Methods of reorganization of legal entities. Reorganization in the form of merger, merger and allocation of a new legal entity

The civil legislation of the Russian Federation provides for such a procedure as the reorganization of legal entities. What is its specificity? What are the ways of implementing this procedure?

What is the reorganization of the legal entity?

Before considering the ways of reorganizing legal entities envisaged by the legislation of the Russian Federation, we will study what the corresponding term means. His interpretation is given directly in the provisions of regulatory sources of law, the main of which is the Civil Code of Russia. In accordance with its provisions, under the reorganization of the legal entity is to understand the process in which the legal entity in one way or another transfers its own powers to another economic entity.

At the same time, it is necessary to distinguish, in particular, the transformation in the form of a merger - when several firms consolidate their rights and obligations, from such a process as reorganization by means of separation, in which the initial economic entity does not cease to conduct the main activity. There are other types of reorganization - later in the article we will consider them in more detail.

It should be noted that completely different from the point of view of law is the process of liquidation of the enterprise. Its result is the exclusion of the record of the firm as the leading active activity from the state register. However, liquidation and reorganization are processes that, in one way or another, can be linked together within the framework of changes in the structure of enterprise management, holdings. Therefore, their consideration can in many cases be carried out in the same context.

There are 2 types of reorganization - voluntary and forced. Let's consider their features in more detail.

What is a voluntary reorganization?

The corresponding type of reorganization is carried out in accordance with the decision taken by the company's management. In this case, options are possible in determining the further format of doing business. So, for example, if reorganization is supposed to be a merger, then the economic entities that participate in this process enter into a special agreement that fixes the procedure of the procedure in question, as well as the principles for the distribution of shares in the formed firm (or the amount of shares that are transferred to Ownership of one or another co-owner).

What is a coercive organization?

This type of reorganization involves taking a decision, according to which the procedure under consideration is implemented, by the competent authority or by the court. The reason for the forced reorganization may be, for example, the need to organize the calculation of the firm with the creditors at the expense of selling the property, which is subject to distribution between other economic entities.

Classification of reorganizations

What are the ways of reorganization of legal entities? The legislation of the Russian Federation provides for a classification, according to which 5 relevant procedures are singled out:

- merger of firms;

- joining one company to another;

- division of the firm;

- allocation of the enterprise;

- business transformation.

Merger is a combination of 2 or more economic entities into one structure. At the same time, each of the merged firms ceases to operate. Once a new legal entity is registered with the Federal Tax Service, the merger reorganization procedure is considered complete.

The procedure for the reorganization of a legal entity may involve joining one company or several to another. In this case, each of the firms that is part of another structure, ceases its activities. In addition, the termination of the activities of a legal entity through reorganization in the form of accession implies the transfer of its rights and obligations to the company into which the relevant economic entity entered. The considered procedure is considered completed, as soon as the RF Federal Tax Service enters into the state register information that all affiliated companies ceased their activities.

The procedure for the reorganization of a legal entity may also presuppose a division, which is a procedure for the formation on the basis of a firm of other economic entities that receive legal independence.

The next variant of the enterprise transformation is the selection. It presupposes the formation on the basis of the firm of new legal entities that become independent of it economic entities. This procedure is considered complete, as soon as the FTS registers all business entities that have separated from the firm.

The next type of reorganization is transformation. This procedure involves the termination of one legal entity and the subsequent creation on its basis of a new business entity. As soon as the Federal Tax Service finishes the state registration of a new company, the procedure under consideration is considered complete.

These are the main ways of reorganizing legal entities, reflecting a widespread classification. What specifically can be chosen is predetermined by the specific nature of the particular type of business, the obligations of the company, the priorities of its owners - a list of factors that can influence their preferences can be quite impressive.

Classification of reorganizations: rights and obligations of economic entities

Classification of reorganizations can be carried out for other reasons. For example - from the point of view of determining the scope of those rights and obligations that are transferred from the reorganized firm to legal successors. So, they can be transferred to another business entity:

- in full;

- in part - while only a certain amount of rights and obligations are transferred to other successors;

- in part, subject to the distribution of the initially full scope of rights and obligations that belonged to the firm.

In general, the first version of the distribution of rights and duties describes such procedures as reorganization through conversion, merger, and merger. The second - at division. The third - with the selection.

Documentation of reorganizations

When implementing reorganizations, the following documents may be formed:

- separation balance sheet;

Transfer act.

In this case, the first document is formed if separation or separation is performed. The second is if reorganization is carried out in the form of merger, merger or conversion. Either way, both of these documents should reflect information about the obligations of business entities involved in the business transformation process.

The main stages of the reorganization

Having considered the types and methods of reorganization of legal entities, we will now study the specifics of the stages within which the corresponding procedure is carried out. In general, the sequence of actions of economic entities that are involved in the reorganization will be as follows.

First of all, competent persons - for example, the board of directors of a business company, decide on the transformation of business. Further, the Federal Tax Service is notified that the organization will be implemented. Tax specialists should be informed at the same time that the company's management made a decision to transform the company within 3 days after its adoption.

