Management of Joint Stock Company is carried out. Management bodies of joint stock company. The highest management body of the joint-stock company is the general meeting of shareholders. Features of executive structures
The highest management body of the joint-stock company is the general meeting of shareholders.
The general meeting may be annual (held annually after the end of the fiscal year) and the extraordinary, which is carried out at the request of those listed in the law. Conduct an annual meeting for society.
The law establishes the exclusive competence of the General Assembly, including on issues of amendments and additions to the Charter of the Company or the approval of the Company's Charter in the new edition, the reorganization and liquidation of the Company, the determination of the quantitative composition of the Board of Directors (Supervisory Board) of the Company, the election of its members and early termination their powers; Crushing and consolidation of shares and other issues. The exception of competence means that the decision of these issues cannot be transferred to other bodies of the joint stock company.
The general management of the Company's activities is carried out by the Board of Directors (Supervisory Board). The competence of the Board of Directors (Supervisory Board) of the Company includes issues of general management of the Company's activities, with the exception of issues related to the competence of the General Meeting of Shareholders. In particular, the competence of the Board of Directors includes issues of determining the priority areas of the Company; approval of the agenda of the General Meeting of Shareholders; determining the date of drawing up a list of persons entitled to participate in the general meeting of shareholders, recommendations on the size of the dividend on shares and the procedure for its payment; creation of branches and the opening of representative offices of the Company; The approval of the Company's registrar and the terms of the contract with it, as well as the termination of the contract with him and other issues.
Members of the Board of Directors (Supervisory Board) of the Company are elected by the General Meeting of Shareholders. At the same time, if a shareholder can be both a physical and legal entity, a member of the Board of Directors (Supervisory Board) of the Company can only be an individual.
The election of members of the Board of Directors (Supervisory Board) of the Company is carried out by cumulative voting. This means that the number of votes belonging to each shareholder is multiplied by the number of persons who should be elected to the Board of Directors of the Company, and the shareholder has the right to give them either completely for one candidate, or to distribute between two or more candidates.
The current activities are managing the sole executive body of the Company (director, general director). The sole executive body of the Company without a power of attorney acts on behalf of the Company, including represents his interests, makes transactions on behalf of the Company, approves states, publishes orders and gives instructions, mandatory for all employees of society.
In society, along with the sole executive body, there may be a collegial executive body (Board, Directorate). In this case, the competence of the collegial executive body is determined by the Company's charter.
All executive bodies are accountable to the Board of Directors (the Supervisory Council) of the Company and the General Meeting of Shareholders.
The special form of management of the joint-stock company is possible when concluding a contract with the management company (managing). According to such a management company or the manager, the powers of the sole executive body of the Company are transferred. Moreover, the transfer of authority can only be carried out by the decision of the General Meeting of Shareholders.
Features of the legal status
Closed Joint Stock Company of Workers (People's Enterprise)
The legal status of a closed joint-stock company of employees (people's enterprise) is determined by the Federal Law of July 19, 1998. N 115-FZ "On the peculiarities of the legal status of joint-stock employees (folk enterprises)" (hereinafter - the Law on People's Enterprises). Regulations on closed joint-stock companies established by law on joint-stock companies, unless otherwise provided by law on popular enterprises can also be applied to popular enterprises.
The main features of folk enterprises.
Creature. The people's enterprise can be created in the manner prescribed by this Federal Law, by transforming any commercial organization, with the exception of state unitary enterprises, municipal unitary enterprises and open joint-stock companies whose employees own less than 49% of the authorized capital. Creating a national enterprise is not allowed.
The first stage of creation is to make a decision by the participants of the commercial organization about the creation of a people's enterprise. Then, employees of the organization (not less than 3/4 on numerical composition) should be expressed his consent to the creation of a people's enterprise. If employees agreed with the creation of a national enterprise, then between the participants of the organization and all employees who have decided to become the shareholders of the enterprise is an agreement on the creation of a people's enterprise. The average number of employees of the people's enterprise cannot be below 51 people, and the number of shareholders may not exceed 5000.
The authorized capital is formed from ordinary shares manufactured by the national enterprise. The main strict condition of the law - employees of the people's enterprise should have more than 75% of the shares of the national enterprise. If, after the maximum of the tenth fiscal year, this condition will not be fulfilled, the enterprise is subject to liquidation in court.
The law establishes restrictions also on possession and disposal of the promotions of the people's enterprise. One person cannot own more than 5% of the folk enterprise shares. In case of exceeding the limit of the stocks, the redemption is subject to a popular enterprise at a nominal value. The peculiarity of the legal status of the national enterprise is also that the employee's shareholder in case of his dismissal from the enterprise is obliged to sell its shares by the national enterprise at a redecree price. If this is permitted by the charter, the worker who dismissed the employee can sell its shares to employees of the people's enterprise.
In any case, the shares belonging to both the employee (including those who abolished) and the national enterprises that are on the balance sheet cannot be sold to the Director-General of the People's Enterprise, its deputies and assistants, members of the Supervisory Board and members of the Control Commission.
Control. The management authorities of the People's Enterprise are the general meeting of shareholders, the Supervisory Board, the Director General.
