General partnerships and limited partnerships: comparative characteristics. General partnership and limited partnership (partnership in limited partnership). Features of their legal status General partnership and faith difference

Business partnerships include commercial organizations with share capital. A contribution to property may be money, securities, other property or property rights or other rights having a monetary value. Participants of two types of partnerships are distinguished: only general partners can be participants in a general partnership, participants in a partnership are represented on faith by general partners and contributors (commanders). General partners in a limited partnership form a general partnership within a limited partnership, their legal status is determined by the norms of the legislation on participants in a general partnership.

Participants of a general partnership - general partners are individual entrepreneurs or commercial organizations. State and municipal enterprises may participate in a general partnership only with the prior consent of the owner or a body authorized by him. Any person can be a participant in only one general partnership.

The participants in a full partnership shall be jointly and severally liable for its debts. If the property of the partnership is insufficient to pay off its debts, creditors have the right to demand satisfaction from the personal property of any of the participants.

The participants of a limited partnership, along with general partners, are contributors. Contributors do not participate in the management, are not liable for the debts of the partnership and bear the risk of losses in the amount of their contributions. Any citizen or commercial organization can be a contributor. A person can be a general partner in only one partnership (either general or limited). A participant in a general partnership cannot be a full participant in a non-faith partnership, and vice versa, since it is impossible, being a full partner in one of the partnerships (full or in faith), to guarantee the same personal property for the debts of another partnership.

The only founding document of the partnership is the memorandum of association. The founding agreement of a full partnership is signed by all its participants and contains the following information: the name of the full partnership, its location, the procedure for managing it; conditions on the amount and composition of the share capital of the partnership; on the amount and procedure for changing the shares of each of the participants in the share capital; on the amount, composition, timing and procedure for making their contributions; on the responsibility of participants for violation of obligations to make contributions. The memorandum of association provides for the procedure for joint activities to create a partnership, the conditions for transferring property to it and participation in its activities, the conditions and procedure for distributing profits and losses between participants, the procedure for the withdrawal of founders (participants) from the partnership. The size of the share capital must be at least 100 times the minimum wage, and for a day state registration at least 50% of the total share capital must be paid, and the second part - within a year from the date of state registration.

The memorandum of association is concluded in writing, and by agreement of the parties, they will be certified by a notary. At the discretion of the parties, the memorandum of association may be concluded for a fixed period and without specifying a period.

A limited partnership is formed and operates on the basis of a memorandum of association signed by all general partners. The memorandum of association must contain the following information: company name of the limited partnership; conditions on the amount and composition of the share capital of the partnership; on the amount and procedure for changing the shares of each of the general partners in the share capital; on the amount, composition, timing and procedure for making their contributions; on the total amount of deposits made by contributors.

The amount of the share capital of a limited partnership must be at least 100 times the minimum wage; moreover, at least half of it must be paid before the day of state registration of the partnership, and the second half within a year from the date of state registration.

In the memorandum of association, general partners determine the procedure for joint activities to create a limited partnership, the conditions for transferring their property to it.

The agreement on the establishment of a limited partnership contains information on the total amount of contributions made by investors, however, it does not indicate the amount of the contribution of each limited partner, so a change in the amount of contributions or the composition of investors does not entail a change in the memorandum of association. Investors of a limited partnership are bound by obligations not with the participants, but with the partnership, therefore, the memorandum of association establishes the procedure for the investors to receive part of the profit, their contribution when they leave the partnership. The investors of a limited partnership enter into an agreement with the partnership or in personal statement express their readiness to enter into a partnership, which means their acceptance of an obligation to make a contribution to the share capital within a certain time frame and amount.

Investors of a partnership must be notified of changes in the terms of the founding agreement of a limited partnership adopted by a unanimous decision of the general partners. If the investors do not agree with the amendments to the memorandum of association, they may withdraw from the partnership.

The share capital of the partnership is its property base of commercial activity. The share capital is directed to repay the claims of creditors, and if it is insufficient, it is possible to satisfy the claims of lenders from the personal property of the participants. The law determines the ratio of the share capital and net assets full partnership, and the profit received by the partnership is not distributed among the participants until the value of net assets exceeds the size of the share capital.

