• Encyclopedia of judicial practice. Features of management and control in business partnerships and companies (Art. 67.1 of the Civil Code)
• 1. Decisions of in-person meetings that are not certified in accordance with paragraphs. 1-3 p. 3 art. 67.1 of the Civil Code of the Russian Federation, unless another method of certification is provided for by the charter or by a decision of the general meeting of participants in the company, adopted by them unanimously, are void
• 2. The establishment by the charter of a business company of a different procedure for certifying the minutes of the general meeting of participants does not exclude the legality of its notarization
• 3. The requirement for notarization, established by paragraphs. 3 p. 3 art. 67.1 of the Civil Code of the Russian Federation, does not apply to the decision of a single participant
• 4. The application of a bidder may be rejected if he did not submit a document from which the organizer of the bidding could conclude that there is no need to notarize the decision of the general meeting

Encyclopedia of Judicial Practice
Features of management and control in business partnerships and companies
(Art. 67.1 of the Civil Code)

1. Decisions of in-person meetings that are not certified in accordance with paragraphs. 1-3 p. 3 art. 67.1 of the Civil Code of the Russian Federation, unless another method of certification is provided for by the charter or by a decision of the general meeting of participants in the company, adopted by them unanimously, are void

paragraph 3 of Article 163 of the Civil Code of the Russian Federation.

Plenum of the Supreme Court Russian Federation in the third paragraph of clause 107 of Resolution No. 25, he explained that decisions of in-person meetings of participants in business entities that are not certified by a notary or by a person who maintains the register of shareholders and performs the functions of a counting commission, in the manner established by subparagraphs 1-3 of paragraph 3 of Article 67.1 of the Civil Code of the Russian Federation, if another method of certification is not provided for by the charter of a limited liability company or by a decision of the general meeting of participants in such a company, adopted by the participants of the company unanimously, are void in relation to paragraph 3 of Article 163 of the Civil Code of the Russian Federation (nullity of transactions if the notarial form is not observed, if notarization is mandatory).

The Supreme Court of the Russian Federation, in paragraph 3 of clause 107 of the Decree of the Plenum dated 06/23/2015 N 25 "On the application by the courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation" clarified that decisions of in-person meetings of participants in business companies that are not certified by a notary or a person exercising the register of shareholders and performing the functions of the counting commission, in the manner prescribed by subparagraphs 1-3 of paragraph 3 of Article 67.1 of paragraph 3 of Article 163

The courts found that in violation of paragraph 3 of paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation, the adoption of a decision by the general meeting of participants in the company and the composition of the participants in the company who were present at its adoption, by notarial certification was not confirmed, came to the legitimate conclusion that the decision of the participants in the company was considered null and void in relation to paragraph 3 of Art. 163 GK.

In addition, the courts rightly pointed out that, in violation of paragraph 3 of Art. 45 of the Federal Law "On Limited Liability Companies", the decision to approve the transaction was made by a person interested in the transaction, in connection with which the decision is invalid also by virtue of paragraphs 2, 4 of Art. 181.5 of the Civil Code of the Russian Federation, since it was adopted in the absence of a quorum and in violation of the requirements of paragraph 3 of Art. 182 of the Civil Code of the Russian Federation.

According to the explanations set out in paragraph three of paragraph 107 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 25 dated 06/23/2015 "On the application by the courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation" decisions of in-person meetings of participants in business entities that are not certified by a notary or a person conducting of the register of shareholders and performing the functions of the counting commission, in the manner prescribed by subparagraphs 1-3 of paragraph 3 of Article 67.1 of the Civil Code of the Russian Federation, unless another method of certification is provided for by the charter of a limited liability company or by a decision of the general meeting of participants in such a company, adopted by the participants of the company unanimously, are void with respect to to paragraph 3 of Article 163 of the Civil Code of the Russian Federation.

According to the position of the Plenum of the Supreme Court of the Russian Federation, set out in clause 107 of Resolution No. 25 of June 23, 2015 "On the application by the courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation", decisions of in-person meetings of participants in business companies that are not certified by a notary or a person exercising maintaining the register of shareholders and performing the functions of the counting commission, in the manner prescribed by sub. 1-3 of paragraph 3 of Article 67.1 of the Civil Code of the Russian Federation, unless another method of certification is provided for by the charter of a limited liability company or by a decision of the general meeting of participants in such a company, adopted by the participants of the company unanimously, are void in relation to paragraph 3 of Art. 163 of the Civil Code of the Russian Federation.

Decisions of in-person meetings of participants in business companies that are not certified by a notary or by a person who maintains the register of shareholders and performs the functions of a counting commission, in the manner established by subparagraphs 1-3 of paragraph 3 of Article 67.1 of the Civil Code of the Russian Federation, unless another method of certification is provided for by the charter of a limited company responsibility or a decision of the general meeting of participants in such a company, adopted by the participants of the company unanimously, are void in relation to paragraph 3 of Article 163 of the Civil Code of the Russian Federation (paragraph 3 of paragraph 107 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25 "On the application by the courts of certain provisions of section Part I of the Civil Code of the Russian Federation).

