Company Liquidation (Ликвидация компании)

 

Министерство образования и науки Российской Федерации

 

 

«Первый Профессиональный

Университет»

 

 

Институт экономики

 

Факультет

Финансов и кредита

 

 

 

Реферат

 

по дисциплине

 

«Инностранный язык»

 

Company Liquidation

 

 

 

 

 

 

 

 

Работу выполнил студент

Горюнов С.С.

4 курс, группа Эб09.12-1

Научный руководитель:

ст. Преподаватель_____________________.

 

 

 

 

 

 

 

 

Москва, 2015

 

Table of contents

Introduction…………………………………………………………………………………….…….3

1. Characteristic of the concept of "liquidation"...………….………………………...……….. 4
2. The legal basis for the liquidation of the enterprise ……………………………..………......5
3. Forced and voluntary liquidation of an enterprise ………………..…....…….…………...….6
4. The damages, upon liquidation of the company.……………………………………………..9

Summary ……………………………………………………………………………………….…...13

A list of sources and references………...…………………………………………………………...14

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Introduction

          Relevance of a subject of work is defined by that at the termination of functioning of the enterprise it leaves number of subjects of civil law, and it is necessary to resolve an issue of destiny of obligations which participant was an enterprise stopping existence.

           Activity of the enterprises stops for various reasons. But it is possible to classify acts of such terminations by two criteria: depending on the body which made the decision on the termination of activity of the subject and depending on existence of succession.

          Depending on what body made the decision on the termination of functioning of the enterprise, this act admits voluntary or compulsory. The first option is possible in case of pronouncement of the relevant decision by the enterprise, i.e. his founders (participants), or the body having owing to constituent documents necessary for this power. The compulsory termination of existence of the enterprise happens by a court decision (in most cases) or according to the decision of authorized government bodies.

          Depending on existence of succession distinguish such types of the termination of activity of the enterprises as reorganization and liquidation of the enterprise.

          Reorganization is the termination of functioning of the enterprise which is followed by the general succession (the singular succession by reorganization is impossible). Reorganization result one or several new enterprises which are obliged on the relations in which the enterprise which stopped existence participated. Any reorganization of the enterprise can be carried out only on standards of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation).

          Liquidation of the enterprise no other than the termination of functioning of the enterprise without succession, i.e. the termination, both the enterprise, and its rights and duties.

          Both reorganization, and liquidation of the enterprise can be carried out both voluntary, and forcibly.

          In our opinion if to operate only with the categories "voluntary liquidation of the enterprise" and "compulsory liquidation of the enterprise" (without using the term "the compelled liquidation of the enterprise"), such basis as recognition of unauthorized registration of the enterprise, it is necessary to recognize as the basis of voluntary elimination as voluntary liquidation of the enterprise is carried out on the basis of the decision of participants, including if this decision was made by participants in pursuance of a judgment. Compulsory LP will be if the court passes the decision on elimination including after participants don't take measures to implementation of voluntary elimination, having a judgment about recognition of registration invalid.

          Voluntary reorganization is carried out according to the decision of the enterprise - his founders (participants) or the body possessing appropriate authority according to constituent documents.

          Liquidation of the enterprise no other than difficult and often the long procedure infringing on interests of the third parties and therefore demanding openness and publicity. Its first stage is the corresponding mark about the register of the enterprises open for interested persons. Thus, everyone entering the relations with the contractor or consisting with it in the relations has opportunity to learn about elimination even before official publication.

          Starting research of the set subject, we set before ourselves the work purpose – to open the main aspects of reorganization and liquidation of the enterprises.

          Problems of work:

               1. To give the general concept about elimination.

               2. To analyse standard and legal base of liquidation of the enterprise.

               3. To characterize voluntary and compulsory eliminations.

               4. To define an indemnification order at elimination.

               5. To open legal bases of elimination by reorganization of the enterprise.

 

 

 

1. Characteristic of the concept of "liquidation".

          Liquidation of the enterprise (further – LP), in essence is the termination of functioning of the enterprise without succession (item 1 of Art. 61 of group of companies). In other words, it is supposed that from the moment of elimination of the right and an obligation of the enterprise don't pass to other subjects.