The joint capital of a limited partnership contains the contributions of limited partners. The participants themselves determine the ratio of contributions of full partners and limited partners.

Management in a partnership is carried out by common consent of all general partners, unless the memorandum of association provides for cases where the decision is taken by a majority of votes. Each general partner has one vote to participate in the management, unless the memorandum of association provides otherwise.

The memorandum of association establishes the conditions for the entrepreneurial activity of general partners, who can conduct business separately, or all partners conduct business jointly, or the conduct of business is entrusted to individual partners. Acting on behalf of the partnership, general partners act without a power of attorney. The latter is provided for making transactions for general partners who are not authorized to conduct business, if such a restriction is provided for in the memorandum of association.

A general partner, regardless of whether he is authorized to conduct the affairs of the partnership, has the right to get acquainted with all the documentation. At the same time, a general partner is obliged, without the consent of other partners, not to participate in transactions on his own behalf and in his own interests or in the interests of third parties, if such transactions are the subject of the partnership, so as not to create competition for the partnership.

Contributors (limited partners) are not entitled to engage in entrepreneurial activities on behalf of a limited partnership, but have the right to get acquainted with its annual reports and balance sheets. Investors of a limited partnership may challenge the actions of general partners in the management and conduct of business of the partnership in order to protect their property interests.

Investors have preferential rights over general partners to receive profit from the activities of the partnership, due to their share in the share capital, and to receive contributions from the property of the liquidated partnership, remaining after the satisfaction of creditors' claims.

In case of a change in the composition of participants, a general partnership may continue its activities if this is provided for by the contract or agreement of the remaining participants, since, due to the personal-confidential nature of the relationship between the participants, their unanimity is required to change the personal composition of the partnership.

In case of voluntary withdrawal or exclusion of a participant from a general partnership, the withdrawing (excluded) general partner is paid in money or other material values the value of his share in the share capital, unless otherwise provided by the memorandum of association. The value of the share differs from the value of the contribution made, as it is determined from the balance drawn up at the time of the partner's retirement and represents a percentage of the total value of the partnership's assets. When a participant withdraws from the partnership, the shares of the remaining participants increase proportionally, unless otherwise provided by the constituent agreement or other agreement of the participants.

Heirs (successors) of the retired participant who have not entered into in due course become participants in a general partnership, receive from him a monetary or property equivalent of the inheritance share (legal predecessor) and at the same time assume the risk of liability for the partnership's loans lying on the former partner within two years from the date of approval of the annual report on the retirement of the relevant partner.

The amount of liability of heirs (legal successors) is limited by the value of the property transferred to them.

Investors of a limited partnership have the right to withdraw from the partnership at the end of the financial year, as well as to receive their contribution and transfer a share or part of a share in the joint capital of the partnership to a contributor or a third party. Investors of a limited partnership enjoy the priority right to purchase a share or part of it over third parties. It is possible to transfer a share (part of a share) from a contributor to a general partner with a unanimous decision of other general partners, as this leads to a change in the equity participation of general partners in the share capital.

A full partnership is liquidated on the grounds in accordance with civil law, as well as in the case when the only participant remains in the partnership. Such a participant has the right, within six months, to transform the partnership into a business company or to alienate a part of his share to another person who assumes the powers of a general partner.

A limited partnership is subject to liquidation on the grounds established by law for general partnerships. A limited partnership is maintained if there is one general partner and one contributor. The basis for the liquidation of a limited partnership is the retirement of all investors participating in it. General partners, instead of being liquidated, have the right to transform a limited partnership into a general partnership.

Business partnerships- contractual associations of several persons for joint business activities under a common name.

The main actor of any partnership - a general partner - bears unlimited liability for the obligations of the company with all his property. Therefore, in partnerships, unlike companies, the founders, as a rule, take a personal part in the affairs of the enterprise.

The authorized capital of business partnerships is traditionally referred to as share capital, since such enterprises are based on an agreement between the founders (and not on the charter), adding together their contributions for commercial activities.

Any transferable property, including property rights, can act as a contribution to the authorized capital. The main criterion for the admissibility of certain contributions to the authorized capital is their ability to increase the amount of the company's assets.

