Financial and industrial group(FIG) - association industrial enterprises with financial institutions on the basis of the relations of economic and financial interaction established between them. May be in the form of a commercial organization.
This is a collection of economic entities (usually legal entities), either acting as parent and subsidiary companies, or having combined their assets for the purpose of technological or economic integration.
Most important species financial and industrial groups is concern- Consolidation of several commercial and industrial enterprises under a common financial management.
The reasons for the occurrence of FPGs were revealed moreRudolf Hilferding (Austrian and German Marxist, leader of the Social Democracy and political figure Germany), describing the process of the merger of banking and industrial capital, and the formation of financial capital.
Financial and industrial groups (FIGs) can be organized in the form:
- mergers of the main and subsidiary companies;
Aggregates of legal entities that have signed an agreement on the establishment of the appropriate association and the central company established by them.
The requirements for FIGs are:
- over a corporate entity, which includes legally independent subjects;
- availability of a financial component;
- real control of the central entity and the implementation of a unified strategy.
Composition of FIG participants determined by the strategies adopted by it. The latter can be enterprises of any form of ownership, having the organizational and legal form of OJSC, CJSC, LLC, etc., as well as holdings, whose tangible assets are more than 50%. Most of the participants in FIGs in Russia are private enterprises united on the basis of vertical integration of different industry affiliations.
The agreement on the establishment of FIG must contain following conditions:
FIG name;
The procedure and conditions for the establishment of FIG,
The procedure for the formation, scope of powers and other conditions for the activities of the board of governors of FIGs;
The procedure for amending the composition of FIG participants;
The volume, procedure and conditions for the combination of assets;
The purpose of uniting the participants;
Contract time.
FIG participants recognized are legal entities that have signed an agreement on the establishment of a FIG, and the central company of the FIG, or the parent and subsidiary companies that form the FIG.
The conduct of FIG business is carried out by a central company which is entity, established by all parties to the agreement on the creation of FIGs, or is in relation to them the main company. For the obligations of the central company of FIG, arising as a result of participation in its activities, the participants are jointly and severally liable in the manner prescribed by the agreement. As supreme body management of the FIG is the Board of Governors, which includes representatives of all its participants. The competence of the Board of Governors is established by the agreement on the establishment of FIG.
The main functions of the central company of FIG are:
Representation on behalf of the FIG participants in relations related to the creation and activities of FIG;
Maintaining summary (consolidated) accounting, reporting and balance sheet of FIG;
Preparation of an annual report on the activities of FIGs;
Execution in the interests of the participants of FIGs of certain banking operations in accordance with the law on banks and banking activities, etc.
The structure of FIG may include commercial and non-profit organizations, including foreign ones, with the exception of public and religious organizations (associations). Participation in more than one FIG is not allowed. Based on the essence of FIGs, it is imperative that its participants include organizations working in the production of goods and services, as well as banks and other credit organizations.
FIG status is acquired as a result of her state registration... Regulation of its creation (including state registration), activities and liquidation of FIGs is carried out by the Federal Agency for Federal Property Management of the Russian Federation. For registration of FIG, in particular, the following are submitted:
Statement;
Agreement on the establishment of FIG;
Copies of registration certificates, constituent documents;
Consent of the owner of the property of state and municipal unitary enterprises;
Conclusion of the federal antimonopoly body;
Organizational project (a package of documents containing the necessary information about the goals and objectives, investment and other projects and programs, expected results of activities, etc.)
Permissive procedure for registration of FIG. An examination of projects for the creation of FIGs is being carried out in terms of expediency and efficiency. When positive opinion FIG is subject to registration and entry into 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 different kinds investments, transfer to the trust management of the central company of temporarily assigned to the state blocks of shares of participants, etc.
The term "holding" comes from English verb"to hold" - to hold, to have. Therefore, holding companies are often called "holding" organizations, which own shares (shares) in authorized capital other businesses. 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 refer to similar industrial and economic complexes. In the legislation of the Federal Republic of Germany, the characteristic term "related enterprises" is also used to designate such associations.
As part of such a grouping of enterprises, the main enterprise (parent company) has the opportunity, through its block of shares, to manage the activities of subsidiaries. The holding company's assets are almost entirely represented by shares of another legal entity or persons. Control over the activities of the members of the holding is carried out through the mechanisms of corporate (shareholder) powers. As a rule, holding companies are represented in the management of their subsidiaries, most often on the board of directors and the audit committee.
The concepts "holding" and "holding company" are not synonymous, since a holding is a group of legal entities, and a holding company is the main company in relation to the members of the holding. A holding company should be distinguished from an investment one, since the latter invests in the acquisition of shares (stakes) in other companies in order to generate profit, and the holding company - in order to gain control over their activities. The main advantage of the formation of holdings is the distribution of commercial risks, as well as the possibility of selling the business in parts, since the subsidiaries remain independent legal entities.
A financial and industrial group is a collection of legal entities that act as parent companies and subsidiaries, or have combined their tangible and intangible assets in full or in part on the basis of an agreement on the establishment of FIGs for the purpose of technological or economic integration for the implementation of investment and other projects and programs aimed at increasing competitiveness and expanding markets for goods and services, increasing production efficiency, creating new jobs.
It follows from the legal definition of a financial and industrial group that it is not one of the organizational and legal forms of legal entities. The impossibility of granting the status of a legal entity to FIGs is due to the desire to preserve for their participants the legal personality of a legal entity, which ensures the maintenance of entrepreneurial activity... Despite the fact that FIG as a complex entity does not have a set of rights and obligations inherent in a legal entity, certain elements of the legal personality of FIGs in relations regulated by antimonopoly and tax legislation can be noted.
