Corporation

The idea of ​​a legal entity as an independent subject of law was first implemented in ancient Rome ^[2] .

Already in ancient times , various private corporations existed: unions with religious goals (sodalitates, collegia sodalicia), trade unions of various artisans (pistorum, fabrorum, etc.). Private corporations are mentioned in the laws of the XII tables (451-450 BC). According to Guy , they provided the members of collegia sodalicia (sodales) with rules and charters for themselves, as long as these charters did not contradict the law.

In the period of the republic , apparitorum corporations (lower ministers at magistrates), mutual assistance corporations (funeral - collegia funeraticia), etc. appear. Such corporations have common property - a common cash register (arca communis), but this property is legally considered or as property of all individual members (by the rules of partnership, societas) in known shares, or as property of one of them - the one who is the treasurer. As an independent entity in relations with third parties, the Roman corporation does not act. Third parties deal only with individual members.

In the second half of the republic, the property of the corporation is already considered as the common property of all members. In order to give stability to the corporation, the principle of the inseparability of this common property is allowed in the charter: individual members cannot demand the allocation of their part, the departure of some members and the entry of others does not affect the common property. This creates a separation of property of the corporation from its participants.

By the beginning of the empire, municipalities and private corporations were recognized as legal entities. Thus, Roman law not only framed the idea of ​​a legal entity, but also gave its practical expression: the concept of legal capacity of a legal entity, independent of individuals - participants, methods of artificial capacity and even the main types of legal entities (corporations and institutions ) ^[2] .

In the Middle Ages, a legal entity (corporation) was considered as a fictitious legal entity (persona ficta) created by the government (state or feudal lord). The right to carry out activities was confirmed by a special act (for example, a charter ). The alleged oldest corporation in the world is the Stora Kopparberget copper mine in , which is located in the city of Falun , Sweden , received a charter from King Magnus Ericsson in 1347 .

During colonial expansion in the 17th century, many European countries began to give corporations the right to do business with the colonies; these companies became the prototype of modern corporations. Examples of such companies are the Dutch East India Company and the Hudson's Bay Company .

In the XVIII-XIX centuries. the institute of the corporation was regarded as a synonym for a legal entity. The characteristics of corporations of that time are inherited from Roman private corporations. Then all theories that determined the legal nature of the design of a legal entity (corporation) were reduced only to theories of fiction ^[3] . The decision of the Supreme Court of the United States, relating to the beginning of the XIX century., Was given the following definition:

A corporation is an artificial entity, invisible, intangible, and existing only in terms of law

Original text

an artificial being, invisible, intangible, and existing only in contemplation of law

- Trustees of Dartmouth College v. Woodward, 17 US (4 Wheat.) 518, 4 L. Ed. 629 (1819)

Modern US practice distinguishes between public (public), quasi-public (quasi-public), commercial (private, business of profit-making) and non-profit (Non-profit) corporations ^[4] .

Public corporations have state and municipal bodies (cities, districts, villages) ^[5] .

Semi-public corporations are considered to serve the general needs of the population, for example, to supply the population with gas, water, electricity, railway corporations. Among the semi-public corporations ᴏᴛʜᴏϲᴙТ and enterprises, shares of which belong to the state (enterprises of the defense, space complex) ^[5] .

All other corporations fall into the category of private, i.e. those in the creation of which the state does not take part and which are formed at the initiative of citizens for the realization of their private interests ^[5] .

Commercial (entrepreneurial) corporations are created to profit from the sale of goods and services ^[5] .

Non-profit corporations are religious organizations, educational corporations (schools, colleges, universities, etc.), charitable foundations ^[5] .

In modern continental law, the concept of corporation is different from Anglo-Saxon. It includes legal constructions specific to the continental legal system, for example, partnerships, state institutions. At the same time, there are no legal entities characteristic of Anglo-Saxon law (state bodies engaged in managerial activities) ^[5] .

The legal system of the Russian Federation belongs to the Romano-German legal family.

Current Russian legislation gives the concept of a legal entity (part 1 of article 48 of the Civil Code of the Russian Federation ). Classifications are carried out for corporate and unitary legal entities, as well as for commercial and non-profit organizations. A definition of a corporation is given. The concepts of an enterprise and organization are not defined in the Civil Code of the Russian Federation. For legal entities, a closed list of legal forms is proposed.

The laws governing the creation, management and operations of corporations established as legal entities can vary from country to country, and therefore it is impossible to give an exact legal definition of a corporation that would be universal in nature ^[1] . The 2008 SNA indicates in detail some of the typical characteristics of corporations that are most significant in terms of the system of national accounts ^[1] .