The law on people's enterprises provides for the exclusive competence of the General Meeting of Shareholders. Issues related to exceptional competence cannot be transferred to permission to other people's enterprises. A feature of the general meeting of the national enterprise is the ability to establish a vote on the principle of "one shareholder - one voice", unlike the classic "one share - one voice." At the same time, the Law provides a list of the most important issues, the decision on which is made exclusively on the principle of "one shareholder - one voice".
The general management of the enterprise is carried out by the Supervisory Board of the Company, which is chosen by the General Meeting of Shareholders for a period of three years. At the same time, the Chairman of the Supervisory Board is the Director General of the People's Enterprise. The Director General of the People's Enterprise is current management of the Company's activities. He is elected by the decision of the General Meeting of Shareholders for no more than five years, and may be elected unlimited number of times.
To monitor the financial and economic activities of the national enterprise, a revision (control) commission is formed.
Particular attention in modern legal and economic theory and practice is attracted by chapter 7 of the Federal Law "On Joint-Stock Companies". When analyzing this chapter of the law, it is necessary to note the basic innovations present in it. They, as the experience shows, were very significantly changed, transformed, enriched our lives, especially when many millions of Russian citizens fall into the sphere of interests of joint-stock companies. This is due to the fact that in Russia of 2.6 million legal entities more than half have the form of a joint-stock company.
The problem of the opacity and the will of joint-stock companies has not only theoretical, but also of great practical importance, although it remains to a large extent aside from scientific research. To consider it, it is necessary to investigate the human substrate of joint-stock companies and its activities with legal significance, and, consequently, a consistent legal action.
The rights of the joint-stock company belong to him and do not belong to people who are the components of his human substrate. The rights of the joint-stock company are undoubtedly established for the sake of people and intended to serve their interests. However, carriers of the rights of the interests of a joint-stock company, which it is intended to serve, not in all cases are precisely the participants of his human substrate.
The main task of the Institute of Joint Stock Company is to create a subject and responsibilities existing and existing independently of the change of his human substrate. This is an important property of the joint-stock company. The further the process of the separation of the joint-stock company and its property from the people who are part of it, the more advanced joint-stock company, the more stable its ministry of the goal set in front of him is to extract profits.
Activities of the joint stock company are the activities of its team in the broadest understanding. This team must be appropriately organized for certain activities based on the statute. At the same time, it should be accordingly headed by the governing body of the Office.
In accordance with the requirement of the Civil Code of the Russian Federation and the Federal Law "On Joint-Stock Companies", the structure of the bodies of the joint-stock company in the system of its organizational relations as follows:
General Meeting of Shareholders;
Board of Directors (Supervisory Board), which is necessarily created in society with the number of shareholders more than 50;
The executive body of the Company (sole or collegial).
The General Meeting and the Board of Directors (Supervisory Board) are volit-forming elements of the management and formation of internal will of the joint-stock company.
The norms of the AO Law, which determine the procedure for the convening of a general meeting, the participation of shareholders in its work, the competence of the meeting and the procedure for making decisions, allow this body to function normally and fulfill all the duties assigned to it.
The General Meeting can also consider and make decisions only on those issues that are attributed by the law on JSC to its competence, and the list of these issues cannot be expanded at the discretion of the shareholders themselves. Moreover, it is imperatively establish that the shareholders' meeting is not entitled to consider and make decisions on matters not referred to its competence (Art. 48 of the AO Law).
Russian legislation distinguishes two varieties of general meetings: the next (annual) and extraordinary (emergency).
Terms and form of the annual meeting, as well as the issues of the agenda of the annual meeting are defined by Art. 47 law on JSC.
Annual General Meeting of Shareholders must be held no earlier than two months and no later than six months after the end of the fiscal year of the Company, i.e. Not earlier than March 1 and no later than June 30, following the reporting. The specific period of the annual general meeting can be established by the charter.
At the annual general meeting of shareholders in accordance with paragraph 1 of Art. 47 of the AO Law are resolved by questions about the election of the Board of Directors (Supervisory Board), the Audit Commission (Auditor), the approval of the auditor, the approval of annual reports, accounting balances, accounts of profits and losses of the Company, the distribution of its profits and losses. The agenda defined by the legislation is a general recommendation, since the annual meeting has the right to consider and make decisions and on other issues. At the same time, some questions submitted to the next meeting of shareholders may also be considered at an extraordinary meeting (election of the Board of Directors and Auditor's Approval).
According to Art. 47 of the AO Law All General Meetings of Shareholders held in addition to the annual are extraordinary (emergency). The peculiarity of convocation and holding such a meeting is that an extraordinary meeting can be convened not only by the Board of Directors of the Company, but also by the Audit Commission (Auditor), the Company's auditor, as well as a shareholder or shareholders who are owners of at least 10% of the voting shares at the date Consider the claim for convening. An application for the convening of an extraordinary meeting, which comes from the shareholder (shareholders) should contain an indication of the number and category (types) of the shares belonging to it to substantiate the right of convocation of an extraordinary General Assembly (clause 3 of Art. 55 of the AO Law). At the same time, the Board of Directors is not entitled to change the form of the Assembly, including the agenda, if this is indicated by the initiators in the application for the convening of the General Assembly.
