Not so long ago, a new Law "On Limited Liability Companies" (the "Law") was implemented in Ukraine. However, long before the entry into force (and even before the adoption), the Law has caused a series of discussions, comments, discussions on the content of the provisions. And who has not discussed it with specialists - civilians, businessmen, corporative workers, and shipyards - the topics for discussion were not counted. The only, too modest were the executors - the collectors, who only noted for themselves the availability of the law, allowing collecting a share of the debtor in the company. However, the possibilities for using this procedure for many remain unclear until now.
The uncertainty is due to the rare practice of charging a debtor in the share capital of a limited liability company, and if such a share is 100%, then the society as a whole (hereafter referred to as a limited liability company).
This is a case of enforcement of court decisions, according to which executors (both public and private) for charging a debt to a debtor are levied on the debtor's entire property, including for the shares he owns in the authorized capital of economic partnerships. Although for the sake of justice, it should be noted that the previous legislation did not restrict the executor in the possibility of recovering the share of the debtor in the authorized capital. And the normative justification for such a penalty was also - according to the Law "On Enforcement Proceedings", the executor is obligated to recover the debtor's property.
And to the notion of "property" in the Civil Code of Ukraine (Article 190), in addition to things, also included property rights. In addition, Article 147 of the Civil Code of Ukraine, which was earlier, directly provided for the possibility of alienating a share in the authorized capital of a limited liability company. However, the very mechanism of alienation of such a share in the legislation was not. More precisely, on the contrary, there were legislative barriers in the process of transferring ownership of this share in case of its alienation. And all attempts to get around these obstacles were completed for executives by accusations of "raiding". Indeed, without the consent of the participant to deprive him of his share is impossible, as without the consent of other members of the partnership.
The concept of "consent" in the community is the cornerstone of its legal nature - it is a consensus on joint activities to achieve a single commercial goal. In fact, without the consent, the partnership will not be able to function. The necessity of agreement between the parties is also constantly emphasized in the Law: the necessary consent to the formation of a company (corporate agreement - Article 7); agreement on the implementation of significant transactions (Article 44); agreement for management through the general meeting (Articles 33 - 34); including the consent to the alienation of shares in a partnership to third parties (Articles 20 - 21).
However, the forced foreclosure of a shareholder in the company provides for the possibility of alienating a share without the consent of such participants (and, above all, the owner of the share). After all, conditionally speaking, in an established "friendly" group of like-minded people-members of the society may appear uninvited guest, which will quickly violate the lasting synergy between the participants. And then the partnership, as a legal institute, built on mutual consent, may come to an end.
That is, the legal nature of the enforcement process comes into conflict with the legal nature of the society itself, or, in other words, these are two incompatible things.
But, on the other hand, there are often situations where debtors of other property, which may be subject to foreclosure, other than shares in the company, are absent. And is it possible that the court decision can not be executed for the sake of preserving the purity of the legal nature of the partnership?
Apparently, the legislator took this into account and tried to some extent agree on the need to achieve justice, both during the execution of a court decision, and in the case of a partnership. This is expressed in Article 22 of the Law, which provides for the recovery of the share of the participant in the company. Without going into some details, according to the general scheme the performer:
- imposes an arrest on a share, as reported by the company;
- receives from the company the documents necessary for determining the value of the share;
- after determining the value proposes to redeem it to other members of the company;
- in the absence of "willing" from among participants, transfers the share for sale at the auction in the general order.
Although the generalization of the scheme is in the Law, there are still rational questions:
- Is it possible to appeal against an estimation of the value of a share by an executor (since the value can be determined to such an extent that none of the participants knowingly does not want to redeem it);
- in which period the participants must inform the performer about their desire to redeem the share; - what to do to the performer, if all the participants have expressed their desire to redeem the share (the Law does not stipulate the competition between them); - In what period must be entered into a contract of sale of the share, who is the seller (the performer or the debtor?), And where the payment is credited.
