Society must be managed. What are the rights and obligations of the management company. Collection of debts for housing and communal services

In the course of structuring a business and building a group of companies, the question always arises of maintaining the controllability of the entire group, provided that, as a rule, management staff business is unified and it is impossible to divide it between companies.

As a result, this always leads to the need to search for such a management option, when the owner still has the ability to control and influence decision-making both on the entire business as a whole and on any of its segments, despite the economic independence of each member of the group.

In this case, when designing a business model, a management company can act as a link between its individual elements.

Management Company- this is any organizational and legal form (according to our experience, not only LLC or JSC, but also cooperatives, partnerships, partnerships, and even non-profit organizations), accumulating a set of strategic, tactical, general marketing (including brand management), organizational, motivational and control functions, as well as the functions of scientific and technical development and financial management for all other entities of the Group of Companies.

The formation of such a functionality of the management company is due to the following economic and managerial reasons:

1. The presence of a need for all subjects of the group of companies in common support functions for all:

accounting, legal, marketing and other services, the provision of which by employees of a specialized organization is organizationally and economically more profitable than the creation of similar full-time services in each individual company.

Most often, managed legal entities do not have their own lawyer, accountant, or system administrator- all this is done by the staff of the management company. Objectively, not every business is able to pull such a staff in each individual organization of the Group. But even with this option organizational structure there should be a central link managing the staff in the field.

Therefore, there are cases of creating functionally similar services both in the management company and in the managed society (for example, when the structure is branched, when individual companies are significantly removed from each other and from the management company itself), however, in this case, the management company is also engaged in solving strategic problems, then how employees of a managed company perform current work that does not require high qualifications and knowledge of the strategic business development plan as a whole.

2. The ability to quickly implement and develop, as well as adjust the previously developed strategy for the activities of the group of companies as a whole.

Undoubtedly, business owners need to have full information about its functioning, financial performance, the degree of effectiveness of previously made management decisions.

In this sense, the value of direct receipt of information about all significant events directly to the "headquarters" is invaluable for both owners and top management.

3. Transfer of management from the plane “he is the most important here, everyone knows him” into the legal field, formalization of relations between the managing and subordinate companies by civil law means and thereby ensuring the necessary degree of control over the activities of managed companies.

In our practice, we have repeatedly encountered situations where, as a business with a small number of owners grows, new companies are registered, the leaders of which are only formally such; in fact, leadership is concentrated in the hands of the real beneficiaries.

But there comes a time when the number of personnel and the number of individual organizations within one business reaches a critical level, the owners are not recognized by sight and do not obey their verbal orders (and they are not entitled to issue written ones). Worse than that nominee director can “make things worse”, because he legally has the right to make decisions, which will lead to adverse consequences (primarily of a financial nature).

We must not forget about the costs of paying a nominee manager, which you will incur one way or another, as well as the need to pay social taxes.

It is management through the Criminal Code that helps to avoid such negative moments.

4. The possibility of legally reducing the tax burden through the use of the Criminal Code of the simplified taxation system.

The contractual regulation of the relationship between the management company and the managed companies can be mediated by two types of contracts:

contract for the provision of management services;

contract for the performance of the functions of the sole executive body.

The choice of one or another contractual instrument depends on a number of factors and the specific structure of the group of companies. Consider the features of the application of each of the contracts separately:

Contract for the provision of management services.

When concluding this agreement, all or some of the strategic, as well as auxiliary functions in relation to the operating core, are transferred to the management company: legal, accounting and personnel support, security, etc., the need for which all holding entities experience, however, the creation of similar units in each of them is unprofitable and impractical.

The task of the management company in this case is to determine the main vectors of activity (to develop a marketing strategy, to carry out scientific and technical development, to issue a program of activity for a group of companies for a year, etc.), which all managed companies without exception must follow.

At the same time, it should be noted that the managed company has its own sole executive body (director, sole proprietor or other managing company, but in the role of the sole executive body (SEO)), which carries out operational management of the company, makes all current decisions and is responsible for the financial result. It is he who is listed in the Unified State Register of Legal Entities as a subject entitled to act on behalf of the company without a power of attorney.

With such interaction between the CEO and the management company, the former is limited only by the strategic framework set by the management company, and is completely independent in the management process current activities your company. Moreover, these frameworks (in the form of reporting forms and periods, as well as a liability mechanism) can and should be laid down both in the contract with the management company (this is the condition under which the management company undertakes to manage), and in the contract with the CEO himself.

However, our experience shows that owners (especially when transforming a single company into a holding company) do their best to avoid delegating authority to hired managers, fearing that they will get out of control.

In this case, the mind comes into conflict with feelings: on the one hand, the owner understands the objective need to “give up” the reins of government (a non-core type of activity specifically for him, employment in another project, the inability to cover all areas of his business), and on the other hand, psychologically cannot come to terms with the fact that someone else will manage his brainchild.

In this regard, the issue of trust to a hired manager on the part of the owner is of particular relevance.

At the same time, one cannot fail to note a significantly higher degree of personal interest of the director in the results of the activities of the managed company, compared to the contract for the transfer of functions of the sole executive body, which is automatically reflected in the level of his personal (and not imposed from outside) responsibility.

It is thanks to this instrument of a controlled increase in the degree of independence that a synergistic effect is achieved from business structuring - tax optimization can be strengthened by increasing managerial efficiency.

In addition, in the event of any adverse consequences of the activities of the managed company (the simplest example is tax claims), it is unlikely that anyone will be able to definitely assert (and prove) that such consequences occurred as a result of the direct orders of the Criminal Code by the director of the managed company.

In other words, the Criminal Code will protect itself from negative consequences and will also be able to save business reputation and the acquired image, referring to the "amateur" of the hired director.

Agreement for the performance of the functions of the sole executive body

Recall that the possibility of transferring authority to manage the organization of the Management Company is provided for by a number of federal laws:

For example:

p. 1, art. 42 of the Federal Law on LLC: The company has the right to transfer the exercise of the powers of its sole executive body to the manager under the contract. paragraph 1 of Art. 69 of the Federal Law on JSC: By decision of the general meeting of shareholders, the powers of the sole executive body of the company may be transferred under an agreement commercial organization(managing organization) or individual entrepreneur(manager).

In this case, an agreement is concluded with the management company for the transfer of functions of the sole executive body. It is the management company (represented by its director) that receives the authority to act on behalf of the managed company without a power of attorney: to represent the interests of the managed company in all organizations and institutions, and also to enter into any economic relations. Key business managers, its owners in this case are employees and / or participants of the management company and already at its level and on behalf of the management company perform all management functions.

Of course, the director of the management company cannot effectively manage the management company itself, and even all the managed companies, therefore, on the basis of a power of attorney, he delegates his powers to a special employee who will be the actual head of the managed company.

At the same time, such an actual leader is on the staff of the Criminal Code (!) and receives a salary in it.

