From the first of September 2014 all legal entities must confirm the adoption of the decision by the general meeting of participants/shareholders. Depending on the type of legal entity, the legislator has determined methods for such confirmation.

Methods of confirming a decision made by the General Meeting of Participants / Shareholders

These changes are aimed at protecting the rights of shareholders/members of the company when making the most important management decisions in the organization that fall within the competence of the General Meeting, since the presence of a third-party observer or the technical ability to record the composition of participants and the way they make decisions will prevent or resolve many corporate disputes (the most common of which are questions about quorum when making decisions and voting on certain issues).

We propose to consider in more detail the methods proposed by the legislator for confirming the decision and the composition of the participants present.

For joint-stock companies there are only two “options” - a notary or a registrar who maintains the register of shareholders.

1) Confirmation by the registrar.

Based on the wording of Article 67.1 of the Civil Code of the Russian Federation, it follows that a representative of the registrar must actually be present at the General Meeting of Shareholders, while problems related to trade secrets, distribution of dividends, and other confidential issues can be discussed at the Meeting. The question arises: how will the security of this information received by a person outside the company be ensured and by whom? What is the responsibility of the registrar in the event of disclosure of such information by its employees?

Of course, these issues must be resolved in an agreement with the registrar, since Order of the Federal Financial Markets Service of Russia dated December 23, 2010 No. 10-77/pz- “On approval of the Regulations on the procedure for interaction when transferring documents and information that make up the system for maintaining the register of securities holders” they are not defined. However, discussing issues on the agenda in front of an outsider is in any case uncomfortable, because formal liability does not compensate for losses from the disclosure of trade secrets. It may be advisable to approve the procedure for holding a meeting in which: the registrar is present only when registering shareholders at the beginning of the meeting, and at the end of the meeting when voting. And when discussing business ideas, commercial projects, know-how, the registrar’s representative will be removed, because its functions are not required.

An important issue is related to the cost and actual possibility of the presence of a representative of the registrar at the meeting, especially during the period of mass annual meetings of shareholders held in the second quarter of the year.

The cost of services will vary depending on the registrar, but on average is about 5,000 rubles, not counting the transportation costs of delivering the registrar’s employee to the location of the shareholders’ meeting.

2) Notarization.

Non-public joint-stock companies and LLCs can use this method.

A manual has already been developed for certifying by a notary the adoption by a general meeting of company participants of a decision and the composition of company participants present at its adoption (FNP Letter No. 2405/03-16-3 dated September 1, 2014).

In accordance with it, the notary is first submitted an application in the form established by the same document, a notification/message about convening a meeting indicating the agenda of the meeting. The notary must be present at the meeting in person (the meeting can be held directly in the notary's office), recording the presence of persons and the adoption of the decision.

After the meeting, the notary issues a Certificate certifying the adoption by the general meeting of participants of the business company of decisions and the composition of the company's participants present at its adoption.

Considering that LLC is the most common organizational and legal form of legal entities in the Russian Federation, the question arises whether notaries will have a queue to attract them to attend General Meetings, and the cost of such services will be very significant (considering that at this time no other notaries actions cannot be carried out). Now notaries have difficulties in providing such a service, since the practice has not yet developed and notaries do not understand the procedure for its implementation.

For an LLC, the Charter may contain alternative methods of certification; let’s move on to consider their features.

3) Signing of the minutes of the general meeting by the Company's participants.

Despite the apparent simplicity of this method at first glance, it also has pitfalls.

Firstly, the possibility of its application must be directly stated in the Charter or a unanimously adopted decision of the General Meeting of Participants. If this method is fixed in a unanimous decision of the participants of the General Meeting of Participants, then does it need to be done at each General Meeting or is it enough once with an indication that “it will be like this in the future”? There is no official clarification on this issue yet and judicial practice, then it seems possible to interpret this as the need to adopt once unanimously the Decision of the General Meeting on determining the procedure for confirming the composition of participants and the procedure for making decisions at the General Meeting, extending its effect to the future.

Secondly, unanimous approval of a decision on the method of fixing the composition of participants and the procedure for making a decision can be difficult if the participants are in confrontation: failure to appear or refusal to sign such a decision by one of them is enough to deprive the decision of the Assembly on the main issue of legitimacy, even if for There are enough votes to reach a quorum and make a decision. As a consequence, it is necessary to invite a notary to the General Meeting, and this is associated with additional costs.

Thirdly, the possibility of signing not by all participants of the General Meeting, but by part of them, has been introduced. The legislator did not specify how the composition of the participants who will sign the decision is determined.

