In this article I will talk about how to correctly certify protocols, when notarization of protocols is required and how to do without a notary, as well as what to read in your charter about this and what to do if there is only one participant in the LLC.

I hope it's no secret to anyone that all decisions general meeting LLC participants are formalized by the Protocol. If there is only one participant in the LLC, the same document is called a Decision. All protocols are filed in a single book and stored that way. At the request of participants, extracts from the minutes book can then be issued. The extracts are certified by the executive body - the director. All these rules follow from paragraph 6 of Article 37 of the Federal Law “On Limited Liability Companies”.

There is not a word written about mandatory notarization. About this you need to read the Civil Code of the Russian Federation - a document that has greater legal force, namely: part 1, article 67.1. This article in the code appeared not so long ago thanks to Federal Law dated May 5, 2014 No. 99-FZ. So, according to clause 3 of part 3 of Article 67.1 of the Civil Code of the Russian Federation, the fact of a decision being made by the general meeting of LLC participants, as well as the composition of the participants present at the meeting, is subject to notarization. “If another method of certification,” says the Law, “is not provided for by the LLC Charter or the decision of the general meeting itself, adopted by all participants unanimously.” The Civil Code of the Russian Federation includes such “other methods” of identification: signing the protocol by all participants (or part), using technical means recording the decision, as well as other legal methods.

Briefly and clearly: do the LLC protocols need to be certified by a notary?

So, from September 1, 2014, the minutes of the general meeting of an LLC must be notarized, UNLESS the LLC participants have chosen other methods of certification. These “other methods” must be specified in the LLC Charter or in a specific decision of the general meeting.

It is important to understand here that notarization of all protocols in a row is not necessary - participants can choose their own method of certifying the protocols (for example, with the signatures of participants). The main thing is to choose the authentication method and certify the protocol.

From this rule there is exception: Protocol with the decision to increase authorized capital LLC, as well as the composition of participants present when making such a decision,

If the LLC Charter does not contain a method for certifying the protocol or the protocol without notarization

You opened your own Charter, finally read it, and suddenly it turned out that in your constituent document there is not a line about how the decisions of the general meeting are certified. Actually, it's not scary. There are three options for further developments.

Option 1 is not the easiest: make changes to the Charter. Remember that all changes to the Charter are made by decision of the same general meeting of participants (Part 4 of Article 12 of the Federal Law “On LLC”? By the way, a majority of votes is required - at least 2/3 of total number members of the Society. And, of course, all changes to the Charter must be registered with the tax office. Therefore, here you will have to work and take more actions. Maybe it’s more troublesome in the long run, but in the long term.

IN The LLC charter may have the following wording: 7.10. The adoption of a decision by the general meeting of the Company's participants and the composition of the Company's participants present when the decision was made are confirmed by the signing of the minutes by the chairman and secretary of the general meeting, who are members of the Society.– in this case, I used the option of signing the protocol by part of the participants.

Option 2 - easier: Include on the agenda of a particular meeting the question of how to certify the adoption of a decision by this meeting (without a notary). All members of the Society must vote unanimously for the desired non-notarial method of recording the decision and composition of participants. Important: all members of the Society (and not all participants of the meeting)! Then notarization of this protocol will not be necessary. Please note that it was not by chance that I wrote “this protocol” - for future protocols it will also be necessary to include on the agenda the question of the method of the desired non-notarization. This way, of course, is simpler, but it requires repeated repetition of the same action.

Option 3 is perhaps even simpler: You must agree that not always ALL members of the Society will be able to attend every meeting - how then can they unanimously vote on a method for certifying the minutes without a notary? Here, lawyers have come up with this option: to make a separate protocol with a unanimous vote of all LLC participants, which will determine the method of certifying all subsequent protocols. In subsequent protocols, of course, it will be necessary to provide a link to this decisive protocol (you can make an extract or a copy certified by the head of the LLC). In any case, this third method has obvious advantages: changes are not made to the charter, you can do without a notary, and there is no need to gather all the LLC participants for a meeting every time.