The degree of control of the owners, accountability and responsibility, as well as the degree of independence of the actual manager in making decisions in this case is determined by the provisions of the employment contract with the Criminal Code.

A negative consequence of the appointment of such a manager may be the low degree of his responsibility and the lack of a deep personal interest in the results of the managed company.

As you can see, the inclusion of the Management Company in the business model undoubtedly helps to solve many difficulties in the presence of an extensive legal business structure.

At the same time, given the realities and trends of tax administration, one cannot ignore the question of how the management company is viewed from this side.

After all, the existence of the Criminal Code gives reason to talk about the affiliation of the entities it manages with each other (even if the owners of the companies do not match). Of course, when it comes to, for example, purely accounting and legal services(not about the status of a management company as a CEO) and such services are provided not only to organizations linked by contractual relations, but also to outside entities, it will be difficult to recognize affiliation on this basis. With the option of fulfilling the role of the CEO - the presence of a single managing entity for several legal entities, which are all the more connected by other agreements with each other (which usually happens if the business is built within a group of companies) will link all organizations into a single structure.

This is not critical if all subjects apply DOS and there is no possibility for the tax savings described above by applying the same Criminal Code of the simplified tax system. However, such affiliation will attract attention when it comes to the interaction of entities in different special regimes, which by itself leads to minimization of taxation on business income.

Considering that the tax authorities are paying more and more attention to such structures, trying to justify the artificiality of their division into several entities or the unreasonableness of the costs of attracting the management company itself, regarding the separation of the management company, the following rules must be observed:

1) The types of services provided should be specified. The more detailed the subject of activity of the Criminal Code is described, the more difficult it is to prove the artificiality of its separation in a group of companies (see, for example, the Resolution of the Seventeenth Arbitration Court of Appeal dated October 30, 2012 No. 17AP-11284/12: the taxpayer managed to win the dispute by maximally detailing the evidence of the performance of the contract In the report on the performance of the powers of the CEO, the amount of work performed to manage current activities is indicated with a breakdown of the work performed by employees of specific departments (services) and even the amount of hours spent on each service is indicated).

Considering that at the moment many companies use various software complexes, allowing you to track the time of completion of certain tasks by employees, the solution of the problem of collecting such information can be automated.

At the same time, the Management Company, in the role of the sole executive body, carries out the current management of the company, a full detailed description of which in the contract is impossible. Both corporate legislation and, as a rule, company charters usually leave residual competence for the CEO: “and other things not related to the powers of other bodies of the Company”. Therefore, if the management agreement with the management company in the role of CEO does not contain a specific list of the powers of the management company, it is impossible to talk about the absence of detailing the functions of the management company, and, consequently, its artificial allocation. This conclusion is supported judicial practice:

Due to the very nature of current management activities, it is impossible to exhaustively determine the competence and terms of reference of the CEO (Management Company) not only at the level of law, but also at the level of the company's Charter, agreement on the transfer of powers, local regulations, since it is impossible to foresee all issues, daily arising in the activities of the managed organization and which are not referred to the exclusive competence of the general meeting and the board of directors.

Decree of the Federal Arbitration Court of the West Siberian District dated May 12, 2014 No. F04-2761 / 14 in case N A81-2271 / 2013

2) You must carefully refer to the description of the procedure for calculating the remuneration of the management company for its services.
So, if you tie remuneration to the achievement of any indicators (growth in revenue, profit, number of customers, etc.) - you need to confirm their achievement or non-achievement each time, draw up all necessary documentation. Otherwise, the tax authority will challenge the payments towards the Criminal Code (Resolution of the Arbitration Court of the North Caucasus District of July 11, 2016 N F08-3871 / 16 in case No. A01-1790 / 2015, Resolution of the Fifteenth Arbitration Court of Appeal of February 16, 2016 No. No. 15AP-22105/15).

As a rule, the courts, taking the side of the tax authority, say that they could not confirm what specific work the management company performed and how the cost of each type of its services was determined. Therefore, a description of the procedure for forming the cost of services rendered in the contract itself and detailing the final cost for each period of activity of the Management Company is a prerequisite for working with the Management Company.

Of course, the remuneration should include all current expenses of the management company to maintain its activities: office rent, payroll for employees, etc. This amount forms the base amount of remuneration. If a part of the business profit is not accumulated on the management company, then the remuneration may include a firm fixed amount covering the expenses of the management company with a possible slight increase, for example, no more than 1 time per year (in case of an increase in payroll or other expenses);

The above calculation of remuneration can be complicated if, for example, the payroll of employees depends on their performance indicators and changes from month to month. To do this, companies have developed their own systems for calculating the remuneration of each employee, which can also be used as the basis for calculating the remuneration of the management company. In this case, it will be necessary to detail each indicator in order to confirm the validity of the expenses for the MC in the declared amount.

In addition to covering the basic expenses of the CM, the remuneration may also include a variable part depending on financial result activities of the management company: for example, as a percentage of the revenue or profit of the managed company. This can be either a monthly increase to the base remuneration, or an “annual bonus” to the management company based on the results of the financial year. In any case, remuneration in this form must be justified by the mandatory growth of the managed company's revenue / profit and confirmation that such growth is associated with the activities of the Management Company and its employees. At the same time, of course, this part of the remuneration should not lead to the fact that the entire profit of the operating company flows into the management company, which applies a lower income tax rate.

3) Evidence of the effectiveness and reality of the activities of the management company will be the growth in revenue, profits, assets of the managed company, which, in turn, for example, led to an increase in taxes paid to it (this indicator will be especially valuable).

4) Evidence of the independence of the management company as an economic entity will be the performance of management functions for several companies, preferably not related to each other (for one, for example, in the role of CEO, for another, the provision of only accounting services, etc.).

5) High professionalism of the staff of the management company (in comparison with the managed company), increased requirements for their level of education, work experience, etc. also allow confirming the professional competence and independence of the Criminal Code (see, for example, the Resolution of the Arbitration Court of the North Caucasus District dated January 26, 2015 No. F08-9808 / 14 in the case NА32-25133 / 2013).

Considering the described nuances, it is necessary to carefully approach the legal fixation of the real activities of the Management Company and the procedure for its interaction with its customer of services. In addition to the constant, systematic collection of evidence confirming this activity and its usefulness for managed companies, there should be no problems with the tax authority.

Politics is one of the ways to govern society. In order to understand the peculiarity of the political management of society, it is necessary to find out how this method differs from others.

Indeed, in modern societies, various methods of management are used:

• political;
• legal;
• economic;
• administrative;
• financial;
• power;
• ideological;
• party
• religious;
• mixed ways.

Legal ways, as mentioned above, lie in the fact that the state, its institutions make special decisions - legal norms (laws, decrees, resolutions, etc.) that are binding on all citizens, including themselves government bodies and officials throughout the country. Legal regulations often supported by state coercion, for violation of a number of norms, punishment is established.

