Financial and Industrial Group (FPG) - Association industrial enterprises With financial institutions based on economic and financial cooperation relations established between them. Maybe in the form of a commercial organization.
This is a combination of economic entities (usually legal entities) or acting as the main and subsidiary societies or united their assets for technological or economic integration.
Most an important form financial and industrial groups is concern - Association of several trade and industrial enterprises under general financial leadership.
The causes of the emergence of the FIG revealedRudolf Hilferding (Austrian and German Marxist, Social Democracy Leader and political figure Germany), describing the process of mergering banking and industrial capital, and the formation of financial capital.
Financial and industrial groups (FIGs) can be organized as:
- associations of the main and subsidiary societies;
A combination of legal entities who signed an agreement on the establishment of an appropriate association and established by the central company.
Requirements for FPG are:
- over a corporate formation, which has in the composition of legally independent subjects;
- availability of financial component;
- Real control of the central subject and the holding of a single strategy.
The composition of the participants of the FPG Defined by the accepted strategies. The latter can be enterprises of any form of ownership that have an organizational and legal form of OJSC, CJSC, LLC, etc., as well as holdings, whose material assets are more than 50%. Most participants of the FPG in Russia are private enterprises that united based on the vertical integration of different sectoral affiliation.
The agreement on the creation of the FIG should contain the following conditions:
Name of FPG;
The procedure and conditions of the institution of the FPG,
The procedure for education, the scope of authority and other conditions of the Board of Governors of the FPG;
The procedure for amending the participants of the FPG;
Volume, procedure and conditions of assets combining;
The purpose of the combination of participants;
Contract time.
Participants of FPG Legal entities who signed an agreement on the creation of the FPG are recognized and established by them by the Central FPG company or the main and subsidiaries forming FIG.
Maintenance of the FPG work is carried out by the Central Companythat represents entityestablished by all participants in the Treaty on the establishment of the FPG or is the main society in relation to them. According to the obligations of the Central FGG company, which arose as a result of participation in its activities, participants carry joint responsibility in the manner prescribed by the contract. As higher Organ Department of the FPG is the Council of Governors, which includes representatives of all its participants. The competence of the Board of Governors is established by the agreement on the creation of the FIG.
The main functions of the Central FPG company are:
Representation on behalf of FPG participants in relations related to the creation and activities of the FPG;
Maintaining consolidated (consolidated) accounting, reporting and balance sheet FPG;
Preparation of an annual report on the activities of the FPG;
Implementation of individual banking operations in accordance with the law on banks and banking activities, and so on.
FPG may include commercial and non-commercial organizations, Including foreign, with the exception of public and religious organizations (associations). Participation in more than one FIG is not allowed. Based on the essence of the FIG, it is necessary among its participants in organizations working in the production of goods and services, as well as banks and other credit institutions.
FPG status is purchased As a result of Her. state registration. Regulation of its creation (including state registration), the activities and liquidation of the FPG is carried out by the Federal Agency for the Office of the Federal Property of the Russian Federation. For registration of FIGs, in particular, see:
Statement;
Agreement on the creation of FPG;
Copies of certificates of registration, constituent documents;
The consent of the owner of the property of state and municipal unitary enterprises;
Conclusion of the federal antimonopoly authority;
Organizational project (package of documents containing the necessary information about the goals and objectives, investment and other projects and programs, alleged performance results, etc.)
Permissive procedure for registering FPG.Examination of projects for the creation of FIGs is carried out in terms of feasibility and efficiency. When positive conclusion FPG is subject to registration and submission to the state register of financial and industrial groups Russian Federation.
State support for FIGs is carried out through the provision of state guarantees to attract of different kind Investments, transfer to the confidential administration of the central company temporarily enshrined over the state share packages of participants and others.
The term "Holding" comes from english verb "To Hold" - hold, have. Therefore, holding companies are often called "holder" organizations that own shares (share) in authorized capital other enterprises. Holding companies are widespread in foreign countries. However, the term "Holding Company" is used mainly in the countries of the Anglo-American legal system. In Germany, the terms "Concern" and "Consortium" are used to indicate similar production and economic complexes. The FRG legislation, the characteristic term "related enterprises" is also used to designate such associations.
As part of such a grouping of enterprises, the main enterprise (maternal company) has the opportunity through her a stake owner to lead the activities of subsidiaries. The assets of the holding company are practically fully represented by shares of another legal entity or persons. The monitoring of the activities of the participants of the Holding is carried out through the mechanisms of corporate (joint-stock) authority. As a rule, holding companies are presented in the leadership of their subsidiaries, most often as part of the Board of Directors and Audit Commission.
The concepts of "Holding" and "Holding Company" are not synonymous, since the holding is called a group of legal entities, and the holding company is mainly in relation to the participants of the Holding Company. The holding company should be distinguished from the investment, since the latter invests in the acquisition of shares (shares) of other societies in order to extract profits, and the holding company is to obtain control over their activities. The main advantage of the holding of holdings is the distribution of commercial risks, as well as the possibility of selling business in parts, as subsidiaries remain independent legal entities.
The financial and industrial team represents a set of legal entities acting as the main and subsidiary societies or fully or partially united their material and intangible assets based on the Treaty on the establishment of the FPG for technological or economic integration for the implementation of investment and other projects and programs aimed at raising Competitiveness and expansion of markets for the sale of goods and services, improving the efficiency of production, the creation of new jobs.
From the legal definition of the financial and industrial group it follows that it is not one of the organizational and legal forms of legal entities. The impossibility of imparting the FPG status of a legal entity is due to the desire to maintain the legal person's legal personality for their participants. business activities. Despite the absence of the FPG as a comprehensive education of the set of rights and obligations inherent in the legal entity, the individual elements of the legal personality of FPG in relations regulated by antimonopoly and tax law can be noted.
First, the participants of the group involved in the production field can be recognized as a consolidated group of taxpayers, i.e. A single subject of tax legal relations. Secondly, in Art. 20 Tax Code of the Russian Federation contains the concept of "interdependent persons", including organizations, if one of them participates in authorized capital Another and total share of such participation is more than 20%. The selection of the category of interdependent individuals was necessary to possibly carry out the tax authorities to control pricing in operations committed between interdependent persons. Application " transfer pricing"Between the participants of entrepreneurial associations make it possible to underestimate the taxable base, which, of course, does not meet the interests of the state. Therefore, the tax authorities control interdependent individuals as a single subject.