What if there is only 1 participant in the LLC?

We noticed that before that I wrote “participants” and spoke only about protocols. Consequently, a logical question arises: how to certify the decisions of the sole participant of an LLC? The answer is: The provisions of Article 67.1 of the Civil Code of the Russian Federation do not apply to an LLC consisting of one participant. This means that all decisions are made by the sole participant of the LLC individually, documented in writing and confirmed by the signature of such participant. This conclusion follows from Part 2 of Article 7 and Article 39 of the Federal Law “On Limited Liability Companies.

Exception: The decision of the sole participant of the company to increase the authorized capital is confirmed by his signature, the authenticity of which(Part 3 of Article 17 of the Federal Law “On Limited Liability Companies”).

Let's sum it up

So, The LLC protocol need not be certified by a notary if: sign by all participants or sign part of the participants - for example, only the chairman and secretary of the meeting, or videotape the meeting or audio record the meeting, or come up with another legal way available to your imagination.

Selected non-notarial method certificates of decision-making by the general meeting of participants and the composition of participants present when such a decision was made, can be reflected: in LLC Charter or in each new LLC protocol or in a special LLC protocol and then refer to this decision.

Wherein: The protocol/decision on increasing the authorized capital must be certified by a notary.

From September 1, 2014, Article 67.1 (clause 3) of the Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation) established the procedure for confirming the adoption by the general meeting of participants of a business company of a decision and the composition of the company’s participants present at its adoption.

According to paragraph 3 of Article 67.1 of the Civil Code of the Russian Federation, the adoption of a decision by the general meeting of the company's participants and the composition of the company's participants present at its adoption are confirmed by notarization or certification by the person maintaining the register of shareholders of such a company and performing the functions of the counting commission in relation to a non-public joint-stock company; in relation to a limited liability company, unless another method (signing the protocol by all participants or part of the participants; using technical means to reliably establish the fact of a decision; in another way that does not contradict the law) is not provided for by the charter of such a company, or by a decision of the general meeting of participants of the company , adopted unanimously by the society's participants.

The specified facts are not mandatory, since for all types of legal forms of business entities there is an alternative to their notarization.

At the same time, the possibility of notarization of a decision of the governing body of a legal entity will ensure the legality and reliability of the corresponding decision (date of the decision, its content, etc.). Circumstances confirmed by a notary when performing a notarial act (including within the framework of Article 67.1 of the Civil Code of the Russian Federation) do not require proof.

In this regard, the participation of a notary in confirming the adoption of a decision by the general meeting of company participants and the composition of company participants present at its adoption is an additional guarantee of protecting a legal entity from falsification of decisions of the governing body, as well as effective remedy fight against "raiding".

Upon certification of the adoption by the general meeting of the company's participants of the decision and the composition of the company's participants present at its adoption, it is carried out according to the rules established by the Fundamentals of the legislation of the Russian Federation on notaries (hereinafter referred to as the Fundamentals). The specified notarial act 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).

The procedure for performing a notarial act to certify the decision of the governing body of a legal entity is provided for in Chapter XX.3 Certification of the decision of the body of a legal entity.

It should be noted that evidence of the authenticity of the signature on the minutes of the general meeting of a business company cannot be considered as evidence of the adoption of a decision by the general meeting of the company and the composition of the participants present at its adoption. In this case, it is possible to certify the authenticity of the signature of the company's participants on the minutes of the general meeting of the participants of the limited liability company, if this method was chosen by the company's participants as an alternative way to confirm the authenticity of the decision made in accordance with subparagraph 3 of paragraph 3 of Article 67.1 of the Civil Code of the Russian Federation.

To perform this notarial act, the notary must be personally present at the meeting (at the venue). Based on the literal interpretation of Article 67.1 of the Civil Code of the Russian Federation and Article 103.10 of the Fundamentals, a notary cannot certify the adoption of a decision by a general meeting of company participants and the composition of company participants present at its adoption if the decision was made in the form of absentee voting.