2. The establishment by the charter of a business company of a different procedure for certifying the minutes of the general meeting of participants does not exclude the legality of its notarization

The fact that the charter of an LLC provides for a different procedure for certifying the minutes of the general meeting of participants does not exclude the legality of its notarization, since it is alternative to notarization.

The main purpose of the norm provided for in paragraph 3 of paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation, is aimed at the ability to reliably establish the fact of the adoption of a decision by the general meeting.

Thus, the absence in the protocol of an extraordinary general meeting of participants in the company of the signatures of all participants in the company does not entail its nullity, taking into account the certification of the protocol by a notary.

3. The requirement for notarization, established by paragraphs. 3 p. 3 art. 67.1 of the Civil Code of the Russian Federation, does not apply to the decision of a single participant

Having examined and evaluated the evidence presented in the case, taking into account the above rules of law, the courts came to the correct conclusion that subparagraph 3 of paragraph 3 of Article 67.1 of the Civil Code of the Russian Federation does not contain a requirement for notarization of the decision of the sole participant legal entity therefore, the refusal of the registering body to state registration of changes made to the constituent documents is illegal.

4. The application of a bidder may be rejected if he did not submit a document from which the organizer of the bidding could conclude that there is no need to notarize the decision of the general meeting

In support of the claims, the plaintiff refers to the auction commission's misinterpretation of the provisions of Article 67.1 of the Code. At the same time, the applicant submits to the case file the decision of the general meeting of the company, drawn up by the minutes of 20.08.2014 N 3, which establishes the method of confirming the decisions of the general meetings of the company from 15.09.2014 by signing the minutes of the general meeting by all the founders of the company.

Leaving the decision unchanged and dismissing the claim, the court of appeal reasonably proceeded from the fact that the protocol dated 08/20/2014 was not submitted by the plaintiff when submitting the second part of the application for participation in the electronic auction. The auction commission did not have information and should not have assumed that the company, in accordance with paragraph 3 of Article 67.1 of the Code, adopted a different procedure for certifying decisions of the general meeting of participants in the company.

Thus, since the company did not submit a document for participation in the auction, from which the organizer of the auction could conclude that there was no need for a notarization of the decision of the general meeting established by law of the general procedure, the auction commission rightfully rejected the company's application as not meeting the requirements of the law and auction documentation.

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Amendments to the Civil Code of the Russian Federation came into force

The basic principle regarding innovations is as follows: those actions that the founders (participants) of a legal entity perform before September 1, 2014 (create or liquidate an organization, amend the charter, etc.) are regulated by current legislation; legal relations that will arise from September 2 will be governed by new rules (part 3 of article 3 of Law No. 99-FZ).

From September 1, 2014, a special procedure for confirming the adoption of decisions by the general meeting of participants/shareholders and the composition of participants/shareholders present at the same time will apply for LLCs and joint-stock companies

In limited liability companies: to confirm the decision and the composition of the participants, you will need to contact a notary (subclause 3, clause 3, article 67.1 of the Civil Code of the Russian Federation). The law allows not to fulfill this requirement if the participants provide for another way of confirmation: in the charter or in a decision of the general meeting of participants, adopted unanimously.

Participants may provide the following ways to confirm the adoption of the decision and the composition of the Company's participants:
- make a decision to amend the charter, fixing in it the most convenient procedure for confirmation (for example, certification of the minutes with the signatures of the chairman and secretary of the meeting, who are members of the company);
- make decisions on the method of confirmation every time a general meeting is held (this method is applicable if the participants always gather in full force, formally it is enough to make such a decision once, however, there is no judicial practice on this issue yet, so it is better to play it safe);
- contact the notary to confirm the decision at the meetings of participants and the composition of the participants (the difficulty lies in the need for the participants to appear directly to the notary, agree in advance with the notary on the date, time and place of the meeting, otherwise the procedure for convening the meeting will be violated).
- the use of technical means that make it possible to reliably establish the fact of making a decision (audio, video, etc.) (the difficulty lies in how to confirm the identity of the persons participating in the video, and even more so the audio recording);
- other ways that do not contradict the law (the law does not establish any restrictions).

Attention: These requirements do not apply to companies in which decisions are made by a single participant, since they are established only in relation to meetings of participants in the Society.

In joint-stock companies: for confirmation, you will need to contact the person who maintains the register of shareholders and performs the functions of the counting commission. In a non-public company, the law allows not to fulfill this requirement if the notary confirms the decision and the composition of shareholders (subparagraphs 1, 2, paragraph 3, article 67.1, paragraph 4, article 97 of the Civil Code of the Russian Federation).

The charter will be considered the only constituent document of a legal entity.

Any charter must contain information about the name of the legal entity (clause 4, article 52 of the Civil Code of the Russian Federation). Therefore, if an organization needs to bring its name in line with the new rules of the Civil Code of the Russian Federation, it will be necessary to amend the charter regarding such a name.