From the point of view of antitrust laws, participants in the group, even if they are formally autonomous (independent) legal entities, are part of common StructureManaged from a single center and are engaged in entrepreneurial activities to achieve the interests of the Group as a whole. Therefore, in the antimonopoly legislation, the FPG is recognized as a unified economic entity.
According to the forms of production and economic integration, "vertical", "horizontal" financial and industrial groups and conglomerates differ. According to statistics in Russia, the majority of registered FIGs are characterized by a vertical type of association (Aerofin Group, "Defensive Style"). Horizontal integration involves the unification of enterprises focused on the production of homogeneous products (Rosstroy, BelmusAvto Group). Conglomerates are considered the most sustainable unification form, which has enterprises in different, not interconnected, industries in order not to depend on the economic situation in a separate industry (the United Industrial and Construction Company).
By industry affiliation, it is customary to allocate industry and intersectoral groups; According to the degree of business diversification - monopropyl and multidisciplinary; The scale of activity is regional, interregional and interstate (transnational). Financial and industrial groups are considered transnational, if among their participants there are legal entities under the jurisdiction of the CIS member states or having divisions on the territory of these states or capital construction exercising there. The transnational company, created on the basis of an intergovernmental agreement, acquires the status of interstate FPG.
Participants in the financial and industrial group can build their relationships in two ways: either as the interaction of the main and subsidiary societies, or as interaction on the terms of a complete or partial association of their material and intangible assets. In the first case, we are dealing with actually holding model, when the main (maternal) society has the opportunity through her a package of shares (fractions) of subsidiaries, i.e. By virtue of the prevailing participation in their authorized capital, leading the activities of each of them. It can be said that FPG of the first type is an entrepreneurial association based on the "participation system", economic subordination and corporate control. In such an association, the main society performs the functions of the central company through which, in essence, the Group's activities are carried out in general.
FPG of the second type is a voluntary contractual entrepreneurial association of independent legal entities. According to statistics, most registered (official) FIGs are created precisely by the type of associations based on the contract; They are sometimes referred to as "soft non-holding corporations", or "contractual holdings". The financial and industrial group of this species is created by entering into the Parties to the Group on the establishment of the FPG, in accordance with which the Central Company is established. That is, the central company is essentially a subsidiary or dependent society towards all participants of the FIG. According to its legal nature, the agreement on the creation of FPG is a type of agreement of a simple partnership (Art. 1041-1054 of the Civil Code of the Russian Federation).
The current legislation provides for a number of restrictions on participation in the composition of the financial and industrial group. Thus, state and municipal unitary enterprises may be part of the FIG on the conditions determined by the owner of the property. The financial and industrial group involves the unification of material and intangible assets, but the unitary enterprise, not possessing the right of ownership of the property attached to him, cannot independently dispose of its assets, it needs to coordinate its transactions with the owner of the property. However, despite these restrictions, in Russia more than 10% of total Participants of all registered FIGs are enterprises of the public sector of the economy.
Subsidiaries can be part of the financial and industrial group only with their main society. Decisions, actions, transactions of subsidiaries can be quite rigidly predetermined by the main (maternal) companies. Therefore, the situation in which the subsidiary will be forced to choose between mandatory for him, but contradict to each other, decisions of the FPG governing bodies and the main (maternal) company. Thus, this restriction is due to the desire to ensure proper handling in the execution of decisions in the FIG system of its participants.
Legislation prohibits a legal entity to participate in more than one financial and industrial group. This restriction prevents market monopolization, since groups with the same composition of the participants do not create conditions for free competition. However, it is obvious that the participants of the FIG are entitled to enter into other types of associations, such as banking groups.
Public and religious associations cannot be parties to financial and industrial groups, since the objectives of these organizations (taking into account restrictions on business entrepreneurship) do not imply the possibilities of their participation in production and financial complexes.
Regardless of which type of financial and industrial group (holding or contractual association) is organized, it allocates mandatory and initiative (optional) participants. Compulsory participants in the composition of the financial and industrial group are enterprises acting in the field of production, as well as banks and credit organizations. Enterprises of the production profile are allocated to the manufacture and production of commercial products or providing services, on banks or credit organizations the role of investment structures is assigned.
As an optional participants in FIGs may include investment funds, insurance companies, non-state pension funds, as well as any other organizations.
- 194.00 KBMinistry of Education and Science of the Russian Federation
Branch of a state educational institution
higher professional education
Baikal State University
economy and Law in Bratsk
Department of Jurisprudence
COURSE WORK
Under the discipline "Entrepreneurial Law"
Legal status of financial and industrial groups
Performed:
Student
Yurow-09 Groups _____________________ M.O. Illarionova
Checked:
Teacher
K.Yu.N., Associate Professor _________________________ T.I. Afanasyev
Bratsk 2011.
Introduction .................................................................................................. ..3
1 Concept and signs of financial and industrial groups ...... 7
2 Legal status of financial and industrial groups .. ... 9
3 Classification and types
Financial and industrial groups .......................................... .16
4 Procedure for registration and organization of activities FPG .....21
Conclusion .......................................................... .......................27
List of used literature .... .................................. .30
Introduction
The emergence of financial and industrial groups (hereinafter - FIGs) in Russia is associated with the appearanceDelay President of the Russian Federation dated December 5, 1993 N 2096 "On the creation of financial and industrial groups in the Russian Federation" and approved by himRegulations On financial and industrial groups and the procedure for creating them. In the same year, the first FPG "Ural Plants" was also registered.
In accordance withRegulation As financial and industrial groups, groups of enterprises, organizations, financial and credit institutions and investment institutions were considered, the capital of which were combined into organizational and legal forms and sizes identified by this regulatory act.
Integration processes solve very important issues: from the survival of individual organizations in industry structures Before the formation of inter-sectoral economic complexes.
The financial and industrial group is one of the forms of organizing production and economic complexes.