First, group members involved in manufacturing can be recognized as a consolidated group of taxpayers, i.e. a single subject of tax legal relations. Secondly, in Art. 20 of the Tax Code of the Russian Federation contains the concept of "interdependent persons", which, inter alia, can be organizations if one of them participates in authorized capital the other and the total share of such participation is more than 20%. The selection of the category of interdependent persons turned out to be necessary for the tax authorities to exercise control over pricing in transactions between related parties. Application " transfer pricing"between the participants in business associations, it makes it possible to understate the taxable base, which, of course, does not meet the interests of the state. Consequently, the tax authorities control interdependent persons as a single entity.
From the point of view of antitrust law, group members, even if they are formally autonomous (independent) legal entities, are constituent parts of general structure, are managed 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, FIG is recognized as a single economic entity.
According to the forms of industrial and economic integration, there are "vertical", "horizontal" financial and industrial groups and conglomerates. According to statistics in Russia, most of the registered FIGs are distinguished by a vertical type of association (Aerofin and Defensive Style groups). Horizontal integration presupposes the amalgamation of enterprises focused on the production of homogeneous products (groups "Rosstroy", "BelRusAuto"). Conglomerates are considered to be the most stable form of association, which has enterprises in different, unrelated business sectors, in order not to depend on the economic situation in a particular industry (the United Industrial Construction Company group).
According to industry affiliation, it is customary to distinguish industry and intersectoral groups; by the degree of business diversification - single and multidisciplinary; by the scale of activity - regional, interregional and interstate (transnational). Financial and industrial groups are considered transnational if among their members there are legal entities under the jurisdiction of the CIS member states, or having subdivisions on the territory of these states, or carrying out capital construction there. A transnational company established on the basis of an intergovernmental agreement acquires the status of an interstate FIG.
Members of a financial and industrial group can build their relationship in two ways: either as interaction between the parent and subsidiary companies, or as interaction on the basis of full or partial combination of their tangible and intangible assets. In the first case, we are dealing with a de facto holding model, when the main (parent) company has the opportunity through its block of shares (stakes) in subsidiaries, i.e. by virtue of the prevailing participation in their authorized capital, to manage the activities of each of them. We can say that FIG of the first type is an entrepreneurial association based on a "participation system", economic subordination and corporate control. In such an association, the main company performs the functions of the central company through which, in fact, the activities of the group as a whole are carried out.
FIG of the second type is a voluntary contractual entrepreneurial association of independent legal entities. According to statistics, most of the registered (official) FIGs are created precisely according to the type of associations on the basis of an agreement; they are sometimes referred to as "soft non-holding corporations" or "contractual holdings". A financial and industrial group of this type is created by the conclusion by the group members of an agreement on the creation of a FIG, in accordance with which a central company is established. That is, the central company, in fact, is a subsidiary or dependent company in relation to all members of the FIG. By its legal nature, an agreement on the creation of a FIG is a kind of a simple partnership agreement (Art. 1041-1054 of the Civil Code of the Russian Federation).
The current legislation provides for a number of restrictions on participation in a financial and industrial group. Thus, state and municipal unitary enterprises can be part of FIGs on terms determined by the owner of the property. A financial and industrial group assumes the consolidation of tangible and intangible assets, but a unitary enterprise, not having ownership of the property assigned to it, 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 the total participants of all registered FIGs are enterprises of the public sector of the economy.
Subsidiaries can be members of a financial and industrial group only together with their parent company. Decisions, actions, transactions of subsidiaries can be quite rigidly predetermined by the main (parent) companies. Therefore, a situation is not excluded in which a subsidiary will have to choose between mandatory for it, but contradicting each other, decisions of the governing bodies of FIG and the main (parent) company. Thus, this limitation is due to the desire to ensure proper controllability in the execution of decisions in the FIG system by its participants.
The legislation prohibits a legal entity from participating in more than one financial and industrial group. This restriction prevents monopolization of the market, since groups with the same composition of participants do not create conditions for free competition... However, it is obvious that members of FIGs have the right to be part of other types of associations, for example, banking groups.
Public and religious associations cannot be members of financial and industrial groups, since the goals of the activities of these organizations (taking into account restrictions on entrepreneurship) do not imply the possibility of their participation in industrial and financial complexes.
Regardless of the type of organization of a financial and industrial group (holding or contractual association), obligatory and proactive (optional) participants are distinguished in its composition. Obligatory participants in the financial and industrial group are enterprises operating in the field of production, as well as banks and credit institutions... Industrial enterprises are assigned the functions of manufacturing and producing commercial products or providing services; banks or credit organizations are assigned the role of investment structures.
As 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
economics and law in Bratsk
Department of Jurisprudence
COURSE WORK
In the discipline "Business Law"
LEGAL STATUS OF FINANCIAL AND INDUSTRIAL GROUPS
Completed:
Student
Yuruv-09PO groups _____________________ M.O. Illarionova
Checked:
Teacher
Candidate of Law, Associate Professor _________________________ T.I. Afanasyeva
Bratsk 2011
INTRODUCTION ………………………………………………………………………… ..3
1 CONCEPT AND FEATURES OF FINANCIAL AND INDUSTRIAL GROUPS ... ... 7
2 LEGAL STATUS OF FINANCIAL AND INDUSTRIAL GROUPS .. ... 9
3 CLASSIFICATION AND SPECIES
FINANCIAL AND INDUSTRIAL GROUPS …………………………………… .16
4 PROCEDURE FOR REGISTRATION AND ORGANIZATION OF FIG's ACTIVITIES ... ..21
CONCLUSION…………………………………………………. ………………… ..27
LIST OF USED LITERATURE…. ………. …………………… .30
INTRODUCTION
The emergence of financial and industrial groups (hereinafter - FIG) in Russia is associated with the emergence of The decree President of the Russian Federation of December 5, 1993 N 2096 "On the creation of financial and industrial groups in the Russian Federation" and approved by him The provisions about financial and industrial groups and the procedure for their creation. In the same year, the first financial industrial group "Uralskie Zavody" was registered.