However, you don't need to do it right away. It will be possible to fulfill such an obligation at the first change in the constituent document (part 7 of article 3 of Law No. 99-FZ).
But it would be inappropriate to delay the introduction of amendments to the charter, because if no changes are made, then:
- not only the rules of the new edition of Chapter 4 of the Civil Code of the Russian Federation, but also the old provisions of the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies” (hereinafter referred to as the JSC Law) will be simultaneously applied to the company. As a result, uncertainty may arise as to which rules will need to be followed in a particular situation (for example, when alienating shares): new rules of the Civil Code of the Russian Federation or provisions of the JSC Law.
- there may be problems with contractors. Not every participant in civil circulation will agree to enter into contractual relations with an organization that has dragged out the process of bringing constituent documents in line with the new edition of the Civil Code of the Russian Federation.

Conclusion: It is necessary to amend the charter of an LLC in terms of the procedure for confirming the decision of the general meeting of participants in an LLC and the composition of participants (this does not apply to an LLC with one participant), and for joint-stock companies to bring their Charters in accordance with Federal Law No. 99-FZ of 05.05.2014, those. at least change the organizational and legal form (name) of the legal entity OJSC into public joint-stock companies, and CJSC into non-public joint-stock companies.

A practical case in the application of paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation

Since September 2014, Article 67.1 of the Civil Code of the Russian Federation appeared in the Civil Code of the Russian Federation, which introduced changes, including the procedure for formalizing decisions of the general meeting of participants. In accordance with paragraph 3 of article 67.1 of the Civil Code of the Russian Federation:

"limited liability companies by notarization, if another way (signing of the protocol by all participants or part of the participants; using technical means to reliably establish the fact of a decision; in any other way that is not contrary to law) not provided for by statute of such a company or by a decision of the general meeting of the participants of the company, adopted by the participants of the company unanimously.

According to my observations, this provision practically did not change the procedure for holding a general meeting of members of the Company in most Companies. It’s just that after September, all the Minutes began to indicate that the participants decided to define as a way to confirm the adoption of decisions by the general meeting of the Society’s participants and the composition of the society’s participants who were present at their adoption - the signing of the protocol by all participants in the meeting.

But as life shows, there are always people who go ahead and do everything in their own way, and not like everyone else. And so here is an example of an innovative approach to the use of clause 3 of article 67.1 of the Civil Code of the Russian Federation:

There is Romashka LLC, the members of this Society are Ivanov Ivan and his wife Ivanova Masha. The General Director of this Society is Ivanov Ivan, who is also the founder. There was also a Lawyer in this Society, who has now left this Society (I don’t know how long he worked in this Society and why he left). At the end of August, the Company decided to bring the Articles of Association in line with the current legislation and approved a new version of the Articles of Association. In November 2014, Romashka LLC needed to conclude a deal with Lyutik LLC, this transaction was subject to the approval of Romashka LLC's GMS. And here it turned out that the new version of the Charter of Romashka LLC contains the following clause:

“the actual presence of the participants (ka) of the Company at the meeting and the adoption personally by each participant of decisions on all issues on the agenda of the meeting, as well as the personal signing by the participants (kom) of the minutes (decisions) of the meeting is confirmed by video recording of the meeting, which is carried out using a video camera, recording in subsequently be transferred to a CD-carrier and stored together with the protocol (decisions)”.

Romashka LLC learned about this provision of its Articles of Association from the lawyers of Lyutik LLC, who requested from Romashka LLC not only the Protocol on the approval of the transaction, but also a copy of the video recording of the OSU on a CD-carrier, produced in accordance with the Charter of the Company ( CEO Society LLC "Romashka" was very surprised when I found out what is written in its Charter).

Faced with this situation, I had an assumption that this was a petty dirty trick of a former lawyer. The lawyer signed the documents with the participants, registered the Charter and left. Perhaps I am mistaken in my assumptions, and this paragraph of the Charter was stated in such a way, proceeding from the best intentions, I personally cannot understand why in this Society a paragraph in such a wording was necessary.

In my opinion, this clause, of course, corresponds to clause 3 of Article 67.1 of the Civil Code of the Russian Federation and can be indicated in the Charter of the Company, provided that the members of the Company agree in advance to such a procedure, since it can protect the interests of the members of the Company. But for the majority of LLCs, I think that the above paragraph of the Charter will not be acceptable.

I would like to address colleagues with the following questions and discuss the following:

1. Have you had a chance to meet with the Companies after September 01, 2014, in the Articles of Association of which the actual presence of participants at the GMS is confirmed by video filming? If yes, then do you request, in addition to the OSU Protocol, also a copy of the video footage?

2. Do you consider it necessary to request a copy of the video footage of the GMS if the Articles of Association contain the above paragraph? If not, please explain why.

3. If the Articles of Association of the Company contain the above paragraph, is it possible to notarize the decisions of the GMS and not to make a video filming, as indicated in the Articles of Association? In my opinion, if the Charter of the Society contains the above paragraph, then notarization of the Protocol is not allowed. I really want colleagues to be found who justify that I am wrong on this issue.