         Liquidation of the enterprise can be voluntary or compulsory. In the first case it is made according to the decision of founders (participants) or body of the enterprise authorized on that by constituent documents. The legislator defined the approximate list of circumstances under which there is a need for such elimination: the expiration on which the enterprise, and achievement of the object set at its creation is created. The compulsory LP which is carried out by a court decision is especially allocated. In Art. 61 only some of the bases of compulsory elimination are called: implementation by the enterprise of the activity forbidden by the law or without necessary permission (license), other systematic, numerous or even single, but violation of the law or other legal acts, recognition of invalid registration of the enterprise by court in connection with the ineradicable violations of the law allowed at its creation. This article underlines possibility of compulsory elimination "also in other cases provided by the present Code". LP owing to bankruptcy to which Art. 65 of group of companies is devoted can be an example. Outside the Code establishment of the new bases for compulsory elimination, including at the level of the law, isn't allowed.

          With the requirement about liquidation of the enterprise government bodies or bodies of municipal self-government (item 3 of Art. 61 of group of companies) can appeal to arbitration court.

          There are also next "alternative" ways of elimination (the enterprise remains in EGRYuL, IMNS, Off-budget funds or it is excluded from registers in the specified bodies, but has the assignee):

         1. Replacement of the CEO and chief accountant.

Procedure: the solution of meeting appoints the new CEO and dismissal of the chief accountant is made out. All documents of the enterprise are transferred to the new director. Government bodies are notified on appointment of the new director. The certificate of EGRYuL on the changes which aren't connected with change in constituent documents turns out. It is the cheapest and fast way of "liquidation of the enterprise". Doesn't attract obligatory exit tax audit.

          2. Change of founders, replacement of the CEO and chief accountant with the new.

Procedure: under contracts of purchase and sale shares (action) of the former founders are got. The new CEO is appointed and dismissal of the chief accountant is made out. The certificate of EGRYuL on registration of changes in constituent documents turns out. All changes in IMNS, off-budget funds, Goskomstat, bank are registered. It is a cheap and fast way of "liquidation of the enterprise". Doesn't attract obligatory exit tax audit.

3. Change of founders (participants, shareholders) on the participant (shareholder) - firm,

replacement of the CEO and chief accountant on new. Further elimination or bankruptcy of the new participant (shareholder) - the enterprise.

          Procedure: it is similar to the previous. The new participant (shareholder) - firm is in addition liquidated. It is a cheap and fast way of "liquidation of the enterprise". Doesn't attract obligatory exit tax audit. It is impossible to recognize transactions of purchase and sale of shares (actions) fictitious according to Art. 170 of the Civil Code of the Russian Federation as one of respondents will be liquidated.

          In all other cases the termination of activity happens in voluntary consent of her owners, or according to the decision of judicial authorities.

          About liquidation of the enterprise the message is published in press organs. Term is provided to creditors for granting claims.

 

          At elimination a certain order is observed. First of all all claims of the personnel on payment for work, then obligations of the enterprise to tax authorities, property and monetary claims of creditors are accepted.

          The special case of elimination represents bankruptcy. The enterprise incapable is declared bankrupt to accept property and monetary claims of creditors. Liquidation of the enterprise is carried out according to the decision of arbitration court. Liquidation of the enterprise is considered complete, and firm of the record which stopped existence after entering about it into the unified state register of legal entities.

          The control success means to document expenses on liquidation of the enterprise. The proof has to be in writing though to auditors allow to accept oral explanations.

          Thus, as shows studying of the studied problem, many businessmen face questions of liquidation of the enterprise. The reasons for that can be different, for fatigue and unwillingness to continue independent business to fear before growing as a snowball debts, including tax.

          Having assessed a situation and having made for searches solutions, participants (shareholders), the director, etc. quickly understand that simple and at the same time lawful exit from current situation doesn't exist.

          Elimination can be official or, so-called, alternative. Official elimination - rather long on time and expensive procedure on financial investments which includes obligatory full tax audit for the last three years and demands the reporting before all funds.

 

2. The legal basis for the liquidation of the enterprise.

          The list of normative legal acts given below isn't exhaustive, but the main documents which are used by reorganization and elimination are specified.

          The main normative legal acts by which are guided by reorganization and liquidation of the enterprise, it is considered to be following:

          - The federal law of 14.11 2002 No. 161-FZ "About the state and municipal unitary enterprises" (with amendment and additional of 8.12 2003, 18.12.2006).