Business partnerships are of two types:

Full partnership. A business partnership, the participants of which jointly and severally bear subsidiary (additional) liability for its obligations with all their property, is called a general partnership. It arises on the basis of an agreement between several participants (general partners), which can only be entrepreneurs - individual or collective.

The management of the partnership is carried out on the basis of decisions taken by all participants unanimously or by a majority vote (if the latter is provided for by the founding agreement). Conducting business, i.e., representing the interests of a full partnership in circulation, according to general rule carried out by each of the participants.

The company name of the partnership must include the true names (names) of all its participants. You can limit yourself to indicating the name (name) of one of the general partners with the addition of the words “... and company” to it (for example: “Full partnership“ Zhdanov and company ”).

Faith partnership. A business partnership consisting of two categories of participants: general partners (complementary partners), jointly and severally bearing subsidiary liability for its obligations with their property, and fellow contributors (limited partners) who are not liable for the obligations of the enterprise, is called a limited partnership (or limited partnership).

Similarly to a general partnership, the business name of a limited partnership must contain the names (names) of all or at least one general partner (in the latter case, with the addition of the words “... and the company”).

Figuratively speaking, a limited partnership, as it were, includes two relatively independent structures: a general partnership and a group (or one) of fellow contributors. On the one hand, limited partners are completely excluded from participating in the management and conduct of business of the partnership. On the other hand, they manage their deposits completely independently of their full partners. A distinctive feature of the limited partner's rights to the property of the partnership is that when leaving the enterprise, he has the right to claim only the return of his contribution, and not to receive an appropriate share in the property of the company.

With the authorized (share) capital divided into shares (contributions) of the founders (participants).

Property created at the expense of contributions of founders (participants), as well as produced and acquired by a business partnership or company in the course of its activities, belongs to it on.

Business partnerships (Article 69 - 86 of the Civil Code of the Russian Federation) can be created in the form full partnership and partnership on faith (limited partnership).

General partnership

The partnership is recognized as full, the participants (general partners) of which, in accordance with the agreement concluded between them, are engaged on behalf of the partnership and are liable for its obligations with their property.

Participants general and limited partnerships (limited partnerships) can be like so and commercial organizations. The property of such partnerships, created at the expense of contributions, produced and acquired in the process economic activity, belongs to the partnership on the right of ownership.

A person may be a general partner of only one partnership. There cannot be less than two participants in a general partnership.

The only founding document of the partnership is its memorandum of association. It must be signed by all general partners.

The contribution to the share capital can be money, as well as property rights that have a monetary value. The management of the activities of a general partnership is carried out by common consent of all its participants. Each participant has one vote and is entitled to deal with all documentation for the conduct of business.

Each participant in a general partnership has the right to act on behalf of the partnership, unless the memorandum of association establishes that all its participants conduct business jointly. In the case of joint conduct of the affairs of the partnership by its participants, the consent of all participants in the partnership is required for the completion of each transaction. If the conduct of affairs is entrusted to one or some members, then the remaining members, in order to conclude a transaction on behalf of the partnership, must have a power of attorney from the participant who is entrusted with the conduct of the affairs of the partnership.

Profit and loss of a general partnership are distributed among the participants in proportion to their shares in the share capital.

Participants of a full partnership jointly and severally bear subsidized liability with their property for the obligations of the partnership. Subsidized liability means the additional liability of all "comrades" in proportion to the size of their contribution.

Faith partnership

A limited partnership (Articles 82-86 of the Civil Code of the Russian Federation), also called a limited partnership, differs from a general partnership in that, along with general partners, it has one or more participants of contributors (limited partners). The latter bear the risk of losses associated with the activities of the partnership, within the limits of the amounts of contributions made by them and do not take part in the implementation of entrepreneurial activities by the partnership. Therefore, investors can be citizens and any legal entities and not just individual entrepreneurs and commercial organizations.

State bodies and bodies local government is not entitled to become investors in a limited partnership, unless otherwise provided by law.

A limited partnership is created and operates on the basis of a constituent agreement.