A corporation is a legal entity created in accordance with the law, whose existence is recognized as independent of other institutional units that may be shareholders of this corporation. The existence, name and address of a corporation is usually reflected in a special register created for this purpose. It is generally believed that a corporation has a center of predominant economic interest (that is, is a resident ) in the country in which it is created and registered ^[6] .

The corporation, which was created with the aim of producing goods and services for sale on the market, carries out these sales at economically significant prices. This means that the corporation is a market producer ^[7] .

The corporation is fully responsible and accountable to the law for its actions, obligations and contracts. The corporation is subject to the tax regime in the country of which it is a resident in relation to its production activities, income or assets ^[8] .

The property of the corporation belongs to shareholders collectively. The amount of income distributed to shareholders as dividends during one reporting period is determined by the directors of the corporation. Income is usually distributed to shareholders in proportion to the value or number of shares or other types of equity participation that they hold. There may be different types of shares in the same corporation, providing different rights ^[9] .

In the event that a corporation ceases its business or is liquidated, shareholders have rights to a share in the net worth of the corporation's capital remaining after all assets are sold and liabilities are settled. If a corporation is declared bankrupt due to the fact that its obligations exceed the value of its assets, shareholders are not required to pay the remaining part of the obligations ^[10] .

Control over the activities of the corporation is ultimately carried out collectively by shareholders. The corporation has a board of directors that is responsible for the policy of the corporation and appoints the CEO of the corporation. The board of directors is usually appointed by a collective vote of shareholders ^[11] .

In practice, however, some shareholders may have more influence and exercise greater control over the policies and operations of the corporation than other shareholders ^[12] .

Voting rights of shareholders may not be equal. Some types of shares provide more weight with respect to voting rights, while others may provide exclusive rights, such as the right to be appointed to the board of directors or the right to veto other appointments made by majority vote. Such exclusive rights may belong to the government if it is a shareholder of the corporation ^[13] .

Many shareholders with voting rights may not use them, and therefore a small organized minority of shareholders can exercise control over the policies and operations of the corporation ^[14] .

The corporate governance system is designed to regulate the relationship between company managers and their owners, as well as to coordinate the goals of stakeholders (company shareholders), ensuring the effective functioning of companies. There are various models of corporate governance: Anglo-American, German (insider), Japanese.

In the Anglo-American model, the interests of shareholders are represented by a large number of small investors, the management is in the hands of the management of the corporation. In the German (insider) model, all parties interested in the corporation have the right to participate in the decision-making process (shareholders, managers, personnel, banks, public organizations).

Anglo-American and German models are two extreme options. Between which there are many intermediate national forms. The Japanese model of corporate governance is characterized as completely closed and based on banking control, this reduces the problem of managers' control. The family management model is widespread in all countries of the world; in this system, corporations are managed by members of close relatives (family). In the Russian model of corporate governance, the principle of separation of property rights and control is usually not recognized. ^[fifteen]

For the "Japanese model", the essential elements are social community, solidarity and corporate culture. A key element of the “Japanese model” of corporate governance is a lifelong recruitment system.

Federal Law dated 05.05.2014 No. 99-ФЗ introduced Article 65.1 “Corporate and Unitary Legal Entities” into the Civil Code of the Russian Federation.

In accordance with paragraph 1 of this article, corporate legal entities (corporations) are those legal entities whose founders (participants) have the right to participate (membership) in them and form their supreme body. They include:

• business partnerships and societies,
• peasant (farm) enterprises,
• business partnerships
• production and consumer cooperatives,
• public organizations
• associations (unions),
• partnership of property owners,
• Cossack societies entered in the state register of Cossack societies in the Russian Federation, as well as
• communities of indigenous peoples of the Russian Federation.

Legal entities whose founders do not become their members and do not acquire membership rights in them are unitary legal entities. These include:

• state and municipal unitary enterprises,
• funds
• institutions
• autonomous non-profit organizations,
• religious organizations
• public law companies.

• Holding
• Multinational company (corporation)

• Corporation // Brockhaus and Efron Encyclopedic Dictionary : in 86 volumes (82 volumes and 4 additional). - SPb. , 1890-1907.
• Corporation // Economic Dictionary.
• Joel Bakan Corporation: The Pathological Pursuit of Profit = The Corporation: The Pathological Pursuit of Profit and Power. - M .: "Williams" , 2007. - S. 288. - ISBN 0-7432-4744-2 .
• Economic and legal dictionary / Under. ed. A.N. Azriliyan. - M .: Institute of the New Economy, 2004. - 1088 p.