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12COMMON PROPERTY OF SPOUSES IN BUSINESS COMPANIES ON THE EXAMPLE OF A LIMITED LIABILITY COMPANY
Subbotin I.
Master's degree student, Khabarovsk State University of Ecology and Law, Khabarovsk, Russian Federation
Abstract
This article discusses the main problems of common property of spouses, one of whom is a member of a limited liability company, arising in the process of disposing of this share. This situation is considered in the context of the common property of the spouses, when the share in the authorized capital of a limited liability company is acquired at the time of marriage, as a result of which it is part of the common property of the spouses. The author analyzes the current judicial practice. Based on the study of judicial practice, regulatory documents and opinions of the scientific community, it is concluded that the greatest difficulty in such cases is the fact that they are simultaneously subject to regulation by the norms of both family and corporate legislation. In addition, legislative initiatives on mandatory notarization of transactions with shares in the authorized capital of a limited liability company are analyzed.
Keywords: common property, property, spouses, transactions, sale, reform, authorized capital, LLC.
In recent years, in connection with the development of business, many business companies have appeared, one of the types of which is a limited liability company (hereinafter - LLC), which is associated, among other things, with the active development of artificial intelligence [8] and social entrepreneurship [13]. Accordingly, the number of participants in these societies, including those who are married, increases. Thus, cases where the share of an LLC is part of the common property of the spouses are no longer uncommon.
As a general rule, the main law regulating relations, including property relations, between spouses is the Family Code of the Russian Federation (hereinafter referred to as the IC of the Russian Federation), according to article 34 of which the shares of capital in commercial organizations acquired at the expense of the common income of the spouses are the common property of the spouses, regardless of whose name they were acquired [6].
In practice, there are a large number of questions concerning the ownership, use and disposal of shares in the authorized capital of an LLC, if these shares are registered to one of the spouses.
One of the difficult issues in this case is the problem of choosing the norm that should be applied to these legal relations, i.e. whether such legal relations will be regulated by the norms of family or corporate law. Judicial practice also does not give a clear answer to this question. In some cases, the courts base their decisions on the norms of the RF IC [2, 4, 9], without taking into account the provisions of Federal Law № 14-FZ of February 8, 1998 «On Limited Liability Companies» (hereinafter - the Law on LLC) [7]. In other cases, similar legal relations are considered from the standpoint of the Law on LLC [5, 10].
It should be noted that the problem of choosing the right of application for family legal relations with the participation of a share in the authorized capital of an LLC is in the field of view of legal scholars [1].
According to some of them, an LLC is an individualized type of commercial company, in which a set of certain corporate rights and obligations is important for its participant, using which he, together with other members of the LLC, is able to exert a significant influence on the activities of the latter and, ultimately, receive material benefits [14]. The difference between an LLC and other business companies is the possibility of certain restrictions on the free change of persons who own shares in this LLC [15].
The regime of common joint property of spouses presupposes the presence of a certain consent when disposing of such property, which follows from Article 35 of the IC of the Russian Federation. Consequently, according to the general rule applicable to the common property of the spouses, one spouse is entitled to act for both.
However, there are certain limitations to this rule. So, in accordance with Article 35 of the IC of the Russian Federation, in certain cases, a notarized consent of the spouse is required for the disposal of common property. Such cases, in particular, include transactions with property, the right to which is subject to state registration, or the transaction itself is subject to state registration or notarization.
It follows from the logic of the legislator that he «chose» certain rights and transactions as exclusive, requiring enhanced protection, and established state registration or notarization as such protection. The same additional protection is provided to the spouses in such transactions.
Considering the norms of the IC of the Russian Federation and the Law on LLC, it can be concluded that legal relations related to the ownership and disposal of shares in LLC by a spouse whose second spouse is not a member of the LLC have a dual legal nature.
From the point of view of family law, such a share is the total joint property of the spouses. There is a point of view that this property has different values for the
spouses, since it is important for a member of the company not only to receive dividends, but also to be able to actively influence the activities of the LLC, through participation in general meetings, elections of the general director and in solving other important issues related to the activities of the LLC. LLC participants can decide not to distribute dividends and direct all profits to development, since any serious development always involves investment [11], including from their own funds [12]. Thus, for a member of an LLC, the important points of holding a share are both receiving material benefits in the form of dividends, and participation in the management of the company.
Since the second spouse, who also owns a share in the LLC, to the joint property, does not participate in the management of the business company, he is primarily interested in obtaining material benefits. When alienating a share in an LLC owned by the spouses on the right of common ownership, the situation can be considered as a right provided for by the Law on LLC for a member of the company, and as an obligation to respect the rights of the second spouse from the point of view of the IC of the Russian Federation.
Prior to the amendments to the Law on LLC, transactions with a share in the authorized capital of the company did not need to be notarized, and the consent of the second spouse was implied.
Currently, almost all transactions with a share of an LLC require notarization. The exception is only a part of them that have a certain protection, since they are carried out either on the basis of a court decision, or by selling a share at public auction, etc. When making amendments to the Law on LLC, it was supposed to protect, first of all, the rights and interests of the company's participants. At the same time, these changes entailed certain negative consequences for such a participant of the LLC.