In accordance with Regulations as financial and industrial groups were considered groups of enterprises, organizations, financial and credit institutions and investment institutions, the capitals of which are combined in the organizational and legal forms and amounts determined by this normative act.
Integration processes solve very important issues: from the survival of individual organizations to sectoral structures before the formation of intersectoral economic complexes.
A financial and industrial group is one of the forms of organizing industrial and economic complexes.
A financial and industrial group (FIG) is a form of coexistence of business entities. This legal and economic "symbiosis" is due to a number of reasons, primarily the need to expand and maintain cooperation between enterprises, and the development of economic ties. At the same time, a financial and industrial group (FIG) is not just a production and technological complex, but primarily an investment and financial institution or an association of technological and economically related production, trade and financial enterprises.
In 1997, there were already 47 FIGs, which included 500 enterprises and organizations with more than 3 million employees. These FIGs accounted for more than 10% of Russia's GNP. Statistics show a steady degree of development of financial and industrial groups: as of November 1, 2001, 86 FIGs were registered, including 15 transnational (including 10 interstate ones), while their total number in 2003 increased by an average of 104 associations.
In history, modern "financial and industrial groups" are represented by their prototypes - associations of large trade and financial companies. Therefore, at the initial stage of development, financial and industrial groups were defined as a "synthesis" of material resources with production and consumer instruments. In many ways, the "echoes" of history show the modern understanding of such forms of associations of legal entities.
In the post-Soviet economic space, the term "financial and industrial group" is used in several interrelated, but not entirely identical, meanings. Most often, they designate any form of relatively stable interpenetration of industrial and financial capital.
On the background existing concept financial and industrial groups, there is a certain "blurring" of their definition in comparison with other corporate associations. Common signs, incorporated in the concept of corporate structures, are easily "found" in existing forms of associations, which sometimes does not allow to clearly establish the essence of a particular legal formation.
According to a number of authors, such an ambiguous understanding of the status of FIGs is the result of the sectoral division of Russian law that arose back in soviet period development of our state. At present, for example, O.A. Belyaeva characterizes financial and industrial groups using the terminology of antimonopoly legislation as a "group of persons" and "an economic entity".
At the present time, from a theoretical and practical point of view, the issue associated with the legal analysis of associations of commercial organizations in the form of financial and industrial groups is acquiring relevance. The vagueness of legislative formulations leads to a fairly broad interpretation of the concept of "financial-industrial group" in legal science.
The purpose of this work is to analyze the concept and legislative regulation of FIG activities, ways of implementing in practice the norms and principles of Russian law enshrined in the Civil Code of the Russian Federation, which greatly facilitates the study of special industry legal disciplines.
The above goal is realized through the following main research objectives:
- study of the theory of the issue, taking into account recent advances scientific progress;
- analysis of the development of individual norms of law relating to the creation and operation of certain types of FIGs;
- analysis of existing problems in this area of law at the present stage.
Among the dominant research methods used by the author in the process of studying the subject, the method of historical and legal analysis, systematic and structural analysis, as well as the method of interpreting legal norms were used.
The object of the study of this course work is the very concept of a financial and industrial group, distinctive features existing types and methods of their creation. The subject is the rules of law governing the creation of FIGs.
This topic has found a fairly wide coverage in the works of leading theorists and practitioners in the field of business law. Among the most famous scientific works of Russian scientists, the author of this study thinks it necessary to highlight scientific works Doctor of Law, Professor Sergeev A.P., Doctor of Law, Professor, Tolstoy Yu.K., Doctor of Law, Professor Sadikov O.N., Doctor of Economic Sciences Baranenkov V.V. and others, on whose work the author relies 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 regularity of the emergence and development of powerful financial and industrial associations. In industrial developed countries This integration is almost complete, a few (in comparison with other business structures) transnational companies (TNCs), financial and industrial groups (FIGs), as well as other financial and industrial associations have been created and are successfully operating in the domestic and foreign markets. So, as a result of the union of banking and industrial capital of the United States, large financial associations were created in the form of family groups (Morgan, Rockefeller, Mellon, etc.). The practice of merging the largest concerns and banks in Germany is interesting (for example, the financial groups Deutsche Bank, Dresdner Bank, and Commerz Bank). Large financial associations operate in France and other European countries. In France, it is the powerful oil group Company Francaise de Petrol, the Elf-Akiten oil company, in the automotive industry - the private Peugeot and the state-owned Renault.
A controversial opinion has been expressed in the literature that FIG as a form of business association is a product of domestic economic and legal thought 1. Scientists-economists, on the contrary, cite examples from the world experience of creating FIGs. 2
In Japan, there are two levels of grouping: kige shudan (shudans) and kige guruppu (or keiretsu). Their main difference lies primarily in the nature of the activities of financial and industrial associations and the system of ties. Syudans are universal intersectoral complexes uniting around the respective bank and trading company. Ties between syudan participants are strengthened by a cross-shareholding system, cross-directorate, etc. Among the first level, it is necessary, first of all, to name such financial and industrial associations of Japan as Mitsui, Mitsubishi, Sumitomo, Fue (Yasuda).
Kige guruppu (keiretsu) are associations of a predominantly vertical type. In the keiretsu structure between the parent (parent) company and the enterprises that are part of the association, there are various types of ties, the basis of which is the production profile of the parent company.
In modern Russia, the process of formation of financial and industrial associations, including FIGs, is in its infancy. We can talk about the creation in the Russian Federation of the largest holdings, FIGs and alliances of commercial banks. For example, the oil and gas conglomerate includes the National Reserve Bank, Gazprombank, KB Imperial, RAO Gazprom, oil company LUKOIL, foreign trade association Gazexport, etc.