Contributors are not entitled to participate in the management and conduct of business of a limited partnership, to act on its behalf otherwise than by proxy.

The contributor of a limited partnership has the right to:

To receive a part of the partnership's profit due to its share in the share capital.
Get acquainted with the annual reports and balance sheets of the partnership.

Liquidation of a limited partnership

A limited partnership is liquidated when all the contributors participating in it retire. However, full partners have the right, instead of liquidation, to transform a limited partnership into a full partnership.

Business companies

Business companies may be created in the form of a joint-stock company, a limited liability company or with additional liability.

Limited Liability Company

Limited Liability Company- a company founded by one or more persons, the constituent capital of which is divided into shares of the sizes determined by the constituent documents.

The rights and obligations of participants in a limited liability company are determined in the memorandum of association and the charter in relation to Art. 67 of the Civil Code of the Russian Federation.

Additional Liability Company

A company founded by one or more persons is recognized, authorized capital which is divided into shares of sizes determined by the constituent documents.

Members such a society in solidarity bear subsidiary responsibility for his obligations with his property in the same multiple for all to the value of their contributions, determined by the constituent documents of the company. Participants in an additional liability company are liable with their property in precisely defined amounts, multiples of their contributions. Since the authorized capital of a company cannot be less than 100 times the minimum wage, a company with additional liability has great opportunities to guarantee the interests of its creditors.

Joint-stock company

Legal regulation of a joint-stock company (JSC) along with the Civil Code of the Russian Federation ( Art. 96-104) is determined federal law dated December 26, 1995 No. 208-FZ “ About Joint Stock Companies”, and in terms of joint-stock companies created in the process of privatization of state (municipal) enterprises, corporatization in industries Agriculture and joint-stock banks - and special federal laws.

It is recognized, the authorized capital of which is divided into a certain number of shares, certifying the mandatory rights of participants (shareholders) (Article 2 of the Federal Law “On Joint Stock Companies”).

Joint-stock companies are created in the founding order, but the Federal Law "On Joint-Stock Companies" separates the general and special procedures for the establishment of joint-stock companies.

The Law “On Joint Stock Companies” pays special attention to the formation of joint-stock companies through their reorganization (merger, accession, separation and separation), as well as the transformation of companies.

Founders

JSC founders both legal entities and citizens, including foreign persons, can act in accordance with the law of July 9, 1999 No. 160-FZ “On Foreign Investments”. The number of founders of a closed JSC cannot exceed 50 persons. State bodies (local self-government bodies), unless otherwise established by federal laws, may not act as founders of a JSC.

A joint stock company acquires the rights of a legal entity from the moment of its state registration.

The founding document of a JSC is its charter.

The charter of the JSC must contain all the main characteristics of the JSC, as defined in paragraph 3 of Art. 98 and paragraph 2 of Art. 52 of the Civil Code of the Russian Federation, art. 11 of the Federal Law “On Joint Stock Companies”.

JSC must have a name and location. In this case, the name of the JSC must contain an indication that it is joint-stock company and his type.

Authorized capital

Minimum authorized capital JSC is defined by the legislator for open societies- not less than 1000 times, a closed society - at least 100 times the amount of the minimum wage established by federal law on the date of registration of the company.

The legislation distinguishes two types of joint-stock companies: open and closed - depending on the composition of the founders, the method of formation of the authorized capital, and, accordingly, the status of its participants (Article 97 of the Civil Code of the Russian Federation).

A company is recognized as closed, the shares of which are distributed only among the founders and other circle of persons specified in advance.

Shareholders of a closed company have a pre-emptive right to acquire shares sold by other shareholders (clause 2, article 997 of the Civil Code of the Russian Federation).

AO provides three-tier control system: general meeting, board of directors (supervisory board), which in without fail is created if the company has more than 50 members, and executive agency(single or collective).

The competence of the General Meeting of Shareholders includes the following issues:

reorganization and liquidation of the company;
increase and decrease of the authorized capital;
formation of the executive body;
approval of annual reports, balance sheets, profit and loss accounts, distribution of profits and losses, etc.

The board of directors carries out general management of the company's activities, with the exception of those that are referred to the exclusive competence of the general meeting.