But the right includes not only punishment, but also a certain space of freedom. This can be seen by considering the features of modern legal norms.

At present, there are generally three main types. There are norms forbidding certain actions under pain of punishment (theft, murder, corruption, violation of laws), other norms prescribe act in a certain way (for example, pay taxes). Third allow act at the discretion of a citizen (vote in elections, support a particular party, a candidate for parliament or for the presidency, enter a university, create an enterprise, manage the results of one’s own intellectual property etc.).

It is important to emphasize that as human societies develop, it is the permissive content of legal regulation that is constantly, albeit unevenly, becoming more widespread and applied. However, in any case, relations that are regulated by law are always supported in one way or another. state control and sometimes coercion.

Thus, the law establishes the content and limits of what is permitted. In this sense legal regulation, expanding the limits of what is permitted, has a democratic content and stimulates the activity of a citizen.

Rules of law are rules of continuous action. The duration of each norm (or a set of norms, for example, a constitution, a code, etc.) is determined by the duration of the existence of the corresponding social relations.

Legal norms establish binding rules and define general terms and Conditions, in which a citizen, enterprise, any entity, operational management is carried out, political and other decisions are made. Thus, the policy, understood as operational management, is carried out within the legal framework.

But the matter is not limited to formal conditions. There is a significant internal connection between law and politics. Political concepts, likes and dislikes undoubtedly influence the practical professional activity legislators (and, consequently, on the adopted laws) and lawyers. In turn, the results of this activity significantly affect political practice and political institutions.

At the same time, the concept of "operational management" does not mean "short-term". Policy is developed for the long term, but it is always specifically decides specific problems.

Political and legal regulation is carried out through specific institutions. Legal norms are developed and approved by the legislative, as a rule, representative body - the parliament (Federal Assembly, legislative assemblies of the subjects of the Federation). The representative nature of such bodies attaches particular importance to the legal acts adopted by them. They act on behalf of and under the mandate of the people - the bearer of state power. The most important acts are adopted directly by universal suffrage (constitution).

Policies and operational decisions are developed and implemented by the government and local operational authorities (governors, mayors, regional governments, etc.). Legal acts and political decisions of these bodies cannot contradict federal laws.

Economic ways consist in the adoption by the state of various measures of assistance, support, or, conversely, the introduction of restrictions on the activities of organizations and actions of citizens that the state considers useful or harmful to society. So, for example, taxes are reduced on enterprises, industries, goods and institutions in which the authorities are interested, or which perform important social functions. On the contrary, the increase in taxes and the introduction of other barriers indicate that the authorities are not interested in certain types of activity.

AT modern conditions the state in most cases refuses everyday, "petty" interference in entrepreneurial activity. Therefore, even state enterprises have shareholding form, and the state, having a controlling stake, has essentially the same rights as the rest of the shareholders. These are the so-called market methods of managing the economy. However, as the events of the 2008-2009 crisis showed, even the most powerful private enterprises cannot solve problems without direct financial assistance states.

Along with this, the experience of globalization processes, the experience of the functioning of the European Union has convincingly shown that market methods do not eliminate, and in some cases significantly exacerbate and even create new social conflicts. It is also clear that economic methods of management are always quite closely related to legal and political ones. Everyone was convinced of this during the crisis of 2008-2009, when it became obvious that the market, even the largest and global one, could not solve the problems that had arisen without the direct participation of the state.

Administrative methods are characteristic of a system in which the ability to dispose of in various areas of public life or in society as a whole is provided to the administrative, and, in fact, to the bureaucratic apparatus.

The centralized command and control method is often used in extreme conditions, as well as in situations of political and economic instability. In other words, when the time factor is often more important than quality solutions. In any case, this method requires highly qualified managers who understand and protect the state interest in the center and locally. Finding a sufficient number of such managers is often not possible. In addition, this method also assumes the genius of top management, and this also practically does not occur. Therefore, administrative methods often lead to corruption and give rise to acute social conflicts.

Ideological and religious methods are close to each other. They are united by references to certain ideological grounds and "higher authorities", which determine the content of the decisions being made. Ideologists, as a rule, refer to the thinkers of the past, who, it is believed, expressed useful ideas in their time, which should be guided today when making decisions. practical solutions. Therefore, in the documents various works of this kind there is a huge number of quotations that supposedly retain their eternal and unmistakable value. Religious figures refer to the "holy books", to the "will" of the Almighty, which they arbitrarily interpret and to which the "servants of God" must obey, the data of secular sovereigns. Both methods are characterized by the principle that the problems of the present and the future can be successfully solved by the methods of the past. Such methods are believed to be recorded in the books of the classics or in the sacred writings.

Political modes of government

Political ways oriented towards new problems and tasks to solve with new methods, corresponding to emerging situations, features of the processes occurring in modern society. So-called old problems have to be solved in new ways.

Therefore, political decisions are usually based on the scientific research of the respective society. These studies are carried out, first of all, by sociology itself, as well as by sociology. Actively uses political science and data from such sciences as analytical law, political economy, political psychology, social and political sociology, international law, diplomacy, etc.

Political science is also attentive to the history of the country as a whole and its individual regions, since such knowledge can provide an answer to the question of what customs and traditions, as well as obstacles, this or that political decision is most likely to meet. All manifestations of political legal culture. The point is that the implementation political decision and politics in general always depends on the attitude of the population, its activity. Passivity, "silent sabotage" can fail even the best political decisions.

It was emphasized above that politics is not only science and technology, but also art. Personal individual qualities of a political figure, his qualities of a natural leader, the ability to convince and persuade, active use intuition - all this plays an important role in political relations and sometimes ensures success in seemingly lost situations. It is clear that these individual qualities work most effectively if they are based on reliable knowledge of the situation and prognosis.

Political management can be effective if the characteristics of the respective society are taken into account.

However, even the most cursory glance reveals that the societies that exist today are extremely diverse. It can even be argued that there are no two identical political systems, two identical states, two identical peoples in the world.

The question is, how, under these conditions, can one speak of any general principles politicians? Are there some general properties of political systems?

Among the properties inherent in any modern political system, political science includes:

• self-regulation;
• randomness and non-linearity;
• having many degrees of freedom.

We repeat that self-regulation means that in any system, institution, organization, etc. created by people, their own specific interactions and relationships arise that were not predicted by their creators.

Randomness and non-linearity characterize a political system consisting of a large number of elements, the relationships between which can be indefinite and random (for the observer) in nature. The non-linearity of the system and its elements is the reason that the consequences of the decision often do not correspond to the efforts expended. Moreover, the more effort is expended, the less the result is. In other words, the system can reject even such attempts that theoretically benefit it.