P.S. I wanted to call this article: “Not all lawyers are equally useful, or what happens when participants approve the Charter without reading it.”

More than two months have passed since the amendments to the Civil Code (CC) of the Russian Federation regarding the provisions on legal entities came into force, and every day the text of the Law N 99-FZ that introduced them raises more and more questions and problems, which, however, is a normal phenomenon for such a massive reform.

One of the issues of concern to practicing lawyers was the need for notarization of decisions of meetings of limited liability companies (LLC) and non-public joint stock companies (JSC). Currently this topic is quite popular, widely discussed at various round tables, on the Internet and on the pages of professional publications.

It should be noted that the notarial certification of the decisions of the meetings in itself is not an innovation in the Russian legal order and could be carried out at the request of the participants in the turnover before September 1, 2014. Of course, not all notaries provided such a service, but in fairness it must be admitted that even after the entry due to amendments to the Civil Code of the Russian Federation, not all notaries are ready to certify the decisions of meetings, although this is expressly provided for by law.

Before proceeding to the analysis of the problems associated with the notarization of decisions, we briefly outline the existing regulatory framework.

In accordance with paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation, the adoption by the general meeting of participants of a business company of a decision and the composition of the company's participants who were present at its adoption are confirmed in relation to:

JSC - by notarization or certification by the registrar of the company, performing the functions of the counting commission;
- LLC - by notarial certification, unless another method (signing of the protocol by all participants or part of the participants; using technical means that make it possible to reliably establish the fact of a decision; otherwise, not contrary to law) is not provided for by the charter of such a company or by a decision of the general meeting of participants in the company, adopted by the members of the society unanimously.

As follows from the above wording, we are talking about the certification of two legal facts:

Adoption by the general meeting of participants of the economic company of the decision,
- the composition of the participants of the economic company who were present when the decision was made.

In order to clarify these provisions of the Civil Code of the Russian Federation, two acts were adopted: the letter of the Central Bank of the Russian Federation N 06-52 / 6680 (hereinafter - the letter of the Central Bank of the Russian Federation), which only partially deals with the issues of notarization of decisions of meetings, and the letter of the FNP N 2405 / 03-16-3 (hereinafter referred to as the FNP letter), containing a progressive action plan for a notary when certifying decisions of meetings. Note that the FNP letter was withdrawn for revision and by the time the article was written, its final text had not been published, so we will be guided by its latest published version.

Certification of decisions of the sole participant (shareholder)

In accordance with paragraph 5 of the letter of the Central Bank of the Russian Federation, paragraph 2.3 of the letter of the FNP, the provisions on notarization of decisions do not apply to business entities consisting of one participant / shareholder.

The Bank of Russia and the FNP adhere to the logic according to which there is no meeting in a company consisting of one participant / shareholder, therefore the provisions of paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation should not be applied. However, the validity of this position is questionable. Indeed, paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation does not directly provide for the need to certify the decision of the sole participant / shareholder, and special laws establish that decisions taken by the sole participant / shareholder of the company are not subject to the rules on the procedure and timing of general meetings (Article 39 of the Law on LLC, paragraph 3 article 47 of the JSC Law).

At the same time, more than a year ago, the Civil Code of the Russian Federation introduced Chapter 9.1, dedicated to the decisions of meetings, and it does not contain an indication that the decisions of the sole participant / shareholder are not subject to its regulation. In accordance with paragraph 4 of Art. 3 of Law N 99-FZ, which introduced paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation, the provisions of special laws until they are brought into line with the Civil Code of the Russian Federation are applied to the extent that they do not contradict the Civil Code of the Russian Federation.

In addition, if we return to the question of the purpose of introducing the institution of certification of decisions of meetings, namely to ensure the reliability of the Unified State Register of Legal Entities and the fight against abuse, it is not clear why an exception should be made for a company consisting of one participant / shareholder.

In our opinion, before bringing the JSC Law and the LLC Law into line with the Civil Code of the Russian Federation, one should proceed from the fact that certification of decisions of meetings (notarial or alternative) is also necessary if the company consists of one participant / shareholder.

This position is confirmed in the draft amendments to the JSC Law, which establishes that the rules on certification of decisions of meetings are also applied when decisions on issues within the competence of the general meeting of shareholders are made by the person who owns all the voting shares of the company.

In practice, the tax authorities currently do not require that the decision of the sole member/shareholder of a company be certified. On the other hand, as far as we know, some banks, on the contrary, proceed from the fact that notarial certification of decisions of meetings is mandatory, including for companies consisting of one participant / shareholder. On this basis, they do not accept decisions of the general meeting of LLC participants certified by an alternative method, or decisions of the sole participant / shareholder that are not notarized.

Certification of absentee decisions

It also raises questions about the need to certify the decision of the meeting, adopted in absentia. In accordance with paragraph 6.1 of the FNP letter, the notary cannot certify such a decision and the composition of the participants present at its adoption, since, according to the literal interpretation of paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation, the notary must be physically present at the place of the meeting.