         - The federal law of 8.08 2001 No. 129-FZ "About the state registration of the enterprises and individual entrepreneurs" (with amendment and additional from 23.06, 8, 23.12 2003, 2.11 2004, 2.07 2005, 2.03.2007).

         - The federal law of 26.12 1995 No. 208-FZ "About the joint-stock enterprises" (with amendment and additional of 13.06 1996, 24.05 1999, 7.08 2001, 21.03, 31.10 2002, 27.02 2003, 24.02, 6.04, 2, 29.12 2004, 20.042007 g).

          - The tax code of the Russian Federation (with amendment and additional of 30.03, 9.07 1999, 2.01, 5.08, 29.12 2000, 24.03, 30.05, 6, 7, 8.08, 27, 29.11, 28, 29, 30, 31.12 2001, 29.05, 24, 25.07, 24, 27, 31.12 2002, 6, 22, 28.05, 6, 23, 30.06, 7.07, 11.11, 8, 23.12 2003, 5.04, 29, 30.06, 20, 28, 29.07, 18, 20, 22.08, 4.10, 2, 29.11, 28, 29, 30.12 2004, 18.05, 3, 6, 18, 29, 30.06, 1.07 2005, 27.07.2006, 24.07.2007).

          - The housing code of the Russian Federation No. 188-FZ in an edition of 3.07 2007. Article 140. Reorganization of association of owners of housing (Section VI. Association of owners of housing (Art. 135 - 152). Chapter 13. Creation and activity of association of owners of housing (Art. 135 - 142).

          - The code of the Russian Federation about administrative offenses (Code of the Russian Federation on Administrative Offences) of 30.12 2001 No. 195-FZ (with amendment and additional from 25.04, 25.07, 30, 31.10, 31.12 2002, 30.06, 4.07, 11.11, 8, 23.12 2003, 9.05, 26, 28.07, 20.08, 25.10, 28, 30.12 2004, 21.03, 22.04, 9.05, 18.06 2005, 9.02.2007g.).

          - The civil code of the Russian Federation (part the first, second and third) (with amendment and additional of 20.02, 12.08 1996, 24.10 2007, 8.07, 17.12 1999, 16.04, 15.05, 26.11 2001, 21.03, 14, 26.11 2002, 10.01, 26.03, 11.11, 23.12 2003, 29.06, 29.07, 2, 29, 30.12 2004, 21.03, 9.05, 2.07 2005, 18.12.2006, 3.07.2007).

          - The code of civil procedure of the Russian Federation No. 138-FZ in an edition of 19.04 2007.

          - The law RSFSR of 22.03 1991 No. 948-I "About the competition and restriction of monopolistic activity in the commodity markets" (with amendment and additional of 24.06, 15.07 1992, 25.05 1995, 6.05 2006, 2.01 2000, 30.12 2001, 21.03, 9.10 2002, 7.03 2005, 17.10.2007).  

 

3. Forced and voluntary liquidation of an enterprise.

          The mechanism of liquidation of the enterprises is installed by the Civil code of the Russian Federation. Any enterprise can be liquidated, and the rights and obligations of the liquidated enterprise don't pass as successorship (see Art. 61 of the Civil Code of the Russian Federation). The reasons for liquidation of the enterprise in Grazhdansko the code of the Russian Federation are called: the decision of founders or authorized body of the enterprise about eliminations and a judgment. Bankruptcy of the enterprise can be one more basis for liquidation of the enterprise.

          Liquidation of the enterprise is made without fail (according to the decision of founders of the enterprise): in connection with the expiration on which the enterprise was created; on reaching the purpose for the sake of which it is created; in connection with recognition of invalid registration of the enterprise by court. Certainly, voluntary liquidation of the enterprise can be carried out and without the bases provided by the law at the discretion of founders of the enterprise. Most often in a voluntary order functioning of the enterprise stops not on the bases provided by the law, and owing to a dissatisfaction of founders with the course of work of the enterprise, for example, owing to low profitability or insufficient level of the paid dividends.

          Need of elimination for this or that form can arise owing to various reasons, generally tax risks, and both according to plan, and suddenly. The ways of elimination offered by law firms and especially "pseudo-eliminations" create at businessmen the distorted idea of opportunity quickly and without problems "to resolve an issue". The valid positive result only lawful and official ways of elimination, in spite of the fact that can have the term of carrying out these procedures much more long.