According to the estimates of the president of the Association of Financial and Industrial Groups of Russia, O.N. Soskovets, at present more than 80 groups have received the official status of FIG. They included on a voluntary basis 1000 industrial enterprises and organizations, more than 80 financial and credit institutions. The total number of people employed is approaching 4 million. The groups ensured an increase in production by 3.5%, the volume of products sold - by 5%, exports - by 10%, investments - by 6%. This is the statistics, but behind it lies the positive dynamics of the development of financial and industrial groups in Russia. 3
Concentration and centralization of bank capital is also taking place in the banking market. The rapid growth of the group of banks with strong positions is observed in Moscow. This situation will continue. So, historically London is the most important financial center.
The growth of capital of Moscow banks led to the expansion of their sphere of interests both within Russia and abroad. For example, KB "Russian Credit" has subsidiary banks in Kyrgyzstan, Turkmenistan, Georgia, Azerbaijan. In the foreseeable future, the formation of financial associations in Russia may end in the form of family groups. Until the moment is right for this completion.
The literature (mainly economic) notes the positive experience of the formation and development of FIGs in South Korea. In particular, at the stage of the formation of a market economy, South Korea rigidly closed its market, creating large structures with the help of which it won a place in the foreign market. As for Russia, here, on the contrary, there is an unjustified openness of the domestic economy to foreign suppliers (manufacturers).
In addition, the authoritarian style of leadership used in South Korea, state patronage, and the system of state benefits are close and understandable to the Russian economy and political establishment. The characteristic features of the eastern management model are more consistent not only with the nature of our society, but also with the Russian mentality. 4
Work description
The purpose of this work is to analyze the concept and legislative regulation of FIG activities, ways of implementing in practice the norms and principles of Russian law enshrined in the Civil Code of the Russian Federation, which greatly facilitates the study of special industry legal disciplines.
The above goal is realized through the following main research objectives:
study of the theory of the issue, taking into account the latest achievements of scientific progress;
analysis of the development of individual norms of law relating to the creation and operation of certain types of FIGs;
analysis of existing problems in this area of law 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 SPECIES
FINANCIAL AND INDUSTRIAL GROUPS …………………………………… .16
4 PROCEDURE FOR REGISTRATION AND ORGANIZATION OF FIG's ACTIVITIES ... ..21
CONCLUSION ………………………………………………. ………………… ..27
LIST OF USED LITERATURE…. ………. …………………… .30
Federal Agency for Education
Don State Technical University
Department of Economics
COURSE WORK
on the topic:
FINANCIAL AND INDUSTRIAL GROUPS: PROBLEMS OF FORMATION AND DEVELOPMENT
Execute l:
group student
HELL. Boychenko
Supervisor:
Candidate of Economic Sciences, 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 FIGs ……………………………………. ………………… ………. ……… ..8
1.4. Methods and procedure for the creation of FIG ...………………………………… .. …… ..... 10
1.5. Organization of FIG activities ……………………………………… ..… ...… ..12
1.6. The history of creation and development problems, the dynamics of FIG ... ... ... ... ... ... ... ... ... 17
2. Analysis of FIGs on the example of JSC Central Company of East Siberian
FIG "………………………………………………………………… .... …………. ……… ..21
2.1. a brief description of firms …… ………………………………………. …… .21
2.2. Principles, methods and objectives of the company ………………………………………………………………………………………………………………………………… 21
2.3. Consolidation of enterprises ……… ……………………………………… ..… ... ... ... ... 23
Conclusion ……………………………………………………………………………… .. …… 28
List of materials used …………………………………… ... …………… ........ 31
Introduction
The transformations that have taken place in the Russian economy require close attention of legal scholars to new phenomena of economic and legal reality. This is especially true for civil institutions serving business relations.
In the context of global changes in the civil law of the Russian Federation and the emergence of truly private law, a sphere has opened up for regulating relations between citizens and legal entities on the basis of generally recognized private law principles in the world: independence and autonomy of the individual, recognition and protection of private property, freedom of contract.
For the formation and development of private law in these conditions, it is necessary to conduct research and development that determines and justifies measures to create a legislative basis for private law relations in Russia, the formation and implementation of private law ideas and ideas, and the training 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. 20th century, is a financial and industrial group (hereinafter - FIG).
FIGs were conceived as a means of stabilizing the Russian economy, which was in deep structural crisis, which was aggravated by the destruction of the economic ties that existed under the planned economy, the lack of a mature market infrastructure, the loss by Russian producers of a significant part of the domestic market, a sharp reduction in effective demand, inflation, the insufficiently rapid formation of effective financial and credit institutions, and the aggravation of the problem of mutual indebtedness of enterprises. At the same time, despite the demand, effective legislation on FIGs has not yet been created.
The decree of the President of the Russian Federation, dedicated to FIG issues, and then the corresponding Federal Law (hereinafter referred to as the Law on FIG), despite certain positive aspects, which can be attributed, first of all, the very fact that the legislator's attention was drawn to the sphere of large business, did not create a well-thought-out and balanced legal regulation of FIG. Most norms Russian Law about FIGs are declarative in nature, the norms of a special law have not been developed in the Customs Code of the Russian Federation and the Tax Code of the Russian Federation.
Unfortunately, arbitrage practice, which in most cases makes it possible to neutralize legislative negligence, in relation to the issues of the creation and functioning of FIGs is completely absent. We have not found a single case that reached the Presidium of the Supreme Arbitration Court of the Russian Federation, in which the issue of the organizational structure of the FIG or the responsibility of the central company of the FIG and its other participants would have been the subject of a litigation. This, among other things, indicates that the processes of creating FIGs in Russia are not intensive, and the relevant legislation is recognized by the participants in the turnover to be insufficiently effective.
The purpose of this work is to study the legal regulation of public relations arising in connection with the creation and activities of an association of entrepreneurs in the form of FIG.
This goal determined the tasks of this work:
- to identify the definition of FIG, based on the norms of the current legislation and the theory of civil law;
- to explore ways of creating FIGs - vertical (holding) and horizontal (contractual);
- to determine the legal status of the central company of FIGs in FIGs of holding and contractual types.