In connection with this clarification of the Federal Tax Service, an opinion appeared that a decision made in absentia does not need to be certified at all, which means that this method of making a decision is one of the options for circumventing the requirement to certify decisions.

At the same time, the need for the physical presence of a notary at the meeting when certifying the decision, as well as the possibility not to certify the decision taken in absentia, does not follow from the provisions of paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation.

In our opinion, the decision of the meeting, taken in absentia, and the composition of the participants can be certified, including by a notary. So, one notary can certify the signing of the voting ballot by the participant, another can collect the completed ballots, and the third, having received all the ballots and summing up the voting results, can certify the fact that the participants who sent their ballots took part in the meeting and the fact that the decision was made.

For an LLC, the charter or unanimous in-person decision of the meeting of participants may establish a special rule for certifying absentee decisions, for example, sending certified ballots to the director of the company, who will certify decision.

It should be noted that the possibility of certification of the decision of the meeting by several notaries, as well as the establishment in the charter of the company of the need to certify absentee decisions is directly provided for by the draft amendments to the Law on JSC.

If, however, we agree with the opinion that an absentee decision should not be certified, then in this case the goal of introducing the institution of certification of decisions will not be achieved and it will become possible to commit abuses by issuing absentee decisions.

Identification of a negative decision

The next issue is the need to certify the negative decision of the meeting, i.e. decision, which for some reason is not accepted. According to paragraph 6.2 of the FNP letter, it should not be notarized, since only the decision made is subject to certification.

This position is also questionable. In our opinion, the phrase "making a decision" in paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation should not be interpreted as making a positive decision, since a decision even on negative fact, for example, on not electing a director, not increasing the authorized capital, is a decision in the sense of Chapter 9.1 of the Civil Code of the Russian Federation and its adoption should also fall under the rules of paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation.

Certification of decisions of other bodies of the company

In practice, questions arise about the possibility of extending paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation on decisions of other management bodies, for example, the board of directors or the board of the company.

The introduction of similar rules for certifying decisions of other management bodies of the company into the charter or internal documents of the company is currently not prohibited. The draft amendments to the JSC Law expressly state that the rules on certification of decisions of meetings can be extended to all or some decisions of other management bodies of the company.

Notarial certification of meeting decisions

Notarial certification of the decision must be carried out at the place of the general meeting, which, in particular, may be the location of the notary's office.

According to the explanations of the Federal Tax Service available today, the decision of the meeting and the composition of the participants who were present at its adoption are certified by issuing a separate certificate, i.e. the notary does not keep or draw up minutes of the meeting. The certificate is an independent document and is not attached to the minutes of the meeting.

In accordance with the letter of the FNP, the notary performs a passive-observant function at the meeting, while all corporate procedures are carried out by other persons (registrar, counting commission, secretary). At the same time, the draft amendments to the JSC Law clearly establish that a notary must perform the functions of a counting commission, which means, for example, verify compliance with the procedure for convening and holding a general meeting, counting votes, summing up voting results and compiling minutes of the meeting.

Certification by a foreign notary

The draft amendments to the JSC Law allow for the possibility of certification of decisions of meetings by a foreign notary in the event that this is expressly provided for by the charter of the company.

However, in practice, when implementing this opportunity, problems will potentially arise, since a foreign notary must not only certify the signatures of the persons who took part in the meeting, but, as indicated above, fully exercise the powers of the company's counting commission. Therefore, he must know the requirements of Russian legislation, be able to explain the issues of holding a meeting and the procedure for voting at it.

Alternative ways to certify the decision of a meeting in an LLC

In relation to an LLC, the legislator provides for the possibility, by the charter or a decision taken by all participants unanimously, to establish another way of certifying the decision of the meeting, namely:

Signing of the protocol by all participants or part of the participants;
- the use of technical means to reliably establish the fact of the decision;
- other way, not contrary to the law.

The most common of them is the signing of the protocol by all members of the company. Indeed, this is the simplest reliable way certification of the decision of the meeting, which, however, is fraught with certain risks.

For example, it can only be applied in companies where there is no corporate conflict or other misunderstanding between the participants. Otherwise, any participant with even a minimal percentage of participation can block the identity of the solution by refusing to sign the protocol. In this case, an uncertified decision will be voidable or void, but we will talk about the consequences of the lack of certification of the decision below.

As we can see, the right to sign the minutes of the meeting is actually one of the elements of the distribution of corporate control.

A similar situation may arise when the protocol is signed by several participants. These participants can actually control the validity of the decision, since the issue of signing or not signing the protocol is decided only by them. In addition, they can abuse their powers and sign an unreliable protocol of the meeting, presenting everything as if all members of the society participated in the meeting.