The most important stage of the preparation of the General Meeting of Shareholders of the Company is to define its agenda. In the formation of the Agenda of the Annual Assembly, all shareholders are entitled to take part, which are in the aggregate owners of at least 2% of the voting shares (Article 53 of the AO Law).
The Board of Directors, based on proposals made by shareholders, approves the agenda of the General Meeting. The approved Agenda of the Meeting cannot be changed by either shareholders nor the Board of Directors themselves nor the general meeting of shareholders during the meeting or when transferring a meeting (Article 49 and Article 53 of the AO Law).
The right to participate in the general meeting of shareholders is provided to all shareholders of the Company who registered in the shareholder register for a specific date established by the Board of Directors of the Company (Article 51 of the AO Law). At the same time, in accordance with the Law on AO, the date of drawing up a list of shareholders entitled to participate in the General Meeting cannot be established earlier than the date of decision on holding the General Meeting of Shareholders and more than 50 days before the meeting date, and in some cases - more than 65 days before the date of the General Meeting of Shareholders.
The AO Law provides for two forms of meeting: by jointly the presence of shareholders at the General Meeting, the decision on which is taken by full-time voting, or by conducting absentee voting, i.e. Without a joint presence of shareholders, the law is also allowed to carry out a general meeting in a mixed form.
Annual General Meeting of Shareholders can be carried out only in full-time or mixed form (paragraph 2 of paragraph 1 of Art. 50 of the Law on JSC), and an extraordinary meeting - in any form. The procedure for maintaining the general meeting of shareholders and decision-making is established by the charter or internal document of the Company, approved by the decision of the General Assembly (paragraph 5 of Article 49 of the AO Law).
The total norm of the Law on JSC (Article 58) determines that the general meeting of shareholders is considered to be eligible (has a quorum) if at the time of the end of registration for participation in the meeting registered shareholders (their representatives), which are in total of more than half societies.
The issues of the Agenda of Shareholders are usually considered by the following scheme: the Chairman of the Assembly announces the consideration of the issues; The word speaker is provided; Assistant, the speaker responds to various issues of the meeting participants; a collective discussion is carried out; The Assembly provides a draft resolution on the issue under consideration; There is a general vote on the accepted issue and counting votes; The results of the voting are announced.
Organizational work on the design of the results of the General Assembly, as a rule, is carried out by the Counting Commission of the Company. The report on the results of the vote is brought to the attention of shareholders of the Company or directly at the meeting on which voting was held, or by publishing a report on the voting, or by sending this report to shareholders. The final term of granting shareholders about the results of the meeting is 45 days from the date of adoption of these decisions.
Based on the protocol on the results of the vote No later than 15 days after the closure of the General Meeting of Shareholders, a document was drawn up, called the General Assembly Protocol. Thus, taking into account the fact that the general meeting of shareholders creates the entire management system in a joint-stock company, within the framework of authorized by the law of local rules, provides a legal framework for both its activities and for the activities of other bodies of the Company; And also on the basis that participation in the General Meeting is a way to implement the shareholder's right to participate in the management of society, we believe that the general meeting of shareholders as a management body has properties that provide grounds for the conclusion about its peculiar position among other bodies of the joint-stock company.
The following volit-forming element of the management and formation of the internal will of the joint stock company is the Board of Directors or the Supervisory Board of the Company, who is elected by a cumulative vote for the next annual General Meeting of Shareholders and implements the general management of the activities of the joint stock company, with the exception of those issues that are attributed by the Law on JSC to exclusive Competence of the General Meeting of Shareholders.
The quantitative composition of the Board of Directors (Supervisory Board) of the Company is determined by the Company's charter or by the decision of the General Meeting of Shareholders, but there can be less than five members (paragraph 3 of Art. 66 of the AO Law).
The competence of the Board of Directors (Supervisory Board) of the Joint Stock Company can be determined by three main areas: independent work of the joint stock company, making decisions with compulsory accounting of the opinion of other bodies of the Company, the implementation of control and supervisory functions.
In accordance with the Law on JSC, the Board of Directors (Supervisory Board) has the right to independently make decisions on such organizational issues as convening general meetings (paragraph 2 - 4th Article 65), the creation of branches and the opening of representative offices of the joint-stock company (p. 14 of Art. 65 ), Approval of some internal documents of the Company (clause 13 of Art. 65), recommendations on the amount of remuneration and compensation to members of the Audit Commission, as well as the determination of the amount of payment of the auditor services (paragraph 10 of Art. 65).
The Board of Directors (Supervisory Board) of the Joint-Stock Company in the field of property relations Act on JSC was granted the right to independently determine the monetary assessment of property (paragraph 7 of Art. 65), to decide on the acquisition of the shares, bonds and other securities posted by the Company (paragraph 8 of Art. 65), to make recommendations for the size of the dividend on shares and the procedure for its payment (paragraph 11 of Art. 65), to decide on the use of reserve and other funds of the Company (clause 12 of Art. 65), make decisions on the preliminary approval of large transactions ( . 15, Art. 65, Art. 79) and transactions provided for in ch. XI of the Law on JSC (clause 16 of Art. 65).
