The types of corporations in the legislation of the Ukraine, France, Germany and the USA : (basic items)

Aryna Yuryna

The types of corporations in the

legislation of the Ukraine, France,

Germany and the USA : (basic items)

A ryna Yuryna

O dessa I.I. M echnikov N ational U niversity

The types of corporations in the legislation

of the Ukraine, France, Germany and the U SA

(basic items)

Legislations of F rance and G erm any are th e m ost sim ilar to th e legal system of U kraine. The difficult and specific legal system of th e USA essen­ tially differs from th e legal system of U kraine.

It is possible to subdivide th e corporations by m any legal criterions: 1) by legal status; 2) by th e purposes of activity; 3) by th e legal regim e of property; 4) by th e sta ff of founders; 5) by the ch a ra c te r of p a rticip a n ts’ rights; 6) by th e way of organization etc.

In th e E uro pean U nion th e common classification by a legal s ta tu s has been accepted. T here are two types of corporations: these of public law and of p rivate law. In G erm any th ere are unions or com panies (Vereine) and estab lish m en ts (Stiftungen). Com panies and unions can be divided into eco­ nomic an d comm ercial enterprises. Among tra d in g com panies (business asso­ ciations) th ere are tra d in g p artn e rsh ip , lim ited liability com panies, joint- stock companies, in d u stria l and economic cooperative societies (see table 1). The p eculiarity is th a t com panies can be both personable an d not p ersona­ ble. The last includes a complete tra d e p a rtn e rsh ip s th a t are not legal e n ti­ ties, however, recognized un d er th e law as carriers of certain civil rig h ts and obligations and m ay sue an d be sued in court.

Com panies can be created for th e purpose of conducting th e economic, comm ercial en terp rise or w ithout th a t. If business is th e purpose of the company’s creation an d activity - it is an economic, tra d in g society (or the economic union).

It should be noted th a t term inology of G erm an law m akes no distinction in term s applicable to such models, th e U k ra in ia n law in stead recognizes the distinction betw een p a rtn e rsh ip s an d companies. G erm an law in all cases in relation to th e to ta l tra d in g com panies (th a t are not considered as legal entities), joint-stock com panies and lim ited liability com panies use th e sam e term “G esellschaft”.

292 A r y n a Y u ryn a

T a b le 1 T y p e s o f c o r p o r a t io n s i n G e r m a n y

Com m ercial (trade) associations - Personenhandelsgesellschsften - are divided into two types: full comm ercial p artn e rsh ip (Offene H andelgesell­ schaft) and lim ited p artn e rsh ip (Kom m anditgesellschaft).

In full p a rtn e rsh ip assocations th e p articip an ts are fully and severally liable. The purpose of a general p a rtn e rsh ip is tra d in g activity. This m eans th a t by th e form and ex ten t it should conform to th e concept of commercial activities. Therefore, the very general p artn e rsh ip is a m erchant.

In a business tu rno v er th e full association operates u n d e r uniform firm. The firm of the full association should contain a su rn am e of a t lea st one of its p articip an ts and indications on th e organizational-legal form. The nam e of th e full association can include also surnam es of all participants.

A general p a rtn e rsh ip is an independent economic u n it which h as its own nam e, m ay be a creditor and a debtor, m ay acquire property rig h ts and o th er p ro prietary rig h ts, m ay also act as a plain tiff and a defendant.

U nlike th e U k ra in ia n legislation, th e full association in G erm any is not a legal e n tity - it has no legal personality. It is a so-called solidarity associa­ tion. The property of p a rticip a n ts of such associations belongs to th em jo in ­ tly: a sep arate p a rticip a n t of th e association, which owns an individual share in it, does not get a sep arate quota (shares) in th e association’s property.

Q uite often in the business of a m erch an t a person is involved only for his property investm ents - an individual or an entity. In th e end of each business y ear th e p a rt of profit is paid to th e p rivate p articipan t. The re ­ sponsibility of the p riv ate p a rticip a n t for debts is lim ited by th e sizes of its contribution. At th e term in atio n of the association the p riv ate p articip an t has th e rig h t to receive th e contribution in th e m onetary form.

An im p o rtan t featu re of a lim ited liability com pany u n d e r G erm an law is th a t th is legal form m ay be used not only for doing business b u t also for any o ther activity th a t does not contradict the law.

A joint-stock company is defined as a company w ith its own legal perso­ n ality - it is a legal entity. The com pany satisfies obligations to creditors only w ith th e property. Thus, shareholders risk only th e m eans enclosed by them in actions acquired. Lim ited p a rtn e rsh ip on shares is a kind of joint- stock company. This is a commercial p artn e rsh ip w ith an in dependent perso­ nality, in w hich a t least one p a rty is responsible to th e creditors of unlim ited p a rtn e rsh ip (personally answ ering p articip a n t or so-called full), and other p articip an ts p articip ate in th e authorized capital stock divided into actions, w ithout personal responsibility for association’s obligations (so-called lim ited p a rtn e rsh ip s shareholders).

