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Legal Studies
Reference:

Reorganization of Legal Entities and Balance in the Issue of Ensuring and Protecting the Interests of the Entities Involved in it

Klykov Gleb Igorevich

PhD in Law

Postgraduate, Law Department, Synergy University

125190, Russia, Moscow, Leningradsky Prospekt str., 80, of. G

gleb690@ya.ru

DOI:

10.25136/2409-7136.2024.2.40018

EDN:

XQISBU

Received:

21-03-2023


Published:

06-03-2024


Abstract: The institution of reorganization of legal entities is quite common in modern Russian conditions, however, to date, firstly, there has not been a consensus in the scientific literature on the essence of reorganization, and secondly, many gaps contained in civil legislation that violate the balance of rights of the subjects involved in it, which have been repeatedly pointed out by scientists, have not been eliminated- lawyers. Purpose: the author examines the essence of the institution of reorganization of legal entities, to identify the shortcomings of civil law norms affecting the issue of ensuring a balance of interests of entities participating in the reorganization. The methodological basis was the general scientific method of analysis, as well as private scientific methods of formal legal analysis and interpretation. Results: based on the results of this study, it was found that the institution of reorganization of a legal entity should be considered as a system of legal relations, the object of which is the creation of a legal entity. The author also determined that the imperfection of the existing norms of civil legislation is one of the main reasons for the violation of the rights and interests of entities involved in the reorganization of legal entities. Conclusions: as a result of the conducted research, the author comes to the conclusion that there is a need for clearer legislative regulation of the recognition of the reorganization as failed and invalidation of the decision on the reorganization of a legal entity. Additionally, ways are determined to eliminate the relevant gaps and increase the level of protection of the rights and interests of all participants in the reorganization.


Keywords:

legal entity, reorganization, corporate legal entity, unitary enterprise, balance of interests, transaction, creation of a legal entity, universal legal succession, related party, property right

This article is automatically translated. You can find original text of the article here.

Most often, legal scholars, considering the issue of the essence of the institution of reorganization of a legal entity, present it as a transaction, as well as a set of legal facts directly related to its implementation. In our opinion, the position of Z.V. Galazova seems quite interesting, which defines the reorganization of a legal entity through the category of legal relations (systems of legal relations), reflecting not only the very content of the reorganization process, but also the nature of the relationships of persons who take part in it [9, p. 15].

The concept of reorganization of a legal entity is not fixed at the regulatory level, which naturally led to scientific discussions on the issue under consideration. Various scientists define reorganization as a transaction [6, p. 75], as a process of changing subjects [5, p. 8], succession (transfer of rights and obligations from one legal entity to another) [11, p. 43], termination of a legal entity [7, p. 18], etc.

It seems that the reorganization of a legal entity is indeed most expedient to consider through the category of legal relations, since this process cannot be absolutely defined as a transaction, succession, termination of a legal entity, etc. Reorganization, as specified in Article 57 of the Civil Code of the Russian Federation, can be carried out in the form of merger, accession, division, separation and transformation [1].

Not all of these forms of reorganization are characterized by universal succession, for example, when allocating a newly formed legal entity, not the entire set of rights and obligations passes, since the reorganized legal entity does not cease to exist. The situation is similar with the termination of a legal entity, since, as indicated above, when reorganizing in the form of a separation, the reorganized legal entity does not cease to exist.

Quite often, within the framework of the legal literature, reorganization is also considered as a transaction, since it is possible to apply certain rules on transactions by analogy to this institution (for example, to an accession agreement). In our opinion, in this case, the position expressed by V.A. Belov is justified in terms of the fact that reorganization, as opposed to a transaction, is not a single one-time action, but a series of sequential actions with legal significance, some of which entail independent legal consequences [10].

Categories such as transaction, termination of a legal entity, succession, etc., in our opinion, can be considered rather as signs characteristic of the process of reorganization of a legal entity. It is worth noting the position of Z.V. Galazova, which, in our opinion, quite rightly points to the fact that the object of legal relations on the reorganization of a legal entity is "... actions aimed at the emergence of a qualitatively new legal entity. Actions aimed at termination of a legal entity or succession cannot be considered an object, since the process of termination of one person is an action that ensures the formation of another person, as if its prerequisite, and succession is a consequence" [9, p. 30].

