LegalEnglish

Constitutional documents = founding documents = constitution

1) The types of persons include individuals and legal entities. An individual means a natural person (i.e. Human being), but for the purposes of our course, legal entities represent the principal interest.

legal entity or juristic person means an entity such as corporation , that is recognized as having legal personality , i.e. It is capable of enjoying and being subject to legal rights and duties. It is contrasted with a human being, who is referred to as a natural person or individual.

2) Legal personality is the characteristics regarded by law to have a status of person. A legal person has a legal name, rights , previlegies, responsibilities and liabilities under law just as natural persons do. Legal personality allows one or more natural persons to act as a single entity as a legal person. They may sue and be sued and enter into contrasts and incur debts and have ownership over property. Entities with legal personality may also be subject to certain legal obligation such as payment of fax. An entity with leg.personality may protect its shareholder for personal liabilities.

3) Corporate veil means a legal concept that that separates the personality of the corporation from the personalities of shareholders and protect them from being personal liable for the firms debts and obligations. However when a code determins that a firm's bussiness was not conducted in accordance with the provisions of corporate legislation it may lift the corporate veil and thus hold the shareholders personaly liable for the firm's activities.

4) Legal entity or juristic person means an entity such as corporation , that is recognized as having legal personality , i.e. It is capable of enjoying and being subject to legal rights and duties. It is contrasted with a human being, who is referred to as a natural person or individual. (2)

10. The founding documents of a UK comp. are:

-Memorandum of Association

-Articles of Association

(меморандум об учреждении и Устав)

11. The founding documents of a US corp. are:

-Articles of Incorporation

-By-Laws

(заявление об учреждении и Устав)

Of a Limited Liability comp.:

-Articles of Incorporation 

-Operating Agreement

(Заявление об учреждении и Договор о порядке деятельности)

12. Registration statement is the founding document of a Partnership (UK,US).

It refers to jurisdiction of UK and US. It manages (governs) external activity, regulates relations between partnership and the outside world. This type of documents requires both in the UK and US.

13. Limited Liability Companies have the advantage that the member's liability to contribute to the debts of the comp. has a fixed limit which is always clear. There are two ways of setting the limit, by issuing shares or by taking guarantees from the members that they will contribute up to a fixed amount to the debts of the comp. when it needs money in particular circumstances.

Setting up as a limited comp. is an attrective option for many people, because personal assets (property) are distuged from company finances.

Limited liability - is already an advantage.

14. Unlimited companies form only a small proportion of the number of registred companies, because the members of an unlimited company will be held responsible for all the debts of the company.

15. Limited liability is a concept where a person's financial liability is limited to a fixed amount, most comonly the value of a person's investments in a comp. In case the company is sued, the members of the company are not sued. By contrast, sole proprietors and general partnerships are each liable for the debts of the business. However, a shareholder may be held liable for his own acts.

16. Private comp. limited by shares has shareholders with limited liability, and it's shares may not be offered to the general public. Shareholders of Provate comp. limited by shares are often bound to offer the shares to the fellow shareholders prior to selling

20. If a comp. wants to change its status from private to public, it must submit a declaration to the registrar of comp. that the 1) minimum capital requirements for public comp. are satisfied; 2) special resolution is passed.

Subject to companies act 1985 the minimum capital and special resolution are enough to register a comp. as a public company. After that the registrar of companies issues a certificate of incorporation.

21. A comp. may change it's status from private to public comp. and vice versa. To change the status from a private to public the comp. must have a certain amount - minimum capital, required by law and pass a special resolution (the resolution is passed by 75 per cent of the votes). It is common to change the status from private to public, then to register a public company at the very beginning.

23. MA specifies the company's constitution and objects. For example, a company limited by shares must specify:

-its name

-location (England, Wales or Scotland)

-objects

-limited liability

-maximum amount of capital it may have and its division into shares.

For example, a public company must specify, that it is a public company, how many shares each subscribers has.

24. The choice of a name of a company is very important and it is subject to a number of restrictions:

- if a comp. is a private limited comp., the companies name must end with LTD

- if it is a public limited company, the name must end with PLC.

A comp. can not be registered with a name:

1) which is the same as the name on the index.

2) that constitutes a criminal offence, offensive, is connected with the government, name of a bankrupted company.

3) if a name of a new comp. is so similar to the name, used by existing comp., that it can mislead the public, it is called "passing off"

25. There are 3 types of US corporations:

0. Close corporations

1. General corporations

2. S corporations

Close corporations - is suited to individual, who wants to start comp. alone or with a small group of people. The members will participate (учавствовать) in management and stock ownership. It is like a partner ship, there are not so many formalities, as for general corporations.

General corporation - is a corporation suited to a person, who wants to start a comp. with more than 30 stockholders and large public stock offerings (публичное предложение акций).

S corporation - is highly desirable (предпочтительная) for tax purposes. To obtain (получить) S corporation status there must be an election on IRS form. Income (доход) in S corporation is like income in a partnership, losses also pass through the corporation to the shareholders.

26. The overview of the Delaware General Corporation Law. Corporation Law in the USA governs (управляет) the creation (созданием) the internal governance of corporations, it is different in different states. Delaware is the most popular jurisdiction of incorporation for holding companies and multi state corporations, both domestic and international. There are 3 main factors of its success:

0. Flexible and current corporate law (гибкое и современное корпоративнре законодательство)

1. Export judiciary (профессиональные судьи)

2. Policy of the secretary of state to promote Delaware incorporations and service to the citizens.

Corporate governance:

There is an atmosphere of minimum regulation of internal governance, companies may engage (заниматься) in virtually any lawful activities (практичеки любой заеонной деятельностью), there are few requirements for corporate documents (they may include any provisions (положения) not contrary to the laws of the state)

Directors:

Directors manage all business of the company, the board has broad powers: to adopt (принимать), amend (вносить изменения), repeal (отменять) companies By-Laws, specify the number of directors, dividend rate (размер), issue authorised shares without stockholders approval. There are no minimum number of authorised shares, restriction (ограничение) of the type of stock, rights of share holders, incorporaters are not required to be US citizens; directors could be non-residents there are no requirements for independent audit; directors may delegate some of their functions to comities (комитетам), directors may appoint officers to operate business on a day-to-day bases (president, vice president, treasurer, secretary).

27. Difference between "affiliate" (филиал) and "subsidiary" (дочернее предприятие).

Affiliate is a person or entity of a legal entity, which is situated out of the legal entity's location, it performs all or a part of its functions. It is not a legal entity. Directors of affiliates are appointed by their legal entity. Information about affiliates shall be specified in the founding documents of the legal entity.

Subsidiary is a legal entity, created by another legal entity - its parent comp. It has its own charter, director and acts as a separate legal entity.

LLC and JSC in Russia

The Civil Code of the RF of 1995 goverence business interprises in russia (JSC, LLC). There are other separate laws governing this companyes:

0. federal law on joined stock companyes 1995.

1. Feferal law on limited liabilyty companyes 1998

The JSC law places a number of structural and procedural requarenments on establishment and operation of the company. The JSC law shifted power from the shareholders meeting to the board of directors (the most powerfull body). In small (fewer than 50 shareholders) companyes the B&D may be removed and the powers are exercised (осуществляются) by the shareholders meeting.

In an LLC the structure is flexible. The general meeting of participans is the supreme governing body. B&D is an option. Day-to-day business (ежедневная деятельность) is managed by the sole/collective executive (управление ежедневной деятельностью осуществляется единоличным/коллективным исполнительным органом).

31. Owerview of the security laws in Russia.

1. Initial registration (первоначальная регистрация):

Issueing shares is an additional step after JSC is registred. A company may not issue shares, place shares, pay for shares without sequrity registration with the federal securities' commition (ФКЦБ) under the law of securities.

2. Reporting requarenments (требования к отчетности):

Issuers (эмитенты) of securities submit (поадют) periodic reports on transactions (по сделкам с ценными бумагами) with securities.

3. Increase in the charter capital (увеличение уставного капитала):

This procedure is rather complex. Significant charter capital increases entails( влечет за собой) preparations and registration of a prospectus. For LLCs (which don't issue shares) the procedure is less complex.

4. Taxation:

Charter capital increase is the same as new share issue and it is subject to (подлежит) securities' tax of 0,8 per cent of the amount of nominal value of newly issued shares. It doesn't apply to LLCs, but 20% of VAT (НДС) may apply to LLC participation interests (долям участия).