In every political system there are people. Man has free will. This property in some cases helps him to make innovative discoveries. In other cases, he may take antisocial positions. As a result, the political system gets the opportunity to choose between different options for movement. This is the property of many degrees of freedom. However, any political system the number of such degrees of freedom is not infinite. It is limited by the system's ability not only to select an option, but also to to follow along the chosen path. Some options are forbidden by the system, although people may consider them possible and desirable.

A careful study of these properties helps to objectively evaluate the features of the system and, on this basis, make decisions that are feasible.

Residents of an apartment building do not always know the duties assigned to the management company by current legislation. Because of this, there is a misunderstanding of where the tidy sums go under the article “Maintenance and Repair” and the lack of control over the activities of the Criminal Code. Consider the main responsibilities of the management company.

The relationship between the management company and the residents of the house is sealed by an agreement. Each owner of the property at home must receive one copy, and one must remain in the Criminal Code. In fact, this rule is violated. If the owner of the apartment does not have a written document in his hands, then he can contact the housing and communal services authorities and request it.

The rights and obligations of the management company are the main articles of the contract. It is recommended that every tenant read them.

The terms of the contract are the same for all residents of an apartment building. The document indicates the period during which the Criminal Code is engaged in providing utilities, housekeeping and home repair (Article 162 of the LC RF).

The contract indicates the composition of the property of a residential building, its address, the procedure for calculating fees for maintenance and repairs, the procedure for providing utilities and the term of the document. It cannot be less than one year. Maximum term contracts for five years. If the MC was selected on a competitive basis, then it is reduced to three years.

It is important to indicate in the contract a clause of the obligation to provide reporting to the MC. If there is no such column, then the housing and communal services bodies, as a rule, submit a report on the work done at the end of the contract. In fact, such a duty is enshrined in Art. 162 of the LCD of the Russian Federation and must be executed.

Responsibilities of the management company

In its activities, the management company must carry out maintenance and repair work and provide organizational services.

Maintenance work includes

• implementation of measures to ensure the safety of residents living in the house, maintaining its architectural appearance;
• inspection of the property of an apartment building. Should be carried out before and after the heating season, as well as in case of emergencies; conducting current repair. If the identified defects require significant financial investments the repair may take several years.
• control over the state of intra-house networks through which residents receive communal resources;
• compliance with the rules fire safety;
• cleaning of entrances and adjacent territories, if the latter are part of the property of the house;
• garbage collection, including from legal entities whose offices are located in the reporting house building;
• control over the operation of common house meters;
• implementation of energy-saving programs aimed at efficient use of supplied resources. Such events are held only in agreement with the regional authorities.

Organizational services

In addition to these duties, the management company must perform organizational services. Their list includes:

• accumulation of funds from the provided resources and services and payment to suppliers;
• debt management;
• organization of work with suppliers: conclusion of an agreement, quality control of the services provided, recalculation of fees for the supply of low-quality services;
• storage of technical and other documentation for a residential building;
• identification of plunderers of energy resources: checks, raids, etc.
• holding general meetings with homeowners. This event must be held at least once a year. On it, representatives of housing and communal services report on the work done, on the costs incurred during the period under review, and decide on the tariff for the next year. Home maintenance and repair fees can be equal to or higher than municipal fees. In each house it is installed individually. If at the meeting the Criminal Code did not approve the tariff, then it is considered that it is equal to the municipal one (Article 158 of the LC RF). In this case, the housing and communal services authorities are not released from responsibility for the provision of housekeeping and home repair services, even if there is a shortage of funds accumulated from homeowners.
• carrying out activities to inform residents about changes in the tariff;
• registration of temporary or permanent registration.

All the work listed above must be performed by the management company.

Adjoining territory and activities of the Criminal Code - where are the borders?

A residential area is a piece of land attached to a property. Its area is determined by the construction acts stipulated by the Land Code.

is the property of the residents of the house, they are obliged to pay for it (Government Decree No. 491). To keep such a territory in proper condition is the responsibility of the Criminal Code, with which the tenants have entered into an agreement. If the work is not done, she may be held liable.

The real boundaries of the local area can be found in the act on land plot. Such a document must be provided by the management of the Criminal Code at the request of the owner.

The responsibilities of the management company for the maintenance of the local area are reduced to:

• cleaning a fixed piece of land;
• carrying out landscaping activities;
• garbage removal;
• installation of children's complexes and maintaining them in proper condition.

In case of failure to fulfill their obligations to the Criminal Code, a fine of up to 50 thousand rubles may be imposed. Control over the implementation of mandatory work rests with the tenants of the house.

In addition to duties, the management company is endowed with certain rights.

Management company rights

• transfer information to authorized bodies about illegal;
• inform the relevant authorities about the use of common property for other purposes;
• take part in activities to collect debts from residents of the house;
• decide on the transfer of reserve funds to pay off debts to service providers or to pay additional work for the repair of the common property of the owners;
• control the correctness of the transfer of readings of individual metering devices, adjust payments depending on the information received;
• suspend the supply of energy resources provided for by law in case of non-payment of utility services or incomplete payment of them.

Responsibility of the Criminal Code

The obligations of the management company and its responsibility are also reflected in the Rules for the provision of public services. They establish the responsibility of housing and communal services for poor quality provision of public services and failure to perform the work assigned to them, both by contract and by the legislation of the Russian Federation.

1. When facts of improper maintenance of the property of the owners are revealed legal organization can say goodbye to 50 thousand rubles. If a violation of the norm for providing residents with resources was revealed, then the amount of the fine will be 10 thousand rubles.
2. Article 44 of the Civil Code of the Russian Federation establishes liability for actions or inactions of authorized persons that led to damage to common property and harm. In this case, all losses incurred by the tenants are transferred to the management company.
3. Violation of fire safety rules may result in administrative liability. In this case, the Criminal Code will lose up to 200 thousand rubles.

The list of work that is the responsibility of the management company is very large. Their knowledge will help to relieve tension between residents and representatives of housing and communal services.

Article 103, paragraph 3 of the Civil Code of the Russian Federation states: “By decision of the general meeting of shareholders, the powers of the executive body of the company may be transferred under an agreement to another commercial organization or an individual entrepreneur (manager).” The Federal Law “On Joint Stock Companies” supplements and develops this provision: “By decision of the general meeting of shareholders, the powers of the sole executive body of the company may be transferred under an agreement to a commercial organization (managing organization) or an individual entrepreneur (manager). The decision to transfer the powers of the sole executive body of the company to a managing organization or a manager is made by the general meeting of shareholders only at the proposal of the board of directors (supervisory board) of the company” (Article 69, paragraph 1 of the Federal Law “On JSC”).

We note here two facts.

First, the provision of the Law "On Joint Stock Companies" that the issue of attracting a management company falls within the competence of the general meeting of shareholders is imperative. That is, even if, in accordance with the charter of your joint-stock company the sole executive body is appointed by the decision of the board of directors of your company, then the management company can be involved instead of the sole executive body only on the basis of a decision of the general meeting of shareholders. It would seem that this rule creates additional guarantees protecting the rights and interests of shareholders. However, this is not quite true.

