Non-public joint stock company: charter, registration, authorized capital, register of shareholders. What is the difference between public and non-public types of joint stock companies, partnerships and cooperatives?

12.10.2018

Although the rules on public and non-public companies have been in place for more than three years, our readers often ask about which companies are public and which are not, and what the main differences between them are. Our new article will answer these questions and allow us to more fully understand this problem.

Definition of concepts. Main distinguishing features

The concepts of both public and non-public companies are given in the Civil Code of the Russian Federation and in the law on joint stock companies. If we analyze the articles of the above regulations, we can draw the following conclusions.

Public joint stock company (hereinafter - PJSC)- this is a legal entity created for profit-making, with an indication in the Charter of its publicity, with a capital of at least 100,000 rubles, consisting of the par value of shares (and securities convertible into shares), placed through open subscription and freely traded on the market valuable papers.

Unlike him, non-public company- is a legal entity created for profit-making, with an authorized capital of at least 10,000 rubles, consisting of the par value of shares or shares that are not subject to free placement and circulation on the market.

Many lawyers argue that the main difference between the two forms is the possibility of free circulation on the market of shares (and shares) of a legal entity. All other signs are secondary . Indeed, even tomorrow the state can increase the authorized capital of a non-public company to 500,000 rubles, and a public company to 1,000,000. However, it will never change order of application shares or shares. Therefore, it is precisely this (that is, order) that is the watershed along which the main difference between a public society and a non-public one passes.

At the same time, judicial practice tells us about another important detail. The law and arbitration believe that if a company does not have all the signs of publicity, but at the same time it has changed the Charter and indicated this fact in it, then it is still a PJSC. Thus, one Far Eastern company registered a new Charter and became a public company. However, it did not register the issue prospectus and did not even begin to prepare shares for the market. However, the Central Bank of the Russian Federation immediately brought the organization to justice for violating information disclosure rules. The company appealed this decision in court, but the arbitration upheld the regulator's decision. When issuing a judicial act, the arbitration court explained that, despite the absence of signs of publicity, the legal entity still became a PJSC from the moment this fact was indicated in the Charter. Even if it didn’t release the paper. (Decision of the Arbitration Court of the Sakhalin Region in case No. A59-3538/2017 dated November 9, 2017). Thus, the main sign of the publicity of a legal entity is still direct indication on him in the Charter.

Characteristics of a non-public company

An essential feature of this form of company organization is the absence of free circulation of shares or shares on the market, as well as references in the Charter to publicity. The owner of securities or shares cannot sell them whenever he wants and to whomever he wants. He must first notify his partners (and the company itself) about such an operation and offer them his package or share. Accordingly, these securities and shares cannot be placed on the stock exchange. Failure to comply with this principle will lead to the transaction being challenged in arbitration.

Thus, the owner of shares in a non-public joint stock company, which is a fishing enterprise, decided to part with his papers. According to the law and the Charter, he was required to notify his company of his desire to sell the shares. However, the subject acted differently. He placed an advertisement on a local television channel for the sale of 158 of his securities. Other co-owners of the joint-stock company saw this announcement and immediately turned to the company’s management with a question: why is the pre-emptive right when purchasing shares violated? The management of the legal entity, in turn, just threw up its hands - recently, none of the owners have contacted the JSC to sell their shares. Then the co-owners turned to the registrar and found out that one of their partners had secretly sold the package to a third party. Naturally, the indignant shareholders went to court, which declared the transaction illegal and transferred the rights and obligations of the acquirers to the co-owners. (Decision of the Arbitration Court of the Kamchatka Territory in case No. A24-5773/2017 dated December 18, 2017).

Further, an organization of this type can function without a Board of Directors (BoD) at all. Moreover, after 2015, when many joint-stock companies moved into this category, they gladly liquidated the board of directors due to “their complete inefficiency and high costs,” and redistributed the functions of these structures among other bodies of the legal entity. (Decision of the Arbitration Court of the Novosibirsk Region in case No. A45-18943/2015 dated October 23, 2015). Well, one can argue about inefficiency, of course, but the costs of maintaining the Soviets are really very high.