In this case, an additional method of certifying the decision of the meeting can come to the rescue - with the help of technical means that make it possible to reliably establish the fact of its adoption. This can mainly be audio and video recording of the meeting. This type of certificate, in our opinion, is auxiliary. It is difficult to imagine a situation where a person submits to a bank or a tax authority a decision of a meeting with a video recording of its adoption or a photo chronicle of the voting of participants.

Another way, not contrary to the law, may be the signing of the minutes of the meeting by third parties, for example, the final beneficiaries, lawyers, or the often used in practice method of signing the minutes of the meeting by the chairman and the secretary of the meeting. At the same time, questions about how these methods comply with the law and can be used to certify the decisions of meetings are subject to verification by judicial practice.

It also raises the question of whether it is possible to provide alternative ways to certify a meeting in one meeting decision and extend its effect to all subsequent meetings.

In our opinion, such an approach does not contradict the law, in addition, third parties will be able to require the submission of such a decision to confirm the fact of certification of the decision.

At the same time, it should be taken into account that the unanimously adopted decision, which established a certain procedure for certifying all subsequent decisions, will be valid for all participants who voted for its adoption. However, it is not yet clear what consequences for this decision will come if one or more members of the company change. Will it extend its effect to new participants (as it happens with all other decisions of the company taken before the change of the participant) or will a repeated unanimous decision of the meeting of participants in the new composition be required to use the established method of certification in the future? Judicial practice also has to answer this question.

Consequences of non-compliance with the requirements for certification of decisions of meetings

The legislation currently does not provide for the consequences of non-compliance with the requirements for certification of decisions of meetings. Special rules on void and voidable decisions of meetings (Articles 181.4 - 181.5 of the Civil Code of the Russian Federation) do not contain such grounds for voidability or nullity as failure to certify the decision of the meeting in the manner prescribed by law.

Some experts, in the framework of various discussions on amendments to the Civil Code of the Russian Federation, expressed the opinion that the consequences of non-certification of decisions of meetings should be determined by analogy with the consequences of non-compliance with the notarial form of a transaction. So, paragraph 3 of Art. 163 of the Civil Code of the Russian Federation provides that if notarial certification of a transaction is mandatory, failure to comply with the notarial form of the transaction entails its nullity.

Applying these provisions to the decision of the meeting, one can come to the conclusion about the nullity of the decision of the meeting, not certified by a notary.

But such a conclusion does not seem reasonable to us, since, as shown above, notarization of decisions is not mandatory by law (in each case, there is an alternative to notarization), therefore, in the absence of such a decision, it cannot be applied to the decision by analogy with paragraph 3 of Art. . 163 of the Civil Code of the Russian Federation.

In our opinion, in such a situation it is most expedient to apply, by analogy, Art. 168 of the Civil Code of the Russian Federation on the invalidity of a transaction that violates the requirements of the law. We recall that the new edition of Art. 168 of the Civil Code of the Russian Federation provides that a transaction that violates the requirements of the law, according to general rule is voidable, unless it follows from the law that other consequences of the violation, not related to the invalidity of the transaction, should apply.

At the same time, it should be noted that the draft amendments to the JSC Law establish the legal consequences of failure to certify the decision of the meeting in the form of its nullity. In this case, if the uncertified decision of the meeting is subsequently confirmed by the decision of the general meeting, certified by the relevant person, then the initially adopted decision is considered valid from the moment of its adoption.

In our opinion, if this provision is adopted, one should very carefully approach the issue of the legal consequences of non-certification of decisions of meetings held before the date of adoption of amendments to the Laws on JSC and on LLC. Otherwise, many decisions of meetings may turn out to be void if the approach proposed by the draft amendments to the JSC Law is applied to them.

1. Management in a general partnership and limited partnership is carried out in accordance with the procedure established by Articles 71 and 84 of this Code.

2. The exclusive competence of the general meeting of participants in a business partnership, along with the issues specified in paragraph 2 of Article 65.3 of this Code, includes:
1) change in the size of the authorized capital of the company, unless otherwise provided by laws on business companies;
2) making a decision on the transfer of powers of the sole executive body of the company to another economic company (managing organization) or individual entrepreneur(manager), as well as the approval of such a managing organization or such a manager and the terms of an agreement with such a managing organization or with such a manager, if the company’s charter does not refer the resolution of these issues to the competence of the collegial management body of the company (paragraph 4 of Article 65.3);
3) distribution of profits and losses of the company.

3. The adoption of a decision by the general meeting of participants in a business partnership and the composition of the participants in the company who were present at its adoption are confirmed in relation to:
1) a public joint-stock company by a person who maintains the register of shareholders of such a company and performs the functions of a counting commission (paragraph 4 of Article 97);
2) a non-public joint-stock company by notarization or certification by a person who maintains the register of shareholders of such a company and performs the functions of a counting commission;
3) limited liability companies by notarial certification, unless another method (signing of the protocol by all participants or part of the participants; using technical means to reliably establish the fact of the decision; otherwise, not contrary to law) is not provided for by the charter of such a company or by a decision of the general meeting participants of the company, adopted by the participants of the company unanimously.