Despite the topicality and sufficient complexity of legal issues related to FIGs, for some reason they do not attract special attention of modern civil scientists. The available legal research devoted to FIGs was carried out either in the genre of a commentary on the Law on FIGs or in the form of articles in periodicals, which formed the theoretical basis of the work. Scientific research FIGs at the monographic level in Russia are still absent.
Chapter 1. LEGAL STATUS OF FINANCIAL AND INDUSTRIAL GROUPS
- The concept and signs of PPG
It is emphasized that such a set of legal entities can build their interaction
1) either as interaction between the parent and subsidiaries,
2) either as interaction on the terms of full or partial combination of their tangible and intangible assets.
The first type of FIG is essentially a holding company, which becomes the basis for the creation of a financial and industrial group. Participants in FIGs of the first type are the parent (main) and subsidiaries, respectively; of the second type - legal entities that signed an agreement on the establishment of FIG and the central company established by them.
According to statistical data, almost all official Russian FIGs were created through the signing of an agreement on the creation of FIGs and the establishment of a central company. Only in every seventh official FIG do large industrial companies have significant stakes in other participants. Thus, at present, financial and industrial groups are widespread in the form of so-called "soft" non-holding corporations, which are treated in the literature, in contrast to FIGs of the holding type, based on the mechanisms of joint-stock ownership as a means of friendly integration.
It should be noted that the overwhelming majority of the provisions of the Law on FIGs are devoted to this particular type of financial and industrial groups. A financial and industrial group of this type is created by the conclusion by the group members of an agreement on the creation of a FIG (simple partnership), in accordance with which a central company is established, that is, the central company is essentially a subsidiary or dependent company in relation to other members of the FIG. According to the Law, a central company can be created in the form of an associative association of participants. The central company acts in accordance with its charter, as well as the terms of the simple partnership agreement.
The law establishes the obligatory participation in FIGs of organizations operating in the production of goods and services, as well as banks or other credit organizations: investment institutions, non-state pension and other funds, insurance organizations, whose participation is due to their role in ensuring the investment process in a financial and industrial group ... According to experts, the share of investments of financial institutions in the consolidated assets of FIG by the end of 1999 averaged 10%.
Members of a financial and industrial group may include not only commercial, but also non-commercial organizations, with the exception of religious and public organizations, since this is incompatible with their legal status.
According to the Law on FIGs, financial and industrial groups are transnational if among their members there are legal entities under the jurisdiction of the CIS member states or having subdivisions on the territory of these states, or carrying out capital construction there. A transnational company established on the basis of an intergovernmental agreement receives the status of an interstate FIG.
There is also a classification of financial and industrial groups according to the following criteria:
- by forms of industrial integration (vertical, horizontal, conglomerate);
- by industry affiliation (industry, intersectoral);
- by the degree of diversification (single-profile, multi-profile);
- by the scale of activity (regional, interregional, transnational, interstate).
As follows from the above, transnational and interstate financial and industrial groups can be distinguished both by the criterion of the nationality of the participants, and by the scale (region) of FIG activities.
- Legal status of FIG
Members of a FIG are legal entities that have signed an agreement on the establishment of a FIG, and the central company of the FIG, or the main and subsidiary companies that form a financial and industrial group, established by them. By virtue of a law or an agreement, the business of a financial and industrial group is carried out by a central company, which is a legal entity established by all parties to the agreement on the establishment of a FIG or is the parent company in relation to them. For the obligations of the central company of FIG, arising as a result of participation in its activities, the participants are jointly and severally liable in the manner prescribed by the agreement. The board of governors, which includes representatives of all its participants, acts as the highest governing body of the FIG.
A financial and industrial group may include commercial and non-commercial organizations, including foreign ones, 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 imperative that its members include organizations working in the production of goods and services, as well as banks and other credit organizations.
The status of a financial and industrial group is acquired as a result of its state registration. The regulation of the creation (including state registration), activities and liquidation of financial and industrial groups is carried out by the Ministry of Economic Development and Trade of the Russian Federation. For the registration of FIG, in particular, the following is submitted: an application; an agreement on the creation of a FIG; copies of registration certificates, constituent documents; the consent of the owner of the property of state or municipal enterprises; the conclusion of the federal antimonopoly body; organizational project(a package of documents containing the necessary information about the goals and objectives, investment and other projects and programs, expected results of activities, etc.). The current legislation provides for a permitting procedure for the registration of FIG. An examination of projects for the creation of FIGs is being carried out in terms of expediency and efficiency. In case of a positive expert opinion, the FIG is subject to registration and entry into the State Register of Financial and Industrial Groups of the Russian Federation. State support for the activities of FIGs is carried out through the provision of state guarantees for attracting various types of investments, transferring to the trust management of the central company of the participants' blocks of shares temporarily assigned to the state, etc.
- Types of FIGs
- the participants of which participate as the main and subsidiary companies - financial and industrial groups of the holding type;
- the participants of which signed an agreement on the creation of FIG, combined their property assets and established a central company.
An analysis of law enforcement practice shows that the formation of financial and industrial groups as a set of legal entities operating in accordance with Art. 2 of the Law on FIGs as parent companies and subsidiaries. This testifies to the use of the so-called holding structure in the creation of such complexes. The basis of this construction of FIGs is the provisions of Art. 105 of the Civil Code of the Russian Federation "Subsidiary and Economic Society" and Art. 6 of the Federal Law "On Joint Stock Companies" - "Subsidiaries and Dependent Companies." based on such a definition of the concept of "main and subsidiary companies", depending on the conditions for the emergence of this ratio and the order of their interaction, it is possible to create a FIG according to three models.