It should be noted that the issues related to the Law on JSC and the Charter on the competence of the Board of Directors cannot be transferred to the decision to the General Meeting of Shareholders, i.e. All competence of the Board of Directors is exceptional. The exception is only three questions. These are: Education of the executive body of society, early termination of its powers and an increase in the authorized capital of the Company by placing them with additional shares within the number and categories of the announced shares. These issues of the charter can be delegated from the General Meeting to the Board of Directors.
The meetings of the Board of Directors are convened by his chairman on his own initiative, the requirement of a member (members) of the Board of Directors, the Audit Commission (Auditor), the auditor, the executive body of the Company, as well as other persons defined by the Charter (Article 68 of the AO Law). The order of convocation and holding of the meeting, as well as the periodicity of meetings, is determined in the Charter of the Company or its corporate act - the Regulations on the Board of Directors (the Supervisory Board).
As a rule, the Board of Directors is going at least once a month. The Chairman, having decided to convene the Board of Directors, prepares the agenda and in writing notifies all members of the Board of Directors about the date, time and place of the meeting. The agenda of the meeting of the Board of Directors of the Company includes issues in advance those proposed by members of the Board of Directors, the Audit Commission (Auditor), the auditor, the executive body of the Company or shareholders owning together, as a rule, at least 2% of the voting shares (by analogy with the formation of the agenda Day of the General Meeting of Shareholders).
In accordance with paragraph 2 of Art. 68 of the Law on Quorum for holding meetings of the Board of Directors should not be less than half of the number of elected members of the Board of Directors. Thus, the law allows you to determine a specific quorum for holding meetings of the Board of Directors in the Company's Charter.
Usually, decision-making by the Board of Directors is carried out by full-time voting. However, according to the provisions of paragraph 1 of Art. 68 The Law on JSC Charter may provide for absentee voting or survey of members of the Board of Directors.
All decisions of the Board of Directors are reflected in the Protocol with the obligatory indication of the results of the voting and the course of work. At the same time, the requirements that the law imposes to the protocol are imperative (clause 4 of Article 68 of the AO Law). The minutes of the meeting of the Board of Directors must be compiled no later than 10 days after the meeting and signed the presiding party, which is responsible for the correctness of the protocol. The absence of at least one of the details in the protocol (place and time of the meeting, the persons, the agenda of the meeting, questions and results of the voting, the decisions made) deprives the Protocol of Legal Force
The decision of the Board of Directors (Supervisory Board) may be challenged in court by presenting a claim for its invalidation as in cases where the possibility of challenging is provided for in the law (Article 53, 55, paragraph 5 of Article 68 of the AO Law) and In the absence of an appropriate indication, if the decision made does not meet the requirements of the law and other regulatory legal acts and violates the rights and laws protected by the Law of the interests of the shareholder. The defendant in such a case is a joint stock company.
Thus, the exclusive competence of the Board of Directors (Supervisory Board) includes all issues related to the law on JSC. This means that they cannot be attributed to the competence of other bodies of the Company. The exception is three questions: the formation of the executive body of the Company, the early termination of its powers and an increase in the authorized capital of the Company by emissions to them with additional shares within the number and categories (types) of the announced shares. These issues of the charter can be delegated to the General Assembly, the Board of Directors. Also, the charter of the executive body may be transferred to the authority to approve a number of internal documents of the Company. In this regard, it can be stated that a clear definition of the place and role of the Board of Directors of the Company as a professional management body, as well as the correct selection of its composition acquire special importance in modern conditions - in the event of a large number of special issues to effectively manage society, they must all be resolved by professionals, possessing the necessary knowledge and qualifications.
The legislation provides for the possibility of creating several types of executive bodies in the joint-stock company, and there is a discrepancy between the Civil Code of the Russian Federation and the JSC law on the structure of the Executive Body in a specific joint-stock company.
In accordance with paragraph 3 of Art. 103 of the Civil Code of the Russian Federation The executive body of the joint stock company may be collegial (Board, Directorate) and (or) sole (director, general director). Thus, the Civil Code of the Russian Federation admits three possible options for the structure of the executive branch in a joint-stock company: a collegial executive body; sole executive body; The simultaneous existence of a collegial and sole executive body with division in the statutes of functions.
The AE law limits the possibilities of society in the formation of the structures of the executive authority, adhering to only two variants or sole or sole and collegial (clause 1, Article 69). Allowed the specified discrepancy, the practice preferences the law on JSC.
In some cases, the Board of Directors (Supervisory Board) of the Company may decide to suspend the powers of the sole executive body (managing organization, manager), even if the education of the executive bodies of the Charter is related to the competence of the General Meeting of Shareholders.
The sole executive body in various joint-stock companies can be called differently (CEO, Director, President, Manager, Chairman of the Board, etc.). In the event of the creation of a collegial executive body in society (ie, the availability and sole and collegial executive bodies) also operates the functions of the Chairman of the Board (Directorate). If such a body is not created, the director becomes a truly sole executive body, taking on the functions of the Board (Directorate).
The candidacy of the director nominates either the Board of Directors or the General Meeting (clause 3 of Article 69). But most often the director are approved by the Founders of the Company when it is created, including on the agenda of the Constituent Assembly, the issue of the formation of management bodies.