The financial and industrial group (FIGs) is the form of coexistence of business entities. Such legal and economic "symbiosis" is due to a number of reasons, primarily the need to expand and maintain cooperation between enterprises, the development of economic relations. At the same time, the financial and industrial group (FIGs) is not just a production and technological complex, but above all the investment and financial institution or the association of technological and economically related manufacturing, trade and financial enterprises.
In 1997, 47 FIGs were operating already, they included 500 enterprises and organizations with more than 3 million workers. These FPGs gave more than 10% of GNP of Russia. Statistics show a steady degree of development of financial and industrial groups: As of November 1, 2001, 86 FIGs were registered, including 15 transnational (among them - 10 interstate), while their total number in 2003 increased by an average of 104 associations.
In the history of modern "financial and industrial groups" are represented by their prototypes - associations of large trafficking companies. Therefore, at the initial stage of development, financial and industrial groups were defined as "synthesis" of material resources with production and consumer instruments. In many ways, the "echoes" of history show a modern idea of \u200b\u200bsuch forms of unification of legal entities.
In the post-Soviet economic space, the term "financial and industrial group" is used in several interrelated, but not completely coincident values. Most often, any forms are indicated regarding the sustainable interpenetration of industrial and financial capital.
On the background existing concept Financial and industrial groups there is some "blur" of their definition in comparison with other corporate associations. General signsLocated in the concept of corporate structures, is easily "detected" in existing forms of associations, which sometimes does not clearly establish the essence of one or another legal formation.
According to a number of authors, such an ambiguous understanding of the status of FIG is the result of the sectoral division of the Russian law, which arose in soviet period The development of our state. Currently, for example, O.A. Belyaeva characterizes financial and industrial groups with the help of terminology of antimonopoly legislation as a "group of persons" and "economic entity".
Currently, the relevance with theoretical and practical points of view acquires the issue related to the legal analysis of the associations of commercial organizations in the form of financial and industrial groups. The fuzziness of legislative formulations leads to a fairly widespread interpretation of the concept of "financial and industrial group" in legal science.
The purpose of this work is to analyze the concept and legislative regulation of the activities of the FPG, ways to implement the norms and principles of Russian law enshrined by the Civil Code of the Russian Federation, which greatly facilitates the study of special sectoral legal disciplines.
The above goal is implemented through the following basic research tasks:
- study of the theory of the issue with regard to recent achievements scientific progress;
- analysis of the development of individual rules of law relating to the creation and activities of individual species of FPG;
- analysis of the existing problems in this area of \u200b\u200blaw at the present stage.
Among the dominant methods of the study applied by the author in the process of studying the subject were used by the method of historical and legal analysis, systematic structural analysis, as well as the method of interpretation of legal norms.
The object of study of this course work is the very concept of a financial and industrial group, distinctive features existing species and ways to create them. The subject is the rules of law governing the issues of creating FPG.
This topic found quite wide coverage in the works of leading theorists and practitioners in the field of entrepreneurial law. Among the most famous scientific papers of Russian scientists, the author of this study seems to be necessary to allocate scientific works Doctors of Law, Professor Sergeeva A.P., Doctors of Law, Professor, Tolstoy Yu.K., Doctors of Law, Professor Sadikova ON, Doctors of Economic Sciences Baranhenkova V.V. And others on whose work is based on the author in his work.
1 Concept and signs of financial and industrial groups
Analysis of current trends in the field of economics shows that the integration of banking and industrial capital - characteristic feature and the objective pattern of the emergence and development of powerful financial and industrial associations. In industrial developed countries This integration is almost completed, created and successfully operate in the domestic and foreign markets are a few (compared to other entrepreneurial structures) Transnational companies (TNCs), financial and industrial groups (FIGs), as well as other financial and industrial associations. Thus, as a result of the US Bank and Industrial Capital Union, large financial associations were created in the form of family groups (Morganov, Rockefellers, Mellonov, etc.). The practice of the inclination of the largest concerns and banks in Germany (for example, Financial groups "Deutsche Bank", "Dresztner Bank", "Commerce Bank"). Large financial associations operate in France and other European states. In France, this is a powerful oil group "Company FRERSEZ DE PETROL", the oil company Elf-Akiten, in the automotive industry - private "Peugeot" and state "Renault".
A controversial view was expressed in the literature that FPG as a form of an entrepreneurial association is a generation of domestic economic and legal thought. Economists, on the contrary, lead examples from world experience in creating FIG. 2.
In Japan, there are two levels of grouping: Kiege Sudan (covers) and Kiege Luppapa (or Kareets). The main difference is primarily in the nature of the activities of financial and industrial associations and the relationship system. These are universal inter-sectoral complexes that are combined around the relevant bank and a trading firm. The links between the participants of the covers are bonded by the cross-ownership system with shares, cross-director, etc. Among the first level, it is primarily necessary to name such financial and industrial associations of Japan, as "Mitsui", "Mitsubishi", "Sumito", "Fuye" ("Yasuda").
Kiege Gruppa (Karents) is associations of predominantly vertical type. In the Karetse structure between the head (maternal) company and the company's association, there are various types of ties, the foundation of which is the production profile of the maternal firm.
In modern Russia, the process of forming financial and industrial associations, including FIGs, is in the stage of its formation. You can talk about the creation of the largest holdings in the Russian Federation, FPG and commercial banking alliances. For example, the National Reserve Bank, Gazprombank, KB "Imperial", RAO Gazprom, LUKOIL oil company, is included in the oil and gas conglomerate, the LUKOIL oil company, etc.
According to the President of the Association of Financial and Industrial Groups of Russia O.N. Square, Currently, the official status of the FPG received more than 80 groups. They made 1000 industrial enterprises and organizations, more than 80 financial and credit institutions on a voluntary basis. The total number of employed approaching 4 million people. Groups provided an increase in production by 3.5%, the volume of products sold is 5%, exports - by 10%, investments - by 6%. Such is the statistics, but it hides the positive dynamics of the development of financial and industrial groups in Russia. 3.
In the banking market there is also a concentration and centralization of banking capital. The rapid growth of the group of banks occupying strong positions is observed in Moscow. This position will be saved. So, historically London is the most important financial center.