In F rance private law corporations are divided into p a rtn e rsh ip s and associations. There are two types of p artn ersh ip s: comm ercial and n o n -tra ­ ding1. Trading com panies are subdivided in the companies on equal footing (a complete and sim ple lim ited p artn ersh ip ) and joint-stock com panies (joint- stock and simplified joint-stock companies, lim ited p artnership - see table 2). The peculiarity of lim ited p a rtn e rsh ip s is th a t th e published reports are not needed.

The full association-company, which m em bers act as businessm en and b e a r unlim ited and jo in t liability for association’s obligations, including com­ pany debts. This is th e association of individuals and entities. According to F rench law a general p a rtn e rsh ip is a legal entity. Its m em bers have th e s ta tu s of a m erchant. They are jointly responsible for debts of th e association and b ear full (unlim ited) responsibility. T hus it is im p o rtan t to consider th a t th e rule about responsibility of p articip an ts of th e full association on its debts operates not only during th e existence of th is legal person b u t also continues w ithin five years after its liquidation. The p a rticip a n t can alienate th e sh are only w ith th e consent of oth er p articipan ts. For violation of th is req u irem en t th e crim inal liability in th e form of im prisonm ent or in th e form of th e p en alty is established.

1 И.С. Канзафарова, Гражданское и торговое право зарубежных стран, Отдельные институты: Уч.пособие, „Одиссей”, 2003, р. 65.

294 A r y n a Y u ryn a

T a b le 2 T y p e s o f c o r p o r a t io n s i n F r a n c e

As for th e lim ited p a rtn e rsh ip th is legal form is not w idespread. In U kraine such p a rtn e rsh ip is called „faith-based”.

A sim ple lim ited p a rtn e rsh ip is a company on equal-footing w hich inclu­ des two types of p articip an ts: one or more single-parent m em bers who are responsible for th e com pany’s debts in proportion to th e ir contributions, r a th e r th a n on th e sta tu s of a m erchant; full m em bers who have th e sta tu s of m em bers w ith full responsibility an d a m erchant w ith an u nlim ited and jo in t liability.

Among th e m em bers of th is association th ere m ay be legal persons and individual businessm en. W hile general p a rtn e rs have th e sam e sta tu s as a m em bers of th e general p a rtn e rsh ip , and a p a rt from them in a lim ited p a rtn e rsh ip is involved a lim ited p a rtn e r - those p a rties th a t do not b ear a full and sh ared responsibility for th e debts of th e p a rtn e rsh ip and respond only to th e ex ten t of th e size of th e ir deposits.

In th e U nited S tates th ere are p a rtn e rsh ip s and corporations. C orpora­ tions are divided into public an d p rivate corporations. There are also “half­ public” corporations (which are created to satisfy population’s needs, for exam ple, corporations in th e field of w ater-supplying). P riv ate corporations

are subdivided in business an d non-profit corporations. T here are a lot of types of comm ercial corporations: closely held and publicly held; sole and aggregate; dom estic an d foreign, etc.2

In E u rop ean countries th ere are o ther types of associations: cartels, syndicates, in d u stria l holdings, financial groups, tru s ts and concerns (mono­ poly union).

On th e basis of w h at is p resen ted above it is possible to draw a conclu­ sion th a t a lim ited liability an d joint-stock com panies are th e m ost signifi­ can t an d w idespread organizational-legal forms of en terp rise activity. Ways of form ing th e n atio n al legislations are the sam e in m any countries. Howe­ ver, due to th e peculiarities of n atio n al legislation, each country has its own specifics. Common elem ent for n early all countries is the use of various forms of organization of a legal entity.

In m any countries a lim ited liability company an d joint-stock company are th e m ost im p o rta n t an d common legal forms of e n tre p re n e u ria l activity. This is because th e company tak es a form of organization of big business which allows to a ttra c t finance for e n tre p re n e u ria l activities, as well as to contribute th e m ost convenient an d efficient business m anagem ent. Lim ited Liability Com pany serves prim arily to sm all and m edium businesses.

Nowadays in U krain e we can already speak about the superiority of joint-stock com panies an d lim ited liability companies, whose legal s ta tu s is adequately reg u lated by the n atio n al legislation. O th er legal forms of legal entities, especially given th e country’s economic developm ent, deserve close a tte n tio n and legal im plem entation th rou g h th e adoption of laws regulatin g th e ir legal statu s.

S tr e s z c z e n ie

R odzaje korporacji w u staw odaw stw ie Ukrainy, Francji, N iem iec i USA (podstaw ow e zagadn ien ia)

S łow a kluczow e: g o sp o d a rk a ry n k o w a , k o rp o rac je, a s p e k ty porów naw cze.

U k raińskiem u przejściu do gospodarki rynkowej towarzyszyło pojaw ie­ nie się różnych form organizacyjno-praw nych działalności korporacji. Szero­ kie zagraniczne doświadczenie w organizacji pracy przedsiębiorstw odgrywa isto tn ą rolę w popraw ie cywilnego ustaw odaw stw a Ukrainy. W niniejszym arty k u le wyróżniono główne rodzaje korporacji n a U krainie, we Francji, Niemczech i USA oraz dokonano ch arak tery sty k i porównawczej korporacji u k raińskich i zagranicznych.

2 W. B u rn h a m , In tro d u c tio n to the L a w a n d L e g a l S y s te m o f the U n ited S ta te s , 1997, p. 4 7 6 -4 8 3 .