much more freedom of internal corporate self-organization.

The activities of non-public companies are mainly regulated by dispositive norms of legislation that allow the establishment of individual rules of conduct (interaction) of corporation participants at their discretion. Non-public companies do not borrow from the open market. More dispositive norms are addressed to them, they have potentially greater freedom of internal corporate self-organization - that is, the ability to establish rules of interaction at their own discretion.

At present, the watershed between the strong mandatory regulation of intra-corporate relations and significant dispositive principles runs between two types of business companies - joint-stock companies and limited liability companies. The reform of the Civil Code of the Russian Federation shifted it along the line of public and non-public companies.

Criticism is expressed about the unification into a common type of business company (non-public) of various types of business companies: joint-stock companies based on shares and limited liability companies based on shares in the authorized capital. According to some experts, this leads to a mixture of these essentially different business entities.