The next important point is that when the number of paper holders does not exceed 50 people, the company has the right not to fully disclose information about itself. On the other hand, if the number of shareholders exceeds this figure, then the organization is simply obliged to publish its accounting and annual reports to the public. Failure to comply with this requirement leads to the fact that the management of the Central Bank of the Russian Federation immediately issues an order to the violator and demands compliance with the law. (Decision of the Arbitration Court of the Nizhny Novgorod Region in case No. A43-40794/2017 dated January 24, 2018).

Taking into account the closed nature of the company, its size, as well as the lack of free circulation of shares on the market, the legislator allowed non-public companies to involve not only a registrar, but also a notary as a counting commission. Such “liberty” is strictly prohibited in PJSC.

Further, a certain “closedness” of the NAO also affects the procedure for purchasing securities. Thus, if a PJSC is subject to requirements regarding compliance with the procedure for mandatory and voluntary offers to co-owners when purchasing large blocks of shares (more than 30%), then such rules do not apply to a non-public company. Buyers of its assets are not limited to such additional procedures. At the same time, the legislator established that the general meeting and the Charter of the NAO can, in principle, limit the number of shares owned by one owner. In turn (as we will see below), this rule is no longer applicable to PJSC.

Main characteristics of PJSC

As we said above, the main feature of a PJSC is the reference to this form in the Charter and the free circulation of shares on the market. However, in addition to these signs, there are others.

For example, vote counting and, in general, the duties of the counting commission in a PJSC are performed only by a registrar with a license. No notary can replace him. To do this, he appoints a representative who is present at the meeting, counts the votes and certifies the decisions. (Decision of the Arbitration Court of the Voronezh Region in case No. A14-16556/2017 dated November 22, 2017). The absence of a registrar automatically leads to the invalidity of the meeting.

Next, the entity that has purchased more than 30% of the voting shares must send a mandatory offer to the co-owners to purchase such securities from them. If this requirement is not met, the Territorial Administration of the Central Bank of the Russian Federation issues an order to eliminate the violation of the law. (Decision of the Arbitration Court of St. Petersburg in case No. A56-37000/2016 dated November 1, 2016). For a non-public company there is no such requirement.

The next characteristic feature of a public company is the mandatory presence of a Board of Directors. Moreover, it must include at least 5 people. As we said above, a non-public legal entity has the right to refuse this structure. The law does not prevent this.

In addition, unlike NJSC, the legislator categorically prohibits limiting the number of shares owned by the owner in a PJSC. Thus, in one of the Moscow public companies, the general meeting limited the number of shares that could be in the hands of one owner. This was done in order to prevent the municipal body from concentrating a controlling stake in the securities. However, the arbitration invalidated the provision of the Charter that enshrines this requirement and declared such a decision of the meeting illegal. (Decision of the Moscow Arbitration Court in case No. A40-156079/16-57-890 dated June 14, 2017).

Additional differences arising from organizational and legal forms

When characterizing public and non-public companies, many legal researchers face certain difficulties. The latter are caused by the fact that the legislator (one might say generously and not always systematically!) “scattered” them across the Civil Code of the Russian Federation and the law on joint-stock companies. At the same time, he often gave preference to reference or binding norms. For example, having defined the concept of a public organization, he immediately indicated that if an LLC or JSC does not have the characteristics of such a legal entity, then it is considered non-public. Therefore, it is necessary to look for in the text of laws every article containing a mandatory requirement for one organizational and legal form and, on its basis, to derive the opposite possibility for another.

For example, the Civil Code of the Russian Federation (Article 97) clearly states that a PJSC cannot give the General Meeting the authority to resolve issues that (by law) must be resolved by other bodies of the company. And from this it follows that a non-public company, in turn, has the right to do this.

Or another example, the Civil Code of the Russian Federation prohibits a public company from placing preferred securities below the nominal price of ordinary shares. However, he does not say anything about NAO. Therefore, she has every right to such an operation.

If we carefully analyze other similar norms, we can come to the conclusion that, in general, they provide additional opportunities for non-public companies. The main ones include the right of a shareholder to demand the exclusion of another co-owner from the Company if he violates the charter, the possibility of the existence of several types of preferred shares intended for voting on certain issues, and even the possibility of the General Meeting making a decision on issues not listed on the agenda, if All shareholders were present. Such “freedom” in PJSC is unthinkable.