The term of office of the sole executive body society also establishes independently in the charter or corporate act. At the same time, in our opinion, it is advisable to establish a single period in the interval from one year to five years (by analogy with Art. 58 of the Labor Code of the Russian Federation of December 30, 2001 No. 197-FZ).
The competence of the Director includes all the issues of leadership of the current activities of the Company, with the exception of the issues that are attributed to the exclusive competence of the General Meeting of Shareholders or the Board of Directors (paragraph 2 of Article 69 of the AO Law), or transferred to the decision of the Collegiate Executive Body as part of the deletion of authority With the last.
Thus, the Director of the Joint Stock Company is endowed with numerous and important powers: 1) forms, and also submits the composition of the collegial executive body of the Company; 2) distributes the responsibilities between the members of the collegial executive body; 3) organizes work, chairs the meetings of the collegial executive body and ensures the maintenance of minutes of meetings; 4) approves the organizational, managerial and production and economic structure of society; 5) organizes the overall development, approves and ensures the implementation of the personnel development program; 6) approves the staffing of the Company and job descriptions of employees; 7) concludes employment contracts (contracts) with members of a collegial executive body, officials and employees, establishes official salaries; 8) implements the right to dismissal, the translation of employees, applies to them to promote and recovery; 9) Makes on behalf of the Society all legally significant actions, disposed of property, except in cases assigned to the competence of the General Assembly; 10) within its competence, uses funds created in the Company and reserves created in the Company, opens bank accounts, is a loan manager; 11) manages the development and presentation of the annual report and accounting balance; 12) ensures the implementation of decisions of general meetings of shareholders and the Board of Directors, as well as obligations to budget and counterparties under contracts; 13) establishes a list of information that contains commercial secrecy or are confidential; 14) places claims to legal and individuals on behalf of the Company, satisfies the claims presented; 15) controls the use of material, labor and financial resources; 16) ensures the creation of favorable and safe working conditions of employees of society, compliance with the requirements of labor legislation; 17) provides development, conclusion and execution of a collective agreement; 18) ensures compliance with the law in the Company's activities; 19) organizes and provides accounting and statistical reporting and is responsible for its accuracy; 20) issues orders, orders and other acts included in its competence and mandatory
all employees; 21) solves other management issues. This list is exemplary, since the specific powers of the Director for the Company's current affairs are determined by various joint-stock companies in different ways.
The sole executive body without a power of attorney acts on behalf of the joint-stock company, including its interests and makes transactions (concludes contracts / contracts, agreements, issues a power of attorney to their commission) (paragraph 2 of Art. 69 of the AO Law). When making deals, the Director should act solely within its powers, otherwise such transactions can be invalid.
In its activities, the Director is accountable to the General Assembly and the Board of Directors of the Joint Stock Company. It operates on the basis of the Charter, Treaty and Regulations on the Director (General Director).
The collegial executive body of the joint stock company operates in accordance with the legislation, the charter and internal document of the Company - the Regulation on the Management Board (Directorate), which establishes the deadlines and the procedure for convening and holding its meetings, as well as the procedure for adopting solutions to them (clause 1 of Article 70 of the Law about JSC).
As a rule, the Board consists of the director of the Company, which performs the functions of the chairman of this body, deputy director, executive directors, heads of the main structural divisions of the Company, the chief accountant. At the same time, legislation does not make any special requirements for members of the collegial executive body, except that a member of the Board cannot be a member of the Audit Commission / Auditor (Article 85 of the AO Law), a member of the Counting Commission (paragraph 2 of Art. 56 of the Law JSC) and the Company's auditor (Art. 103 of the Civil Code of the Russian Federation).
After approving the composition of the collegial executive body (in the manner prescribed by the Company's corporate act), an agreement is concluded with each member of the Board. The term of office of the Board by law is not determined, i.e. The decision of this issue is transferred to the discretion of the Company itself.
The main objectives of the Board can be attributed to: the organization of the operational (current) activities of the Company, ensuring the implementation of the plans and decisions of the General Meeting of Shareholders and the Board of Directors, the development and implementation of the Company's economic policy in order to increase the profitability and competitiveness, the publication of corporate management acts.
According to Art. 70 of the Law on AO Conducting meetings of the Board organizes a person who performs the functions of the sole executive body (director), which signs all documents on behalf of the Company and the minutes of meetings of the Board, is valid without a power of attorney on behalf of the Company in accordance with the decisions of the Board adopted within its competence. Paragraph 2 The 70 of the law on AO imperatively prescribes that a protocol is underway at a meeting of the Board.
Thus, within the framework of this paragraph of the study, the process of formation of the will of joint-stock companies was considered, the main emphasis was made to study the management bodies of joint-stock companies: their legal status, the procedure for education, competence, functions, organization of work. In addition, the features of the preparation and adoption by the management bodies of joint-stock companies of corporate acts of management, as well as the specificity of the manifestation of corporate governance methods when using them in managerial relations are also investigated.
The composition, competence and rules of the organization of higher management of the management of the joint-stock company are established by law. The general meeting of shareholders, the Board of Directors and the Board are these controls that form a subsystem of senior management. In joint-stock companies whose large packages belong to the state, the senior management subsystem is complemented by the manager (board of managers), which represents the interests of the state as part of competence on government property management (Scheme 2.13).