Indeed, earlier, before the law was changed, actions related to the disposal of the company's shares did not require the consent of the spouse, since it was already implied.
To date, since the transaction itself for the alienation of a share in an LLC requires notarization, it requires the notarized consent of the second spouse, who may not be a member of the company. It should be noted that such consent is issued in relation to a specific transaction [3].
It turns out that when making changes to the Law on LLC in order to protect the rights of the LLC participant to own shares from third parties, the legislator, unwittingly, protected the rights of his spouse from possible misconduct of such a participant. At the same time, the spouse - a member of the society himself received significant inconveniences from such legislative changes.
Indeed, with a literal interpretation of the norm of the law, a very interesting situation turns out. A spouse who owns a share in an LLC cannot leave the company unless he receives a notarized consent to alienate the share (read, to leave the company) from the other spouse. In this case, a strange situation may arise when
a spouse who has no relation to the LLC, without issuing a notarized consent, obliges the other spouse to remain a member of the LLC [16].
It should be noted that in accordance with Article 21 of the Law on LLC, the entry of a new participant is not a simple mechanism, and by fixing the necessary mechanisms in the internal documents of the company, it can be even more complicated or prohibited.
In conclusion, it should be noted that the final point in the questions of what law should be applied to the legal relations under consideration can only be put by the highest court. Or, the legislator, by making certain changes to the current legislation, will give the legal regulation of the relations in question such a quality that any disputes regarding their enforcement will disappear by themselves.
References
1. Chashkova S. Iu. Transition to the surviving spouse of a share in the authorized capital of a limited liability company as a common property of spouses // Laws of Russia: experience, analysis, practice. 2018. № 4. pp. 30-36.
2. Definition Of Tops. Suda Grew. of the Russian Federation dated June 3, 2014 № 5-KG14-9. URL: https://www.garant.ru/prod-
ucts/ipo/prime/doc/70590970/. (accessed 30.04.2021).
3. Decision of the Arbitrator. court Center. roc. of 29 Jan. 2015 № F10-4676/2014 in case no. A08-2819/2014 URL: http://www.consultant.ru/cons/cgi/online.cgi?req=doc &base=ACN&n=90123&dst=100002#084075405750 35579. (accessed 30.04.2021).
4. Decision of the Arbitrator. court of the Moscow Region of 10 Apr. 2015. № F05-3165/2015. URL: http://www.consult-
ant.ru/cons/cgi/online.cgi?req=doc&base=AMS&n=2 20642#08198143201047949/ (accessed 30.04.2021).
5. Decision of the Arbitrator. courts of the Far Eastern District of February 16, 2015 № F03-5463/2014 URL: http://www.consult-ant.ru/cons/cgi/online.cgi?req=doc&base=ADV&n=8 7721#07687772345440391. (accessed 30.04.2021).
6. Family Code of the Russian Federation of December 29, 1995 N 223-FZ // Rossiyskaya gazeta. 27.01.1996. № 17.
7. Federal Law № 14-FZ of February 8, 1998 «On Limited Liability Companies» // Rossiyskaya Gazeta. 17.02.1998. № 30.
8. Leontiev V. N. Artificial intelligence: theory and practice. The science. Education. 2021. № 32 (April). pp. 478-475.
9. Resolution of the FAS East-Sib. okr. of 21 Apr. 2005 № A19-10901/04-46-F02-415/05-S2/ URL: https://base.garant.ru/21644462/. (accessed 30.04.2021).
10. Resolution of the FAS Sev. - Zap. okr. of July 23, 2009 in case no. A56-9328/2008 URL: https://base.garant.ru/33188839/. (accessed 30.04.2021).
11. Senko A. S. Investment in the Russian legal system. stud.net.ru Electronic journal. 2021. Volume 4. № 5 (2021).
12. Shpinev Iu. S. Legal regulation of investment relations / In the collection: Implementation of the state policy in the field of combating corruption in organizations subordinate to the Ministry of Science and Higher Education of the Russian Federation. Collection of materials of the International Scientific and Practical Conference. Under the general editorship of A. M. Voro-nov, M. N. Kobzar-Frolova, and I. I. Butrim. 2020. pp. 181-186.
13. Shpinev Iu. S. Social entrepreneurship: issues of legal regulation // Gaps in Russian legislation. 2021. № 1. pp. 40-45. DOI: 10.33693/2072-3164-2021-14-1040-045
14. Strazhevich Iu. N., Bosyk O. I., Disposal of shares in the authorized capital of the company, which is in the common property of spouses / / Siberian Legal Department. 2019. Vol. 16. № 3. pp. 270-275. DOI: 10.19073/2658-7602-2019-16-3-270-275.
15. Strazhevich Iu. N., Bosyk O. I. Protection of corporate rights in the division of shares in a limited liability company between spouses // Law and Economics. 2015. № 3 (325). pp. 24-28.
16. Tikhonov V. V. Disposal of shares of LLC-a transaction requiring the approval of a spouse // Civil Law. 2017. № 1.