General Features

Along with the differences between NAO and PAO, there are a number of common features. Thus, the rights of subjects to receive dividends, participate in management and to property after the liquidation of the company are confirmed by their shares. In addition, companies may have several directors acting jointly or independently of each other. In the latter case, information about this must be entered into the Unified State Register of Legal Entities.

Further, participants in both public and non-public companies have the right to enter into a corporate agreement or shareholder agreement. In accordance with this document, the owners of the company agree to exercise their rights in a certain way or refuse to use them. However, the terms of such an agreement should not contradict the law.

The next feature that PJSC and NJSC have in common is the obligation to use the services of a registrar. By the way, it was precisely this requirement that forced many owners in 2015-2018 to abandon running a business as a JSC and re-register it as an LLC.

In addition, PJSC and non-public companies can apply to the Central Bank of the Russian Federation with a request to generally exempt them from the obligation to publicly disclose information (Article 92.1 of the JSC Law).

LLC - non-public company

If you carefully read the articles of various experts regarding public and non-public companies, you can come to the conclusion that almost all of them talk only about NJSC and PJSC. That is, about joint stock companies. At the same time, the authors diligently avoid the issue of LLC, although the legislator classified this organizational and legal form as a non-public company. The answer lies on the surface. A share is still a security, and a share is a kind of symbiosis of property and non-property rights, as well as the obligations of an LLC participant, expressed in monetary and percentage terms. Accordingly, their legal characteristics and turnover differ significantly. And in this case, the researcher is at a loss, because many of the signs characteristic of NAO are not applicable to LLC at all. For example, he has no obligation to enter into an agreement with the registrar and transfer the register of owners to him for maintenance, much less to him all norms regulating the legal status of shares do not apply.

Further, the LLC may indicate in the Charter that its decisions are confirmed by simple signatures of the participants. But in any case, the NAO must invite a registrar or notary to the meeting. So studying the legal status of an LLC as a non-public company deserves a separate article.

Brief conclusions

Let us now summarize some results. First of all, the legislator listed in some detail the characteristics of public and non-public companies. However, at the same time, he “scattered” the norms under the Civil Code of the Russian Federation and the law on joint stock companies, which seriously complicated their comprehensive analysis. However, he could not do otherwise. The novelties were introduced not for theoretical researchers, but for practical use. On the other hand, corporate lawyers must now have remarkable knowledge in this area in order to skillfully apply new articles and accidentally prevent violations of the law.

Further, by characterizing public and non-public companies, the authors of the bill introduced some confusion into the theory of legal entities. Thus, without mentioning such a function of a legal entity as “making a profit” and classifying LLCs as non-public companies, they made it possible to put forward assumptions that even non-profit organizations may belong to this category.

In addition, by introducing the term “public”, the legislator actually created new organizational and legal form - PJSC . On the other hand, his antonym - “non-public” led to the emergence of a joint-stock company (not even a non-public joint-stock company!) instead of a closed joint-stock company, but did not at all change the organizational and legal form of the LLC. It was an LLC and remains so. This contradiction has already led to disputes among legal scholars regarding the legal essence of these terms.

In general, let us emphasize once again: corporate and joint stock legislation is becoming more complicated every year. Therefore, we strongly advise our readers, if questions arise in this area, to use the help of only qualified specialists specializing in this area. This will ultimately avoid many problems.

Federal Law No. 99-FZ, adopted on May 5, 2014, amended civil legislation regarding the organizational and legal forms of legal entities. On September 1, 2014, the new provisions of Article 4 of the first part of the Civil Code of the Russian Federation came into force:

This form of legal entity, such as a closed joint stock company, has now been abolished.
All business entities are divided into public and non-public companies.

Which companies are considered non-public?

According to the new rules, those joint-stock companies that place their shares among a strictly limited circle of persons and do not issue them for circulation on the stock market are recognized as non-public companies. LLCs that do not meet the criteria acquire a similar status.