In addition, according to Article 39 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies”, in a company consisting of one participant, decisions on issues falling within the competence of the general meeting of company participants are made by the sole participant of the company individually and are formalized in writing. A norm similar in essence is contained in paragraph 3 of Article 47 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”, according to which in a company in which all voting shares belong to one shareholder, decisions on issues within the competence of general meeting of shareholders, are accepted by this shareholder individually and are drawn up in writing. In such circumstances, taking into account the fact that, by virtue of paragraph 3 of Article 67.1 of the Civil Code of the Russian Federation, the notary certifies the legal facts of the decision taken by the general meeting of a business company and the composition of the participants present at its adoption, the decisions of the sole participant or shareholder of the company are not certified by a notary.

It should also be noted that the general meeting can be held in the premises of a notary's office if the notice to participants (shareholders) indicates the address of the notary's office as the place of holding the meeting, and also if this is not prohibited by the charter of the company. In this case, the general meeting can also be held directly in the notary’s office, despite the indication of a different location in the notice, provided that all participants (shareholders) are present at the meeting.

According to Article 103.10 of the Fundamentals, when establishing the fact that a decision has been made by a management body, the notary checks the legal entity, determines the competence of the management body of the legal entity in terms of making a decision; the presence of a quorum at a meeting or session and based on the vote count presented by the counting commission or other person authorized to count votes; availability of the required number of votes to make a decision in accordance with the law and constituent documents legal entity.

In addition, in order to confirm the composition of the participants (members) of the governing body of a legal entity who were present when the decision was made, the notary, by requesting the relevant documents, establishes their identity, powers, as well as their right to participate in the meeting or meeting.

It should be noted that the notary does not check compliance with the procedure for convening a meeting. Also, during the above-mentioned notarial act, the notary does not verify the legality of the decision made at the general meeting and does not perform the functions of the counting commission, that is, is not responsible for the accuracy of the data provided by the counting commission on the voting results.

Thus, as part of the performance of the notarial act in question, the notary certifies exclusively two legal facts - the adoption of a decision by the general meeting of the company and the composition of the participants present at its adoption. In this case, the notary can certify both a positive and negative final decision on the issue of the meeting agenda.

The notary cannot certify the fact of making a decision, the insignificance of which is obvious to the notary. The general grounds for the nullity of decisions are specified in Article 181.5 of the Civil Code of the Russian Federation. Thus, unless otherwise provided by law, the decision of the meeting is void if it: was adopted on an issue not included in the agenda, except if all participants of the relevant civil law community took part in the meeting; adopted in the absence of the required quorum; adopted on an issue not within the competence of the meeting; contrary to the principles of law and order or morality. In these cases, the notary refuses to perform a notarial act as contrary to the law (Article 48 of the Fundamentals).

The result of performing the notarial act in question is the issuance of a final document - a certificate certifying the fact that a decision was made by the management body of a legal entity and the composition of the participants (members) of this body who were present when making this decision. Only a notary present at the meeting can issue a certificate.

The notary fee for certifying a decision of the governing body of a legal entity is established by Article 22.1 (clause 12.7 of part 1) of the Fundamentals and amounts to 3,000 rubles for each hour of the presence of a notary at a meeting of the relevant body.

checking the legality of the transaction, including whether each party has the right to complete it. Carried out by a notary or official, having the right to perform such a notarial act, in the manner determined by the Fundamentals of the legislation of the Russian Federation on notaries and civil legislation.an official authorized by the state who has the right to perform notarial acts on behalf of the Russian Federation in the interests of Russian citizens and organizations ( legal entities). the ability of a person, enshrined in law, to have legal rights and bear legal responsibilities, which is recognized equally for all citizens. The legal capacity of a citizen arises at the moment of his birth and ends with death.a legally significant action performed by a notary or an authorized official in accordance with the Fundamentals of the legislation of the Russian Federation on notaries.

Regular and extraordinary meetings

When registering a company, the mandatory document specified in the list provided to the registration authority is the decision of the general meeting of LLC participants.