The management of the current activities of the JSC is carried out individually or by a collegial body.

Shareholders are not liable for the obligations of the company and bear the risk associated with their activities to the extent of their shares.

Subsidiaries and affiliates

Subsidiary a business company is recognized if another main business company or partnership, due to the predominant participation in it authorized capital or in accordance with an agreement concluded between them, or otherwise has the ability to determine the decisions taken by such a company.

The subsidiary is not liable for the debts of the parent company. The parent company, which has the right to issue mandatory instructions to the subsidiary, shall be jointly and severally liable with the subsidiary for transactions concluded by the latter in pursuance of such instructions. In case of insolvency of a subsidiary company through the fault of the main company (partnership), the latter bears subsidiary liability for its debts.

The economic company is recognized as dependent if another (predominant, participating) company has more than 20% of the voting shares of the joint-stock company, or 20% of the charter capital of a limited liability company. Only a joint-stock company and a limited liability company can be both dependent and predominant. The limits of mutual participation of economic companies in each other's charter capitals and the number of votes that one of such companies can use at a general meeting of participants or shareholders of another company are determined by law.

General partnership- a type of economic partnerships, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations not only in the amount of contributions to the share capital, but with all their property, that is, "full" , unlimited liability.

Faith partnership(limited partnership) - a commercial organization based on share capital, in which there are two categories of members: general partners and limited partners. General partners carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with all their property. Limited contributors are responsible only for their contribution.

A general partnership and a limited partnership is created and operates on the basis of a founding agreement. The memorandum of association is signed by all its participants and must contain the following information:

Name of the general partnership;

its location;

The procedure for managing the activities of the partnership;

Conditions on the amount and composition of the share capital of the partnership;

Conditions on the size and procedure for changing the shares of each of the participants in the share capital;

Conditions on the amount, composition, terms and procedure for making contributions by participants;

Conditions on the liability of participants for violation of obligations to make contributions. (full)

conditions on the total amount of deposits made by investors. (on faith)

In the foundation agreement, the founders undertake to create a legal entity, determine the procedure for joint activities to create it, the conditions for transferring their property to it and participating in its activities. The agreement also defines the conditions and procedure for the distribution of profits and losses among the participants, management of the activities of a legal entity, withdrawal of founders (participants) from its composition.

Participants in a general partnership are called general partners and can only be individual entrepreneurs and (or) commercial organizations. The number of participants must not be less than two. Contributors can be citizens, legal entities, institutions (unless otherwise provided by law).

It should be noted that the rights and obligations of the participants are distributed in proportion to their contributions to the share capital, while the size of the share does not affect the exercise of their rights by the participants. Decisions are made in full partnership unanimously. A feature of the PT is the full responsibility of the participants, which they bear regardless of the size of the contribution, in other words, the PT participants are responsible with their own property. The exit of one of the participants implies the liquidation of the entire PT, unless otherwise provided by the founding document. Relations between the participants of the PT are of a trusting nature. The PT can be transformed by the participants into a business entity within 6 months if there is only one participant left in it. The creditor has the right to recover the missing amount from the share of the participant in the PT, if there is a shortage of his other property to cover debts.

General partnership management carried out by common consent of all participants. The founding agreement of a partnership may provide for cases where the decision is taken by a majority vote of the participants.

Managing the activities of a limited partnership carried out by full partners. Contributors are not entitled to participate in the management and conduct of business of a limited partnership, to act on its behalf otherwise than by proxy. They do not have the right to challenge the actions of general partners in the management and conduct of business of the partnership.

Each member full partnership has one vote, unless the constituent agreement provides for a different procedure for determining the number of votes of its participants.

Members full partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership.

Participant full partnership, who is not its founder, is liable on an equal basis with other participants for obligations that arose before his entry into the partnership.

A participant who has left the partnership shall be liable for the obligations of the partnership that arose prior to the moment of his withdrawal, along with the remaining participants, within two years from the date of approval of the report on the activities of the partnership for the year in which he left the partnership.

The supreme governing body of a limited partnership is the meeting of general partners. At the meeting, each general partner has one vote, unless otherwise provided by the memorandum of association, and decisions are taken unanimously (unless otherwise provided by the memorandum of association).