Legislators believe that business organizations in the form of closed joint stock companies, in fact, are not joint stock companies, since their shares are distributed among a closed list of participants and may even be in the hands of a single shareholder. Thus, these companies are practically no different from limited liability companies and can be transformed into an LLC or a production cooperative.

Reorganization of a closed joint-stock company into a limited liability company is not required. A closed joint-stock company has the right to retain its shareholder form and acquire non-public status if it does not have any signs of publicity.

Amendments to civil legislation practically do not affect LLCs. According to the new classification, these legal entities are automatically recognized as non-public. They are not assigned any responsibilities for re-registration in connection with the new status.

Non-public joint-stock companies

A non-public joint stock company is a legal entity that meets the following criteria:

the minimum amount of authorized capital is 10,000 rubles;
number of shareholders – no more than 50;
the name of the organization does not indicate that it is public;
The company's shares are not listed on the stock exchange and are not offered for purchase by public subscription.

The name and constituent documents of joint-stock companies must be brought into line with the current edition of the Civil Code of the Russian Federation, in particular, the word “closed” should be excluded from the corporate name of the joint-stock company. Changes in the title documentation can be recorded later, when planned amendments are made to it.

Recognizing a JSC as non-public provides it with much greater freedom in managing its activities compared to a public company. Thus, the former closed joint stock company is not obliged to publish information about its work in open sources. By decision of the shareholders, management of the organization can be completely transferred to the hands of the board of directors or the sole executive body of the company. The meeting of shareholders has the right to independently determine the par value of shares, their number and type, and grant additional rights to individual participants. JSC securities are bought and sold through a simple transaction.

All decisions of the JSC must be certified by a notary or registrar. Maintaining the register of shareholders of a non-public joint stock company is transferred to a specialized registrar.

LLCs as non-public companies

The activities of business entities in the form of an LLC are regulated by Art. 96-104 Civil Code of the Russian Federation:

the minimum amount of authorized capital is 10,000 rubles;
number of participants – maximum 50;
the list of participants is maintained by the company itself, all changes are registered in the Unified State Register of Legal Entities;
the powers of participants are by default established according to their shares in the authorized capital, but can be changed if the non-public company has a corporate agreement or after introducing the relevant provisions into the company’s charter with fixation of amendments in the Unified State Register of Legal Entities;
the transaction for the alienation of shares is formalized by a notary, the fact of transfer of rights is entered into the Unified State Register of Legal Entities.

Unlike the documentation of public companies, the information contained in the corporate agreement of a non-public limited liability company is confidential and is not disclosed to third parties.

With the entry into force of amendments to the Civil Code of the Russian Federation, registration of decisions of company participants must be carried out in the presence of a notary. However, there are other possibilities that do not contradict the law, namely:

introducing amendments to the charter that define a different method of confirming decisions of the meeting of LLC participants;
mandatory certification of the company's minutes with the signatures of all participants;
the use of technical means that record the fact of document acceptance.

Along with closed joint-stock companies, the form of legal entities ALC (additional liability company) is also excluded from civil law. According to the new rules, such organizations must re-register as non-public LLCs.

Perhaps in the near future we should expect further changes to the legislative norms regarding legal entities, since the laws on joint stock companies, on the securities market and limited liability companies, regulating the activities of JSCs and LLCs, still exist in old versions (without division into public and non-public companies).

The variety of businesses, partnerships and cooperatives can be confusing. Many people do not understand why there are so many different forms of organizing activities. It is worth understanding their differences. This will allow you to choose the best option. So, let's find out how a general partnership differs from a limited partnership, what is the difference between a public and non-public joint stock company.

What is the difference between a public joint stock company and a non-public one?

First, let's compare public and non-public joint stock companies. The first thing that distinguishes all types of joint stock companies is the procedure for forming its capital. Such companies typically issue shares, but the conditions for their acquisition differ. There are also differences in the composition of participants, the size of the authorized capital and the obligation of public reporting.

One of the signs is the free distribution of shares. Any purchaser of shares can become a participant in such a company. The number of participants in a PJSC can be very large, and management can be carried out in 4 different ways. At the same time, PJSC is obliged to publish open reports annually, and the authorized capital cannot be less than 100,000 rubles.
For the main managers, the meeting of founders is the main link. Only they have the right to own shares; their free distribution is unacceptable. The number of NAO participants cannot exceed 50 people. Exceeding this number requires a change in the form of activity. When one of the members of the NAO leaves, the right to purchase its shares is assigned to the remaining participants. This form of organization does not require publishing reports, and the authorized capital is minimal - 10,000 rubles.