The second circumstance is as follows. Corporate law limits the ability of a shareholder to participate in the management of a joint stock company. The shareholder participates in such management through the general meeting of shareholders and the board of directors (if he or his representatives are elected to the board of directors). The competence of these bodies is limited. Operational management of the company's activities is carried out by hired managers, who may not be shareholders at all.

The institution of a management company allows you to circumvent this limitation. The decision to transfer the powers of the sole executive body of the management company is made by the general meeting of shareholders by a simple majority of votes. By creating a fully controlled company, a shareholder who owns 50 percent or more of voting shares can ensure the transfer of the functions of the sole executive body to this company and thus can ensure his direct participation in the management of the company.

The institution of a management company in the management system of a modern Russian joint-stock company is not predominant, although it is used quite often. In what cases is it advisable to transfer the powers of the sole executive body to the managing organization? What are the advantages and disadvantages of such a control scheme? How to implement the transfer of powers in practice? How not to run into "unexpected troubles"? The present article is devoted to the answers to these questions.

Why would shareholders need to transfer the powers of the sole executive body to a management company?

Motives for making such a decision may be the following:

1. The desire of shareholders to improve the efficiency of company management. One colleague gave an example when the widow of a businessman, having inherited blocks of shares in enterprises, hired a management company to effective management her assets.

There are many examples when enterprises are transferred to the management of professional management companies that have not only highly qualified personnel, but also know-how. There are many such examples in the chemical industry, where international management companies come. The use of such a management model is typical for the real estate and hotel business. Who has not heard of international hotel chains managed by companies such as Marriott, Holiday INN.

2. The need to bring the enterprise out of the crisis. It was for these purposes that the management companies SUAL-Holding, EvrazHolding and others were originally created. A large number of management companies grew out of anti-crisis arbitration managers in the mid and late 90s, at the stage of redistribution of property and mass bankruptcies.

3. Another motive is the reformation, restructuring of the group of companies. A striking example is RAO UES.

4. Formation of the management system in the holding. The centralization of operational management at the level of the management company is increasingly being used in the practice of Russian holding companies and financial and industrial groups. Let's give some examples. In metallurgy, these are SUAL, UMMC, EvrazHolding. In petrochemistry - Bashkir Chemistry, Eurochem group, Nikos group. In mechanical engineering - holdings Severstal-Avto, Ruspromavto.

5. Prevention of corporate conflict, or rather, the seizure of control over the company. For this purpose, the use of a scheme for dividing an asset into a number of legal entities has become quite widespread: the owner company, the operating company itself, the company that owns and leases real estate and equipment to the operating unit, trading house and, finally, the management company.

6. Protection of the sole executive body from prosecution, including the initiation of a criminal suit against individual. Today, many raider companies, having established control over a joint-stock company, transfer the powers of the sole executive body to a legal entity. And most often - an offshore company. It is no secret that in the course of raider attacks, and even during the subsequent resale of assets, not entirely legal or simply criminal methods are often used. So go, reach out in the process of protecting your rights to official, whose functions are performed by any Cypriot offshore. And even if it succeeds, the victim may be surprised to find that the general director of the offshore management company, in turn, is an offshore registered in another jurisdiction.

On the advantages and disadvantages of the transfer of powers of the sole executive body of the management company

The advantages of the considered management organization scheme, as a rule, include:

• the creation of a management company accountable to a shareholder, and even more so - headed by this shareholder, makes it possible to exercise direct current control over the operational financial and economic activities of a joint-stock company. Of course, this advantage only works if the shareholder controls several companies, including within a holding structure. This reduces the risk of unscrupulous managers;
• the management company is able to increase the coordination of actions of a group of interrelated companies. Such a scheme is especially effective for vertically integrated holdings. But even for horizontally integrated holdings, it is possible to effectively regulate financial flows and optimize the use of resources. open additional features for tax planning;
• due to centralization and concentration of individual functions, management costs are reduced. At the same time, the management company is able to attract expensive and highly qualified specialists, whose knowledge and experience will serve the interests of not one, but several managed joint-stock companies;
• simplification of the procedure for replacing an individual directly exercising power and administrative functions on the basis of a power of attorney issued by the management company. To replace the head, it will not be necessary to spend time and resources on convening a general meeting of shareholders or painstakingly convincing other members of the board of directors of the need to make such a decision. It is enough to simply revoke the power of attorney;
• centralization of operational management in a group of companies allows developing and implementing a unified development strategy, centralizing planning and control.

The most serious disadvantages of using a managing organization instead of a sole executive body, as a rule, include:

• expansion of the number of transactions that the legislation considers as interested party transactions: through the management company, the group of persons to which the managed company belongs can significantly expand;
• decrease in the efficiency of preparing documents, especially in the case when the managing and managed companies are located in different regions;
• overload of managers that occurs when one management company manages the activity a large number enterprises;
• decisions made by the management company on the redistribution of resources, the use of transfer prices, the formation of profit centers may be in the interests of the group of companies as a whole (or, more precisely, the interests of the controlling shareholder, who ensured the decision of the general meeting of shareholders to attract the management company), but not in the interests of the majority of minority shareholders.

When deciding on the advisability of transferring the powers of the sole executive body to a management company, the risks of these negative consequences should be taken into account and minimized, including within the framework of an agreement concluded with such a company.

What powers are being transferred?

It would seem a simple question, the answer to which, however, is not obvious. The Law "On Joint Stock Companies" defines the competence of the sole executive body in sufficient general view: “The competence of the executive body of the company includes all issues of managing the current activities of the company, with the exception of issues that fall within the competence of the general meeting of shareholders or the board of directors (supervisory board) of the company. The executive body of the company organizes the implementation of decisions of the general meeting of shareholders and the board of directors (supervisory board) of the company” (Article 69, paragraph 2). Moreover, this quote applies to both the sole and collegial executive bodies. It is necessary to separate the concepts of "leadership" and "management".

The term "lead" has no clear definition and refers mainly to the power - administrative powers. Dictionary Ushakova gives the following explanation of this term: "to direct, instruct, lead along some path"; "to give some obligatory instructions to someone." It seems obvious that the tasks of the general director do not include drawing up the balance sheet of the company, work book, performance of other management functions. The concept of "management of current activities" can be detailed through a description of the functions or competence of the sole executive body. But here, too, the Law is not too clear: “The sole executive body of the company ... without a power of attorney acts on behalf of the company, including representing its interests, making transactions on behalf of the company, approving states, issuing orders and giving instructions that are binding on all employees of the company ... ..

The rights and obligations of the sole executive body of the company ..., the managing organization or the manager for managing the current activities of the company are determined by this federal law, others legal acts Russian Federation and the contract each of them concludes with the society.