4. A limited liability company, in order to verify and confirm the correctness of its annual accounting (financial) statements, has the right, and in cases provided for by law, is obliged to annually engage an auditor who is not connected by property interests with the company or its participants (external audit). Such an audit can also be carried out at the request of any of the company's participants.

5. To check and confirm the correctness of the annual accounting (financial) statements, a joint-stock company must annually engage an auditor who is not connected by property interests with the company or its participants.

In cases and in accordance with the procedure provided for by law, the charter of the company, an audit of the accounting (financial) statements of a joint-stock company must be carried out at the request of shareholders whose aggregate share in the authorized capital of the joint-stock company is ten or more percent.

(The article was additionally included from September 1, 2014 by the Federal Law of May 5, 2014 N 99-FZ)

Commentary on Article 67.1 of the Civil Code of the Russian Federation

1. Contrary to its title, the commented article does not define the features of management and control in business partnerships, but refers exclusively to business companies. The blanket rule of paragraph 1 of the commented article only emphasizes the position of the legislator regarding the significantly different legal nature of management in business partnerships, which is more contractual than corporate in nature compared to companies.

The commented article, depending on the legal and economic nature varieties of business companies establishes quite significant restrictions civil rights:

In addition to the provisions of Art. 65.3 of the Civil Code of the Russian Federation, it prescribes a range of issues related to the exclusive competence of the general meeting of participants in a business company;

Imposes on economic companies the obligation to fix the will of the general meeting of participants in the economic company in a specific way;

Establishes the obligation of business entities to exercise external financial control (audit).

The grounds for establishing restrictions on civil rights in all three cases are, first of all, the protection of the rights and legally protected interests of third parties, as well as the rights and interests of the obviously weaker side of a corporate legal relationship - a participant who, due to the size of the share of participation, is unable to influence the terms of conducting entrepreneurial activity economic company and the decisions it makes (the so-called minority shareholder).

2. The exclusive competence of the general meeting of participants in a business company is exhaustively determined by the provisions of paragraph 2 of Art. 65.3 of the Civil Code of the Russian Federation and paragraph 2 of the commented article. Expansion or narrowing of the range of mandatory issues of the exclusive competence of the general meeting is permissible only on the basis of a federal law that determines the legal status of a particular type of such company, which does not exclude the possibility of changing the scope of competence by the charter of a business company in compliance with applicable rules.

The meaning and essence of "exclusivity" are intended to provide a certain minimum scope of the shareholder's participation in resolving issues of managing a business entity in order to exclude a situation in which the dominant participant, using his share of participation, transfers the solution of all issues that are essential for the fate of the business entity. society, any collegial body, completely eliminating minority shareholders from participation in making such decisions. In addition, third parties can be reliably sure that no other body can decide on issues that fall within the exclusive competence of the general meeting of participants in a business partnership.

3. The discretion of the participants in civil transactions in the formation of the competence of the supreme management body of a public joint-stock company is significantly limited, the law uses a permissive method of legal regulation in the model "only what is expressly stated in the law is allowed." The current joint-stock legislation reliably shows that there are very few such permissions allowed in relation to public joint-stock companies.

In turn, the competence of the general meeting of participants in a non-public company within the meaning of paragraph 3 of Art. 66.3 of the Civil Code of the Russian Federation can be significantly expanded in accordance with the charter of such a company, the law uses the dispositive method of legal regulation in the model "everything that is not directly prohibited is allowed", the only limitation in terms of the powers of the general meeting in relation to non-public companies is the inadmissibility of transferring certain imperatively as "exceptional" issues for resolution to another body of the company, as well as issues that by their nature cannot be transferred to the resolution of the general meeting (for example, representing the interests of the economic companies to third parties: it is rather difficult to imagine a general meeting of participants concluding an agreement or accepting performance under an agreement). Reducing the scope of powers is possible and permissible only within the limits established by law.

Differences in the approach of the legislator in determining the margin of appreciation of participants in economic companies are primarily due to the fact that the structure of public joint-stock companies is an investment tool, a mechanism, a way of mass attraction Money an indefinite circle of persons who form a very fragmented group of minority shareholders who do not have the opportunity to influence the decisions made and the conditions for organizing the management of such a company. This situation creates fertile ground for various kinds of abuses and, accordingly, implies the need for legislative intervention in the sphere of such relations, which in essence is one of the manifestations of the legislator's paternalism in relation to an incompetent investor, a minority shareholder (see also the commentary to Article 66.3 of the Civil Code) . In turn, non-public business companies, by their very nature, cannot strike the interests of large groups of persons, being classified as closed corporations, the latter are not capable of causing significant harm, and the very nature of such companies implies the essential importance of the personal element, participation, which, in turn, allows talk about the fact that a person entering a non-public society is more able to influence decisions. Accordingly, such features predetermined the admissibility of a significantly greater degree of freedom in organizing the management of a non-public society in comparison with a public one, relying on the discretion and initiative inherent in civil law of participants in civil circulation.