Below is a table comparing the characteristics and differences of a public and non-public joint stock company.

Differences between public and non-public joint stock companies

Now let's talk about the difference between a general partnership and a limited partnership.

Even more useful information about public and non-public joint-stock companies is contained in this video:

Comparison of a general partnership from a limited partnership

These two types of partnerships differ in the form of management and the responsibility of the participants. Also, types of partnerships have two types of participants. Each type of such organization has full comrades. In a private partnership, only they are present, but in a limited partnership there are also limited investors. The latter cannot take part in the management of the partnership, nor be liable for its debts in excess of the amount of their contribution. General partners of both types are liable with all their property, regardless of the size of their share in the organization.

A general partnership implies equal rights and obligations of all participants. There cannot be less than two, and they must be or. Each partner has 1 vote, and decisions are made unanimously or by a majority of participants, depending on the instructions in the memorandum of association. Partners bear full responsibility for all their property.
There are 2 types of participants. Some of them do not take a role in management and bear minimal responsibility - these are limited partners. They do not have the right to vote in decision-making and are liable for the debts of the partnership only to the extent of their contribution. The second type of participants is full comrades. They are the ones who manage the organization in accordance with the features prescribed in the document, and also bear full responsibility for the debt obligations that arise.

Comparison of general partnership and limited partnership

This video compares general and limited partnerships in terms of contributions:

Differences between business partnerships and production cooperatives

These two forms of organization have important differences. They extend to the responsibility of the participants, their number, and even the form of contribution.

Cooperatives are more often organized for a specific purpose and a certain type, partnerships are founded to make a profit.

Signs of HT

Depending on the number of participants allowed, a different number of participants may vary. Full and partial liability for debt obligations is possible. General partners are liable with personal property, and limited partners only with the amount of the contribution. The choice of form depends on the participants themselves, while general partners must form an individual entrepreneur or legal entity.

Mostly, CT of any type involves the pooling of capital and experience, without requiring personal labor contribution from the participants. , in which there is only one participant left, should be renamed into a society.

PC Features

Persons who are unable to contribute funds can become members. It is permissible to contribute personal property or labor contribution as a share. The number of members in a cooperative cannot be less than five, and their responsibility, although subsidiary, has certain characteristics. If the number of participants decreases to less than 5, the cooperative is obliged to change the form of organization or take on an additional member with his voluntary consent.

According to the charter, liability can be limited to a certain amount. The law allows its value to be tied to the size of the share. At the same time, the share itself from each participant may differ in size. For members of the cooperative there is no need for everyone

Federal Law 05.05.2014 N 99-FZ introduced significant changes to corporate legislation. Some of the changes affected the general provisions on legal entities, in particular, the organizational and legal forms of legal entities and their classification changed.

Commercial organizations that pursue profit as the main goal of their activities are divided into:

— Economic societies
- Public societies.
— Non-public companies

Abolished (not created and cannot be registered):
— companies with additional liability;
- types of joint stock companies - open and closed.
Business partnerships
- general partnership
- limited partnership (limited partnership)

— business partnerships

- production cooperatives

This law introduces the concepts of public and non-public companies. The purpose of this division is to establish different regimes for regulating intracorporate relations for companies that differ in the number of participants and the nature of the turnover of participation rights in them (shares and shares in the authorized capital of LLC).

This division is carried out only among business entities, that is, LLC, JSC, and does not affect other forms of commercial corporate legal entities (for example, business partnerships).

A joint stock company is recognized as public if its shares and securities convertible into its shares are publicly placed (by open subscription) or publicly traded under the conditions established by securities laws (Clause 1, Article 66.3 of the Civil Code of the Russian Federation).

The rules on public companies also apply to joint stock companies, the charter and company name of which indicate that the company is public.