The highest management body is the general meeting of shareholders. Among the most important issues, solutions for which may have long-term consequences attributed to the legislation to the competence of the General Assembly include:
- 1) introducing changes and additions to the Charter of the Company or the approval of the Charter in the new edition;
- 2) reorganization and liquidation of society;
- 3) an increase and decrease in the authorized capital;
- 4) crushing and consolidation of shares;
Scheme 2.13.
- 5) the approval of large transactions related to the acquisition and alienation by the Company's society;
- 6) Society participation in financial and industrial groups, associations and other associations of commercial organizations.
Legislation does not provide for the participation of the general meeting of shareholders in determining the company's strategy and consideration of strategic programs. Such a position of the legislator is unlikely to be justified, since the development of strategies and strategic programs, in addition to identifying areas of activity, setting strategic objectives and mobilizing financial resources to achieve them, is carried out in the interests of mobilizing the company's social and organizational potentials to achieve strategic success. Any strategic program, to the implementation of which specialists, managers and labor collectives relate to indifference or resistance to it is doomed to failure.
At the same time, the general meeting is not entitled to consider and make decisions on matters not referred to its competence by law on JSC. The motives of establishing this law of such a rule are not quite clear, since:
- Such a rule contradicts the generally accepted standards of democracy in management: the highest management body of the organization cannot be deprived of the right to review and decide on any issue of the organization's activities (on that and the highest authority);
- The current period of socio-economic and scientific and technical development is characterized by an increase in the instability of the external environment of the organization, which generates unexpected problems that have no analogues in the past. The legislator cannot foresee them;
- To identify the most significant functions and management tasks, a decision on which it is advisable to impose on the highest body, it is necessary to design the organization's management system as a whole, which is not practiced in the framework of lawmaking. Perhaps, precisence this, the legislator could not include the competence of the General Assembly and the competence of the Board of Directors a decision of many strategic problems.
The Board of Directors (Supervisory Board) of the Company carries out the general management of the Company's activities, except for the decision of the issues related to the competence of the General Meeting of Shareholders.
The most important issues related to the competence of the Board of Directors belong:
- 1) identify the priority areas of the Company's activities (we draw attention to the fact that such a question does not provide for the development of strategies and strategic projects);
- 2) adoption of recommendations for the size of the dividend on shares (such recommendations from the point of view of strategic management have a limited importance, because the company needs to develop a long-term dividend policy as a tool for investing and motivating activities);
- 3) Approval of large transactions, the subject of which is the property.
Legislation also establishes that the competence of the Board of Directors may also include other issues provided for by law on AO and the Company's Charter. The ego makes it possible to form a full range of functions and tasks of the Operational and Strategic Administration within the Charter of the Company within the competence of the Board of Directors and (or) of the Company's Management Board.
The management of the current activities of the Company is carried out by the sole executive body of the Company (director, general director) or the sole executive body and the collegial executive body of the Company (the Board, Directorate). Executive bodies are accountable to the Board of Directors (Supervisory Board) and the General Meeting of Shareholders. However, in addition to the Board in the practice of enterprises, concrete operational management is carried out by standard authorities and linear managers of production units, which as subjects of management should be included in the company's management system. The organization of such management is based on the domestic (corporate) documents (provisions, standards, regulations).
The powers of the sole executive body can be transferred under the trust management agreement Another commercial organization (managing organization) or an individual entrepreneur (manager). Under the property of trust management of property, one party (the founder of the Office) transfers to the other Party (Trust Manager) for a certain period (no more than five years) property (including enterprises and other property complexes) in trust management. The latter undertakes to manage this property in the interests of the Founder of the Office or another person specified (beneficiary). The founder of trust management is the owner of the property.
How are the management bodies in a joint-stock company arranged and function?
The system aimed at the possibility of each securities owner to personally take part in the management of the company.
A distinctive feature of the joint-stock company (for example,), as a legal entity, is not only authorized capital, divided into shares, but also the possibility for their owners to take direct participation in the company's affairs through special authorities.
Such a model of corporate self-government was transferred to Russian legislation from the West, as well as the structure of such a legal entity itself.
The main distinguishing feature of such a model is the possibility of shareholders to independently choose the most responsible interest management structure of the JSC under the proposed law.
Consider how it is implemented in practice.
Joint Stock Company - Association of Private Capital
Joint Stock Company is one of the types of commercial organizations.
Consequently, the main goal of the activities and the main focus of efforts of JSC's management bodies will be made through the maintenance of the activities declared in the constituent documents.
However, before the company begins to bring, certain financial investments are needed.
For this, the authorized capital is divided into a sufficiently large number of shares (for example, or).
Each of them is a valuable paper certifying the owner's right to demand from the company executing certain obligations.
Shares are distributed as soon as between "their", so freely sold by everyone.
Shares owners become participants in the joint-stock company and, uniting their capital, form its authorized capital.
Due to the fact that the authorized capital is crushed into shares that have free appeal on the securities market, the joint stock company may at any time attract almost unlimited capital to implement major projects.
In return, each participant who made his contribution receives the right to part earned by the company's earned company, the ability to participate in the adoption of management decisions, and may also claim to receive a certain part of the property remaining after the cessation of economic activities.