4. The rules of paragraph 3 of the commented article, which determine the ways of fixing the will of the general meeting of participants in a business company, represent a fairly significant restriction of civil rights, since they impose on the participants in business companies the obligation to confirm the circumstances related to decision-making established by law way.

The restrictions of clause 3 are a natural reaction to the unfair behavior of participants in civil transactions. Unfortunately, the practice of forging the decisions of the governing bodies of legal entities is quite common, which boils down to presenting to third parties, as well as to the court (!) Texts of decisions of the governing bodies that were not actually taken. The vicious practice of drawing up decisions with the signing of such decisions by the "chairman and secretary of the meeting" led to the falsification of such decisions, the violation of the rights of third parties and participants in business entities. For example, the executive body, in order to protect interests of a dubious nature, or to confirm its authority or the fact of making a decision to approve, for example, a major transaction or a transaction with interest, may submit a decision signed by the "chairman and secretary of the meeting", while in the company there could be more than a dozen participants, it is absolutely impossible to verify the expression of will with this method of reflecting the fact of a decision. This practice led to the fragility of civil transactions, since the counterparties of a legal entity, even being prudent, received an illusory confirmation of the presence of the powers of the executive body of the company, the approval of a major transaction, a transaction with interest, etc. judicial order. In addition, such fraudulent decisions often led to a significant violation of the rights of minority participants in business entities.

Accordingly, the basis for the introduction of restrictions established by paragraph 3 of the commented article is the protection of the rights and legally protected interests of third parties - counterparties of a business company, as well as participants in business companies.

5. Paragraph 3 of the commented article establishes three ways of fixing decisions:

1) by engaging a third independent person - a registrar;

2) by involving a third independent person - a notary;

3) in another way, determined at the discretion of the participants.

The distribution of methods for fixing the will of the general meeting of participants in a business company is carried out depending on the type of business company, the criteria are the likelihood and significance of a potential violation of the rights of third parties, minority participants.

The most expensive and complicated way of confirming the will with the participation of the registrar has been established without alternative as mandatory for public joint-stock companies, which is predetermined by the potential possibility of violating the interests of a huge group of persons - minority shareholders. In turn, for limited liability companies, maximum discretion is offered: as long as all participants agree, it is possible and permissible to use fixation methods that are not related to the involvement of third parties, if there is no consent, then the involvement of a notary is mandatory. Consent to use a different method of fixing the expression of will may be reflected in the charter or in the decision of the meeting, while this method should allow to reliably establish the fact of the decision.

The notary and the registrar are persons not connected by property interests with the company and its participants, they are able to independently reflect legally significant circumstances. The independence of a notary and a registrar is ensured by the threat of termination of a special permit, on the basis of which each of them carries out its activities. Registrars have been performing the function of a person organizing the holding of a general meeting of joint-stock companies for quite a long time, but until recently, his involvement was not mandatory in all cases. A novelty for the Russian legal order is the involvement of a notary to fix the expression of will at the general meeting of non-public companies, which, as shown by previous experience of attracting representatives of the notaries to streamline the turnover of shares in the authorized capital of limited liability companies, will be very productive.

The registrar and the notary within the meaning of paragraph 3 do not check the procedure for convening a meeting, the formation of the agenda, the relevance of issues to the competence of the general meeting, do not check the powers of the persons participating in the meeting, do not qualify the relations of participants in a business company in any form. The notary and the registrar are required to confirm two circumstances:

1) the composition of the persons participating in the meeting;

Violation of the requirements of clause 3 of the commented article entails a refusal to recognize the force of a legal fact behind such a decision, such a document is not a decision within the meaning of corporate law, however, it can serve as evidence of other circumstances relevant to civil circulation, in particular, to determine the moment the beginning of the limitation period, the application of the principle of estoppel against the plaintiff on the basis of par. 4, paragraph 2 and paragraph 5 of Art. 166 of the Civil Code of the Russian Federation, to determine the grounds for liability, etc.

It seems that the participants in the company who actually took part in the meeting, the decision at which was made with a defect in fixing the expression of will, cannot refer to such a defect in their relations with each other as long as such a decision reflects the real will of such a participant in the meeting.

6. The commented article establishes the procedure and grounds for conducting an audit of the annual accounting (financial) statements.

Establishing a mandatory audit is a restriction of civil rights established in the interests of third parties, which include potential investors and shareholders in public joint-stock companies, and shareholders in joint-stock companies. The purpose of the audit is to show the actual financial position of the company, so that on the basis of the data of such an audit, which in relation to public joint-stock companies is subject to public disclosure, third parties can make investment decisions (acquire shares or sell them), and shareholders can take them into account when implementing the rights of shareholders (whether to vote for the distribution of profits, whether it is necessary to apply to the arbitration court with an indirect claim, etc.).

Audit is divided into mandatory and voluntary. Mandatory audit has no alternative established for joint-stock companies. In relation to limited liability companies, the mandatory audit may be provided solely on the basis of federal law, for example, Art. 5 of the Federal Law of December 30, 2008 N 307-FZ "On Auditing".