Non-public companies are.
1. Limited liability company;
2. Joint stock company:
- the charter and company name of which do not indicate that the company is public;
— whose shares and securities convertible into its shares are not publicly offered (by public offering) or publicly traded under the terms established by securities laws.
3. Company with additional liability.

As of September 1, 2014, additional liability companies are abolished. For such companies created before this date, the provisions of Chapter 4 of the Civil Code of the Russian Federation in the new edition on limited liability companies apply. Accordingly, such companies should also be treated as non-public companies.

Thus, from September 1, 2014, the division of joint stock companies into closed and open is abolished. JSC of these types now. cannot be created.

Taking into account the new requirements, the company names of business entities will have to have the following form:
— public joint-stock company — “Public Joint-Stock Company “Armais”;
- non-public joint stock company - "Joint Stock Company "Armais";
- limited liability company - "Limited liability company "Armais".

At the same time, companies retain the right to have an abbreviated company name.

Unlike a public company, a non-public company should not reflect its non-public status in its corporate name. There will be a “public joint stock company” and simply a “joint stock company”.

From September 1, 2014:
— the provisions of the Law on JSCs governing JSCs apply to public joint-stock companies to the extent that does not contradict the Civil Code as amended;
— the norms of Chapter 4 of the Civil Code of the Russian Federation (as amended) on joint-stock companies apply to closed joint-stock companies. The provisions of the JSC Law on Closed Joint Stock Companies apply to such companies until the first amendment to their charters.

Until September 1, 2014, the main classification criterion for dividing joint stock companies into open and closed was the number of shareholders (50 or less for closed ones and more than 50 for open ones).

Thus, the main criterion for dividing into public and non-public joint-stock companies is the public offering of shares, securities convertible into shares (the right to place them publicly), or their public circulation on established conditions.

There are no requirements for the maximum number of non-public shareholders, as well as public JSCs, so it can be anything. The requirement remains that a joint stock company must have at least one shareholder, who in turn cannot be another business company consisting of one person, unless otherwise provided by law.

For an LLC, the requirement for a maximum number of participants (no more than 50) remains; otherwise, it is subject to transformation into a joint-stock company within a year, and after this period, liquidation through court proceedings, unless the number of its participants decreases to the specified limit. The requirement for the type of joint-stock company into which the LLC must be transformed has been removed since 09/01/2014. In such a situation, the LLC itself will be able to determine whether it will be a public or non-public JSC in compliance with the requirements for the public offering of shares and securities convertible into shares.

Also, for an LLC, the requirements for at least one participant and the impossibility of having another business company consisting of one person as the sole participant of the LLC remain in force.

Non-public joint stock companies, as entities that do not have the right to publicly place their shares, other securities convertible into shares, are close in this to closed joint-stock companies, and public companies are close to open joint-stock companies in this.

However, this does not mean that an OJSC will necessarily be equated to a public JSC. Only those JSCs that meet the criteria of a public JSC will be recognized as public. For example, if the shares of an OJSC were placed only upon its establishment by private subscription and were not placed publicly, then such a company will be non-public, but otherwise may be established by its charter.
A non-public joint-stock company (including one created before September 1, 2014 as a closed joint-stock company), regardless of the number of its shareholders, can acquire the status of a public joint-stock company by indicating in its company name that the company is public and entering information about such company name in the Unified State Register of Legal Entities.

In general, the legislative requirements for the activities of public companies are more stringent than for the activities of non-public companies, in relation to which the legislator allows more flexibility in regulation, for example, on issues of management in companies. The establishment of more stringent requirements for public companies is primarily due to the fact that their activities affect the property interests of a large number of shareholders and other persons.

Freedom of internal self-organization of non-public societies

The activities of non-public companies, to a greater extent than public ones, are regulated by dispositive norms of legislation, which provide the participants of the corporation with the opportunity to determine the rules of their relationship themselves.

The ability to independently determine the list of public bodies. The Civil Code divides corporate bodies into two main groups: bodies that must be formed in all corporations, and bodies that are formed in certain types of corporations in cases provided for by law or the charter of the corporation itself.