Art. 34 of the LLC Law requires annual meetings to review the company's annual performance. This article also regulates the timing of their implementation - no earlier than 2 and no later than 4 months after the end of the financial year. Specific deadlines are established in the charter.

An extraordinary meeting of participants is also acceptable: when it is urgently necessary to resolve a certain issue within the competence of this body. The right to initiate a general meeting has:

• executive bodies (director, board of directors);
• participants owning more than 10% shares;
• auditor, auditor.

The founders can make their own adjustments to the agenda of the upcoming meeting and propose additional issues for consideration 15 days before the meeting.

If the company has one founder, then the requirements of Art. 36 on the procedure for convening a meeting do not apply to him, since he makes all decisions individually.

Notice of meeting

The procedure in which it is necessary to act in order to convene a meeting is prescribed in the provisions of Art. 36 of the LLC Law. The main actions are:

• Notify each participant of the scheduled meeting. Notification is provided by notice, which must be given 30 days before the scheduled meeting.
• Notify each participant when changes are made to the agenda - 10 days before the meeting.
• Provide founders with information and materials for the upcoming meeting according to the agenda.

IMPORTANT! The company's charter may provide for other, shorter notice periods for founders (Clause 4, Article 36 of the LLC Law).

Requirements for registration and sending of notification:

• the notice must contain information about the place and time of the scheduled meeting, as well as the items on the agenda;
• delivery is organized in the manner specified in the charter of the company, or, if the charter is silent about it, by registered mail to the address contained in the list of participants;
• if you plan to notarize decisions made(Part 3 of Article 17 of the LLC Law), an additional copy of the notification is required - for subsequent submission to the notary.

You can download a sample notice of an upcoming meeting at the following link: .

You can download a sample notice of changes to the agenda for an upcoming meeting at the following link: Notice of changes to the agenda of a meeting of LLC participants - sample.

Form of the protocol and requirements for its preparation

The requirements for the minutes of the general meeting of LLC participants are established by Art. 181.2 of the Civil Code of the Russian Federation. In accordance with its provisions, this corporate document must indicate:

• date and place where the meeting takes place;
• time spending;
• information about the persons who take part in it;
• issues on the agenda;
• voting results for each of them;
• information about the persons who counted the votes;
• information about those who voted against and demanded that this data be entered into the protocol.

A sample minutes of a meeting of LLC participants contains several parts:

1. Title. The document begins with the words “Minutes No.,” followed by the name of the company, the date and time of the meeting, and the location where it is taking place.
2. Introductory part. Contains information about the founders, chairman and secretary of the meeting.
3. Agenda. The issues proposed for consideration are listed. They are listed in order of importance.
4. Main part. It is formed for each agenda item from 4 blocks: “Listen”, “Speaked”, “Voted”, “Decided”. It is necessary to indicate the initials and positions of the speakers, as well as briefly reflect the essence of their speeches.
5. Conclusion. Contains the signatures of the secretary and the chairman, and in some cases of all the founders.

Numbering and protocol book

According to the provisions of paragraph 6 of Art. 37 of the LLC Law, the executive body of the company must organize the keeping of minutes during the meeting. The minutes of all meetings are filed in a book.

Society participants also have the opportunity to request an extract from the minutes, which is prepared by the executive body.

According to established rules of record keeping, documents issued by the company's management bodies are registered in order to simplify their identification. For this purpose, the minutes of the general meeting of LLC participants are numbered.

NOTE! The legislation does not contain requirements for mandatory numbering of protocols.

Since the date of the meeting and its index (number) are the main identifying features of any document, it is advisable to put them on the minutes.

How the decision or minutes of the meeting are drawn up, who signs these documents and carries out the certification

The LLC Law does not contain requirements regarding the form of preparation and the order in which the minutes are drawn up, and also does not determine who signs the minutes of the general meeting of LLC participants.

The general rules in accordance with which protocols are certified are established by clause 3 of Art. 181.2 of the Civil Code of the Russian Federation. According to the provisions of this article, the minutes of the general meeting of LLC participants are certified by the chairman and the secretary who kept it during the meeting.