The first one is actually a traditional holding model, when the main (parent) company has the opportunity through its block of shares in subsidiaries, i.e. by virtue of the prevailing participation in their authorized capital, to manage the activities of each of them. For a more complete description of the use of the holding model when creating FIGs, one should pay attention to the fact that legal organization holding as a subject of legal relations and the current legislation has not received a clear statement. If we take the provisions of such key acts for the analyzed issue as the Civil Code of the Russian Federation, the Law on FGP, "On Joint Stock Companies", then they do not even mention this concept. At the same time, in some special acts aimed at regulating relations in some areas, the terms "holding company", "holding" are used.
The formation of FIGs using the technology of building a so-called classical holding is possible using several approaches, the choice of each of which is determined by the goals, objectives and principles of combining 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 the holding model when building financial and industrial groups can be carried out by:
- the creation of a holding by the owners (holders) of shares of a number of already operating companies with the transfer to it (the holding) as the main company of its stakes in the part allowing it to have a predominant participation in the authorized capital of each subsidiary;
- allotment of a functioning enterprise or separation from it through the isolation of its structural divisions (workshops, branches, production facilities, etc.) with their registration as legal entities in the form of JSCs with the transfer by these business entities of the predominant parts of their packages to the main company, whose functions in such cases can be carried out by the base (reorganized) enterprise or a specially registered holding company;
- registration of a company with the status of a legal entity for the subsequent creation of a holding company on its basis, which acquires the corresponding packages valuable papers, the shares of individual companies, taking into account the property interests of the founders and the emerging market situation in order to obtain a predominant participation in the authorized capital of these structures and manage them from a single center.
The central company of a financial and industrial group in the cases established by the Law on FIG, other legislative acts of the Russian Federation, an agreement on the creation of a financial and industrial group:
- acts on behalf of the members of the financial and industrial group in relations related to the creation and activities of the financial and industrial group;
- maintains summary (consolidated) accounting, reporting and balance sheet of the financial and industrial group;
- prepares an annual report on the activities of the financial and industrial group;
- performs certain banking operations in the interests of the members of the financial and industrial group 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, participating in its production at different stages.
Horizontal FIGs are groups in which participating enterprises carry out production at the same stages or produce the same products.
- Methods and procedure for creating FIG
Search and selection of group members. The creation of FIGs is carried out by one or several initiators interested in the presence of such a group. In order to avoid wasting time, effort and money, the initiators should first carefully study the economic and social feasibility of the expected FIG, comprehensively think over the concept of its formation and activities. The practice of creating Russian FIGs shows three main ways to find potential group members:
The first method is an open search with wide publicity. Information about the intention to create a FIG will be published in the mass media.
The second way is a closed search. The initiators send personal invitations to a predetermined circle of legal entities. The information contained in the invitation may constitute a commercial secret.
The third way is a combination of the first two elements. For example, the search for initiative participants is carried out openly, and mandatory ones - through closed channels.
Preparation of legal documents required for the formation and state registration of the group. First of all, it is necessary to prepare the text of the agreement on the creation of FIG. An agreement is not required if the FIG is formed as a part of the parent and subsidiary companies. The essential terms of the agreement include:
- the name of the financial and industrial group;
- the procedure and conditions for the establishment of the central company of the FIG as a legal entity in a certain organizational and legal form, authorized to
business management of a financial and industrial group;
-the order of formation, the scope of powers and other conditions for the activities of the board of governing FIGs;
-the procedure for making changes to the composition of the FIG participants;
-volume, procedure and conditions for the pooling of assets;
- the goal of uniting the participants;
-contract time;
-the procedure for establishing a central company;
State registration of the central company is carried out in the manner prescribed by the civil legislation of the Russian Federation and the Federal Law "On State Registration of Legal Entities". The central company of a financial industrial group is a legal entity established by all parties to the agreement on the establishment of a financial industrial group or is a parent company in relation to them and authorized by law or an agreement to manage the affairs of a financial and industrial group. The registration of a newly established central company of a financial and industrial group is carried out in accordance with the procedure established by the civil legislation of the Russian Federation for the registration of legal entities. The central company of a financial and industrial group, as a rule, is an investment institution. It is allowed to create a central company of a financial and industrial group in the form business society, as well as associations, unions. 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", about which the central company of the financial and industrial group notifies the body that carried out its registration. When developing the charter of a central company, it is advisable to pay attention to the peculiarities of its position in the structure of FIG. The charter must define the subject and main objectives of the central company and comply with the terms of the agreement on establishment. Consequently, regardless of the organizational and legal form in which the central company is established, it, as a legal entity, has special legal capacity; accordingly, the most complete list must be listed in the charter civil rights and the responsibilities of the central company under the establishment agreement. Powers of the Central Company of FIG:
acts on behalf of the FIG participants in relations related to the creation and activities of FIG; maintains summary (consolidated) accounting, reporting and balance sheet of FIGs; prepares an annual report on the activities of FIGs;
performs certain banking operations in the interests of FIG members in accordance with the legislation of the Russian Federation on banks and banking activities;
other types of activities of the central company of FIGs for the management of FIGs are established by its charter, an agreement on the creation of a financial and industrial group.
Preparation of an organizational project - a package of documents submitted by the central company of the FIG to the authorized state body and containing the necessary information about the goals and objectives of investment and other projects and programs, the expected economic, social and other results of the group's activities, as well as other information necessary for making a decision on registration of FIG. Obtaining the opinion of the Federal Antimonopoly Body.
State registration of financial and industrial groups. The aggregate of legal entities that form a FIG, acquires the status of a FIG group by the decision of the authorized state body on its state registration. The procedure for state registration of FP. For state registration, the central company of a FIG shall submit the following documents to the authorized state body: an application for the creation of a FIG (in the form established by the Government of the Russian Federation) an agreement on the establishment of a FIG; notarized copies of the registration certificate, constituent documents, copies of shareholder registers (for joint stock companies) of each of the participants, including the central company of the financial and industrial group; organizational project, which is a package of documents submitted by the central company of the FIG to the authorized state body and containing the necessary information about the goals and objectives, investment and other projects and programs, the expected economic, social and other results of FIG's activities, as well as other information required for adoption decisions on registration of a financial and industrial group. Notarized and legalized constituent documents of foreign participants; the conclusion of the federal antimonopoly body.
- Organization of FIG activities
The management system of FIGs is primarily due to the specifics of the organizational and legal form of this type of production and financial complex, which is associated with the preservation of full legal independence for each legal entity as a member of the group. Based on the legislative concept of building a financial and industrial group, the executive board of FIGs, which is formed by including representatives of all members of the group, is recognized as the supreme governing body of its management.
In the literature, there is a proposal that when defining the competence and distributing powers between the governing bodies of a particular financial and industrial group, one should take into account in what organizational and legal form the central company is created. For example, if the central company is created in the form of a joint stock company, it is recommended that the board of governors, which includes representatives of all members of the group, “transfer” the competence of the general meeting of shareholders in accordance with the JSC Law. It seems, however, incorrect in
etc.................
The state plays a double role in the insurance market. On the one hand, it acts as its 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 by adopting regulations on insurance, licensing insurance activities, developing competition and limiting monopolistic activities in the insurance market, applying liability for violation of insurance legislation, etc.
One of the most important directions state regulation insurance activity is state control and supervision in the field of insurance, the functions of which are entrusted to the Federal Service for Insurance Supervision (Rosstrakhnadzor), which is 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 Government of the Russian Federation of June 30, 2004 N 330 * (464), this body monitors the observance of insurance legislation by insurance business entities, including by conducting inspections of their activities in the field; the reliability of the reports submitted by the subjects of the insurance business; ensuring by insurers their financial stability and solvency in terms of the formation of insurance reserves, the composition and structure of assets accepted to cover insurance reserves, as well as to cover their own funds, quotas for reinsurance, the normative ratio of the insurer's own funds and assumed obligations.
Rosstrakhnadzor also exercises the authority to license insurance activities; maintaining a unified state register of insurance business entities and a register of associations of insurance business entities; issuance of instructions to the subjects of insurance business in case of revealing violations of insurance legislation by them; going to court with a claim to liquidate an insurance organization in cases established by law; calculation of the size (quota) of foreign capital participation in the authorized capital of insurance organizations; issuance of permits for the opening of representative offices of foreign insurance organizations, etc.
Certain functions of control over the activities of insurance organizations are carried out within the limits of their competence by the federal antimonopoly and tax authorities.
The main regulatory legal act that determines 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 referred to as the Law on FIGs). This Law establishes the legal basis for the creation, operation and liquidation of financial and industrial groups in the Russian Federation. Since financial and industrial groups are one of the types of business associations, the legislation in this area also includes laws that determine legal status individual subjects of entrepreneurial activity - federal laws"On societies with limited liability", "About joint stock companies ah "," On Banks and Banking Activities ", etc.
An important role in regulating the creation and activities of financial and industrial groups is played by by-laws, which are Art. 1 of the Law on FIGs are included in the legislation on financial and industrial groups. Some of these acts reinforce general provisions about financial and industrial groups. As an example, we will cite the Decree of the President of the Russian Federation of April 1, 1996 N 443 "On measures to stimulate the creation and operation of financial and industrial groups" * (466), Resolution of the Government of the Russian Federation of May 22, 1996 N 621 "On the procedure for maintaining the state register financial and industrial groups of the Russian Federation "* (467).
Most of the acts adopted in the area 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" Kamensk agro-industrial financial group ") * (468), their measures state support(Decree 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 peculiarities of the functioning of financial and industrial groups of the constituent entities of the Russian Federation are determined by acts of the relevant state bodies. As an example, we will give the decree of the Government of Moscow of June 14, 1994 N 488, which approved the "Basic principles and approaches in the concept of the 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 are contracts and local acts. By virtue of paragraph 4 of Art. 1 of the Law on FIGs, relations not regulated by the said Law, other regulatory legal acts of the Russian Federation and the constituent entities of the Russian Federation are governed by an agreement on the creation of a financial and industrial group, other agreements concluded between members of a financial and industrial group.
In accordance with Art. 7 of the Law on FIGs, an agreement on the creation of a financial and industrial group must determine:
The name of the financial and industrial group;
The procedure and conditions for the establishment of the central company of the financial and industrial group as a legal entity in a certain organizational and legal form, authorized to conduct the affairs of the financial and industrial group;
The procedure for the formation, scope of powers and other conditions for the activities of the Board of Governors of the financial and industrial group;
The procedure for amending the membership of the financial and industrial group;
The volume, procedure and conditions for the combination of assets;
The purpose of uniting the participants;
Contract time.
Other conditions of the agreement on the creation of a financial and industrial group are established by the participants based on the goals and objectives of the financial and industrial group and compliance with the legislation of the Russian Federation. By its legal nature, the agreement on the creation of FIGs refers to agreements on joint activities.
In accordance with Art. 2 of the Law on FIG, a financial and industrial group (hereinafter - FIG) is a set of legal entities acting as a parent and subsidiary companies that have combined their tangible and intangible assets (participation system) in full or in part on the basis of an agreement on the creation of a FIG for the purpose of technological or economic integration for the implementation of investment and other projects and programs aimed at increasing competitiveness and expanding markets for goods and services, increasing production efficiency, creating new jobs.
FIG is not 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 has separate elements of legal personality * (471). In particular, Art. 4 of the Law of the RSFSR "On Competition and Restriction of Monopolistic Activity in Commodity Markets" qualifies legal entities that are members of FIGs as a "group of persons", extending to it the provisions of the said Law relating to economic entities. By virtue of the provisions of Art. 13 of the Law on FIGs, participants can maintain summary (consolidated) accounting, reporting and balance sheet of a financial and industrial group. The procedure for maintaining consolidated (consolidated) accounting, reporting and balance sheet of FIGs was approved by 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 FIGs identifies two models of financial and industrial groups:
1. FIG, formed on the basis of interaction within the framework of the parent and subsidiary companies. By virtue of Art. 105 of the Civil Code of the Russian Federation, a business company is recognized as a subsidiary if another (main) business company or partnership, due to the prevailing participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise has the ability to determine the decisions made by such a company. This model provides for the formation of FIG of the holding type * (473).
2. FIG, created on the basis of combining tangible and intangible assets of the participants by virtue of the agreement.
FIGs can be classified for other reasons. So, in the literature * (474) the classification of financial and industrial groups is carried out according to the following criteria:
By forms of industrial integration (vertical, horizontal, conglomerate);
By industry affiliation (industry, cross-industry);
By the degree of diversification (single-profile, multi-profile);
By the scale of activity (regional, interregional, transnational, interstate).
So, the interregional is the financial and industrial group "Zhilische", created by the decision of the executive authorities and organizations of the Komi Republic, Bryansk, Vladimir, Volgograd, Moscow, Novgorod, Tver, Tula and Yaroslavl regions. A FIG is registered as transnational if it includes legal entities under the jurisdiction of the CIS member states that have separate subdivisions on the territory of these states or making capital investments on their territory.
In the event that a FIG is created on the basis of an intergovernmental agreement, it is assigned the status of an interstate (international). For example, on the basis of the Agreements between the Government of the Russian Federation and the Government of the Republic of Belarus, the interstate financial and industrial groups Aerospace Equipment (Moscow, April 2, 2001), Formash (Moscow, October 16, 1998), Interagroinvest ( Moscow, October 16, 1998), "Electronic Technologies" (Moscow, August 28, 1998), "Mezhgosmetiz" (Orel, July 23, 1998) and others. advisory legislative act"About financial and industrial groups" * (475).
Members of a FIG are legal entities that have signed an agreement on the establishment of a FIG, and the central company of the FIG, or the main and subsidiary companies that form a financial and industrial group, established by them. The members of the financial and industrial group retain their legal independence.
By virtue of a law or an agreement, the business of a financial and industrial group is carried out by a central company, which is a legal entity established by all parties to the agreement on the establishment of a FIG or is the parent company in relation to them. By virtue of paragraph 2 of Art. 11 of the Law on FIG, the central company of a financial and industrial group, as a rule, is an investment institution. It is allowed to create a central company of a financial and industrial group in the form of a business society, as well as an association, a union. At the same time, since the central company of FIGs is established to conduct entrepreneurial activities, it seems that it should be registered in the form of a commercial organization.
After the state registration of the financial and industrial group, the words "central company of the financial and industrial group" shall be included in the name of the central company of a financial and industrial group. The charter of the central company of a financial and industrial group must determine the subject and purpose of its activities and comply with the terms of the agreement on the creation of a financial and industrial group. Central company of the financial and industrial group:
Acts on behalf of the members of the financial and industrial group in relations related to the creation and activities of the financial and industrial group;
Keeps the summary (consolidated) accounting, reporting and balance sheet of the financial and industrial group;
Prepares an annual report on the activities of the financial and industrial group;
Performs, in the interests of members of the financial and industrial group, certain banking operations in accordance with the legislation of the Russian Federation on banks and banking activities.
Other types of activities of the central company of a financial and industrial group for managing the affairs of a financial and industrial group are established by its charter, an agreement on the creation of a financial and industrial group. For the obligations of the central company of FIG, arising as a result of participation in its activities, the participants are jointly and severally liable in the manner prescribed by the agreement.
The financial and industrial group may include commercial and non-commercial organizations, including foreign ones. Based on the essence of a FIG, its participants must necessarily include organizations operating in the production of goods, rendering services, as well as banks and other credit organizations. Thus, a financial-industrial group is essentially a combination of financial and industrial capital to achieve the goals set at its creation and in accordance with the law.
The legislation establishes some restrictions and prohibitions on participation in FIG. So, its participants cannot be public and religious organizations (associations). Participation in more than one financial and industrial group is not allowed.
The status of a financial and industrial group is acquired as a result of its state registration. The state registration of FIGs is carried out by the authorized federal executive body. For state registration, the central company of FIGs submits the following documents:
Application for the creation of a FIG;
Agreement on the establishment of FIG, with the exception of groups formed by main and subsidiary companies;
Notarized copies of registration certificates, constituent documents, copies of shareholder registers (for joint-stock companies) of each of the participants, including the central company of FIG;
Organizational project, i.e. a package of documents containing the necessary information about the goals and objectives, investment and other projects and programs, the expected economic, social and other results of FIG's activities, as well as additional information necessary for making a decision on registering FIG;
Conclusion (consent) of the owner of the property of state or municipal unitary enterprises for their deposit property contributions when entering a FIG;
Notarized and legalized constituent documents of foreign participants;
Conclusion of the federal antimonopoly body;
Intergovernmental agreement (for interstate, international FIGs).
The current legislation provides for a permissive procedure for the creation of FIG. Relevant sectoral and functional departments of the Ministry of Economic Development of the Russian Federation, other bodies and specialists conduct an examination of projects for the creation of FIGs from the point of view of expediency and efficiency. The procedure for the examination of projects for the creation of financial and industrial groups submitted for consideration by the Government of the Russian Federation was 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.
Based on the results of consideration of the documents of the financial and industrial group, taking into account expert opinions, the authorized state body within two months from the date of submission of the documents to it makes one of the following decisions:
Refusal to register a financial and industrial group;
On the return of documents of the financial and industrial group for revision;
On the registration of a financial and industrial group.
Refusal to register or return documents of the financial and industrial group for revision is accompanied by a written explanation of the reasons. If adopted by the authorized government agency an unreasonable decision, as well as in case of violation by him of the terms for consideration of documents of a financial and industrial group, his actions may be appealed in court.