The duties of the shareholder also includes payment from the received income.
By investing in the shares of various companies, participants risk losing only funds paid for them.
If the Office turned out to be ineffective and the society was ruined, the shareholders do not respond on his debts and are not losses with it.
At the same time, the joint-stock company itself does not depend on the composition of its participants and does not require their indispensable participation in affairs and decision making.
Except for those cases when they participate in the work of the Supreme Governance, Joint-Stock Company or are elected to the executive or auditing bodies.
What the Law says
The definition of a joint-stock company, as one of the forms of existence of commercial legal entities, is enshrined in Art. 96 of the Civil Code.
According to this regulatory act, two main types of AO are possible - public and non-public, who came to replace open (OJSC) and closed (CJSC) societies.
Civil Code standards are also set:
- the procedure for creating JSC (Art. 97);
- rules for changing the size of the authorized capital in a large and smaller side (Art. 99-101);
- restrictions on the issuance of shares and the payment of dividend shareholders (Article 102);
- rules for conducting external audit (Article 103), etc.
All aspects of the activities of the joint-stock company and its management bodies are set out in a special regulatory act.
Basic schemes in management
According to the law, the following authorities operate in the joint stock company:
- the meeting of all its shareholders is the main "legislative body";
- supervisory board (board of directors) responsible for the development strategy;
- board implementing strategic plans;
- cEO, uniquely managing all current affairs;
- audit Commission or Auditor, verifying the status of finance.
Shareholders, through the highest management body of the joint-stock company, have the opportunity to choose a suitable combination of the presented links.
If necessary, for example, in the case of expanding business or changing the direction of development, the management structure can be changed to the more responsible needs of the company at the moment.
It is customary to allocate four basic models of the OA management structure.
In each of them there are two indispensable elements: a general meeting, as an organ and sole executive body (general director), acting on behalf of the company in all spheres of public relations.
The control body (auditor) is usually not included in the control system, and there is no matter how parallel.
But it is also mandatory for any JSC authority.
Full three-stage control system.
It is most versatile and suitable for any society, but the most preferable will be for large companies with a large number of shareholders.
The use of such a structure allows shareholders to control the activities of the executive bodies and influence the adoption of important strategic decisions.
The system includes three levels. Schematically it will look like this:
It is distinguished by the absence of a collegial executive body.
All the management of the current activities is carried out by the Director General, whose influence on the Board of Directors thereby increases significantly.
Such a model is applicable in all JSC. The charter of the company may contain provisions according to which the Board of Directors chooses from among the largest shareholders.
In this case, they receive almost complete control over the activities of the sole executive body.
Schematically, this model can be represented as follows.
In non-public joint-stock companies with solid capital and turnover, the management model is most often implemented, from which the Supervisory Board (Board of Directors) is excluded.
As a result, the highest management body of the joint-stock company, as well as both executive bodies, and the Board, and the sole CEO, which determine the direction of development of the company.
For small companies, the number of shareholders in which does not exceed 50, and most of the action focuses in the hands of one of them, a model that includes only two elements of the control system: General Meeting of Shareholders and the Sole Executive Body (Director General).
Such an approach will allow to focus the operational leadership of all the areas of the current activities among the most interested in the prosperity of the participant's company.
Assembly, in this case, only the main directions of development will be determined.
The main authority of the JSC
The general meeting of shareholders is the highest management body by any joint-stock company. Such management is mediated.
Shareholders are not authorized to make decisions relating to the company's current activities.
The competence of all government bodies in joint-stock companies are set forth in law.
In art. 48 issues are named, the consideration of which is transferred to the General Assembly. Among them:
- the upcoming liquidation of society or its reorganization;
- introduction of certain changes to the charter and their approval;
- election of other managers and auditors;
- determining the number and value of newly issued shares;
- changes in the authorized capital in one direction or another;
- payment of dividends to shareholders on the basis of a period defined in the Charter;
- approval of annual and;
- approval or disapproval of large transactions;
- distribution of profits received by the company and others.
Repay decision making on these items, for example, the Board, the law directly prohibits.
At the same time, the general meeting is not authorized to cancel or demand to adjust the decisions already adopted by other bodies.
This rule is also valid for those issues that the law refers to joint competence.
The general meeting makes a decision on them in the case when the subordination body could not do this.
As a rule, shareholders are collected once a year, according to the results of the next fiscal year, but if necessary, the meeting may be extraordinary.
Conducting a general meeting is a rather complicated and long procedure, detailed settled by the provisions of the law.
Shareholders are actively involved in the voting at such a meeting, but also in the formation of its agenda. To do this, they send written proposals.
But, in order for such an appeal to be considered, the shareholder must own at least 2% of the voting shares (that is, not to be).
The number of shares at the owner matters and when voting on the agenda of the meeting. Here the principle of "1 promotion is 1 voice".
The regulatory framework that regulates the management system of joint-stock companies in Russia today was formed on the basis of Western legislation. Of course, in domestic norms, the specifics of the economic system of the Russian Federation are taken into account.
Currently, the system of corporate governance is used in joint-stock companies. It is based on a complex of economic, legal and organizational measures. Consider further what can be management bodies in a public joint-stock company.