          The reasons for which the enterprise can be liquidated in a judicial proceeding are given in Art. 61 of the Civil Code of the Russian Federation: activity without appropriate permission (license); functioning, forbidden by the law, or with other numerous or gross violations of the law or other legal acts; systematic implementation by the enterprise of the activity which isn't answering its authorized purpose. This list isn't exhaustive, the judgment can be made on liquidation of the enterprise and on other bases provided by the Civil Code of the Russian Federation. For example, discrepancy or not reduction in compliance of constituent documents of the enterprise can form such basis.

          Requirement about liquidation of the enterprise can be imposed in court by government body or local government (the tax inspection, registration chamber, prosecutor's office, etc.). As jurisprudence on cases of liquidation of the enterprises shows, existence of the decision on voluntary liquidation of the enterprise doesn't exclude possibility of an appeal to the court behind the decision on liquidation of the enterprise (for example, in those cases when the decision on voluntary elimination is made, however liquidation of the enterprise actually isn't carried out).

          Recognition by his insolvent (bankrupt) forms one more basis of liquidation of the enterprise. Owing to recognition of insolvency (bankruptcy) the enterprises which are the commercial organization, operating in the form of consumer cooperative, charity or other foundation are liquidated. The enterprise is declared bankrupt if it isn't able to meet requirements of creditors (see Art. 65 of the Civil Code of the Russian Federation). Serve as the reasons for recognition of the enterprise by insolvent (bankrupt): decision of arbitration court and voluntary decision on the announcement of the enterprise bankrupt. The voluntary decision on recognition of the enterprise by the bankrupt is made only in case of absence at a face of creditors or together with creditors. If at least one of the creditors who are available for the person expresses disagreement with the decision on the announcement of the person by the bankrupt, recognition of such person by the bankrupt can be carried out only in a judicial proceeding. If the cost of property of the enterprise of the bankrupt is insufficient for repayment of requirements of creditors, the enterprise can be liquidated only in the order provided by the legislation for the bankrupt enterprises. Recognition of the enterprise by the bankrupt attracts his elimination.

          Liquidation of the enterprises of the enterprises for the decision of founders on voluntary elimination begins with procedure of making decision on elimination. Such decision is made at general meeting of participants, or if the participant one, - the only participant and is made out in writing. At a stage of preparation for meeting inventory of property and its assessment have to be carried out and the issue of sufficiency of property of the enterprise for repayment of requirements of creditors is resolved. Further the body which made the decision on elimination in writing notifies on the made decision the body which is carrying out the state registration of the enterprises. Now the body which is carrying out the state registration of the enterprises is Inspection of the Ministry of Taxes and Tax Collection (further - IMNS). The body of the state registration on the basis of this notice enters in the state register of the enterprises of data that the enterprise is in process of elimination. Then the body of the enterprise which made the decision on voluntary liquidation of the enterprise in coordination with the body which is carrying out the state registration of the enterprises appoint the liquidating commission and establish an order and terms of elimination. If elimination a predprityatiya is carried out according to the made judgment, the corresponding notice sends the court which made this decision to body of registration of the enterprises. As a rule, join in structure of the liquidating commission: director, his chief accountant, employees of financial, legal and personnel services. But there can be also other options.

          From the moment of appointment of the liquidating commission all powers on administration of the liquidated enterprise pass to it. The chairman of the liquidating commission gets a right to sign of official documents, orders property and other powers which were peculiar to the director earlier. The liquidating commission on behalf of the liquidated enterprise can appear in court. To facilitate work of the liquidating commission, it is necessary to present at the very beginning of its activity to bank the decision of participants of the enterprise or the judgment on liquidation of this enterprise, and also to renew signatures in the registration form of bank on the chairman of the commission and the person responsible for conducting accounting during liquidation of the enterprise.

          The appointed liquidating commission places in press organs in the location of the liquidated enterprise, the enterprises publishing data on the state registration, the publication about liquidation of the enterprise, about terms and an order of statements of requirements creditors. The term of providing requirements by creditors to the liquidated enterprise has to make not less than two months from the date of publication of data. Further the liquidating commission in writing notifies on liquidation of the enterprise of all his creditors. A main objective of the liquidating commission is completion of activity of the liquidated enterprise in established periods and with the smallest damage to contractors of the enterprise, to his founders and participants.