The growth of capital of Moscow banks led to the expansion of their interests both within Russia and beyond. For example, KB "Russian Credit" has subsidiaries in Kyrgyzstan, Turkmenistan, Georgia, Azerbaijan. In the foreseeable future, the formation of financial associations in Russia may be completed in the form of family groups. So far, a favorable moment has come for this completion.
In the literature (mainly economic) there is a positive experience in the formation and development of FIG in South Korea. In particular, at the stage of the formation of a market economy, South Korea hardly closed its market, creating large structures by which won the place in the foreign market. As for Russia, here, on the contrary, there is no reasonable openness of the domestic economy for foreign suppliers (manufacturers).
In addition, used in South Korea authoritarian style of leadership, state patronage, the system of public benefits is close and understandable to the Russian economy and political establishment. The characteristic features of the eastern model of management are more consistent with not only the nature of our society, but also the Russian mentality. four
Work description
The purpose of this work is to analyze the concept and legislative regulation of the activities of the FPG, ways to implement the norms and principles of Russian law enshrined by the Civil Code of the Russian Federation, which greatly facilitates the study of special sectoral legal disciplines.
The above goal is implemented through the following basic research tasks:
study theory of the issue, taking into account the latest achievements of scientific progress;
analysis of the development of individual rules of law relating to the creation and activities of individual species of FPG;
analysis of the existing problems in this area of \u200b\u200blaw at the present stage.
Content
Introduction .................................................................................... ..3.
1 Concept and signs of financial and industrial groups ...... 7
2 Legal status of financial and industrial groups ..... 9
3 Classification and types
Financial and industrial groups .......................................... .16
4 Procedure for registration and organization of activities FPG .....21
Conclusion .................................................................................27
List of used literature .... .................................. .30
Federal Agency for Education
Donskaya State Technical University
Department "Economics"
COURSE WORK
on the topic:
Financial and Industrial Groups: Problems of Formation and Development
Perform l:
group student
HELL. Boychenko
Scientific adviser:
ph.D., Associate Professor
V.G. Petrov
Rostov-on-Don
2010
Content
Introduction .................................................................. .................................. .3
1. Legal status financial and industrial groups ............................... ...... .... 5
1.1. Concepts and signs of FIG ................................................ .. ............... 5
1.2. Legal status of FIG ............................................................... 7
1.3. Types of FIG ............................................................... ...................................8
1.4. Methods and procedure for creating FPG .......................................... .. ........... 10
1.5. Organization of the activities of FPG ............................................. .. ... ... ... ..12
1.6. The history of the creation and problems of development, the dynamics of FPG ............... ... ...... ... 17
2. Analysis of the FPG on the example of JSC "Central East Siberian Company
FPG "............................................................................................. ............... ...........21
2.1. a brief description of firms ...... .....................................................21
2.2. Principles, methods and objectives of the company ................................................... 21
2.3. Visiting enterprises ......... ....................................................................................................................................................................... ... ... ... 23
Conclusion ...................................................................................................... .. ....... 28
List of materials used ........................................................... ........ 31
Introduction
The transformations that occurred in the Russian economy require the close attention of legal scholars to new phenomena of economic and legal reality. This is especially true for civilian legal institutions serving entrepreneurial relations.
In the context of global changes in the civil law of the Russian Federation and the formation of a truly private law, a sphere was opened to regulate the relations of citizens and legal entities on the basis of the world's generally accepted in the world: the independence and autonomy of the individual, recognition and protection of private property, and freedom of the contract.
For the formation and development of private law under these conditions, research and development, defining and justifying measures to create the legislative frameworks of private-planning relations in Russia, the formation and implementation of private-enlightened ideas and ideas, on the preparation of highly qualified specialists in the field of private law.
One of the new legal categories that appeared in russian legislation In the early 90s. 20 V., Is the financial and industrial group (hereinafter - FIGs).
FPG were conceived as a means of stabilizing the Russian economy, which was in deep structural crisisIt was aggravated by the destruction of existing economic relations with the planned economy, the lack of a mature market infrastructure, the loss of Russian commodity producers of a significant part of the domestic market, a sharp reduction in effective demand, inflation, not enough to form effective financial and credit institutions, exacerbating the problems of mutual debt of enterprises. At the same time, despite the relevance, the effective legislation on FPG was not created to the present.
Decree of the President of the Russian Federation dedicated to the issues of FPG, and then the relevant Federal Law (hereinafter - the Law on FIGs), despite certain positive parties, to which it is possible, first of all, the fact of appealing the attention of the legislator to the sphere of large enterprise, did not create a thoughtful and Weighted legal regulation of FIG. Most norms russian law About FIGs are a declarative nature, the norms of the Special Law did not find development in the Customs Code of the Russian Federation and the Tax Code of the Russian Federation.
Unfortunately, arbitrage practiceMostly, in most cases, legislative carelessness, in relation to the creation and operation of the FPG is completely absent. We have not found a single case that came to the Presidium of the Supreme Arbitration Court of the Russian Federation, in which the subject of a judicial dispute would be the issues of the institutional structure of FIG or the responsibility of the Central FPG company and other participants. This, among other things, suggests that the processes of creating FPG in Russia are incontentively, and the relevant legislation is recognized by the participants in the turnover not effective.
The purpose of this work is to study the legal regulation of public relations arising in connection with the creation and activities of the unification of entrepreneurs in the form of FPG.
The specified purpose determined the tasks of this work:
- identify the definition of FPG, based on the norms of the current legislation and the theory of civil law;
- to explore ways to create an FIG - vertical (holding) and horizontal (contract);
- determine the legal status of the Central FPG company in FPG of the Holding and contractual type.
Despite the topicality and sufficient complexity of legal issues related to the FIG, they for some reason do not attract the special attention of modern scholars. The existing legal studies dedicated to the FIG were performed either in the commentary genre on the Law on FPG or in the form of articles in periodicals, which amounted to theoretical basis of the work. Scientific research FPG on the monographic level in Russia is still absent.
Chapter 1. Legal status of financial and industrial groups
- Concept and signs of FIG
It is emphasized that such a totality of legal entities can build their interaction
1) or as the interaction of the main and subsidiaries,
2) either as interaction under conditions of a complete or partial association of its material and intangible assets.