If the minutes are drawn up in violation of the requirements stipulated by law, and any of the participants does not agree with its contents, there is a risk that the decisions made at the meeting will be declared invalid (subclause 4, clause 1, article 181 of the Civil Code of the Russian Federation).

Protocol authentication

Law dated 05.05.14 No. 99-FZ introduced amendments to the Civil Code of the Russian Federation, which affected the procedure for certifying decisions of owners from 01.09.2014. Starting from this moment, in accordance with paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation, the composition of the founders present and the actual fact of making a decision is certified by a notary, for which the minutes of the general meeting of LLC participants are certified.

NOTE! Provisions of paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation allows you to do without notarization if other methods of certification are enshrined in the charter.

For example, the charter may provide for the following certification methods:

• signing of the minutes by all founders who took part in the meeting;
• video recording (recording medium) - must be attached to the protocol.

If the charter does not contain such provisions, the founders may consider the issue of non-notarization of the minutes directly at the meeting (resolution of the Central Election Commission dated 02/05/2016 in case No. A36-3633/2015). Conditions for the legitimacy of such a decision:

• the issue is included in the agenda;
• the decision is made unanimously by all participants of the company, i.e. all participants are present at the meeting and vote for the proposed method of non-notarization.

Thus, if the decision of the general meeting of LLC participants, a sample of which we have presented, is drawn up incorrectly or is not certified as prescribed by law, this may cause certain problems for the founders and become grounds for its cancellation. The consequences of defects in the protocol may include refusals by the registration authority and lengthy legal proceedings. This is especially acute in the presence of corporate conflicts.

Therefore, it is important for an accountant to know about the requirements for processing decisions of the general meeting. Amendments were made to the Civil Code of the Russian Federation on this issue, which came into force in September last year. Let's look at what they are.

What is the reason for the new requirements?

Decisions of general meetings are often challenged in court by the participants of the JSC (LLC) themselves. The conflicting parties accuse each other of forging signatures, making decisions in the absence of a quorum, violating voting procedures, etc. Such disputes interfere with the normal operation of companies and overload the courts. Therefore, it seems that the legislator decided to remove the basis for claims and make the final document - the minutes of the general meeting - more secure.

ATTENTION

It is not necessary to confirm the decisions of the general meeting and the composition of participants (shareholders) in companies with a single participant (shareholder) Letter of the Central Bank dated August 18, 2014 No. 06-52/6680 (clause 5).

The design itself does not seem to have undergone any changes. The minutes of the general meeting, as before, are drawn up in simple written form, signed by the chairman and secretary of the meeting clause 3 art. 181.2 Civil Code of the Russian Federation. However, now in relation to any decisions of the general meeting it is necessary to confirm clause 3 art. 67.1 Civil Code of the Russian Federation:

• the very fact that a decision has been made;
• composition of participants in the meeting that made the decision.

What should such confirmation be expressed in? This depends on the legal form of the company.

How to confirm the decision of a meeting of a public joint-stock company

In public joint-stock companies everything is simple - they have a registrar subp. 1 clause 3 art. 67.1 Civil Code of the Russian Federation. That is, an independent licensed organization that maintains a register of shareholders and performs the functions of a counting commission (a body that is created to count votes and ensure other “technical” issues of the meeting) clause 4 art. 97 Civil Code of the Russian Federation; clause 4 art. 56 of the Law on JSC.

From September 1, 2014, JSCs are considered public if their shares are publicly placed or traded on the market, or whose publicity is stated in the name and charter of the JSC clause 1 art. 66.3 Civil Code of the Russian Federation. At the same time, a joint stock company created before September 1, 2014, whose shares are publicly placed or traded, is considered public regardless of whether changes have been made to its charter and name or not. clause 11 art. 3 of the Law of 05.05.2014 No. 99-FZ. The number of shareholders for the purposes of dividing a joint stock company into public/non-public does not matter.

The actions of the registrar as a counting commission (checking the powers of participants, registering participants, determining a quorum, counting votes, drawing up minutes, etc.) are confirmation of the decisions of the general meeting of the JSC and the composition of its participants. In other words, JSCs that meet the criteria of public companies can simply formalize decisions in the same manner.