The foregoing allows us to draw the following conclusion: in order to avoid disputes and misunderstandings, the competence of the sole executive body should be spelled out as fully as possible in the charter of the joint-stock company and / or in the agreement concluded by the joint-stock company with the management company.

At the same time, we understand that when the competence of the management company includes solving issues of hiring, termination of an employment contract, payment of material remuneration, and so on, then we are really talking about power-administrative functions. If the management company is given the solution of such tasks as preparing a balance sheet, compiling financial - economic plan, legal services, etc., then we are not talking about the functions of the sole executive body, but about the functions of regular management. In this case, the contract concluded with the management company is mixed. Along with the transfer of powers of the sole executive body, this agreement contains elements of an outsourcing agreement. In this case, in the opinion of the authors, it is permissible to conclude two agreements: an agreement for the transfer of powers of the sole executive body, approved by the board of directors and concluded on the basis of a decision of the general meeting of shareholders, and an outsourcing agreement for the transfer of certain management functions that does not require such approval.

Models for building a management system using a management company

Depending on the goals pursued by the shareholders, in practice various models building a management system for a joint-stock company using a management company. Consider the "extreme" options.

formal model. The management company appoints executive director and transfers to him all or almost all of his powers on the basis of a power of attorney. At the same time, the management company exercises control over the work of such a director. Sometimes - while retaining the right to conclude contracts that go beyond the usual economic activity, as well as transactions for an amount exceeding a certain limit. The purpose of this model is obvious. In fact, while retaining the powers of the sole executive body, shareholders strengthen control over its activities, and also create a mechanism for quickly depriving such a director of powers by revoking the power of attorney. This model is typical for management companies created and fully controlled by shareholders.

Model of centralized control. Within the framework of the concluded agreement, the management company is transferred not only the powers of the sole executive body, but also the responsibilities for the implementation of a large number of management functions. In this case, the management company replaces almost the entire enterprise management apparatus. Achieved savings on management costs, full coordination of the activities of several enterprises included in the group. This model is typical for crisis management, management organizations in single-product holdings, holdings that have switched to a single share and have 100% subsidiaries.

Model of partial centralization. Here, the management company, along with the powers of the sole executive body, is transferred to individual management functions. Within the framework of this model, two variants of its implementation can be distinguished. In the first, the functions of developing a development strategy, planning and internal audit are centralized, while retaining all other functions for the company's management apparatus. This scheme is typical for differentiated holding companies. The second option involves the centralization of specific production and technological functions: logistics, marketing, etc. and is aimed at strengthening the coordination of the activities of interconnected companies, increasing the efficiency of managing individual business elements.

Should the bylaws be changed?

From the point of view of the requirements of the current legislation, it is not required to make changes to the charter of the joint-stock company in connection with the transfer of powers of the sole executive body to the management company. However, in some cases, making some changes will be in the interests of the company itself.

We have already talked about the expediency of the fullest possible reflection in the charter of the powers of the sole executive body. It is possible to limit the powers of the management company in another way, namely, by expanding the competence of the board of directors. For example, by determining that transactions for an amount exceeding 5% of the assets of a joint-stock company are carried out only with the prior consent of the board of directors. The same procedure can be extended to transactions with real estate, borrowing in excess of a certain borrowing limit, etc.

In addition, when transferring the powers of the sole executive body to a management company, it would be useful to use the dispositive norms of the law that regulate the procedure for suspending the powers of such a company. We are talking about paragraph 4 of Article 69 of the Law "On Joint Stock Companies": “... The charter of the company may provide for the right of the board of directors (supervisory board) of the company to decide on the suspension of the powers of the managing organization or manager. At the same time with these decisions the board of directors (supervisory board) of the company is obliged to decide on the formation of a temporary sole executive body of the company (director, general director) and on holding an extraordinary general meeting of shareholders to resolve the issue of early termination of the powers of the sole executive body of the company (director, general director) or managing organization (manager) and on the formation of a new sole executive body of the company (director, general director) or on the transfer of powers of the sole executive body of the company (director, general director) to a managing organization or manager.

Finally, if the management company has a different address of registration than the managed one, the charter of the joint-stock company after the conclusion of the contract with the management company will need to be amended to reflect the location of the joint-stock company.

According to paragraph 2 of Article 54 of the Civil Code of the Russian Federation “The location of a legal entity is determined by the place of its state registration. State registration of a legal entity is carried out at the location of its permanent executive body, and in the absence of a permanent executive body - another body or person entitled to act on behalf of the legal entity without a power of attorney. Thus, the location of the managed company must be the location (ie the place of state registration) of the managing organization.

Currently, the Federal Tax Service has prepared a number of proposals to change the legislation on the registration of legal entities. In particular, it is proposed to introduce a rule that gives the tax authorities the right to suspend the legal capacity of companies that are not located at the location address stated in their charters.

Algorithm of actions for the transfer of authority to the management company

If you have finally decided to transfer the powers of the sole executive body to the managing organization, then in order to implement this decision, you need to take the following actions:

1. Select a managing organization. Prepare a draft agreement on the transfer of powers of the sole executive body to such an organization.

2. Convene a meeting of the Board of Directors and take the following decisions at this meeting:

• on approval of the terms of the contract with the managing organization. The law does not directly empower the board of directors of a joint-stock company with the obligation to approve the terms of such an agreement. The need for approval is seen only indirectly. "The contract on behalf of the company is signed by the chairman of the board of directors (supervisory board) of the company or a person authorized by the board of directors (supervisory board) of the company." However, the need for approval of the agreement by the board of directors seems obvious and complies with the recommendations of the Code of Corporate Conduct of the Russian Federation. To avoid misunderstandings, many companies include the rule on approval of the terms of the contract with the managing organization within the competence of the board of directors, which is reflected in the charter of the joint-stock company;
• on holding an extraordinary general meeting of shareholders with the agenda "On the transfer of powers of the sole executive body of the joint-stock company to a managing organization" or on the inclusion of this issue in the agenda of the next (annual) general meeting of shareholders;
• on submitting for consideration by the general meeting the issue “on the early termination of the powers of the General Director”. This issue is submitted for consideration by the general meeting of shareholders only if by the time of the meeting the term of office of the current general director has not yet expired and the general director has not received an application for resignation of such powers. If the joint-stock company "forgets" to include this issue on the agenda of the general meeting, a situation of dual power may arise in the company - the presence of two duly authorized executive bodies. Such a situation can lead to a corporate conflict, recognition of decisions of the general meeting as invalid in judicial order, other consequences that are extremely negative for the business of the joint-stock company;
• on the proposal of the board of directors to the general meeting of shareholders to transfer the powers of the sole executive management body to the managing organization. The law does not detail the content of such a proposal. However, it seems obvious that it should contain the name of the managing organization, as well as the main conditions of the contract concluded with it: the composition of the transferred powers, the duration of the contract, a description of the transferred powers and functions, the cost of services of the managing organization;
• on approval of an interested-party transaction - if the agreement concluded by the joint-stock company with the managing organization meets the criteria for an interested-party transaction, or on the submission of the issue of approval of an interested-party transaction for consideration by the general meeting of shareholders - if the amount of remuneration provided for by the agreement exceeds 2% of the book value of the company's assets as of the last reporting date, and also if the board of directors failed to approve this transaction in accordance with the procedure established by law.