This position seems to be quite reasonable, since, indeed, without the formation of a new legal entity, the reorganization process cannot be carried out a new legal entity arises during reorganization carried out in any of the forms provided for by law. Moreover, the approach of the above-mentioned author is also accepted by some bodies of the judicial system. For example, in the decision of one of the arbitration courts, it was determined that reorganization acts as one of the forms of organization of a new subject of legal relations [4]. Also, the legal purpose of the reorganization of legal entities in the form of the creation of a new legal entity is indirectly indicated by the provisions of some legislative acts. For example, the Federal Law "On State Registration of Legal Entities and Individual Entrepreneurs" [2] explicitly states that legal entities can be created, including through the reorganization process (Chapter V).

Certain difficulties and controversial aspects in the framework of the reorganization of legal entities are associated not only with determining the essence and features of this process, but also with ensuring that the interests of a large number of persons involved in it are respected, primarily the interests of creditors, as well as participants in the reorganized legal entity. As it is rightly noted in the scientific literature, one of the characteristic features of reorganization as a legal institution is the establishment of a fair balance in the issue of ensuring and protecting the interests of the subjects who participate in it.

The Russian legislator, taking into account the large number of persons involved in the process of reorganizing a legal entity, pursues, among other things, the goal of ensuring all such persons, which is objectively a rather difficult task to implement. One of the reasons for the violation of such a balance of interests is the imperfection of the norms of Russian legislation in this area.

In this aspect, the question of the possibility of recognizing the reorganization as invalid is interesting. The issues of recognition of the reorganization as failed are regulated in Article 60.2 of the Civil Code of the Russian Federation.

Based on the provisions of the Civil Code of the Russian Federation, only the reorganization of a corporate legal entity can be declared invalid, while only the institution of invalidation of a decision on the reorganization of a legal entity applies to unincorporated legal entities.

The provisions of the new editions of Articles 60.1 and 60.2 of the Civil Code of the Russian Federation have been ambiguously criticized in the scientific literature, in our opinion, quite reasonably, since their imperfection and certain contradictions act as a rather favorable condition for violating the rights of various entities participating in the reorganization. So, firstly, based on the literal name of the above-mentioned norms, it follows that the institution of recognition of reorganization as failed cannot be applied to unitary legal entities, which, in our opinion, should be regarded rather critically. Indeed, on the one hand, such a position of the legislator may indicate his desire to strengthen the decisions of state bodies and ensure the stability of the position of state property, and on the other hand, as Z.V. Galazova quite rightly noted, the requirements for invalidation of the reorganization of unitary enterprises are most often stated on the grounds that the owner of the property or the state authorized by him The body did not take a decision on the reorganization process [9, p. 91]. This circumstance is also evidenced by the materials of judicial practice, in which courts often recognize reorganization as illegal on the grounds that the reorganization was carried out without the consent of the owner of the enterprise's property [3].

In this case, it is seen that the circumstances of such disputes correspond to the signs of the institution of recognition of the reorganization as failed, however, based on the norms of current legislation, the norm of Article 60.2 can be applied only to corporate legal entities. In this case, it is considered justified to extend the effect of this rule not only to corporate entities, since otherwise the owner of the property will not be able to turn around the reorganization carried out without his consent. There is a violation of the legal rights of the specified subject.

It is also worth mentioning that a limited number of persons may declare the requirement to recognize the reorganization as invalid. Such demands may be made by those participants who either did not participate in making such a decision at all, or categorically opposed its adoption. However, if a participant voted for the reorganization, but as a result of illegal actions of other entities still lost corporate control over the newly created legal entity, he may resort to other means of protection provided for by the civil legislation of the Russian Federation.

The main problem, in our opinion, in this case is that the norm in question is aimed at protecting only participants in corporate legal entities (and not all of them). There is a violation of the balance of protection of the interests of all other interested parties, and the grounds on which other persons are not authorized to declare claims for recognition of the reorganization as invalid are not fully clear. Secondly, the question of the applicability of this rule exclusively to corporate legal entities is interesting, and therefore, the owners of the property of unitary enterprises are deprived of this right. Important in the case under consideration is also the circumstance according to which state property acts as a frequent object of unlawful encroachments, despite its strategic importance in matters of ensuring the interests of public and state. So, for example, there are cases in practice when the implementation of reorganization in the form of separation, followed by recognition of the remaining legal entity as insolvent (bankrupt), which acts as a scheme for the unlawful seizure of property and avoidance of fulfillment of obligations assumed. All of the above also indicates the need to extend the provisions of Article 60.2 of the Civil Code of the Russian Federation to all legal entities with the right to make relevant claims, including property owners whose rights are unreasonably limited in accordance with the rights of other participants.

It is also interesting to ask about the time frame within which authorized persons can file claims for invalidation of a decision on the reorganization of a legal entity and for recognition of the reorganization of a corporation as invalid. For the first named claim, a three-month period is established, with regard to the claims for recognition of the reorganization as invalid, the deadline for submission is not set. As a general rule, in the absence of an indication of such a period, a total period of three years is established. In this case, the legislator did not consider it possible to extend the period established by Article 60.1 of the Civil Code of the Russian Federation to the institution of recognition of the reorganization as invalid. In this aspect, the position expressed in science seems logical that "By providing participants with an unlimited period for recognizing the reorganization as invalid, a fair balance is violated in protecting the rights and interests of participants in civil turnover, uncertainty and instability of legal relations are created, in this case arising after the end of the reorganization" [9, p. 98]. In our opinion, such circumstances do create legal uncertainty, which makes it possible to speak about the expediency of determining a specific period during which claims for recognition of the reorganization may be filed. The second option for resolving this gap may be to extend the three-month period established for claims for invalidation of a decision on reorganization of a legal entity also to claims for recognition of the reorganization as invalid.

It is also noteworthy that the civil legislation does not establish norms on liability imposed on persons who are responsible for conducting illegal reorganization of a legal entity. It is natural that recognizing the reorganization as illegal and returning to the situation that existed before it will not entail a violation of the rights and legitimate interests of interested persons. In this case, a logical question arises about who will be responsible for the damage and losses caused. The establishment of norms on such responsibility, in our opinion, will perform, among other things, a preventive function, which will also have a positive impact on the state of protection of the rights of entities involved in the reorganization process.

In this aspect, the point of view of A.V. Gabov seems reasonable, who, as part of his monographic research, described in some detail all the imperfections of the norms under consideration. So, for example, the author quite reasonably points out the fact that within the framework of modern civil legislation, questions about the fate of property that was transferred not as part of transactions, but due to other legal facts have not been settled; the fate of resolving labor and related legal relations has not been determined, there is no indication of reverse succession [8, c. 154].

Commenting on this circumstance, Z.V. Galazova correctly points out the fact that civil legislation in this area must necessarily develop, moreover, the main vector of development should be equal protection of the interests of both the reorganized (reorganized) legal entity itself and its participants and creditors [9, p. 99].

It is not objectively possible to foresee all possible consequences of recognizing the reorganization as illegal and determine options for the legal resolution of all situations that arise, provided that the interests of all participants are balanced, however, the consolidation of general principles and provisions (for example, the possibility of applying the institution of reverse succession) is considered necessary for the most correct application by the judicial system of the provisions of civil legislation in order to protect the rights and interests of all participants. the legitimate interests of all stakeholders.

Thus, based on the above, it can be concluded that the reorganization of a legal entity should be considered as a system of legal relations, and not as a transaction, termination of a legal entity, succession, and more. The object of the reorganization is the creation of a legal entity, and one of its features is the establishment of a fair balance in ensuring and protecting the interests of the entities that participate in it.

One of the reasons for the imbalance in the issue of ensuring and protecting the interests of the subjects involved in it is the imperfection of the norms of the current civil legislation, especially in matters of recognizing the reorganization as invalid and invalidating the decision on the reorganization of a legal entity, which has been repeatedly pointed out by legal scholars. In particular, it is possible to eliminate the relevant gaps and increase the level of protection of the rights and interests of all participants in the reorganization in the following ways:

1) it is necessary to extend the provisions of Article 60.2 of the Civil Code of the Russian Federation to all legal entities with the right to make relevant claims, including property owners whose rights are unreasonably limited in accordance with the rights of other participants;

2) it is advisable to determine a specific period during which claims for recognition of the reorganization may be filed, or to extend the three-month period established for claims for invalidation of a decision on reorganization of a legal entity also to claims for recognition of the reorganization as invalid.

3) it is necessary to consolidate the general principles and provisions regarding the liability of persons who allowed the illegal reorganization of a legal entity.

References
1. The Civil Code of the Russian Federation (part one) of November 30, 1994 No. 51-FZ (ed. of 04/16/2022). Collection of Legislation of the Russian Federation. – 1994.-No. 32. – St. 3301; 2022.- 16. – Article 2601.
2. Federal Law No. 129-FZ of August 08, 2001 (as amended on 12/28/2022) "On State Registration of legal entities and individual entrepreneurs". Collection of Legislation of the Russian Federation. – 2001. No. 33. – St. 3431; 2022. 45. – Article 7672.
3. Resolution of the FAS of the North Caucasus District dated March 02, 2011 on case no. A15-445/2011. Access from Help. – the legal system "Garant-Maximum".
4. The decision of the Arbitration Court of Perm Krai dated 09.12.2011 in case no. A50-10847/2011. Access from Help. – the legal system "Garant-Maximum".
5. Aksenova E.V. (2006). Reorganization of legal entities under the legislation of the Russian Federation: problems of theory and practice: dis. ... cand. jurid. Moscow.
6. Baev, S.A. (2004). Reorganization of a joint-stock company as a major transaction and (or) a transaction with an interest. Issues of corporate governance, 5, 70-75.
7. Braginsky, M.I. (1998). Legal entities. Economy and law, 3, 11-21.
8. Gabov, A.V. (2014). Theory and practice of reorganization (legal aspect). Moscow: Statute.
9. Galazova, Z.V. (2015). Institute of reorganization of a legal entity: dis. ... cand. jurid. Moscow.
10. Corporate law. (2009). Actual problems of theory and practice. Edited by V.A. Belov. Moscow: Yurayt.
11. Rudyak, E.V. (2009). Legal regulation of the activities of the bodies of the joint-stock company in the process of reorganization: dis. ... cand. jurid. sciences'. Krasnodar.