The first variety of FIGs is at its essence a holding company, which becomes the basis for creating a financial and industrial group. Participants in the FPG of the first species are the parent (main) and subsidiaries; Second species - legal entities who signed an agreement on the creation of FPG and established by the Central Company.
According to statistical data, almost all official Russian FIGs were created by signing the Treaty on the establishment of the FPG and the establishment of the Central Company. Only in every seventh official FPG large industrial companies have significant shareholders of other participants. Thus, financial and industrial groups are currently distributed in the form of so-called "soft" non-treated corporations, which are interpreted in literature, in contrast to the FPG of Holding type based on joint-stock operation mechanisms as a means of friendly integration.
It should be noted that precisely this kind of financial and industrial groups is devoted to the overwhelming number of the norms of the FPG Law. The financial and industrial group of this species is created by entering into the Parties to the Group on the creation of the FPG (common partnership), in accordance with which the Central Company establishes, that is, the Central Company is essentially a subsidiary or dependent society towards other participants of the FIG. According to the law, the Central Company may be created in the form of an associative association of participants. The central company operates in accordance with its charter, as well as the terms of the contract on a simple partnership.
The law establishes the obligation to participate in the FPG organizations operating in the production of goods and services, as well as banks or other credit institutions: investment institutions, non-state pension and other funds, insurance organizations whose participation is due to their role in ensuring the investment process in the financial and industrial group . According to experts, the share of investments of financial and credit institutions into the consolidated assets of the FPG by the end of 1999 amounted to an average of 10%.
Not only commercial, but also non-profit organizations, with the exception of religious and public organizations, as incompatible with their legal status may be included in the participants in the financial and industrial group.
According to the FPG law, financial and industrial groups are transnational, if among their participants there are legal entities under the jurisdiction of the CIS member states or having divisions on the territory of these states, or capital construction exercising there. The transnational company created on the basis of an intergovernmental agreement receives the status of interstate FIG.
There is a classification of financial and industrial groups also by the following criteria:
- for the forms of production integration (vertical, horizontal, conglomerate);
- by industry affiliation (sectoral, inter-sectoral);
- according to the degree of diversification (monopropyl, multidisciplinary);
- on scale activities (regional, interregional, transnational, interstate).
As follows from the foregoing, transnational and interstate financial and industrial groups can be allocated both by the criterion of the state affiliation of participants and the scale (region) of the activities of the FIG.
- Legal status of FIG
The participants of the FPG recognize legal entities that signed the agreement on the establishment of the FPG, and established by them by the Central Company of FIGs or the main and subsidiaries that form a financial and industrial group. By virtue of the law or the contract, the maintenance of the financial and industrial group is carried out by the Central Company, which is a legal entity established by all the participants in the Treaty on the establishment of the FPG or which is in relation to them by the main society. According to the obligations of the Central FGG company, which arose as a result of participation in its activities, participants carry joint responsibility in the manner prescribed by the contract. The Council of Governors, which includes representatives of all participants, is as the highest management body of the FPG.
The financial and industrial group may include commercial and non-commercial organizations, including foreign, with the exception of public and religious organizations (associations). Participation in more than one financial and industrial group is not allowed. Based on the essence of the financial and industrial group, it is necessary to have it among its participants in organizations working in the production of goods and services, as well as banks and other credit institutions.
The status of the financial and industrial group is purchased as a result of its state registration. Regulation of the creation (including state registration), activities and liquidation of financial and industrial groups are carried out by the Ministry of Economic Development and Trade of the Russian Federation. For registration of FIGs, in particular, it seems: a statement; agreement on the creation of FPG; copies of certificates of registration, constituent documents; the consent of the owner of the property of state or municipal enterprises; Conclusion of the federal antimonopoly authority; organizational project (Package of documents containing the necessary information about the goals and objectives, investment and other projects and programs, alleged results of activities, etc.). The current legislation provides for the permitting procedure for registering FPG. Examination of projects for the creation of FIGs is carried out in terms of feasibility and efficiency. In the case of a positive expert opinion, the FPG is subject to registration and introduction to the state register of financial and industrial groups of the Russian Federation. State support for the activities of the FPG is carried out through the provision of state guarantees to attract various kinds of investments, the transfer to the confidential office of the Central Company temporarily enshrined over the state of the shares of participants and others.
- Types of FPG
- Participants of which are involved as the main and subsidiary society - the FPG of the Holding type;
- Participants of which signed an agreement on the creation of the FIG, combined their property assets and established a central company.
An analysis of law enforcement practice shows that at present, the formation of financial and industrial groups has been disseminated as a combination of legal entities acting under Art. 2 of the Law on FPG as the main and subsidiary society. This indicates the use of the so-called holding design when creating such complexes. The basis of this construction of the FPG is the provisions of Art. 105 Civil Code of the Russian Federation "Subsider and Economic Society" and Art. 6 FZ "" On Joint-Stock Companies "-" Subsidia and Dependent Society ". The essence of these standards is that society is recognized as a subsidiary, if another (main) economic society is due to the prevailing participation in its authorized capital or to concerned with the prisoners between them The contract or otherwise has the ability to determine the decisions taken by such a society. Based on such a definition of the concepts of "basic and subsidiaries", depending on the conditions for the occurrence of this relationship and the procedure for their interaction it is possible to create an FIG in three models.
The first is actually a traditional holding model, when the main (maternal) society has the opportunity through her a pack of shares of subsidiaries, i.e. By virtue of the prevailing participation in their authorized capital, leading the activities of each of them. For a more complete characterization of the use of a holding model when creating an FIG, you should pay attention to the fact that legal organization Holding as a subject of legal relations and the current legislation did not receive a clear consolidation. If you take the provisions of such key for the analyzed question of acts as the Civil Code of the Russian Federation, the FGP Law, "On Joint-Stock Companies", then this concept is not even mentioned. At the same time, in some special acts aimed at regulating relations in some areas, the terms "Holding Company", "Holding" are used.