3. Hold a general meeting of shareholders and take the above decisions. The decision to transfer the powers of the sole executive body is made by a simple majority of votes of the meeting participants. But the approval of an interested party transaction will require a majority of votes from all voting shares of the company owned by shareholders who do not have an interest in making such a transaction.

4. If necessary, obtain permission from the antimonopoly authorities to conclude such an agreement or notify these authorities of decision. If the election of the general director - an individual does not require any approval from the antimonopoly authority, then in accordance with Art. 18 of the Law of the RSFSR "On competition and restriction of monopolistic activity on commodity markets» the acquisition by a person (group of persons) of the rights that allow them to perform the functions of an executive body is carried out in agreement with the antimonopoly body.

At the same time, according to the requirements of the current legislation, prior consent must be obtained in the following cases:

• if the sum of the value of assets on the balance sheet of the managing and managed company in the aggregate exceeds 200 thousand minimum wages;
• regardless of the total balance sheet value of the assets, if the joint-stock company or the management company is included in the Register of economic entities with a market share of a certain product of more than 35 percent.

If the value of assets on the balance sheet is more than 100 thousand minimum wages, but less than 200 thousand minimum wages, it is necessary to notify the antimonopoly authorities within 45 days from the date of transfer of authority to the management company.

Finally, if the total value of assets is 100,000 minimum wages or less, the appointment of a management company takes place without the participation of the antimonopoly authorities.

5. Obtain permission from the authorized bodies of the managing company to conclude an interested party transaction (if the transaction in question is an interested party transaction for the management company).

6. Conclude an agreement with the managing organization, transfer cases.

A few words about the contract

Preparing an agreement with a management company is not an easy task. The content of the agreement will largely be determined by the objectives of attracting the management company and the chosen management model.

• subject of the contract;
• competence of the Criminal Code;
• rights and obligations of the parties;
• a responsibility;
• remuneration;
• the order of acceptance and transfer of cases;
• the procedure for the entry into force of the contract, as well as termination of the contract.

By general rule the subject of the agreement is the provision of services for the exercise of the powers of the sole executive body of the joint-stock company. And if we are talking about a management company created in order to strengthen control over management, we can stop at this vague wording. If the purpose of attracting a management company is business development, then the wording of the subject of the contract can be expanded and specified. For example, "the provision of services for the exercise of the powers of the sole executive body of a joint-stock company, services for managing the affairs and assets of a joint-stock company in order to increase the company's capitalization and profits." Sometimes in this section of the contract you can find specific figures that reflect the minimum threshold for profitability, market share, and other indicators of management efficiency.

We have already spoken about the competence of the management company above. In addition to the competence of the sole executive body, this section may reflect the fact of the transfer of the management company specific functions joint stock company management.

As for the rights and obligations, in addition to the rights and obligations of the sole executive body transferred to the management company, this section should reflect the obligations of the management company to periodically submit reports to the board of directors, including the composition and content of such reports. Often, consideration of a quarterly report is accompanied by the approval of an act on the work done.

The section on the responsibility of the management company can also be formulated in various ways. Sometimes the parties to the contract are limited to general formulations of liability for damages caused by guilty actions. In other cases, the types of damages to be compensated are set out in sufficient detail. Among them may be penalties, losses associated with late payment of taxes, etc. In some cases, contracts provide for a fine for failure to achieve the indicators of financial and economic activity established in the contract.

In most cases, the remuneration of the management company consists of two components: a fixed part for the provision of relevant services and a variable part, determined by the results of the financial and economic activities of the company. The latter should create proper incentives to achieve high end results for the management company.

This section of the contract should also reflect the procedure for compensating the management company for the costs incurred by it in the process of performing the functions of the sole executive body, as well as the composition of the compensated costs. These costs are usually travel expenses, expenses for communication, transport, etc. Expenses are compensated upon submission of documents confirming their amount. The expense report is quarterly provided to the board of directors. Sometimes the contracts set the maximum amount of expenses to be compensated.

The section on the procedure for the entry into force of the contract contains a list of documents and attributes transferred to the management company (including originals of constituent documents, financial documentation, company seal) on the basis of an act of acceptance and transfer of cases. This section may include a rule on conducting an inventory of the property of the managed company. A similar procedure for the return of documents and attributes should be provided for when terminating the contract for any reason for such termination.

The same section may contain the effective date of the agreement or the procedure for determining it. For example, on the 10th day after obtaining the consent of the antimonopoly authorities. The term of the agreement may not exceed the term of office of the sole executive body, enshrined in the charter of the joint-stock company. If such a period is not established in the charter, the following considerations can be used to determine it. According to Labor Code an urgent agreement is concluded with the head of the joint-stock company labor contract. A fixed-term employment contract cannot be concluded for more than 5 years. However, the contract may contain a provision that it is subject to automatic renewal under the same conditions if “within 30 days before the date of its completion, neither party notifies the other party of its intention not to prolong the validity of the contract or revise its terms. ".

As for the conditions for terminating the contract, in addition to the occurrence of the appropriate date for terminating it or making a decision on its termination by the management bodies of the joint-stock company, this section should determine the possibility and procedure for voluntary termination of the contract at the initiative of the management company.

The section may contain a provision on the payment of compensation to the management company in the event of early termination of the contract at the initiative of the joint-stock company.

Some Traditional Questions and Typical Mistakes

1. Can a management company make business transactions with a managed company? After all, according to paragraph 3 of Article 182 of the Civil Code, a representative cannot make transactions on behalf of the person represented in relation to himself personally. An unequivocal answer to this question can be found in the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 6, 2005 No. 9341/05.

According to Article 53 of the Civil Code of the Russian Federation, a legal entity acquires civil rights and assumes civil obligations through its bodies acting in accordance with the law, other legal acts and constituent documents.

The actions of the bodies of a legal entity aimed at establishing, changing or terminating the rights and obligations of a legal entity are recognized as the actions of the legal entity itself. In the light of the foregoing, the court made the following conclusion: the bodies of a legal entity cannot be considered as independent subjects of civil legal relations and, accordingly, act as representatives of a legal entity. Or, translating into Russian, the management company cannot be considered as a representative of a legal entity, therefore, transactions between the management company and the managed company are possible.

However, it should be borne in mind that, according to Article 81, a company's transactions with a person exercising the functions of a sole executive body are considered as interested party transactions. Such transactions can be made only after their approval by the board of directors or the general meeting of shareholders of the managed company.