The Law on Enforcement Proceedings also does not provide answers to these questions, despite the fact that it was supplemented by a special article 531 with the noisy name "Specifics of charging a shareholder of a limited liability company, a member of a company with additional liability." This article, in one short, but ingenious in its simplicity, indicates that all the features are determined by the Law.
But will such questions necessarily arise in practice? Is it possible to avoid them? And here again everything will depend on the concept of consent we have agreed upon between the members of the partnership. If the participants agree to get rid of the "debtor" in their ranks, then the executor, of course, will not have problems with the recovery of the share. However, if the participants, in a single agreement, want to support their "friend", then, for example, expressing consent to buy a share, it is easy to explain to the performer that the terms of redemption are not limited, then no compulsory sale of the share will be.
In the old-fashioned legal literature, the society was even called - "partnership", that is, the team of true comrades, which are bound by the duty to support each other in all matters of joint activity. At the same time, it is surprising that the law does not foresee such a compromise option of redemption of a share as a ransom by the company itself. In our opinion, this could remove many controversial issues concerning the notion of consent in the actions of the society and its participants.
Now it is worth considering the possibility of re-registering the share of a member of the company in the event that the executor nevertheless managed to bypass the will of other participants to pass the share to forced implementation. Corresponding changes were also made to the Law "On State Registration of Legal Entities, Individuals - Entrepreneurs and Public Associations".
Article 17 of the said Law was supplemented with a new wording of part 5, which states that (in addition to general documents) the act of acceptance and transfer of a share in the authorized capital of the company (subsection "ґ" of paragraph 3) shall be submitted for state registration of changes to the information on the composition of the members of the partnership. From the entire list, this is the only document that may fit under the notion of an act of acquiring property in public bidding, issued by the executor. It is noted that such an act is signed by a person who has acquired a share in the authorized capital of the company, or the person who transferred it. Unfortunately, this Law, unfortunately, does not specify who should be the person who transfers (the executor or the debtor), and whether an alternative to the subject of the submission is allowed.
It is clear that such wording of the Law will necessarily require another "consent" and a state registrar who will register the changes, - agreement with the contractor on the same understanding of the law on the identification of the filing document and the correct definition of the subject of submission. And such an agreement, as evidenced by the previous experience, has never been achieved.
Although, of course, the acquirer will have the opportunity to find such an agreement in a court decision, which will oblige the registrar to take the necessary registration action. However, at the same time, neither the buyer nor the performer, and even more so, the judge does not exactly avoid accusations of "raiding".
But most importantly, what is worth returning to, this is the beginning of the procedure for charging a share - her arrest. After all, without providing a restriction on the independent alienation of a shareholder by the debtor, no charge (even with voluntary and general consent) will no longer apply.
Given the specifics of the subject of arrest, it is clear that one executive order is few - it must be registered. Article 25 of the Law "On State Registration of Legal Entities, Individuals - Entrepreneurs and Public Formations" stated that it is carried out by a state registrar in the Uniform Register in the form of the arrest of corporate rights (in the sense of Article 167 of the Commercial Code of Ukraine, the concept of corporate rights also includes share in the company).
However, the above-mentioned Law specifies that arrest is carried out only on the basis of a court decision, but it can still be filed either by a court or a state executive service. That is, there are no resolutions about the executive in the Law, but even more so, they may not try to do it privately-owned entities - as entities of appeal to the registrar, they are not foreseen at all.
The only option for an executor is still to register the arrest of a share in the Register of encumbrances of movable property, but again with the prospect of a lawsuit, as the state registrar does not check the information of this Register when registering the transfer of the share of the participant in the company.
CONCLUSION:
Consequently, the preliminary analysis showed that the provisions of the Law did not particularly change the existing and before its adoption the possibility of levying a share of a member of the company. That is, the need for the consent of other members of the company to alienate a share is still needed. And the court decision can and wait.
Posted by Aleksey Solomko
Source: League law
(translated using google translate)