Do the minutes of the meeting need to indicate that the confirmation requirement has been met? The law does not require this, but such a mark will not hurt. It will remove questions regarding compliance with the new requirements both from the shareholders of the JSC, who may want to familiarize themselves with the protocol, and from third parties. A civil law specialist expressed a similar opinion.

FROM AUTHENTIC SOURCES

Deputy Chairman of the Board of the Research Center for Private Law named after. S.S. Alekseev under the President of the Russian Federation

“ In our opinion, the legislation does not establish the obligation of the person maintaining the register of shareholders to draw up additional documents on the method of confirming the decisions made by the meeting and the composition of shareholders present when they were adopted. Therefore, at present we can only talk about the advisability of reflecting the relevant information in the minutes of the general meeting of shareholders.”

It seems that the following phrase should be included in the minutes of the general meeting (somewhere before the signatures):

“The adoption of decisions by this meeting and the composition of the company’s participants present at their adoption were confirmed by the registrar in the manner prescribed by subsection. 1 clause 3 art. 67.1 of the Civil Code of the Russian Federation.”

How to confirm the decision of a meeting of a non-public joint-stock company

The decision of the general meeting of shareholders of non-public joint-stock companies can be confirmed by subp. 2 p. 3 art. 67.1 Civil Code of the Russian Federation:

• <или>registrar;
• <или>notary.

Let us recall that all joint-stock companies, including those with less than 50 shareholders, were required to transfer the maintenance of the register to a professional registrar by October 1, 2014 clause 2 art. 149 Civil Code of the Russian Federation; Art. 3 of the Law of July 2, 2013 No. 142-FZ. That is, the CJSC too. Those who did this have nothing to worry about. Decisions will be considered confirmed by the registrar, as in the option above Letter of the Central Bank dated August 18, 2014 No. 06-52/6680 (clause 4).

But non-public joint-stock companies, which continue to maintain the register on their own even after October 1, 2014, are, frankly speaking, “caught”:

• they are required to invite a notary to every general meeting, which will definitely cost them a pretty penny. In addition, this obliges shareholders to always meet in person, since a decision made by absentee voting cannot be certified by a notary;
• The Central Bank can fine them for illegally maintaining a register of shareholders: the organization - 0.7-1 million rubles, directors - 30-50 thousand rubles. Part 2 Art. 15.22, part 1 art. 23.74, part 2 art. 23.1 Code of Administrative Offenses of the Russian Federation; Letter of the Central Bank dated July 31, 2014 No. 015-55/6227

So it’s better not to put off transferring the registry too long.

The JSC must transfer information about the registrar maintaining the register of shareholders to the Unified State Register of Legal Entities within 3 working days from the date of transfer of the register. subp. "d" clause 1, clause 5 art. 5 of the Law of 08.08.2001 No. 129-FZ. And the registrar reports quarterly to the Central Bank on the registers it serves x section 8 form No. 1100, approved. Appendix No. 2 to Resolution of the Federal Commission for Securities No. 33, Ministry of Finance No. 109n dated December 11, 2001. Therefore, unfortunately, it will not be possible to hide your delay. Is a fine inevitable? It all depends on the Central Bank. Let's hope, at least, that only the director will be punished - his fine is relatively small.

How to confirm the decision of an LLC meeting

A limited liability company must invite a notary to meetings unless the LLC has adopted its own confirmation method. Moreover, this method can be any, the main thing is that it suits all participants of the LLC. After all, the point of confirmation is to protect their interests. For example, the methods could be:

• <или>signing of the protocol by all LLC participants (a certain part of the participants);
• <или>the use of technical means to reliably establish the fact of decision-making and the composition of participants (for example, video recording);
• <или>holding a meeting via video conference.

It is clear that doing without a notary is both easier and cheaper. However, to do this, you must first record the chosen method of self-confirmation in the LLC charter or in a decision of the general meeting adopted unanimously by all LLC participants.