2. How to indicate the subject of the legal relationship in the contracts concluded by the managed company?

The correct entry will be: joint-stock company X represented by (full name), who is the general director of company Y, acting as the sole executive body of joint-stock company X in accordance with agreement No. .. dated .. .

3. On whose forms - the managing or managed company - orders are issued? What is the seal of contracts and administrative documents?

Forms of the managed company are used for execution of orders, official correspondence and in other cases. And the signature of the head of the management company under such documents is certified by the seal of the managed company.

4. Is it possible, by transferring the powers of the sole executive body to the managing organization, to retain the collegial executive body - the board? The legislation does not contain a ban on the presence of a board in companies that have delegated the powers of the sole executive body to a management company. However, when using such a structure, one should very carefully distribute powers between these governing bodies in the charter. It is interesting to note that the functions of the chairman of the board in this case will be carried out by a legal entity - a management company.

5. Some joint-stock companies in order to reduce the tax base or in the interests of major shareholders overestimate the cost of the services of the managing organization. It is not worth doing this, since overstating the cost of services creates the risk of sanctions against the joint-stock company and its management company from tax authorities. In particular, the following case took place in arbitration practice: the tax inspectorate considered the costs of remuneration of the managing organization to be excessive and economically unjustified and imposed sanctions on income tax (see Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District in case No. A11-4426 / 2003-K2- E-1961 dated January 19, 2004).

By the way, one of the ways to reduce such risks is to conclude two contracts with the managing organization: for the provision of services of the sole executive body and for the provision of services for the performance of management functions on an outsourcing basis.

6. Do not skip material and financial flows joint-stock company through the accounts of the managing organization. Each transaction between the managed and the managing company is an interested party transaction. Each of them will require the approval of the board of directors or the general meeting of shareholders.

In conclusion, we note the following. The decision to transfer the powers of the sole executive body to the management company allows shareholders to solve a variety of problems: from strengthening control over management to reducing costs and improving business management efficiency. However, like any decision in the field of management organization, the use of this tool can have both positive and negative consequences. In this regard, it is very important to formulate the purpose of making such a decision, draw up a “correct” contract with the management company, follow all the procedures provided for by law when making this decision, provide for procedures for control by the board of directors over the management company, as well as the possibility of early termination of the contract.

The issue of transferring the powers of the sole executive body to an individual entrepreneur is not considered separately in the context of this article. However, most of the conclusions made regarding the management company, as well as the algorithm for attracting a management company and recommendations for concluding an agreement with it, are quite applicable to this case.

Here it is necessary to make a reservation. If the management company turns out to be an affiliate of the managed company (for example, as a result of the fact that it belongs to the owner of a large block of shares in the managed company), then the approval of the agreement concluded by the joint-stock company with the management company must be carried out in the manner established for transactions with interest. However, in practice, a lot of tricks are used to make a controlled company formally unaffiliated.

See the article by V. Levykin and O. Shomko “Management company in the holding” // “Joint-stock company: issues corporate governance", No. 5 (12), 2004

However, there is a problem with the loyalty of the management company management.

Dear reader, don't you think that the preposition "or" is somewhat inappropriate here?

If, after the conclusion of the agreement with the management company, the general meeting of shareholders changes the charter, reducing the powers of the executive bodies, then the provisions of the agreement that are in conflict with the charter should not be applied. On this basis, some authors recommend the inclusion in the contract concluded by the joint-stock company with the managing organization, the rule that changes to the charter of the joint-stock company can only be made in agreement with the managing organization. This recommendation cannot be accepted. The agreement cannot restrict the rights of shareholders to make changes to the charter of the joint-stock company

True, such an agreement will relate to interested party transactions and will require its prior approval, at least by a decision of the board of directors, or even a general meeting of shareholders.

The issues listed below may be considered at several meetings of the Board of Directors.

These signs include the following:

• a shareholder holding together with his affiliates more than 20% of the voting shares of the joint-stock company simultaneously owns 20% or more of the shares (interests, shares) of the management company;
• members of the board of directors of a joint-stock company own in the aggregate 20 percent or more of the shares (interests, shares) of the management company;
• at least one of the members of the board of directors of the joint-stock company is the sole executive body, a member of the board of directors or a member of the management board of the managing organization;
• at the time of the adoption of the relevant decision by the general meeting of shareholders, the managing organization was already exercising the powers of the sole executive body of the joint-stock company.

To avoid lawsuits the cost of the management company's services should be compared with the value of the assets over the entire term of the contract.

In the organizing committee of the Party scientific management society and the state "SCIENTIFIC AND INNOVATIVE DEVELOPMENT OF RUSSIA" (registered by the Ministry of Justice), an open discussion about the role and place of scientists in the management of the country (territory, society and state) does not stop.

N.K. Grigoriev, who joined her, writes:

I came to the conclusion that society should be run by scientists ...

I think the following proposal should be discussed:

- At least 50% of the mandates in the parliament should belong to scientists of various fields. Their election should not be popular. They must be elected by the collectives of the institutions in which they work. The representation of the deputies elected in this way should be given by the Academy of Sciences. This provision should be enshrined in the constitution.

Of course, not every scientist can deal with matters of managing society. And yet, in the parliament, the potential of scientific thought should be sufficient so that the adopted laws are scientifically substantiated and express, first of all, the interests of the working people, the interests of the majority of citizens, and not a bunch of moneybags who have usurped power.

Obviously, active propaganda is needed in the scientific community for the active movement of scientists into politics, for the creation of funds to support such a movement.

Personally, I am of the following opinion:

The search for a model of “embedding” scientists in the systems of state and public administration extremely important and relevant.

However, this is not a very simple matter, because. requires taking into account far-reaching consequences and the correct combination of a number of independent functionalities.

Scholars are dedicated to scientific research, which is mostly respected.

Scientists who have gone into politics are called upon to implement not so much a scientific search, which is carried out first in the scientific community, as the fulfillment of the requirements of the principles of scientific character in the activities of state and public institutions. What is sorely lacking. The implementation of this function can be carried out in different forms, but, in my opinion, most likely should have an arbitration qualifying character. This implies a certain alienation from the scientific sphere, and from the sphere of management, and from the sphere of execution. Like, the supreme scientific qualification Instance, which will be given the authority to veto decisions that suffer from incompleteness, one-sidedness, etc.

In the structures of the executive power, scientists should be assigned the place of an expert service serving management decisions in compliance with the principles of scientific character.

At the same time, representative power should, first of all, perform representative functions (“you spread caviar on a sandwich - immediately thought: how are the people?”),

And the executive power - to ensure, mainly, the steadfastness of execution ("Did they order a fight? It's paid!!!").

The formula: “society should be managed by scientists” is quite acceptable with the understanding that “within the limits of their competence in their functional place”, which we, of course, have yet to determine in the most non-random way.

In general, the points of view in general terms boil down to the following: