Question: Which joint stock companies are public and which are non-public?

Answer: The characteristics of a public joint stock company are established in clause 1 of Article 66.3 of the Civil Code of the Russian Federation.

A joint stock company is public:

The charter and corporate name of which contain an indication that the company is public, even if the company’s shares are not placed by public subscription and are not publicly traded;

whose shares and securities convertible into its shares are publicly placed (through open subscription);

The shares of which and the securities convertible into its shares are publicly traded under the terms and conditions established by securities laws. Moreover, the charter of such a company and its corporate name may not contain an indication that the company is public.

A joint stock company that does not meet the above criteria is considered non-public (clause 2 of Article 66.3 of the Civil Code of the Russian Federation).

Article 7. Federal Law “On JSC”. Public and non-public companies (as amended by Federal Law No. 210-FZ of June 29, 2015) gives a more complete definition of a public or non-public company.

1. A company can be public or non-public, which is reflected in its charter and corporate name.
2. A public company has the right to place shares and issue-grade securities convertible into its shares through open subscription. Shares of a non-public company and issue-grade securities convertible into its shares cannot be placed through an open subscription or otherwise offered for purchase to an unlimited number of persons.
3. .............................................................................................................................................

In total, we can conclude that the following can be recognized as a public joint stock company:

1. JSC, the charter and name of which indicate this (voluntary publicity). There were no requirements for making such changes to the company’s charter until July 1, 2015.

2. A joint stock company whose shares are publicly placed (by open subscription) or have been placed (clause 1 of the Letter of the Central Bank of the Russian Federation dated August 18, 2014 No. 06 - 52/6680).

3. A joint stock company whose shares are publicly traded (at organized auctions or by offering to an unlimited number of persons) or have been circulated (clause 1 of the Letter of the Central Bank of the Russian Federation dated August 18, 2014 No. 06 - 52/6680).
4. A joint stock company whose shares are/were publicly traded. Public circulation means, inter alia, the sale of shares during privatization in ways that presupposed the participation of an unlimited number of acquirers, for example, sales to:
- auction;
- commercial competition;
- investment competition (bidding);
- specialized auction;
- specialized check auction.
To qualify as a public company, it is necessary that at least one transaction takes place during trading. If the privatization plan provided for sale to an unlimited number of persons, but according to the results of the auction not a single deal was concluded, then there is no sign of publicity. Public circulation means circulation carried out only in accordance with securities legislation. Those. not taken into account:
- sale at auction during enforcement proceedings;
- sale at auction during bankruptcy proceedings, etc.

In connection with the reform of corporate law, the classification of business companies, which has become customary over a fairly long period of existence, has changed. Now there are no JSC and JSC. They were replaced by public and non-public ones. Next, let's look at the changes in more detail.

New categories: first difficulties

So, instead of OJSC and CJSC, public and non-public companies appeared. The law changed not only the definitions themselves, but also their essence and characteristics. However, the categories did not become equivalent. Thus, a closed joint-stock company cannot automatically become non-public, just as an open joint-stock company cannot become public. The accepted wording of the norms can be interpreted in two ways. There are not enough explanations today, and arbitrage practice absent at all. It is therefore not surprising that companies may encounter difficulties in the process of self-determination.

Goals of the new classification

Why was it necessary to introduce public and non-public companies? The rules for regulating intra-corporate relations that existed for closed joint-stock companies and open joint-stock companies, according to the rule-makers, turned out to be insufficiently clear. The new classification should presumably establish differentiated management regimes for companies that differ in the nature of their turnover and shares, as well as the number of participants.

The essence and characteristics of software

A joint stock company should be considered public in which shares and securities convertible into them are placed through open subscription or public circulation in accordance with the conditions established by regulations. The turnover is carried out within an indefinite circle of participants. Public society is distinguished by a dynamically changing and unlimited subject composition. Openness means that the company is focused on a wide range of participants. It is typical for a public society big number diverse shareholders. To maintain a balance of interests of participants, activities in such JSCs are regulated primarily by imperative norms. They prescribe standard, unambiguous rules of conduct for corporate participants. The use of provisions that cannot be changed at the discretion of the dominant entities of the company guarantees the attraction of investment.

PO activities

Public companies borrow on the stock market from an unlimited number of persons. These corporations cover a wide range of diverse investors. In particular, software interacts with the state, banks, investment companies, collective and pension investment funds, small individual subjects. The activities carried out by public companies, as mentioned above, are regulated by imperative norms. This indicates relatively little freedom within the corporate organization.

The essence of BUT

A company that does not meet the criteria established by law for a public company is considered non-public. The specified criteria are given in Art. 66.3 Civil Code. BUT - corporations that place securities within a predetermined circle of entities. They do not go into open circulation. In addition, BUT are based on a low-current asset - shares of an LLC. Public and non-public companies differ in the mechanisms used to manage internal corporate relations. Thus, non-profit organizations can use a special subject composition of participants. They have greater freedom of internal corporate self-organization.

Features of the functioning of NO

Activities carried out by non-public companies are regulated primarily by dispositive norms. They allow the introduction of individual rules of conduct for company participants at their discretion. Non-public companies do not borrow on the share market.

Regulatory separation

Today, the border between imperative and discretionary management passes between JSC and LLC. The Civil Code reform has shifted it somewhat. However, according to some critics who analyze the order in which public and non-public joint stock companies exist today, there is some confusion when classifying them into any of the categories. However, there is another opinion on this matter. When corporations are included in public and non-public joint stock companies, the fundamental differences between the entities are not questioned. The features of the turnover of securities and shares are quite clearly expressed, which is the main feature for classification. The division into public and non-public societies is reduced solely to an attempt to form common governance regimes. At the same time, the expansion of the influence of dispositive norms does not apply to the features that distinguish the circulation of securities. Due to insufficient practice and the absence of a number of clear formulations, classifying some joint-stock companies as public and non-public companies is difficult.

Comparative characteristics

Public and non-public companies mainly differ in the method used to issue securities. How these procedures are carried out in NO and software is described above. Public offering of securities means alienation through open subscription. It is a way to increase the authorized capital of a corporation. The software carries out paid placement of an additional number of shares during the issue process among an unlimited number of entities. The method of alienation of securities is included in the decision on their issue. This document is approved by the board of directors and is registered with the state market regulator. Previously, it was the Federal Financial Markets Service of the Russian Federation and the Federal Commission for the Securities Market of the Russian Federation. Currently, the state regulator in the market is the Central Bank of the Russian Federation. After registration, the document must be kept by the issuer. Based on the text of the decision, it can be determined whether an open subscription of an additional number of shares was carried out or not. Public and non-public companies also differ in the method of circulation of securities. Turnover is the process of concluding civil transactions. They entail the transfer of ownership of shares (securities) after their first alienation following their release by the issuer (outside the issue procedure).

The sign is open appeal. What does it mean? This term should be understood as the turnover of securities (shares) within organized trading. Public circulation can also be carried out by offering them to an unlimited number of subjects. Among the ways to implement this opportunity is advertising. These provisions are established in Art. 2 Federal Law No. 93, which regulates the functioning of the securities market. It should be noted that shares can be circulated using different methods. In particular, it may be a one-time event. In this case, the appeal has a time limit. This, for example, could be a sale at auction to a wide range of people. Also, the appeal can have an unlimited duration. For example, this occurs when trading occurs on securities exchanges.

Paragraph 2 of Chapter 4 of the Civil Code contains general rules O business partnerships and societies. The general rules are contained in Articles 66-68, these articles have been amended since 09/01/14. Article 66 establishes the legal definition economic society– is a corporate commercial organization with an authorized capital divided into shares; property created from the contributions of the founders belongs to him by right of ownership.

Features of a business company:

• 1. Availability of membership.
• 2. Availability of authorized capital, divided into a certain number of shares or shares.
• 3. Property belongs to the company by right of ownership.
• 4. The presence of corporate rights among the company's participants in relation to the company.
• 5. Management is carried out by forming a general meeting, decisions are made by voting.
• 6. General legal capacity of a business company.

Article 66.3 – public and non-public companies.

A new one is being introduced for Russian law classification into public and non-public companies. The meaning of the classification: to protect joint-stock companies whose shares are not publicly placed from excessive regulation of joint-stock legislation.

Criteria for classifying a business company as public:

• 1. The presence in the company name of an indication of the publicity of the company.
• 2. Public placement of the company's shares on the stock exchange; public offering of securities convertible into shares.

The specified criteria are subject to application to those JSCs that were created before 01.09.14 and meet the criteria of publicity. The law established that only joint-stock companies can be public; non-public ones can include limited liability companies and joint-stock companies. Character legal regulation within public and non-public societies should differ significantly.

Public companies place shares on the stock exchange through open subscription, have the opportunity to attract any third parties to participate in the company, and, therefore, their actions can violate the rights and interests of an indefinite number of persons. To prevent such violations, the rules regarding the regulation of corporate relations in public societies should be more strict.

Non-public societies attract close or predetermined circles of people to participate. The new edition of the Civil Code allows non-public companies to change the general rules established by law by special legislation, such changes are carried out in founding document- the charter. The decision to establish rules other than those provided for by the Civil Code must be made unanimously by all participants in the company. The Civil Code only defines the scope of dispositivity.

The Civil Code provides for the opportunity for non-public companies to change the competence of the general meeting of participants - it can be either narrowed, i.e. Some of the issues that are legally considered by the general meeting can be transferred to the management of a collegial governing body (board of directors), or expanded, i.e., issues that are not considered by the general meeting can be included in the consideration of the general meeting. The Civil Code has established a number of issues that cannot be referred to another body for consideration. Questions that general meeting always decides:

• 1. Amendments to the charter.
• 2. Reorganization and liquidation.
• 3. Formation of governing bodies (collegial and executive)
• 4. Determination of the amount of par value of a category of authorized shares, as well as determination of the rights that are provided by the shares.
• 5. An increase in the authorized capital, disproportionate to the shares of participants or at the expense of third parties.
• 6. Approval of internal documents that are not constituent.

In the list of issues that relate to the consideration of the general meeting, Article 66.3 does not include issues of distribution of profits and losses. There is no clear opinion in the literature regarding the possibility of transferring the issue of distribution of profits and losses to another body for consideration. The Civil Code contains Article 67.1, clause 2, which establishes the exclusive competence of the meeting of participants of a business company: exclusion of a participant from the company, distribution of profits and losses. The lecturer believes that it should be said here that there is a contradiction between norms 66.3 and 67.1.

The Civil Code allows the refusal to create a collegial body, provided that all the functions of such a body are transferred to a collegial governing body. In a non-public company, it is possible to exclude the audit commission from the body. The Civil Code allows the establishment of a different procedure for preparing, convening and holding a general meeting of participants and shareholders.

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The essence and characteristics of public and non-public societies

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:

publicly posted (through open subscription);

and/or publicly traded under the terms and conditions required by 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 is a business company based on shares (securities), who are placed and circulate among an indefinite circle of people. This is a society with an unlimited and dynamically changing composition of participants. Publicity means that the corporation focuses on an unlimited number of participants (shares are offered for sale to a wide range of people).

It is typical for public societies 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 primarily regulated by imperative norms, which prescribe unambiguous, standard rules of conduct for participants in the corporation. The use of standards that cannot be changed at the discretion of the prevailing participants in the society guarantees the attraction of investors.

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

Non-public company - 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 of 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 are not publicly traded. Secondly, this category includes companies based on a low-current asset - a share in the authorized capital of an LLC. Such companies are focused on a limited, small, predetermined number of participants. They can use 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 primarily regulated by dispositive norms of legislation, allowing for the establishment of individual rules of conduct (interaction) for corporation participants at their discretion. Non-public companies do not borrow from open market. They are addressed with more dispositive norms; they have potentially greater freedom of internal corporate self-organization - that is, the ability to establish rules of interaction at their own discretion.

Currently, the divide between strong mandatory regulation of intracorporate relations and significant dispositive principles passes between two types of business companies - joint stock 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 general 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 economic societies.

Hello! If we talk in simple language, a joint stock company is a legal form that is created for the purpose of pooling capital and solving business problems. In this article we will take a closer look at how a PJSC differs from a NAO.

JSC classification

Until 2014 inclusive, all joint-stock companies were divided into two types: closed joint-stock companies (closed) and open joint-stock companies (open). In the fall of 2014, the terminology was abolished, and a division into public and non-public societies began to operate. Let us dwell on this classification in more detail. It is worth considering that these terms are not equivalent; not only the terms themselves have undergone changes, but also their characteristics and essence.

Characteristics of public and non-public companies

Public joint stock companies (abbr. PJSC) create capital through securities (shares), or by transferring fixed assets into securities. The functioning of such companies and their turnover must fully comply with the Federal Law “On the Securities Market” adopted in the Russian Federation.

Also, taking into account all the conditions set by the legislator, publicity must be mentioned in the title.

Non-public companies include limited liability companies and joint stock companies (JSC).

Let's look at the comparative characteristics using the table below. It clearly presents important criteria for comparative analysis, although this list is not complete.

Table: Comparative characteristics of PJSC and NJSC

The main features of public joint stock companies are the following:

• The number of shareholders is not limited;
• Free circulation of shares is allowed.

If we talk about the authorized capital, its size is also determined by federal legislation. The formation of the authorized capital of a PJSC occurs due to the fact that shares are issued for a certain amount of money.

The size of the authorized capital in this case is a value that can vary, decrease or, conversely, increase. This depends, first of all, on how the shares are redeemed. As can be seen from the table above, the size of the authorized capital is 100,000 rubles.

As practice shows, control by inspection authorities is stricter than in other cases. This is explained, first of all, by the fact that everything statutory documents they say that this society is as open as possible to third parties. That is, it is absolutely clear that citizens can purchase company shares. Accordingly, supervisory authorities require maximum transparency and accessibility of all data.

For more complete information on this issue it is worth contacting Civil legislation RF.

Statutory documents

The main document for a PJSC is the charter. As a rule, it reflects all the provisions governing the activities of the organization, and also records information about openness.

The charter spells out in detail all the procedures for issuing shares, and also contains information on the calculation and procedure for paying dividends.

Availability of property fund and shares

PJSC property funds are formed primarily through the turnover of the organization’s shares. At the same time, the net profit that will be received during the organization’s activities can be included in the property fund. The law does not prohibit this.

PJSC governing bodies

The main body for carrying out management activities in a PJSC is the general meeting of shareholders. It is usually held once a year and is initiated by the board of directors. If such a need arises, the meeting can be held on the initiative of audit commission, or based on the results of the audit.

It often happens that a PJSC issues a large number of its shares on the market, and then the number of shareholders can number more than one hundred people. Gathering them all at one time in one place is an impossible task.

There are two ways to solve this problem:

• The number of shares whose owners can participate in the meeting is limited;
• Discussions are conducted remotely, using the method of sending out questionnaires.

The meeting of shareholders makes all important decisions on the activities of the PJSC and plans events for the development of the company in the future. The rest of the time, management responsibilities are performed by the board of directors. Let us explain in more detail what kind of control body this is.

In large companies, the number of board members can reach 12 people.

Forms of management activity

Formed on the basis of legislation European countries. Usually this:

• Meeting of all shareholders;
• Board of Directors;
• General Director in a single person;
• Control and Audit Commission.

As for the types of activities, it can be anything that is not prohibited by the law of our state. There can be only one main activity.

Some types of activities require licensing, which can be obtained after the PJSC has completed the registration procedure.

The legislation of the Russian Federation requires all PJSCs to post the results of annual reporting on the official websites of the companies. In addition, the results of operations for the year are checked for compliance with reality by auditors.

Currently non-public are JSC (joint stock companies) and LLC. The main requirements that legislation imposes on NAO are as follows:

• The minimum amount of authorized capital is 10,000 rubles;
• There is no indication of publicity in the title;
• The shares must not be offered for sale or listed on stock exchanges.

Important fact: the non-public nature of the organization implies greater freedom in the implementation of management activities. Such companies are not required to post information about their activities in publicly available sources, etc.

Statutory documents

The charter is the main document. It contains all the information about the organization, information about ownership, and so on. If legal problems arise, this document can be used in court.

Therefore, the charter must be written in such a way that all kinds of loopholes and flaws are completely excluded. When the charter is at the drafting stage, you should carefully analyze the regulatory documents, or seek advice from specialists who have experience in developing documentation of this type.

In addition to the charter, an agreement called a corporate agreement can be concluded between the founders. Let's take a closer look at the analysis of this document.

A corporate agreement can be called a kind of innovation, which stipulates the following points:

• All parties to the treaty must vote equally;
• The total price for shares owned by all shareholders is established.

But this agreement implies one clear limitation: shareholders are not obliged to always agree with the position of the management bodies on any issues. By and large, this is a gentleman's agreement translated into legal terms. If the corporate agreement is violated, this is a reason to invalidate the decisions of the shareholders’ meeting.

Let us note that the participants of a non-profit joint-stock company can be its founders, who are also its shareholders. This is due to the fact that the shares cannot be distributed beyond these individuals.

The number of shareholders is also limited; it cannot exceed 50 people. If their number is more than 50, the company must be re-registered.

Governance bodies of the Nenets Autonomous Okrug

In order to manage a non-public joint stock company, a general meeting of shareholders of the company is held. All decisions made at the meeting are certified by a notary, and they can also be certified by the person who heads the counting commission.

Property of the Nenets Autonomous Okrug

After an independent assessment, it can be contributed to the authorized capital as an investment.

NAO shares

• Not addressed publicly;
• Publication by open subscription is not possible.

If we talk about types of activities, then everything that is not prohibited is permitted. That is, if the legislation of the Russian Federation does not prohibit a specific type of activity, it can be carried out.

In general, the essence of NAO is that these are companies that simply do not issue shares to the market; these are closed joint-stock companies that practically existed before the adoption of the new law, but still, this is not the same thing.

There is no obligation to post the results of financial statements for the year for the NAO. Such data is usually of interest only to shareholders or investors, and in this case they are the founders, who already have access to all the necessary information.

The definition of business companies includes public and non-public organizations engaged in commercial activities, in which the authorized capital consists of shares. The property fund is created from contributions made by the founders.

Business companies are also classified into public and non-public.

Ability to move from one form to another

The law does not prohibit changing one organizational form to another. For example, it is quite acceptable to transform a non-profit joint-stock company into a PJSC. What actions need to be taken for this:

• Increase the size of the authorized capital to 1000 minimum wages;
• Develop documentation that will confirm that the rights of shareholders have changed;
• Conduct an inventory of the property fund;
• Conduct audits with the involvement of auditors;
• Develop an updated version of the charter and all related documentation;
• Carry out the re-registration procedure;
• Transfer the property to the newly formed legal entity. face.

As a result of the legislative reforms carried out, many changes have occurred in corporate law. Traditional concepts have been replaced by new ones.

Although all the changes took place back in 2014, in some cities you can still see signs with familiar CJSC or LLC. But all new organizations are registered exclusively as public or non-public companies.

Conclusion

Creation and design joint stock company– a process that requires attention and responsibility. Problems of various kinds arise even during the process, so you shouldn’t save on your future company, and if you have any doubts, you should contact qualified specialists.

Implement right choice- this is the first step along a long road to achieving success in, so you need to make a decision carefully, having thought through everything to the smallest detail.