Mandatory bodies include the general meeting of participants (the highest body of any corporation) and the sole executive body (director, general manager, etc.). And the bodies that are formed only in cases provided for by the Civil Code, other laws or the charter of the corporation include: a collegial executive body (board, directorate, etc.), a collegial management body (supervisory or other board), which controls the activities of executive bodies of the corporation and performs other functions, as well as the audit commission. For a public company, in accordance with the law, the formation of most of these bodies is mandatory (only the need to form a collegial executive body is left to the discretion of the company itself), while for a non-public company the formation of only two corporate bodies is mandatory, and the rest are optional.

Formation of a collegial management body and audit commission

The Civil Code allows that the formation of a collegial governing body may be provided for not only by the charter, but also by law.

In accordance with the current Federal Law dated 02/08/98 No. 14FZ “On PAs”, in an LLC the formation of a board of directors (supervisory board) and an audit commission occurs at the discretion of the company’s participants. Considering that the new edition of the Civil Code also does not require non-public companies to create a collegial management body, by virtue of paragraph 4 of Article 65.3 of the Civil Code of the Russian Federation, this body is optional for limited liability companies (by law, its creation is not mandatory, but may be provided for by the charter). As for the audit commission (auditor), according to the new edition of the Civil Code, limited liability companies are subject to the same rule as non-public joint stock companies: the charter can include provisions on the absence of an audit commission in the company or on its creation exclusively in cases provided for by the charter.

By decision of the participants (founders) of a non-public company, adopted unanimously, the following provisions may be included in the company’s charter:
- on assigning the functions of the collegial executive body of the company to the collegial management body of the company (clause 4 of Article 65.3) in whole or in part, or on refusing to create a collegial executive body if its functions are carried out by the specified collegial management body;
- on the transfer to the sole executive body of the company of the functions of the collegial executive body of the company (clause 3 of Article 66.3 of the Civil Code of the Russian Federation).

These options are designed for the case when a company has simultaneously created a collegial management body (supervisory or other board) and a collegial executive body (board, directorate), and then the collegial executive body is liquidated. In this case, the question arises: should its competence be transferred in full to the sole executive body or can it be fully or partially transferred to a collegial management body? The new edition of the Civil Code allows both options. Participants in a non-public company have the right to independently decide how to distribute the powers of the liquidated collegial executive body. Obviously, if such a body did not exist in the society initially, then the problem of distributing its functions and competence does not arise (accordingly, subparagraphs 2 and 3 of paragraph 3 of Article 66.3 of the Civil Code of the Russian Federation do not apply to these situations).

Freedom of self-organization of non-public societies is the result of a compromise of all its participants
The freedom of internal corporate self-organization of non-public companies is opposed by the principle of unanimity of all participants of a non-public company in the implementation of dispositions provided by law.
The use of dispositive norms entails a potential threat that the dominant participants in society will impose on weaker non-controlling participants such rules of internal corporate relations that will entail non-compliance with the interests of the latter. To prevent such negative consequences, the legislation establishes the conditions for the application of dispositive norms. One of them is the principle of consensus (unanimity of all participants in society) in the implementation of dispositions provided for by law. Its essence is that a deviation from certain dispositive norms of legislation and the establishment of a different rule in the charter of a non-public company is possible only if the corresponding decision is made unanimously by all participants of the company. Thus, non-controlling participants can block the introduction in society of rules that are disadvantageous to them at the request of the dominant participants.

This mechanism is borrowed from the legal regulation of LLC activities, since Law No. 14-FZ has always contained such a limiter for the imposition of certain decisions by dominant participants on non-controlling participants. This was unusual for joint-stock companies. But the new edition unifies the regime of discretionary legal regulation of all non-public companies (LLCs and non-public joint-stock companies), therefore non-public joint-stock companies will also be able to deviate from dispositive norms only on the basis of unanimity.