The next step is the introduction of the Federal Tax Service of amendments to the Unified State Register of Legal Entities, reflecting the fact of the beginning of the procedure for the transformation of the enterprise. After - in the industry journal information is published that the reorganization of the relevant legal entity is being carried out.

Further - creditors are notified in writing that the company that is their debtor is being transformed. After that, the forms of reorganization of the legal entity are selected directly.

Reorganization of legal entities under the Civil Code of the Russian Federation: nuances

There are quite a few nuances that characterize the procedure in question. We will study them, relying on the Civil Code. Reorganization of a legal entity is a procedure that, as we noted above, is carried out mainly on the basis of the provisions of the Civil Code of the Russian Federation.

First of all, it is worth noting that the Civil Code of the Russian Federation allows reorganization: with simultaneous combination of its different forms - if it is possible from the point of view of the lack of inconsistencies of the procedure with the existing norms of law, with the participation of two or more legal persons who conduct activities in different legal forms - In the event that this procedure does not violate the provisions of applicable law.

Any restrictions of legal entities in the implementation of reorganization can be established only by law. At the same time, the regulatory legislation may define provisions in accordance with which a separate reorganization procedure will be fixed:

- banks;

- insurance companies;

- Clearing companies;

- financial organizations;

- trading corporations;

- investment funds;

- non-state pension funds;

- People's enterprises.

Above we noted that the ways of resolving the reorganization can be based on legal acts issued by the courts. It should be noted that the founders of the economic company are obliged to comply with the provisions of these acts. Otherwise, the corresponding procedure will be carried out by the arbitration manager - proceeding from the norms established in the Civil Code of the Russian Federation. This option may be less preferred for business owners.

The court decision on the reorganization is the basis for the FTS of the Russian Federation to state registration of newly formed legal entities. Its completion, as we noted above, is the main criterion for the recognition of the procedure in question, which took place.

In some cases, some or other ways of reorganizing legal entities may be initiated by decision of the competent state bodies.

One of the key nuances of the corresponding procedure is succession. Let's study it in more detail.

Succession in the reorganization of legal entities

Succession implies a legal transfer of the rights and obligations of the legal entity in respect of which the reorganization is being carried out, to another economic entity in an established volume. The patterns are as follows:

- at merge of legal persons of each of them the newly created economic subject receives;

- upon accession - the company, which includes others, accepts their rights and obligations;

- when the firm is divided, its rights and obligations pass to the economic entities formed on its basis;

- with the allocation - to each of the formed legal entities, the rights and obligations of the reorganized are transferred;

- under the transformation - the scope of rights and obligations of the new legal entity in comparison with that which characterized the activities of the former, remains unchanged.

In this case, in the cases provided by law, the rights - depending on the form of reorganization of the legal entity, the rights and obligations are transferred under the deed of transfer.

It will be useful to consider the specifics of this document in more detail.

What is the deed of conveyance?

The purpose of the transfer act is to determine the list of rights and obligations transferred under such procedure as reorganization from one legal entity to another. The document in question includes provisions according to which the succession of the firm is established with respect to all creditors and debtors, as well as how it can be determined taking into account possible changes in the rights and obligations of the business entity.

The transfer certificate is drawn up by the founders of the firm or by the competent state body, which made a decision on the choice of a form of reorganization of the legal entity. The corresponding document is sent to the Federal Tax Service together with other sources, which are transferred to the tax authorities - within the framework of interaction with them in accordance with the procedure established by law. If the transfer certificate is not provided by the Federal Tax Service, then the necessary changes to the state register will not be made by the agency.

Guarantees of creditors' rights

The next most important aspect of the reorganization is the guarantee of the rights of the creditors of the economic entity, which changes its status in accordance with the established procedure. These guarantees are also established in the provisions of the Civil Code of the Russian Federation. First of all, the relevant legal entity is obliged, as we noted above, within 3 days after the decision on reorganization to notify the Federal Tax Service that the status of the organization is supposed to be changed.

Having received this notice, tax specialists enter into the state register an entry stating that the firm is being reorganized. In turn, this business entity is obliged to publish a notice to the departmental media about this. The relevant document reflects the order in which the creditors can claim their claims.

In the event that they arose before the reorganized economic entity first published a notice in the departmental media, the creditor has the right to demand early fulfillment of the debtor's obligations or compensation for the losses incurred before the court. These requirements can be presented by the authorized party within 30 days after the reorganized company publishes the last notice.

The claims of creditors that are put forward within the period established by law must be fulfilled before the reorganization is carried out - in the form of merger, merger, transformation or any other type. At the same time, the creditor will not have the right to demand from the debtor to pay off the obligations ahead of schedule if within 30 days from the moment of presentation of the relevant claims he receives security, the amount of which will be recognized as sufficient. The law also determines the cases in which the creditor's rights, one way or another, are realized regardless of the reorganization procedure.

If the claims of the creditor are not fulfilled, its losses are not reimbursed, and sufficient security is not provided to it, then those who have the opportunity to manage the actions of the reorganized economic entities are jointly and severally liable.

The main criteria for ensuring the creditor's security are the consent of the authorized party to accept it, as well as the existence of an irrevocable bank guarantee for the fulfillment of the obligations of the reorganized economic entity.