МЕСТО КОРПОРАТИВНОГО ДОГОВОРА В СИСТЕМЕ ГРАЖДАНСКО-ПРАВОВЫХ ДОГОВОРОВ РОССИЙСКОЙ ФЕДЕРАЦИИ | Опубликовать статью РИНЦ

Алимгафарова А.Р.

Студентка 3 курса группы «Ж» Института права Башкирского государственного университета

МЕСТО КОРПОРАТИВНОГО ДОГОВОРА В СИСТЕМЕ ГРАЖДАНСКО-ПРАВОВЫХ ДОГОВОРОВ РОССИЙСКОЙ ФЕДЕРАЦИИ

Аннотация

Данная статья посвящена изучению правовой природы корпоративных договоров и их места в системе гражданско-правовых договоров Российской Федерации.

Ключевые слова: корпорация, договор, законодательство, гражданское право.

Alimgafarova A.R.

Student of the Institute of Law 3 G BSU Ufa

THE CORPORATE CONTRACT UNDER THE CIVIL LEGISLATION OF THE RUSSIAN FEDERATION

Abstract

This article deals with problems that can arise in concluding corporate contracts.

Keywords: corporate, contract, legislation, civil, law.

The growing role of business entities in the modern civil circulation and disputes arising between their members contribute to even greater interest towards corporate relations studies. One of the most relevant and interesting current issues, from our point of view, is the research of agreements concerning the rights of corporation members (corporate contracts): legal regulations have not been properly developed yet.

The Corporate contract is considered to be an agreement between corporation members concerning various aspects of corporation activity. [1]

The legislative definition of the term “corporate contract” is given in the third part of Article 67.1 of the Draft modifications of the Civil Code of the Russian Federation (hereinafter – Civil Code) as of December 7, 2010 (hereinafter – the Draft). According to it, participants of a business entity or some of them have the right to enter into a contract in order to implement their corporate (membership) rights. Under the contract they have to exercise these rights in a certain way or to refrain (refuse) from exercising them, it also includes the right to vote in a certain way at the general meeting of the Company, to take other actions in the company management, to acquire or dispose of shares in its share capital (shares) at a certain price, and (or) to refrain from the alienation of a share (shares) upon the occurrence of certain circumstances [2 ] .

Such broad definition of corporate contract given by developers of the new Civil Code has made it urgent concerning the place of such contracts in the Civil Legislation of the Russian Federation.

The current legislation defines two types of corporate contracts: shareholder agreement [3] and agreement on the implementation of the rights of society members [4]. In turn, the introduction of the Institute of Corporate contract to the Civil Code contributes to the resolution of such disputes and contradictions.

Thus, according to the corporate contract provision the duty of company members to vote a certain way at a general meeting, to coordinate with other members a particular variant of voting as well as their actions to manage the company (to establish parallel obligations of the members) makes it only a simple partnership agreement. However, in our opinion, they should not be identified because the main part of a simple partnership is the duty of individuals to pool their funds in order to implement their joint activity that is outside the scope of the corporate contract regulation. But we can reveal the presence of a single exception: in accordance with Part 1 of Article 53 of the Federal Law “On Joint Stock Companies” shareholders owning in the aggregate not less than two percent of the voting shares of the company can put questions on the agenda of the annual general meeting of shareholders and to nominate candidates in management body. In this situation, the shareholders are considered as pooling their shares, which may be regarded as contributions in order to exercise their right to run the company, that is, to implement their joint activities. However, a single case cannot serve as evidence of the identity of the above contracts.

It is impossible to classify corporate contracts to any defined civil contracts.

Agreements concerning the rights to acquire or dispose business interest  (shares) at a certain price, and (or) upon the occurrence of certain circumstances to refrain from the alienation of shares can be initially regarded as preliminary contract. Indeed, it also contains the obligation of the individual to enter into a specific agreement in the future. But among them there are significant differences. Actually, a corporate contract provides only one significant condition of the future agreement – price, while a preliminary agreement, according to the third part of Article 429 of the Civil Code, must contain all the essential terms of the basic agreement, and also the period when the parties undertake to enter into a contract. Thus, the latter does not provide the possibility to conclude the main agreement under the suspensive condition that occurs in the corporate contract.

We can conclude that the corporate contract is a separate kind of civil contract with its specific subject and special subject structure which is not similar to any of the defined contracts in the Civil Code. According to the legal characteristics corporate contracts should be attributed to institutional ones, which represent the mutual agreement of two or more parties aimed to organize   relationships and to create prerequisites that are necessary and sufficient for its members to enter other public property relations. Corporate contracts are directed to arrange and organize life “within the corporation”, to exercise and regulate relations between its members.

We hope that the further development of the Civil law concerning the legal regulation of corporate contract will lead to its separation into the independent type of civil contract.