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A REVIEW of an article on the topic "Reorganization of legal entities and balance in the issue of ensuring and protecting the interests of the entities involved in it." The subject of the study. The article proposed for review is devoted to the reorganization of legal entities and the balance "... in the matter of ensuring and protecting the interests of the entities involved in it." The author has chosen a special subject of research: the proposed issues are investigated from the point of view of civil, arbitration, and civil procedure law, while the author notes that "Most often legal scholars, considering the issue of the essence of the institution of reorganization of a legal entity, present it as a transaction, as well as a set of legal facts directly related to its implementation". The NPA of Russia and the decisions of arbitration courts relevant to the purpose of the study are being studied. A large volume of Russian scientific literature on the stated issues is also studied and summarized, analysis and discussion with these opposing authors are present. At the same time, the author notes: "It seems that the reorganization of a legal entity is indeed most expedient to consider through the category of legal relations, since this process cannot be absolutely defined as a transaction, succession, termination of a legal entity, etc." Research methodology. The purpose of the study is determined by the title and content of the work: "The concept of reorganization of a legal entity is not fixed at the regulatory level, which naturally led to scientific discussions on the issue under consideration", "Certain difficulties and controversial aspects within the framework of reorganization of legal entities are associated ... with ensuring respect for the interests of a large number of persons involved in it, primarily speech We are talking about the interests of creditors, as well as participants in the reorganized legal entity." They can be designated as the consideration and resolution of certain problematic aspects related to the above-mentioned issues and the use of certain experience. Based on the set goals and objectives, the author has chosen a certain methodological basis for the study. The author uses a set of private scientific, special legal methods of cognition. In particular, the methods of analysis and synthesis made it possible to generalize approaches to the proposed topic and influenced the author's conclusions. The most important role was played by special legal methods. In particular, the author applied formal legal and comparative legal methods, which made it possible to analyze and interpret the norms of acts of Russian legislation, court decisions and compare various documents. In particular, the following conclusions are drawn: "Based on the provisions of the Civil Code of the Russian Federation, only the reorganization of a corporate legal entity can be declared invalid, while only the institution of invalidation of a decision on the reorganization of a legal entity applies to unincorporated legal entities," etc. Thus, the methodology chosen by the author is fully adequate to the purpose of the article, allows you to study many aspects of the topic. The relevance of the stated issues is beyond doubt. This topic is important in Russia, from a legal point of view, the work proposed by the author can be considered relevant, namely, he notes "It is also interesting to ask about the time frame during which authorized persons can declare claims for invalidation of a decision on the reorganization of a legal entity and for recognition of the reorganization of a corporation as invalid", etc. And in fact, an analysis of the opponents' work should follow here, and it follows and the author shows the ability to master the material. Thus, scientific research in the proposed field is only to be welcomed. Scientific novelty. The scientific novelty of the proposed article is beyond doubt. It is expressed in the specific scientific conclusions of the author. Among them, for example, is the following: "... Article 60.2 can be applied only to corporate legal entities. In this case, it is considered justified to extend the validity of the specified norm not only to corporate entities, since otherwise the owner of the property will not be able to turn around the reorganization carried out without his consent. There is a violation of the legal rights of the specified subject. As can be seen, these and other "theoretical" conclusions can be used in further research. Thus, the materials of the article as presented may be of interest to the scientific community. Style, structure, content. The subject of the article corresponds to the specialization of the journal "Legal Studies", as it is devoted to the reorganization of legal entities and the balance "... in the matter of ensuring and protecting the interests of the subjects involved in it." The article contains an analysis of the opponents' scientific works, so the author notes that a question close to this topic has already been raised and the author uses their materials, discusses with opponents. The content of the article corresponds to the title, since the author considered the stated problems and achieved the goal of his research. The quality of the presentation of the study and its results should be recognized as relatively refined. The subject, objectives, methodology, research results, and scientific novelty directly follow from the text of the article. The design of the work meets the requirements for this kind of work. No significant violations of these requirements were found, except for the bibliography until 2015. The bibliography is quite complete, but contains publications up to 2015, to which the author refers. This allows the author to identify problems relatively correctly, mainly based on an analysis of the norms of the Civil Code of the Russian Federation and put them up for discussion. The quality of the literature presented and used should not be appreciated very highly. The presence of modern scientific literature would show greater validity of the author's conclusions and would influence the author's conclusions. The works of the above authors correspond to the research topic, but do not fully possess the sign of sufficiency, contribute to the disclosure of some aspects of the topic. Appeal to opponents. The author analyzed the not quite current state of the problem under study, especially referring to the literature published almost all before the introduction of the articles under study of the Civil Code of the Russian Federation (2014). The author describes the different points of view of opponents on the problem, argues for a more correct position in his opinion, based on the work of opponents, offers solutions to problems. Conclusions, the interest of the readership. The conclusions are logical, specific "One of the reasons for the imbalance in the issue of ensuring and protecting the interests of the subjects involved in it is the imperfection of the norms of the current civil legislation, especially in matters of recognizing the reorganization as failed and invalidating the decision on the reorganization of a legal entity," etc. The article in this form may be of interest to the readership in terms of the systematic positions of the author in relation to the issues stated in the article. Based on the above, summing up all the positive and negative sides of the article, I recommend publishing it, taking into account the comments.