Formation of FIGs on the technology of building the so-called classic holding is possible using several approaches, the choice of each of which is due to the objectives, objectives and principles of the association of a number of legal entities into complexes for the consolidation of financial, technological and intellectual resources. Based on the provisions of the current legislation, the use of a holding model in constructing financial and industrial groups can be carried out by:
- the creation of a holding owners (holders) of a number of already existing societies with transferring to him (Holding) as the main company of its packages in the part, allowing it to have the prevailing participation in the authorized capital of each subsidiary;
- endowment of the functioning enterprise or the release of its structural units (workshops, branches, industries, etc.) with registration of them as legal entities in the form of AO with the transfer of these entities of the entrepreneurial activities of the prevailing parts of its packages to the main society whose functions in such Cases can carry out a basic (reorganized) company or a specially registered holding company;
- Registration of the company with the status of a legal entity for the subsequent creation on its basis Holding, which acquires the appropriate packages valuable papers, Shares of individual societies, taking into account the property interests of the founders and the emerging market conditions in order to obtain prevailing participation in the authorized capital of these structures and the management of them from the Unified Center.
The central company of the financial and industrial group in cases established by law on FPG, other legislative acts of the Russian Federation, the agreement on the creation of a financial and industrial group:
- He speaks of the participants of the financial and industrial group in relations related to the creation and activities of the financial and industrial group;
- conducts consolidated (consolidated) accounting, reporting and balance of the financial and industrial group;
- prepares an annual report on the activities of the financial and industrial group;
- Performs in the interests of participants in the financial and industrial group, individual banking operations in accordance with the legislation of the Russian Federation on banks and banking activities.
Vertical FIGs are associations in which participating enterprises produce one type of product by participating in its production at different stages.
Horizontal FIGs are groups in which participating enterprises produce production on the same stages or produce the same products.
- Methods and procedure for creating FPG
Search and selection of group members. The creation of FPG is carried out by one or more initiators interested in the presence of such a group. In order to avoid in vain spending of time, forces and funds, initiators should be at a prerequisitive way to study the economic and social feasibility of the presence of an expected FPG, comprehensively consider the concept of its formation and activities. The practice of creating Russian FIGs shows three main ways to find potential member participants:
1st way - open search with wide publicity. Information about the intention to create FPG is published in the media.
2nd way - closed search. Initiators send personal invitations to a predetermined circle of legal entities. The information contained in the invitation can be a commercial secret.
3rd way - a combination of the first two elements. For example, the search for initiative participants is carried out openly, and mandatory - on closed channels.
Preparation of legal documents necessary for education and state registration of the group. First of all, the text of the Treaty of Creating FIGs should be prepared. The contract is not required if the FPG is formed as part of the main and subsidiary societies. The essential conditions of the contract include:
-Name of the financial and industrial group;
-Other and conditions of the establishment of the Central FPG company as a legal entity in a certain organizational and legal form committed to
maintenance of the financial and industrial group;
-Other education, the scope of authority and other conditions of the activities of the Board of Governors of the FPG;
-Opries of making amendments to the FPG participants;
-bill, order and conditions of assets combining;
-thel association of participants;
-contract time;
-Onevian institution of the central company;
State registration of the central company is carried out in the manner prescribed by the civil law of the Russian Federation and the Federal Law "On State Registration of Legal Entities". The Central FPG company is a legal entity established by all participants in the Treaty on the establishment of the FPG or in relation to them the main society and authorized by the law or the contract for the conduct of the financial and industrial group. Registration of the newly established Central Company of the Financial and Industry Group is carried out in the manner established by the Civil Law of the Russian Federation to register legal entities. The central company of the financial and industrial group is usually an investment institution. It is allowed to create a central company of the financial and industrial group in the form economic society, as well as associations, union. The name of the central company of the financial and industrial group after the state registration of the financial and industrial group includes the words "Central Company of the Financial and Industrial Group", as the central company of the financial and industrial group notifies the authority to register it. When developing the Charter of the Central Company, it is advisable to pay attention to the peculiarities of its position in the FPG structure. The charter should determine the subject and main objectives of the central company and comply with the conditions for the Creating Treaty. Therefore, regardless of which organizational and legal form, the central company is established, it, as a legal entity, has special legal capacity, respectively, in the charter it is necessary to list the most complete list civil rights and duties of the central company under the creation agreement. Powers of the Central FRG Company:
he speaks of the name of the FPG participants in relations related to the creation and activities of the FPG; conducts consolidated (consolidated) accounting, reporting and balance of FPG; prepares an annual report on the activities of the FIG;
performs in the interests of participants of the FPG individual banking operations in accordance with the legislation of the Russian Federation on banks and banking activities;
other activities of the Central FPG fp company are established by its charter, the agreement on the creation of a financial and industrial group.
Preparation of the organizational project - a package of documents submitted by the Central FPG Company to the Plenipotentiary State Body and contains the necessary information about the goals and objectives of investment and other projects and programs, alleged economic, social and other results of the Group, as well as other information necessary for making a decision on registration of FIG. Obtaining the conclusion of the federal antimonopal authority.
State registration of financial and industrial groups. The combination of legal entities formed by FIG acquires the status of the FPG of the Group to resolve the authorized state authority on its state registration. The procedure for state registration of FP. For state registration, the Central FPG Company submits to the Plenipotentiary State Body the following documents: Application for the creation of FPG (in the form established by the Government of the Russian Federation) Agreement on the creation of FPG notarized copies of the registration certificate, constituent documents, copies of shareholders registers (for joint-stock companies) from participants, including the Central Company of the Financial and Industrial Group; The organizational project, which is a package of documents submitted by the Central FPG company to the Plenipotentiary State Body and contains the necessary information about the goals and objectives, investment and other projects and programs, the estimated economic, social and other results of the activities of the FPG, as well as other information necessary for adoption Decisions on the registration of the financial and industrial group. Notarized and legalized constituent documents of foreign participants; Conclusion of the federal antimonopoly authority.
- Organization of activities of FPG
The FPG management system is primarily due to the specifics of the organizational and legal form of this species of the production and financial complex, which is related to the preservation of each legal entity as a member of a group of complete legal independence. Based on the legislative concept of building a financial and industrial group, the higher authority of its management recognizes the Council of Governors of FIGs, which is formed by including representatives of all members of the Group.
In the literature, there is a proposal that in determining the competence and distribution of powers between the management bodies of a specific financial and industrial group, a central company is created in which organizational and legal form. For example, if the central company is created in the form of a joint stock company, then the Board of Governors, which includes representatives of all members of the Group, it is recommended to "transfer" the competence of the General Meeting of Shareholders in accordance with the law on JSC. It seems, however, incorrect
etc.................
The state plays a twofold role in the insurance services market. On the one hand, it acts as a participant in the field of compulsory social insurance through the formation of special target reserves to ensure the solvency of insurance organizations, etc.
On the other hand, the state regulates insurance activities through the adoption of regulations on insurance, licensing insurance activities, the development of competition and restrictions on monopolistic activities in the insurance services market, the application of responsibility for violating insurance legislation and others.
One of the most important areas state regulation Insurance activities is state control and supervision in the field of insurance, the functions of which are assigned to the Federal Service for Insurance Supervision (Rosstrokhnadzor), which is carried out under the jurisdiction of the Ministry of Finance of the Russian Federation.
In accordance with the Regulations on Federal Service Insurance supervision approved by the Decree of the Government of the Russian Federation of June 30, 2004 N 330 * (464), this body controls compliance with the subjects of insurance legislation, including through the inspections of their field activities; the accuracy of reporting insurance reports submitted by the subjects; Providing insurers of their financial sustainability and solvency in terms of the formation of insurance reserves, the composition and structure of assets taken to cover insurance reserves, as well as to cover their own funds, reinsurance quotas, the regulatory ratio of their own funds of the insurer and the commitments made.
Rosstrokhnadzor also exercises authority to licensing insurance activities; conducting a single state register of subjects of insurance affairs and the register of associations of subjects of the insurance case; issuing prescriptions to subjects of insurance affairs in identifying violations of insurance legislation; turning to court with a claim for the liquidation of the insurance organization in cases established by law; implementation of calculating the size (quota) of foreign capital participation in the authorized capital of insurance organizations; issuing permits to open off representative offices of foreign insurance organizations, etc.
Separate functions for monitoring the activities of insurance organizations are carried out within their competence, federal antimonopoly and tax authorities.
The main regulatory legal act determining the legal status of financial and industrial groups is the Federal Law of November 30, 1995 N 190-FZ "On Financial and Industrial Groups" * (465) (hereinafter - the law on FIGs). This law establishes the legal framework for the creation, activities and elimination of financial and industrial groups in the Russian Federation. Since financial and industrial groups are one of the types of entrepreneurial associations, the legislation in this field also includes laws defining legal status individual entities of business activities - federal laws "On societies with limited liability"," About joint stock companiesah, "about banks and banking activities", etc.
A large role in regulating the creation and activities of financial and industrial groups is played by the subband regulatory legal acts, which Art. 1 of the Law on FIG are included in the legislation on financial and industrial groups. Some of these acts are fixed general provisions On financial and industrial groups. As an example, we give the decree of the President of the Russian Federation of April 1, 1996 N 443 "On measures to stimulate the creation and activities of financial and industrial groups" * (466), Decree of the Government of the Russian Federation of May 22, 1996 N 621 "On the procedure for maintaining a state registry financial and industrial groups of the Russian Federation "* (467).
Most of the acts adopted in the sector under consideration relate to the creation of specific financial and industrial groups (for example, the Decree of the Government of the Russian Federation of December 7, 1996 N 1446 "On the Financial and Industrial Group" Kamensky Agro-industrial Financial Group ") * (468), their measures state support (Resolution of the Government of the Russian Federation of July 12, 1996 N 792 "On measures of state support for the activities of the financial and industrial group" Russian Aviation Consortium ") * (469).
The features of the functioning of financial and industrial groups of the subjects of the Russian Federation are determined by acts of the respective state bodies. As an example, we give the Resolution of the Moscow Government dated June 14, 1994 N 488, which approved the "Basic principles and approaches in the concept of formation of financial and industrial groups in Moscow" * (470).
Of great importance in the legal mechanism for regulating the activities of financial and industrial groups is given to contracts and local acts. By virtue of paragraph 4 of Art. 1 of the Law on FIG Relations, not resolved by the Indicated Law, other regulatory legal acts of the Russian Federation and the constituent entities of the Russian Federation, are governed by the Treaty on the establishment of a financial and industrial group, other agreements concluded between the participants of the financial and industrial group.
In accordance with Art. 7 of the Law on FPG Agreement on the creation of a financial and industrial group should determine:
Name of the financial and industrial group;
The procedure and conditions of the establishment of the Central Company of the Financial and Industry Group as a legal entity in a certain organizational and legal form committed to the maintenance of the financial and industrial group;
The procedure for education, the amount of authority and other conditions of the Council of the Governing Companies of the Financial and Industry Group;
The procedure for making changes to the participants of the financial and industrial group;
Volume, procedure and conditions of assets combining;
The purpose of the combination of participants;
Contract time.
Other terms of the contract for the creation of a financial and industrial group are established by participants based on the goals and objectives of the financial and industrial group and compliance with the legislation of the Russian Federation. In its legal nature, the agreement on the creation of the FPG refers to joint activities contracts.
In accordance with Art. 2 of the Law on the FPG The financial and industrial group (hereinafter referred to as FIGs) is a set of legal entities acting as the main and subsidiary societies, fully or partially united their material and intangible assets (participation system) on the basis of the Treaty of Creating FPG for the purposes of technological or economic Integration for the implementation of investment and other projects and programs aimed at improving the competitiveness and expansion of markets for the sale of goods and services, improving the efficiency of production, the creation of new jobs.
FPG does not constitute an independent organizational and legal form of legal entities. This is an entrepreneurial association that does not have the status of a legal entity, but possessing individual elements of legal personality * (471). In particular, Art. 4 of the RSFSR law "On competition and restriction of monopolistic activities in the commodity markets" of legal entities that are participants in the FPG, qualifies as a "group of persons", spreading the provisions of the specified law relating to economic entities. By virtue of the provisions of Art. 13 of the Law on FPG Participants can conduct consolidated (consolidated) accounting, reporting and balance of the financial and industrial group. The procedure for conducting consolidated (consolidated) accounting, reporting and balance sheet of the FPG approved by the Decree of the Government of the Russian Federation of January 9, 1997 N 24 "On the procedure for maintaining consolidated (consolidated) accounting, reporting and balance sheet of financial and industrial groups" * (472).