If your organization made changes to the charter or made such a decision before September 1, 2014, then you do not need to contact a notary.

If you have not done this before September 1, 2014, you will have to invite a notary at least once to hold a meeting at which all participants of the LLC clause 1 art. 3 of the Law of 05.05.2014 No. 99-FZ; subp. 3 p. 3 art. 67.1 Civil Code of the Russian Federation:

• <или>unanimously approve the chosen confirmation method;
• <или>will make changes to the charter of the LLC regarding the chosen confirmation procedure clause 4 art. 12 of the LLC Law. In this case, do not forget to register the changes in the Unified State Register of Legal Entities within 3 working days after the changes are approved by the general meeting. clause 5 art. 5, paragraph 1, art. 17 of the Law of 08.08.2001 No. 129-FZ.

Let's assume that your LLC has decided that it will confirm decisions by signing a protocol by all participants. The text of the decision of the general meeting or a new provision of the charter may be, for example, like this.

“The adoption of a decision by the general meeting of the company’s participants, as well as the composition of the company’s participants present at its adoption, are confirmed by signing the minutes of the general meetings of the company by all participants of the company.”

In this case, in the future, all LLC participants will have to gather at each meeting and all of them will have to sign the minutes (and not just the chairman and secretary). If there are two or three participants, then this is not a problem, but if there are more, then it is probably worth considering another form of confirmation.

If subsequently the participants are no longer satisfied with the chosen method, they can choose another, respectively, by unanimous vote at the general meeting or by amending the charter. In addition, it happens that relationships between participants become difficult, disputes and mutual distrust arise. In such cases, it is possible to switch to notarization.

As in the case of JSC, you only need to select a confirmation method and apply it in the future. However, it seems reasonable to record the fact and method of confirmation in the minutes of the meeting, just in case. To do this, you can simply include in the protocol form a link to the corresponding clause of the LLC charter or to the decision of the general meeting, for example, like this.

“The adoption of decisions by this meeting and the composition of the company participants present at their adoption were confirmed by signing the protocol by all company participants in accordance with clause 5.12 of the company’s Charter.”

The procedure for interaction between a JSC (LLC) and a notary

The text of the Manual for Notaries can be found at: website of the Federal Notary Chamber→ For professionals → Theory and practice → A guide to certifying acceptance by a general meeting by a notary..., dated 11/30/2014

Having obligated organizations to confirm meeting decisions with a notary, the legislator did not bother to develop a procedure for such confirmation. The Federal Notary Chamber did this for him by preparing a Manual for Notaries (hereinafter referred to as the Manual). For now it can only be found on the Internet. This document will also be useful for business companies. Let's look at the recommended procedure.

If you invite a notary to meetings, then you do not need to include this method of confirmation in the charter or approve it by decision of the meeting.

STEP 1. Agree with the notary

First, you need to decide which notary you want to invite and first agree on the date of the meeting with him. Do this in advance, because he may have his own plans. Besides, he needs to prepare.

You can contact any notary within the notary district Art. 13 Fundamentals of legislation on notaries, approved. RF Armed Forces 11.02.93 No. 4462-1 (hereinafter referred to as the Fundamentals); Preamble of the Manual where the meeting is being held. That is, for example, to any notary in Moscow.

Keep in mind that the meeting can also be held in the premises of a notary’s office, unless this is prohibited by the company’s charter. This is convenient if there are few meeting participants, and it will cost less. But since the location of the meeting is indicated in the notifications (messages) sent to shareholders (participants), this issue must be agreed upon in advance with the notary in order to include the correct information in the notifications (messages). However, if all participants are present at the meeting, then it is possible to gather in a notary’s office even if the meeting was planned to be held in another place. clause 5.2 Benefits.

STEP 2. Prepare a package of documents

Compose a written application in any form addressed to the selected notary with a request to certify the decisions of the general meeting and the composition of participants. An approximate sample application can be found in Appendix No. 1 to the Manual. The application must be signed by the person convening the meeting (for example, the director of an LLC Art. 34, paragraph 2 of Art. 35 of the LLC Law).