Each general partner has the right to act on behalf of the partnership, unless the founding agreement establishes that all general partners conduct business jointly, or the conduct of business is entrusted to individual participants. In case of joint conduct of the affairs of the partnership by its general partners, the consent of all participants in the partnership is required for the completion of each transaction.

If the management of the affairs of the partnership is entrusted by its participants to one or some of them, the remaining participants in order to make transactions on behalf of the partnership must have a power of attorney from the participant (participants) entrusted with the conduct of the affairs of the partnership.

The partnership is liable for its obligations with all its property. In case of insufficiency of the property of the company, the creditor has the right to present a claim against any general partner or all at once for the performance of the obligation (subsidiary liability).

A general partner who is not its founder is liable on an equal footing with other general partners for obligations that arose before he joined the partnership.

A general partner who retired from the partnership is liable for the obligations of the partnership that arose before the moment of his retirement, along with the remaining participants, within two years from the date of approval of the report on the activities of the partnership for the year in which he retired from the partnership.

P.2 Art. 61 of the Civil Code lists the following grounds:

by decision of its founders (participants) or body of a legal entity;

by a court decision in the event of gross violations of the law committed during its creation, if these violations are of an irremediable nature.

Features of the finance of business partnerships

Business partnerships commercial organizations are recognized with the authorized (reserve) capital divided into shares (contributions) of the founders (participants).

At the same time, the share in the share capital does not provide the participant with any real rights to the property of the partnership, which belongs to the latter by the right of ownership as a legal entity. It expresses only the obligations of the participant in relation to the partnership, i.e. the right to a part of the profit and the liquidation balance, or the value of a certain part of the property when leaving it, as well as the rights of the participant to manage the partnership.

Business partnerships can be created in the form of a general partnership and a limited partnership (limited partnership). The founders of general partnerships and general partners in limited partnerships may be individual entrepreneurs and (or) commercial organizations.

General partnership a partnership is recognized, the participants of which (general partners), in accordance with the concluded memorandum of association, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with all their property.

Limited partnership (limited partnership) a partnership is recognized in which, along with the participants acting on behalf of the partnership entrepreneurial activity and liable for the obligations of the partnership with their property (general partners), there is one or more participants-contributors (limited partners) who bear the risk of losses associated with the activities of the partnership, within the amount of their contributions, and do not take part in entrepreneurial activities.

Comparative characteristics of general partnerships and limited partnerships

hallmark	General partnership	Faith partnership
Members (founders)	Individual entrepreneurs and (or) commercial organizations	The same as in general partnerships. Contributors in limited partnerships can be citizens and legal entities
Restrictions on the number of founders	At least two	At least two (one full partner and one contributor)
Constituent documents	Memorandum of Association signed by all founders	Memorandum of Association signed by the general partners
Name of the authorized capital and requirements for its minimum size	Stock capital. Minimum Requirements size not defined by law
Responsibility of the founders for obligations	General partners jointly and severally bear subsidiary liability with their property	General partners are liable, as in a full partnership, a limited partner - within the limits of his contribution
Control	It is carried out by common agreement of all participants (or by a majority of votes)	Management is carried out by full partners.
Profit distribution procedure	Profits and losses are distributed among the participants in proportion to their shares in the share capital	For general partners, the distribution of profits and losses is similar to a general partnership. Investors receive a part of the profits of the partnership due to their share in the share capital
The procedure for the withdrawal of a participant from the partnership	Withdrawal is possible upon application at least 6 months in advance. before the actual withdrawal from the partnership. Upon withdrawal, the participant is paid the value of a part of the property of the partnership, corresponding to the share of the participant in the share capital	For general partners, the exit procedure is similar to that of a full partnership. The investor has the right to withdraw from the limited partnership at the end of the financial year, while receiving his contribution
The procedure for the liquidation of the partnership	Liquidated on the grounds established by Art. 61 of the Civil Code of the Russian Federation, and also if the only participant remains in the partnership	Liquidated on the grounds established by Art. 61 of the Civil Code of the Russian Federation, as well as upon the disposal of all investors participating in the partnership