Views
According to current standards:
- General meeting of shareholders.
- Observant
- Sole government. In a joint stock company As he is the general director.
- Collegiate authority (Board, Executive Directorate).
- Audit committee.
Choosing an administrative structure
The control structure is formed depending on the combination of the above management bodies in joint stock company.
The choice of a particular administrative structure is considered one of the most important stages of creating a business entity. The adoption of the right solution will minimize the likelihood of conflicts between managers and shareholders, improve management efficiency.
It should be said that the founders of society have certain advantages compared to shareholders. By choosing the management structure they need, skillfully combining, they will be able to get much economic benefit from the activities of the enterprise. However, any structure cannot exist forever. Shareholders have the right to change it if there are appropriate grounds. In any case, activities and powers Joint-Stock Company Must match the scale of the enterprise.
Thanks to the ability to combine different units of the administrative system established in the legislation, shareholders can choose the most acceptable model for them, taking into account the size of the company, the structure of capital, specific tasks set before the business.
Control options
In practice, different administrative models are used. However, each of them is obligatory is the availability of 2 senior management bodies of the joint stock company: the general meeting and the sole body.
In addition, the control structure is also included in all schemes. Audit Commission is acting as it. Its main task is to control the financial and economic operations performed in the enterprise. In this regard, the Audit Commission is usually not considered as direct joint-stock company. However, the effectiveness of the administrative system cannot be provided without reliable control.
The difference between control models consists in combining a collegial and sole structural structure.
Three-speed scheme
It can be complete and abbreviated. With such a model the highest management body of the joint stock company is meeting of shareholders. A complete three-step scheme can be used in any JSC. Such a model allows you to tighten the control of shareholders for the activities of managers.
The next level is the Supervisory Board. He controls the work of sole and collegial bodies.
As establishes the Federal Law "On Joint-Stock Companies", members of the collegial structure of the Office cannot be more than 1/4 of the Board of Directors. At the same time, the subject acting as a general director cannot be appointed to the post of Chairman of the Council.
The total three-stage scheme is mandatory for credit companies created in the form of JSC.
Abbreviated three-stage model
This scheme can also be used in any joint-stock company. The difference between it and the model described above consists in the absence of a collegial control body. Consequently, with such a model, restrictions on the number and status of the participants of the Board of Directors are not available.
In the abbreviated scheme, the influence of the general director is significantly higher. In fact, he only manages the current affairs of the enterprise.
This model is quite common in joint-stock companies. This popularity is associated with the fact that it allows you to balance the activities of executive and control structures.
Other options
In some societies, the charter establishes the right of the Board of Directors to form such a model more suitable for major shareholders owning the controlling stake. Tip is becoming supreme Government Department of Joint Stock Company, I do not directly participating in the current affairs of the enterprise.
Another model is an abbreviated two-stage administrative system. It can be used in societies with the number of shareholders not exceeding 50. Such a model is characterized by small societies in which the general director is at the same time a major shareholder.
Features of executive structures
The executive is called the direct management body, which is formed by the decision of the Board of Directors or the Shareholders Meeting. Its functions are determined in the legislation or the Charter of the Company.
Responsibility of the management bodies of the joint stock company It comes in case of causing an enterprise of losses due to unlawful actions or inactions.
The executive structure may be sole or collegial. In many societies, both types of management bodies are immediately. At the same time, in the charters of such companies, the competence of these structures is clearly distinguished.
The subject acting functions of the sole control authority also serves as chairman of the collegial structure.
Creation and termination of the activities of bodies
The formation of administrative structures in the joint-stock company is carried out on the basis of a decision adopted at the General Meeting. Legislation, however, allows the transfer of these powers to the Board of Directors.
The Council or General Meeting has the right to decide on early dissolution or suspending the activities of the executive bodies at any time. At the same time, a temporary control structure should be created. An extraordinary meeting is convened to solve these issues.
The formation of a temporary executive structure can be determined by the inability to further implement its functions by the current body.
Competence of general director
The sole governing body operates on behalf of society without a power of attorney. In his authority includes:
- Ensuring the execution of decisions made by the General Meeting.
- Operational management of the current activities of the enterprise.
- Planning work.
- Approval of the staff schedule.
- Reception and dismissal of employees.
- Edition of orders, orders.
- Conclusion of contracts, contracts, agreements, opening accounts, the issuance of attorney, the commission of financial transactions in the amount not exceeding 25% of the company's assets.
- The presentation of claims, participation in the court proceedings on behalf of the enterprise.
This list, of course, is far from complete. The authority of the general director must be enshrined in the Company's charter.
Election / Appointment of the Director-General
The sole body can be appointed / to be elected by the General Assembly or the Board of Directors. In the first case, the position of the general director will be more stable. The term of office when prescribing / election of the sole body can be 5 years.
Shareholders who own at least 2% of the voting shares can nominate the candidacy. In the Charter, other conditions for participation in solving the issue of election / appointment of the general director can also be enshrined. Only one candidacy should be specified in one application.
Governing body
This collegial body managing the economic society on a par with the general director. The term of office of the Board is 1 year. Usually in its composition there are persons on key posts: general director, ch. Engineer, ch. economist, etc.