Using the principle of unanimity when implementing dispositive norms has its drawbacks. This creates excessive protection of the interests of non-controlling participants (shareholders), narrowing the possibilities of intracorporate self-organization. It is obvious that unanimity of all participants in society can be achieved only with a limited number of them and the actual participation of each of them in decision-making. A non-public company with several dozen participants (shareholders), especially if there are “dead souls” among them, is unlikely to be able to take advantage of the freedom of internal corporate self-organization simply because of the impossibility of achieving unanimity of all participants (shareholders).
In this regard, it is worth recalling another mechanism for ensuring a balance of interests of controlling and non-controlling participants, namely compensation payments to the non-controlling minority. According to current laws No. 208-FZ and No. 14-FZ, this mechanism is used when making particularly significant decisions that change the conditions of participation in the company (decisions on the approval of major transactions, reorganization of the company, amendments to the charter that reduce the scope of rights of participants, etc.). P.). For such events, the decision of the overwhelming majority of participants (shareholders) is sufficient; therefore, the legislation gives the participants of the company who do not support this decision (this is objectively a minority) the right to make a demand for the redemption of their shares (shares), that is, to leave the company.

Taking this into account, in the event that it is impossible to reach a unanimous decision regarding the establishment in society of certain deviations from the dispositive rules of legislation, an effective way out of the problem would be to expand the scope of application of compensation payments. Then the dissenting minority will have the right to demand that the controlling participants buy back their shares (shares), and the remaining participants will be able to make the necessary unanimous decision.

Another area to which different rules apply depending on whether the company is public or non-public is the procedure for certifying the persons participating in the general meeting of participants (shareholders) and the decisions made by the meeting.

The further fate of the company

In connection with the division of JSC into public and non-public, a natural question arises about the fate of the JSC. There is no revolution happening with them. Although this type of joint stock company is not provided for in the new edition of Chapter 4 of the Civil Code, it does not prohibit the use in a non-public joint stock company of a mechanism that is the main feature of closed companies, namely control of the personal composition of participants (preemptive right to acquire shares alienated by individual shareholders to third parties). The ban on the use of this mechanism is established only in relation to public companies; therefore, it does not apply to non-public companies. It’s just that if earlier this mechanism was mandatory (imperative) for closed joint stock companies, now, due to the disappearance of this type of joint stock company from the legislation, this mechanism is turning into a right of choice for non-public companies. That is, this mechanism can be used at the discretion of shareholders of non-public joint stock companies. To do this, it must be included in the charter, and it is enough for the former closed joint stock companies to keep it in the charter.

Removing the word “closed” from the corporate name of a joint-stock company does not prevent the application of the pre-emptive right to purchase shares if the company meets the criteria of a non-public company.

But the following circumstance must be taken into account. According to paragraph 9 of Article 3 of Law No. 99-FZ, from September 1, 2014, the norms of the new edition of the Civil Code on joint-stock companies are applied to CJSCs. And the special provisions of Law No. 208-FZ on CJSCs apply to such companies until the first change in their charters. This means that as soon as the company removes the word “closed” from its corporate name, it will not be able to rely on the provisions of Law No. 208-FZ regulating the activities of the company. In particular, those provisions of Law No. 208-FZ that regulate the procedure for exercising the pre-emptive right to purchase shares will no longer apply to him. Therefore, the procedure for exercising this right now needs to be specified in the charter (if it does not contain relevant provisions). To do this, it is not necessary to duplicate the relevant provisions of Law No. 208-FZ in the charter, given that they will still lose force for society. Any reasonable procedure for exercising the pre-emptive right can be envisaged.

Former JSCs that fall into the category of non-public companies will also be able to exercise the pre-emptive right to purchase shares if they include the appropriate provisions in the charter. The inclusion in the charter of a non-public joint stock company of norms on the pre-emptive right or the establishment of a special procedure for the exercise of this right is carried out by a majority of ¾ votes of the meeting participants

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As a rule, national legislation regulating the stock market imposes certain information disclosure requirements on companies whose shares may be offered for purchase to an unlimited number of persons and/or traded on the stock market. Companies that meet these requirements are called public companies.

From an investor's perspective, shares of a public company may be considered a more liquid asset than shares of non-public companies for the following reasons:

shares may be offered for sale to an unlimited number of persons;
a potential buyer can evaluate the company using open (including independent) sources;
shares of a public company are traded on a stock exchange, where it is easier for a seller to find a buyer than on an unorganized market;
information about transactions completed on the organized market (price and volume of the transaction) is available in open sources to both the buyer and the seller and can be used as a basis for evaluating a package for sale.

A public company that entered the stock exchange, but for some reason ceased operations, is called a shell company.