In the application, indicate the date, place, start time and agenda of the planned meeting, attach a set of documents to it:

• a copy of the charter;
• extract from the Unified State Register of Legal Entities;
• documents confirming the authority of the applicant (for example, minutes of the general meeting of the LLC on the election of a director);
• list of LLC participants or list of persons entitled to participate in the JSC meeting Art. 31.1 of the LLC Law; Art. 51 of the Law on JSC;
• internal documents of the company regulating the procedure for convening and holding a meeting (if any);
• a copy of the notice or message about convening the meeting, which was sent to the participants (shareholder m) pp. 1-2 tbsp. 36 of the LLC Law; pp. 1-2 tbsp. 52 of the Law on JSC.

Regarding the preparation of the application and the preparation of a set of documents, it is better to additionally consult a notary. In particular, he can receive an extract from the Unified State Register of Legal Entities himself clause 4.3 Benefits.

STEP 3. Hold a meeting

Warn participants that they must have documents confirming their identity and authority (passports, powers of attorney, birth certificates of minor participants, etc.). pp. 4.4, 5.5 Benefits). The notary will check these documents.

Be prepared for him to make a video or audio recording clause 5.3 Benefits. In addition, the notary may ask you clause 5.12 of the Manual:; subp. 15 clause 1 art. 264 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated August 26, 2013 No. 03-03-06/2/34843 .

If there is no decryption, then you will be able to take into account for tax purposes only the costs of the tariff, and this is the smallest amount.

STEP 5. Obtaining a certificate

At the end of the meeting, the notary will draw up a document - 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 who were present at its adoption and clause 5.13 of the Benefit; Appendix No. 2 to the Manual.

Please note that the notary will not certify the adoption of a void decision, for example a decision limiting the right of a participant to attend a general meeting, take part in discussions and votes, and clause 2 art. 181.5 Civil Code of the Russian Federation; pp. 5.11, 6.2 Benefits. Nevertheless, he will have to compensate for his travel and pay for technical work.

Consequences of confirmation/non-confirmation of a meeting decision

So we've looked at the new requirements. But the question arises - what will happen for non-compliance? This issue has not been resolved in the Civil Code. It seems that a decision of a JSC (LLC) that is not confirmed in the established manner can at least be declared invalid in court upon the claim of a participant who did not take part in the meeting or voted against it. pp. 1, 3 tbsp. 181.4 Civil Code of the Russian Federation. A civil law specialist expressed a similar opinion.

FROM AUTHENTIC SOURCES

“Some experts propose to qualify the decisions of the meeting “without confirmation” as void on the basis of clause 3 of Art. 163 of the Civil Code of the Russian Federation in connection with non-compliance with the notarial form of the transaction. But another point of view seems correct, according to which the decision “without confirmation” has legal force. However, it can be appealed by participants of a business company in accordance with the rules established by the Laws on JSC clause 7 art. 49 of the Law on JSC and about LLC clause 1 art. 43 of the LLC Law” .

Research Center for Private Law named after. S.S. Alekseev under the President of the Russian Federation

It is also unclear what to do with the certificates that the notary will issue. There is no need to attach them to the protocol, as explained in the Manual, this is an independent document clause 5.14 of the Manual. However, it is better to store them together and present them upon request. For example, if the bank where you issue bank cards asks you for a copy of such a certificate along with the protocol on the election of a director.

On September 1, 2014, the amendments made to Part One of the Civil Code of the Russian Federation by Federal Law dated May 5, 2014 N 99-FZ “On Amendments to Chapter 4 of Part One of the Civil Code of the Russian Federation and on the recognition of certain provisions of legislative acts as invalid” will come into force. 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 a new article into the Civil Code of the Russian Federation - 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, company participants holding in the aggregate no less than 1/10 of the total number of votes of company participants), as well as the executive body of the company, if the decision the issue of convening falls 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 of 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 edition 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; a power of attorney from a legal entity can be issued in accordance with clause 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 a 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.”