The Law on FPG allocates two models of financial and industrial groups:
1. FIGs, formed on the basis of interaction within the framework of the main and subsidiary societies. By virtue of Art. 105 Civil Code of the Russian Federation The economic company is recognized as a subsidiary, if another (main) business society or a partnership is due to the prevailing participation in its authorized capital, or in accordance with the contract concluded between them, or otherwise it has the ability to determine the decisions taken by such a society. This model Provides for the formation of the FPG of the Holding type * (473).
2. FPG, which is based on the combination of material and intangible assets of participants by force of the contract.
FIGs can be classified for other grounds. So, in the literature * (474) the classification of financial and industrial groups under the following criteria is carried out:
In forms of production integration (vertical, horizontal, conglomerate);
By industry affiliation (sectoral, inter-sectoral);
According to the degree of diversification (monopropyl, multidisciplinary);
On the scale of activity (regional, interregional, transnational, interstate).
Thus, interregional is the financial and industrial group "Housing", created by decision of the executive bodies and organizations of the Republic of Komi, Bryansk, Vladimir, Volgograd, Moscow, Novgorod, Tverskaya, Tula and Yaroslavl regions. FPG is registered as a transnational, if it includes legal entities under the jurisdiction of the CIS member states with separate divisions On the territory of these states or in their territory capital investments.
In the event that FPG is created on the basis of an intergovernmental agreement, it is assigned the status of interstate (international). For example, on the basis of agreements between the Government of the Russian Federation and the Government of the Republic of Belarus, interstate financial and industrial groups "Aerospace Equipment" (Moscow, April 2, 2001), "Forms" (Moscow, October 16, 1998), "InterGroinvest" ( Moscow, October 16, 1998), "Electronic Technologies" (Moscow, August 28, 1998), "Intergosmetiz" (Eagle, July 23, 1998) and others. At the seventh session of the Inter-Parliamentary Assembly of States Parties to the Commonwealth of Independent States adopted Recommendative legislative act "On financial and industrial groups" * (475).
The participants of the FPG recognize legal entities that signed the agreement on the establishment of the FPG, and established by them by the Central Company of FIGs or the main and subsidiaries that form a financial and industrial group. Participants in the financial and industrial team retain their legal independence.
By virtue of the law or the contract, the maintenance of the financial and industrial group is carried out by the Central Company, which is a legal entity established by all the participants in the Treaty on the establishment of the FPG or which is in relation to them by the main society. By virtue of paragraph 2 of Art. 11 of the FPG Law, the Central Company of the Financial and Industry Group, as a rule, is an investment institution. It is allowed to create a central company of the financial and industrial group in the form of a business community, as well as associations, the Union. At the same time, since the Central FPG company is established for entrepreneurial activities, it seems that it should be registered in the form of a commercial organization.
The name of the Central Financial and Industrial Group, the Central Company of the Financial and Industry Group, is included in the name of the central company of the Financial and Industry Group. The Charter of the Central Company of the Financial and Industry Group should determine the object and purpose of its activities and comply with the terms of the Treaty on the establishment of a financial and industrial group. Central Company of the Financial and Industrial Group:
He speaks of the name of the participants of the financial and industrial group in relations related to the creation and activities of the financial and industrial group;
Conducts consolidated (consolidated) accounting, reporting and balance of the financial and industrial group;
Prepares an annual report on the activities of the financial and industrial group;
Performs in the interests of the participants of the financial and industrial group, individual banking operations in accordance with the legislation of the Russian Federation on banks and banking activities.
Other activities of the Central Company of the Financial and Industrial Group on Financial and Industry Affairs are established by its charter, the agreement on the establishment of a financial and industrial group. According to the obligations of the Central FGG company, which arose as a result of participation in its activities, participants carry joint responsibility in the manner prescribed by the contract.
The financial and industrial group may include commercial and non-profit organizations, including foreign ones. Based on the essence of the FIG among its participants, there must be an organization that operate in the production of goods, services, as well as banks and other credit organizations. Thus, the financial and industrial group is essentially an association of financial and industrial capital to achieve the goals set in its creation and the relevant law.
The legislation establishes some limitations and prohibitions to participate in the FIG. Thus, its participants may not be public and religious organizations (associations). It is not allowed to participate in more than one financial and industrial group.
The status of the financial and industrial group is purchased as a result of its state registration. State registration of the FPG is carried out by an authorized federal executive body. For state registration, the Central FPG company presents the following documents:
Application for the creation of FIGs;
Agreement on the creation of FPG, with the exception of groups formed by the main and subsidiaries;
Notarized copies of certificates of registration, constituent documents, copies of shareholders registers (for joint-stock companies) of each of the participants, including the Central FPG Company;
Organizational project, i.e. a package of documents containing the necessary information about the goals and objectives, investment and other projects and programs, the estimated economic, social and other results of the activities of the FPG, as well as additional information necessary for the decision to register FPG;
Conclusion (consent) of the owner of the property of state or municipal unitary enterprises for making them property deposits when entering FPG;
Notarized and legalized constituent documents of foreign participants;
Conclusion of the federal antimonopoly authority;
Intergovernmental agreement (for interstate, international FIGs).
The current legislation provides for the permitting procedure for the creation of the FIG. Relevant industry and functional departments of the Ministry of Economic Development of the Russian Federation, other bodies and specialists are examined by the projects for creating FPG in terms of feasibility and efficiency. The procedure for the examination of projects for the creation of financial and industrial groups submitted to the Government of the Russian Federation approved by the Decree of the Government of the Russian Federation of May 23, 1994 N 508 * (476). It applies to the creation of FIGs, formed only from state federal enterprises, as well as on the basis of intergovernmental agreements.
According to the results of the consideration of the documents of the financial and industrial group, taking into account expert opinions, the Plenipotentiary State Body within a two-month period from the date of submission of documents receives one of the following decisions:
On refusal to register the financial and industrial group;
On the return of documents of the financial and industrial group on refinement;
On registration of the financial and industrial group.
Refusal to register or refund of documents of the financial and industrial group on refinement is accompanied by a written explanation of the reasons. In case of adoption of authority state body An unreasonable solution, as well as in case of violation of the terms of consideration of documents of the financial and industrial group, its actions may be appealed to the court.