We believe that signing by some of the participants can be provided for in the Charter or the Decision on choosing a method of confirming the adoption of decisions by the General Meeting of Participants, for example:

• signature by all participants present when the decision is made;
• signing by certain participants indicating their passport details (however, if any of them did not appear or did not want to sign at the next meeting, but the required number of votes to make a decision was received, then it becomes necessary to hold the next meeting and, perhaps, consider inviting next notary meeting);
• signing by the participants who voted “for” the decision;
• signature by a participant owning more than 50% of the votes (as the owner of a controlling stake);
• signing by the chairman and secretary of the General Meeting (but this method is unlikely to be applicable when the number of participants is more than three, since there is a high probability of abuse, due to the fact that the chairman of the General Meeting and the secretary are elected anew at each meeting, but sometimes it can be very useful ).

4) The last of the methods provided for by law is fixation by technical means.

The law does not explain how fixation should be carried out and who should do it. This means that the determination of the type, method (audio recording, video recording), procedure for storing the original recording, issuing its copies remains at the discretion of the participants themselves and should be established by the charter. It may be proposed to create a separate section in the Charter with detailed description: who and how carries out such recording and where the original record will be located, as well as responsibility for its loss.

5) You can choose other methods, fixing them in the Charter.

Perhaps voting using an electronic digital signature will soon become widespread.

By making the list open, the legislator left the possibility for any methods of technical fixation that are still unknown to us, but which will become widespread in the future. The only thing is that their use needs to be described in the Charter or the Decision on their selection as a way to confirm the decision.

To summarize, we can say that the introduction of such a rule will additionally help protect the rights of business partners, since the presence of a notary or registrar becomes a certain guarantee of the participants exercising their rights to manage the organization. At the same time, such innovations impose additional burdens on participants and shareholders and, in a sense, make them dependent on the “busyness” of notaries and registrars, not to mention the additional costs of inviting such a specialist.

The law does not require bringing the Charters of existing legal entities into compliance with it. But if the procedure for confirming the composition and making decisions in an LLC is not described in it, you will have to invite a notary to each meeting or sign unanimously a decision on choosing another method of confirming the fact of making a decision and the composition of the participants present, which can be very difficult to implement in practice.

From September 1, 2014, the changes made to part one come into force Civil Code Russian Federation Federal Law of 05.05.2014 N 99-FZ "On amendments to Chapter 4 of Part 1 of the Civil Code of the Russian Federation and on the recognition as invalid of certain provisions of legislative acts of the Russian Federation."

The said Federal Law supplemented the Civil Code of the Russian Federation with Article 67.1, which provides for the possibility of confirming the adoption by the general meeting of participants of a business company of a decision and the composition of the company participants present at its adoption by notarization.

The decision of a meeting of a business company is an independent legal fact and, in accordance with paragraph 2 of Article 181.1 of the Civil Code of the Russian Federation, gives rise to legal consequences for all persons who had the right to participate in this meeting, as well as for other persons, if this is established by law or follows from the essence of the relationship.

99-FZ of May 5, 2014 “On amendments to Chapter 4 of Part 1 of the Civil Code of the Russian Federation and on the recognition as invalid of certain provisions of legislative acts of the Russian Federation” introduces into the Civil Code of the Russian Federation new article- Art. 67.1, which provides for the need to confirm the adoption of a decision by the general meeting of participants of a business company and the composition of participants present at its adoption in various ways, one of which is notarization.

It must be borne in mind that the specified notarial action is not mandatory, since for all types of legal forms of business entities there is an alternative to notarization. The fee for the specified notarial act is charged in accordance with Art. 22.1 Fundamentals of the legislation of the Russian Federation on notaries (other notarial actions).

The notarial act in question can be performed by any notary within the notarial district in which the meeting of participants of the business company is held (Articles 13, 40 of the Fundamentals of the Legislation of the Russian Federation on Notaries).

Henceforth, until amendments are made to the Fundamentals of the legislation of the Russian Federation on notaries, amendments are made to the order of the Ministry of Justice of the Russian Federation No. 99 of April 10, 2002 “On approval of register forms for registration of notarial actions, notarial certificates and certification inscriptions on transactions and certified documents”, When performing the specified notarial act, we suggest following the following recommendations:

III. Definition of applicant - a person who has the right to contact a notary with a request to perform the specified notarial act

3.1. When determining a person who can contact a notary, it is necessary to be guided by the rules governing the procedure for convening a general meeting of the company.

In limited liability companies:

3.1.1. The next general meeting is convened by the executive body of the company (Article 34 of the LLC Law). The applicant in this case is the executive body of the company.

3.1.2. Extraordinary general meeting (by general rule) is convened by the executive body of the company (clause 2 of article 35 of the LLC Law). The applicant in this case is the executive body of the company.

3.1.3. The company's charter may also place resolution of issues related to the preparation, convening and holding of a general meeting of company participants within the competence of the board of directors (supervisory board) of the company (clause 10, clause 2.1, article 32 of the LLC Law). The applicant in this case is the person heading the board of directors (supervisory board) or authorized by a decision of the board to contact a notary.

3.1.4. As an exception, if there are grounds specified in paragraph 4 of Art. 35 of the LLC Law, an extraordinary general meeting can be convened by persons demanding its holding and specified in paragraph 2 of Art. 35 of the Law on LLC (board of directors (supervisory board) of the company, audit commission (auditor) of the company, auditor, participants of the company, owning in the aggregate no less than 1/10 of total number votes of the company's participants), as well as the executive body of the company, if the decision on convening is within the competence of the board of directors (supervisory board) (clause 2.2 of article 32 of the LLC Law).

The applicant in this case is:

The person who heads the board of directors (supervisory board) or is authorized by a decision of the board to contact a notary;

Member audit commission, authorized by the decision of the commission to contact a notary, auditor;

Auditor;

A participant in the company holding at least 1/10 of the total number of votes of the company’s participants or one of the participants holding in the aggregate no less than 1/10 of the total number of votes of the company’s participants, who has the corresponding powers from the other participants;

The executive body of the company, if the decision on convening a meeting falls within the competence of the board of directors (supervisory board).

3.2. In non-public joint stock companies:

3.2.1. Convening annual and extraordinary general meetings shareholders, as a general rule, falls within the competence of the board of directors (clause 2, clause 1, article 65, clause 7, article 55 of the Law on JSC). The applicant in this case is the person heading the board of directors (supervisory board) or authorized by a decision of the board to apply to a notary;

3.2.2. As an exception, if there are grounds provided for in paragraph 8 of Art. 55 of the Law on JSC, an extraordinary general meeting of a joint stock company is held by a court decision to compel the company to hold such a meeting. The applicant will be the person entrusted with the execution of the court decision (plaintiff, body of the company or a third party with the consent of the latter). Such a body and, therefore, the applicant cannot be the board of directors (supervisory board) of the company (clause 9 of article 55 of the Law on JSC).

3.2.3. In companies in which the functions of the board of directors (supervisory board) are performed by the general meeting of shareholders, the person or body authorized to convene and hold the general meeting of shareholders is determined by the charter of the company (Clause 10, Article 55 of the Law on JSC). The applicant in this case will be such a person or body. If the annual or extraordinary meeting of such a company is not convened and held within the prescribed period, the meeting is convened by court decision. The applicant is the person entrusted with the execution of the court decision (clauses 8, 9 of Article 55 of the Law on JSC).

IV. Preparation for performing a notarial act

4.1. The notary is recommended to accept the application for the performance of the specified notarial act in writing and register it in the journal of incoming correspondence. In the application, the applicant must indicate the exact date, start time and exact location of the meeting (an approximate sample of the text of the statement is included in these recommendations). Along with the application, the notary must request for review:

Charter of the company;

An extract from the Unified State Register of Legal Entities (an extract can be requested by a notary independently using the ENOTE program or through the tax service portal - nalog.ru);

Documents confirming that the applicant can be an applicant for this notarial action (decision or protocol on the appointment or election of an executive body, board of directors (supervisory board), court decision, etc.);

Other internal documents regulating the procedure for convening and holding a meeting, if provided for by the charter and approved (clause 5 of article 49 of the Law on JSC, clause 1 of article 37 of the Law on LLC);

List of participants (in limited liability companies, compiled in accordance with Article 31.1 of the LLC Law);

List of persons entitled to participate in the general meeting of shareholders (for non-public joint-stock companies, compiled in accordance with Article 51 of the Law on JSC);

A copy of the notice (clause 1, 2 of Article 36 of the LLC Law) or message (clause 1, 2 of Article 52 of the JSC Law) about convening a meeting, which was sent to participants (shareholders) and which indicates the agenda of the meeting. Information about the agenda may also be additionally included in the text of the statement.

It should be noted that the notary does not check the completeness of the actions taken by the company’s bodies to prepare for the meeting (informing participants (shareholders) about the meeting, compliance with the deadlines for such information, distribution of necessary materials, etc.)

Availability information corporate agreement from September 1, 2014 (clause 4 of article 67.2 of the Civil Code of the Russian Federation). At the same time, the notary must take into account that for a non-public business company, information about the existence of a corporate agreement and the scope of powers of company participants provided for by it must be entered into the Unified State Register of Legal Entities (Part 2, Clause 1, Article 66 of the Civil Code of the Russian Federation).

Before September 1, 2014, in limited liability companies an agreement could be concluded on the exercise of the rights of participants (clause 3 of Article 8 of the LLC Law), in joint stock companies - a shareholders agreement (Article 32.1 of the JSC Law), which can also regulate voting issues on general meetings.

4.2. The notary, after familiarizing himself with the list of participants (the list of persons entitled to participate in the general meeting of shareholders), is recommended to explain to the applicant against signature that in order to establish the identity of the participants (shareholders) of the company, the latter must be present at the meeting with documents proving their identity, representatives of the participants (shareholders) in addition to identification documents must have documents confirming their authority, legal representatives of minor participants (shareholders) must have a birth certificate confirming the status of the legal representative, etc.

V. Procedure for performing a notarial act

5.1. A notary (a person acting as a notary during the period of replacing an absent notary) must be personally present at the meeting. At the same time, notarial acts are not performed in the notary's office at the specified time (the time will be reflected in the minutes of the general meeting and in the certificate issued by the notary).

5.2. The specified notarial act can also be performed on the premises of a notary’s office, if the notice to participants (shareholders) about the meeting indicates the location of the notary’s office and this is not prohibited by the company’s charter.

5.3. The notary chooses the optimal way to record information about the composition of participants, the powers of representatives, information about the issues considered at the meeting, decisions made on these issues and about the persons who voted when making the above decisions. This information will be used by the notary when preparing the certificate. It is recommended to record all information in writing or using technical means(video recording, audio recording) or a combination in various ways fixation.

5.4. The notary checks the composition of participants (shareholders) present at the meeting. In this case, it is necessary to take into account what is provided by law, the charter (to the extent that does not contradict the law) and internal documents of the company minimal amount participants (shareholders), which must be present when each decision is made (quorum). The presence of a quorum on at least one item on the agenda is the basis for opening and holding a meeting.

5.5. The notary establishes the identity of the participants (shareholders) present at the meeting and their representatives.

Identity is established by a passport or other document that eliminates any doubt about the identity of its owner. Information about the participant (full name, passport details, place of residence, size of the participant’s share or number of voting shares of the shareholder) must be recorded in writing. We consider it possible to reflect such information on the list of company participants (or its copy) or on the list of persons entitled to participate in the general meeting of shareholders (its copy). Information about the passport details of participants (shareholders) may be contained in the specified documents. In this case, the notary must verify the information on the identification document of the participant (shareholder), contained in the list of company participants or in the list of persons entitled to participate in the general meeting of shareholders, with the submitted document. It is possible to make a note about this on a copy of the list of participants or the list of persons entitled to participate in the general meeting of shareholders, which will remain with the notary.

If a participant of a limited liability company participates in the general meeting through a representative, the representative shall present a document confirming his authority. The power of attorney issued by the participant must contain information about the person represented and the representative (name or designation, place of residence or location, passport data) and must be notarized (Part 2, Clause 2, Article 37 of the LLC Law). At the same time, this article contains a rule that a power of attorney can also be issued in accordance with the requirements of paragraphs 4 and 5 of Art. 185 of the Civil Code of the Russian Federation (meaning the version of this article in force until September 1, 2013). In the current version of the civil code, these are paragraphs 3 and 4 of Article 185.1 of the Civil Code of the Russian Federation. At the same time, the procedure for issuing powers of attorney specified in paragraph 3 of Article 185.1 of the Civil Code of the Russian Federation applies only to the types of powers of attorney expressly indicated therein, among which there is no power of attorney to represent a participant during a meeting. Thus, the power of attorney to represent the interests of a company participant at the general meeting is dated individual must be notarized, power of attorney from legal entity may be issued in accordance with paragraph 4 of Art. 185.1 of the Civil Code of the Russian Federation.

The shareholder's representative at the general meeting of shareholders acts in accordance with the powers based on the instructions of federal laws or acts of authorized bodies or a power of attorney drawn up in writing. The power of attorney for voting must contain information about the person represented and the representative (for an individual - name, details of the identity document (series and (or) number of the document, date and place of its issue, authority that issued the document), for a legal entity - name, information about the location). The power of attorney must be executed in accordance with paragraphs 3 and 4 of Art. 185.1 of the Civil Code of the Russian Federation or certified by a notary (Article 57 of the Law on JSC). You should also pay attention to cases of representation provided for in paragraphs 2 and 3 of Article 57 of the Law on JSC.

5.6. In order to avoid participation in the meeting by a representative of incompetent legal entities - participants (shareholders) of the company, notaries are recommended to check their legal capacity. It must be taken into account that in accordance with paragraph 3 of Art. 49 of the Civil Code of the Russian Federation (as amended, which will be in force from September 1, 2014), the legal capacity of a legal entity arises from the moment information about its creation is entered into the Unified State Register of Legal Entities and terminates when information about its termination is entered into the specified register. Thus, the main document confirming the legal capacity of a legal entity is an extract from the Unified State Register of Legal Entities. An extract from the Unified State Register of Legal Entities in relation to legal entities - participants (shareholders) of the company can be requested by a notary independently using the ENOT program or through the tax service portal - nalog.ru based on the information specified in the list of participants or the list of persons entitled to participate in the general meeting shareholders.

5.7. The notary checks the presence of a quorum to make the decisions stated on the agenda. It is necessary to take into account that in accordance with Article 181.5 of the Civil Code of the Russian Federation (clause 10 of article 49 of the Law on JSC, clause 6 of article 43 of the Law on LLC) the decision of the meeting is void if it is adopted on an issue not included in the agenda day (except for the case when all participants (shareholders) of the company took part in the meeting), adopted in the absence of the required quorum or adopted on an issue not falling within the competence of the meeting. Such a decision does not give rise to any legal consequences. The notary has no right to certify the adoption of such decisions.

In limited liability companies, it is necessary to pay attention to the share owned by the company itself and not distributed or sold by it (Article 24 of the LLC Law). Such shares are not taken into account when determining the voting results at the general meeting of participants. IN joint stock company you need to pay attention to the shares acquired (repurchased) by the company (clause 2 of article 72, article 76 of the Law on JSC). Such shares do not provide voting rights and are not taken into account when counting votes (clause 3 of Article 72, clause 6 of Article 76 of the Law on JSC).

The notary must pay attention to the existing pledge of shares (shares) of the shareholder (participant) participating in the meeting. It must be taken into account that in accordance with paragraph 2 of Art. 358.15 of the Civil Code of the Russian Federation, when pledging shares, the rights of shareholders are exercised by the pledgor (shareholder), unless otherwise provided by the agreement on the pledge of shares (Article 358.17 of the Civil Code of the Russian Federation), and in limited liability companies, when pledging a share in the authorized capital, the rights of a company participant are exercised by the pledgee until the termination of the pledge, unless otherwise provided by the share pledge agreement.

In joint stock companies, it is necessary to take into account that, in accordance with Art. 49 of the Law on JSC, the right to vote at the general meeting of shareholders on issues put to vote has:

shareholders - owners of ordinary shares of the company (Article 31 of the Law on JSC);

shareholders are owners of preferred shares of the company only in cases provided for by the Law on JSC (Article 32 of the Law on JSC).

The notary also needs to take into account that on some issues the company may conduct cumulative voting (clause 4 of Article 66 of the Law on JSC, clause 9 of Article 37 of the Law on LLC). In cumulative voting, the number of votes belonging to each shareholder (participant) is multiplied by the number of persons who must be elected to the relevant body of the company, and the shareholder (participant) has the right to cast the votes received in this way entirely for one candidate or distribute them between two or more candidates .

5.9. In non-public joint stock companies, to resolve the issue of verifying the powers of persons participating in the meeting and determining the quorum of the general meeting of shareholders, the notary can rely on the data of the counting commission of the company, if one has been created in the company (Article 56 of the Law on JSC).

5.10. The notary is present throughout the entire meeting - from the opening of the meeting until the decision is made on the last issue included in the agenda or on the last issue for which there is a quorum to make a decision, and if voting is carried out by ballots - until the end of the counting of votes.

At the end of the meeting, the notary is recommended to request a copy of the protocol of the counting commission on the voting results, if one has been created in the company. If the company has not created an accounting commission, the notary is recommended to request a copy of the draft minutes, which were kept by the secretary of the general meeting. This copy may be signed by the same persons (the chairman of the meeting and the secretary of the meeting) who will sign the final minutes of the general meeting. The specified copy is provided to the notary at the end of the meeting, in order to exclude corrections of the decisions made.

Requesting these documents is not mandatory for the notary and is recommended in order to obtain additional material to the data recorded by the notary.

If voting in a joint stock company was carried out by ballots, the notary in mandatory requests the protocol of the counting commission (or other body created to count votes) on the voting results. Maximum term for the preparation of the counting commission protocol - three days (Article 62 of the Law on JSC).

The notary has no right to demand the minutes of the general meeting. Its preparation is the exclusive competence of the company; the notary has no right to give instructions on the preparation of the protocol.

5.11. At the end of the meeting, the notary makes an entry in the register for registration of notarial acts, collects a fee for performing a notarial act and a fee for legal and technical work. Upon presentation to the notary of a copy of the protocol of the counting commission on the voting results, and in the case when the voting results are known from the end of the meeting - in another maximum short term, the notary prepares and issues a certificate certifying the adoption by the general meeting of participants of the business company of decisions and the composition of the company's participants present at its adoption. Only a notary (acting notary) present at the meeting can issue a certificate.

The form of the certificate is not established in accordance with the procedure determined by the Fundamentals of the legislation of the Russian Federation on notaries. However, the absence of the established form of the certificate cannot be a basis for refusal to perform the specified notarial act. An example of a certificate is provided in these recommendations.

5.12. Until the law regulates the procedure for performing the specified notarial act, the certificate is an independent document and is not filed by the notary with the final minutes of the general meeting of participants (the provision of the final minutes of the general meeting by the company to the notary is a right, not an obligation of the company). The certificate is issued by the notary in two copies, one copy for the applicant, one remains in the notary’s files (Article 44.1 of the Fundamentals of Legislation on Notaries). Upon receipt of the certificate, the applicant signs in column 7 of the register for registration of notarial actions.

VI. Grounds for refusal to perform the specified notarial act

6.1. A notary cannot certify the adoption of a decision by the general meeting of participants of a business company and the composition of the company participants present at its adoption if the decisions were made in the form of absentee voting. Literally interpreting the norm of Article 67.1 of the Civil Code of the Russian Federation, in order to perform the specified notarial act, a notary must have the physical presence of participants at the location of the meeting.

6.2. The notary cannot issue a certificate if none of the decisions are made (for any reason: lack of quorum, the required number of votes is not collected, etc.). Based on the meaning of Article 67.1 of the Civil Code of the Russian Federation, a notary certifies only the ADOPTION of decisions. In this case, the notary can issue a certificate if one of the three decisions included in the agenda is adopted. This is what will be indicated on the certificate.

6.3. A notary cannot certify the adoption of void decisions. The general grounds for the nullity of decisions are specified in Article 181.5 of the Civil Code of the Russian Federation. Also void is the decision of the general meeting of company participants that restricts the right of a participant to attend the general meeting, take part in the discussion of issues on the agenda and vote when making decisions (Part 3, Clause 1, Article 32 of the LLC Law)

In all of these cases, the notary refuses to perform a notarial act on the general basis defined in Article 48 of the Fundamentals of the Legislation of the Russian Federation on Notaries, namely: “the performance of such a notarial act is contrary to the law.”

Notarization of minutes of general meetings of LLC As a general rule, it is mandatory, but the law also provides for exceptions. We will tell you in the article when you can avoid the procedure of notarization of the protocol. In addition, the reader will learn how to certify minutes of meetings using notaries.

When certification of the minutes of the general meeting of LLC participants is mandatory, and when not

If there are several participants in the organization, then decision-making is formalized in the form of minutes of their meetings. By virtue of clause 6 of Art. 37 Federal Law “On Companies...” dated 02/08/1998 No. 14, the executive body of the LLC must organize the process of maintaining minutes, which are drawn up in writing.

The requirement for its notarization is contained in paragraphs. 3 p. 1 art. 67.1 of the Civil Code of the Russian Federation, as well as clause 3 of Art. 17 Federal Law No. 14. According to the specified standards, a notary is required to certify:

1. Facts of decision-making by company participants.
2. Composition of participants present at the meeting.

These provisions do not apply to LLCs with one member.

However, in Art. 67.1 of the Civil Code of the Russian Federation provides exceptions to the rule. If the company's charter specifies a different procedure for certifying protocols, then you can do without a notary. In addition, you can do without a notary if the LLC participants unanimously decided that the minutes of the meeting will be certified in a different manner (and reflected this decision in the protocol).

Thus, unless the charter or resolution of the meeting provides for a different procedure for certifying the minutes, only a notary can carry out such actions.

Many court decisions, for example, the Resolution of the Far Eastern District Court dated 02/09/2016 No. F03-6257/2015, reflect that it is impossible to simply indicate in the minutes of the meeting that the participants chose a method other than notarization of the minutes. Need to put this question on the agenda, and then all participants must vote yes.

If the minutes of the meeting are not certified by a notary, or in any other way specified in the charter of the LLC, or in the minutes itself, the document is considered void in relation to clause 3 of Art. 163 of the Civil Code of the Russian Federation, as explained in the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 23, 2015 No. 25 (clause 107).

How to notarize the minutes of the general meeting of LLC participants

The procedure for notarizing a protocol is not prescribed in regulations. However, there are recommendations that are reflected in the letter of the FNP “On the direction...” dated 01.09.2014 No. 2405/03-16-3.

The executive body of the LLC, for example its director, contacts the notary if it is necessary to hold a regular or extraordinary meeting. However, the company's charter may stipulate that the board of directors has such powers. In addition, it is possible to contact a notary of a member of the audit commission if he has been vested with such powers.

It is necessary to write a statement indicating the date, time and place of the meeting. It is compiled arbitrarily.

You can contact a notary at the location of the organization.

1. The application must be accompanied by:
2. LLC Charter.
3. Extract from the Unified State Register of Legal Entities.
4. A document that confirms the competence of the applicant (for example, a protocol on the appointment of the sole executive body).
5. List of LLC participants.

The general meeting can be held directly in the notary's office, if the charter does not prohibit this. During the meeting, the notary must verify the identity of the participants, and passports will be required accordingly. In addition, the notary himself may appear at the meeting at the location where it is held. His presence is mandatory.

After the meeting, the notary issues a certificate of certification of the notarial act.

Thus, as a general rule, notarization of the protocol is mandatory. However, in the company's charter, or in the minutes of the meeting itself, the issue may be resolved in a different way.

Notarization of minutes of general meetings of an LLC is provided for in clause 3, part 3, art. 67.1 of the Civil Code of the Russian Federation. But is it always necessary? If yes, in what order is it done? We will answer these questions in our publication.

When is certification of the minutes of a general meeting of participants required?

Notarization of the minutes of the general meeting of LLC participants is not the only method of document execution. It applies only if the founders have not indicated another way to confirm their decision. For companies with a single participant, the procedure in question is not carried out at all, according to clause 1.3 of the Review of Judicial Practice No. 4 (2016), sent by letter of the Federal Tax Service of Russia dated December 28, 2016 No. GD-4-14/25209@.

Other options for confirming the decision made and the composition of those present at the meeting are stipulated in the charter of the LLC. If no conditions are specified, then the legal entity is automatically subject to the rules on notarization. Detailed recommendations for notaries on certification are contained in the letter of the Federal Notary Chamber “On sending a manual on certification...” dated 01.09.2014 No. 2405/03-16-3 (hereinafter referred to as the Manual), they can be used by any interested parties in preparing for the described process.

Organizing a meeting

To organize a meeting in which a notary participates, the following rules should be followed:

1. You can invite any specialist serving the notarial district where the meeting will take place (paragraph 5 of the Manual). In this case, you can invite only one (clause 3.3 of the Manual).
2. The following have the right to contact a notary office (become an applicant) (clause 3.1 of the Manual):
   • when holding a regular (extraordinary) meeting - the executive body;
   • if the charter allows the convening of a meeting by the board of directors (other body), auditor, participant with a share of at least 1/10 - the head of this body or another person authorized by the body, auditor, participant.
3. An application is submitted (Appendix No. 1 to the Manual), which specifies the place, date and time of the planned event (clause 4.3 of the Manual). Attached to the application (clause 4.3 of the Manual):
   • the charter and other acts relating to the procedure for holding the meeting;
   • documents according to which a person can be an applicant;
   • list of LLC participants;
   • a copy of the notice sent to invited persons.

Holding a meeting

All those present are required to have documents proving their identity and authority (clause 4.4 of the Manual). The notary personally attends the meeting (clause 5.1 of the Manual), his duties include checking the quorum when resolving certain issues (clause 5.9 of the Manual).

It is necessary to think in advance about methods for recording the progress of the event (written recording, audio, video recording) (clause 5.3 of the Manual). After voting on all items on the agenda, the notary has the right to receive draft minutes of the meeting and vote counting (clause 5.12 of the Manual).

The final notarial document is the certificate. Its form is recommended (but not established!) in paragraph 5.13 of the Manual. According to clause 6 of the Manual, the specialist refuses to certify absentee and void decisions (clause 5.11 of article 181.5 of the Civil Code of the Russian Federation, part 3 of clause 1 of article 32 of the LLC Law).

As you can see, notarization of the protocol may not be carried out if other confirmation options are included in the charter. It is carried out, if necessary, at the request of the person initiating the meeting. The result of the certification will be a certificate in the form recommended by the Manual.

From September 2014, changes to the Civil Code of the Russian Federation come into force. One of these changes was the need for notarization of the protocol. Many people are not happy with this change. Many questions arise about why this is needed and how to avoid it. In this material we will try to understand this situation.

Everyone knows that the minutes of the decision of the general meeting of participants, founders of a company (organization) is the main document starting from the registration of an LLC, CJSC or NPO, as well as when making changes to the charter or registering changes in the Unified State Register of Legal Entities. The new edition of the Civil Code of the Russian Federation on the protocol in accordance with clause 3 of Art. 67.1 of the Civil Code of the Russian Federation, which comes into force on September 1, 2014, establishes the obligation to notarize the minutes of the general meeting of an LLC. This paragraph also provides for conditions under which it is impossible to do without a notary. So, from September it is necessary to notarize the adoption of decisions by the general meeting of participants and the composition of the participants who were present when a particular decision was made. In our opinion, notarization of the minutes of the general meeting is a reasonable solution.

A little about criminal liability:

Article 185.5 of the Criminal Code of the Russian Federation provides for criminal liability for falsifying the minutes of a general meeting. The maximum penalty under this article is 2 years of imprisonment. Now criminal liability will arise not only under Article 195.5 of the Criminal Code of the Russian Federation, but also under Article 327 of the Criminal Code of the Russian Federation, namely for forgery of documents, stamps, seals and forms. The maximum penalty under this article is 4 years in prison. The advisability of notarizing the minutes of a general meeting is determined by the fact that a person, before falsifying it, will now think about a fairly long term of imprisonment for his actions under the combination of two articles of the Criminal Code of the Russian Federation. The reliability of a protocol certified by a notary is much higher than that of a regular protocol. Moreover, it is enough to simply check whether the protocol is forged by sending a corresponding request to the notary.

If there are corporate disputes in the company, then the notarial protocol will prevent the situation from aggravating. Well, of course, participants have a choice in any case. They can adopt their own procedure for confirming the protocol, even without making changes to the Charter. A notary protocol is an ideal option for troubled companies. However, for standard LLCs, in which everything is great, the founders in good relations, there is nothing to divide, notarization of the protocol is really an unnecessary measure. Accordingly, we must try to find ways to avoid this procedure.

Protocol options without notarization

The Civil Code still provides for options in which the protocol may not be notarized:

• Signing of the protocol by all or part of the participants;
• The use of technical means that make it possible to reliably establish the fact of general decision-making;
• Other methods that do not contradict the Civil Code of the Russian Federation.

Moreover, the Civil Code provides options for recording protocol authentication methods. These options include:

• The certification procedure was adopted by decision of the general meeting unanimously;
• The certification procedure is provided for in the charter.

Amendments to the charter in connection with a change in the method of confirming the decision and the composition of participants do not require a unanimous decision. A simple majority vote is sufficient. However, at first it is better to make decisions unanimously, since some employees of the Federal Tax Service interpret certain legislative norms in their own way. A decision of the general meeting, which does not require amendments to the charter, must be adopted unanimously by all members of the company, and not just the participants of the meeting.

A logical question arises - what to do if, for some reason, the participants do not want to make changes to the charter, and at the same time it is not possible to gather all of them at the meeting. There is a way out here too. It is necessary to make such a decision in a separate protocol, which will be adopted unanimously by all participants, but at the same time choose a different method of identification. Signing of the protocol by all participants The decision or the Charter can fix the obligation to sign the protocol by all participants of the company or general meeting. This can be done under the protocol or on a separate sheet, which is filed with the protocol in order to avoid loss. Signing by some of the participants of the protocol The Charter or the Decision may provide for persons who must confirm the protocol. These may be the secretary and chairman of the OS, a company participant who has a larger share in the authorized capital compared to other participants, a company participant who is trusted most by other participants, company participants in total who own more than 50% of the share in the authorized capital.

Use of technical means

The most popular means that allow you to establish the fact that a particular decision has been made are audio and video recordings of the general meeting. Here you can use completely different means, for example, a car video recorder. This is where images, sound, date and time of recording are stored. However, you can also simply use a voice recorder, mobile phone, a video camera, even a camera that has a video recording function. You should be careful as some courts will not accept a copy of the recording, but only the original as evidence. The original will be the memory card. If your technical device does not provide for the presence of such a card, then the evidence will be the device itself.

From all of the above, we can conclude that there are 4 main ways to certify a protocol if you do not want to contact a notary:

• Signing of the protocol or a separate sheet by all participants.
• Signature by some of the participants.
• Audio recording of the general meeting.
• Video recording of the general meeting.

The chosen method can be recorded in the charter, in each individual protocol, by making a decision at a general meeting with a subsequent link to this decision. Which method is better is up to you to decide. However, remember that if your company has heated disputes or conflicts, it would still be better to have the protocol notarized.