Legal status of property of individual entrepreneurs in family relations

On March 12, 2018, the President of Ukraine signed the Law of Ukraine “On Limited and Additional Liability Companies”, adopted on February 6, 2018 by the Verkhovna Rada of Ukraine, which will come into force on June 17, 2018.
The said Law should provide the members of the companies with a comfortable legal space for the settlement of their relations, reduce the risks of capturing of control over the company and the conspiracy of individual groups of members against others. It introduces modern principles of corporate regulation of the establishment and conduct of business or exit from it.
In particular, the Law introduces the concept of a corporate agreement (hereinafter – the agreement), establishes the possibility of issuing an irrevocable power of attorney for corporate rights.
The concept of corporate agreements in Ukraine is not new, since it has been in place since the adoption of the Law of Ukraine “On Business Associations”, namely, agreements between shareholders. However, with the adoption of the Law of Ukraine “On Limited and Additional Liability Companies”, the corporate agreement must resolve the problematic issues between the members of the company and properly organize the interaction in the company.
In accordance with the Law of Ukraine “On Limited and Additional Liability Companies”, an agreement on corporate governance is entered into in writing, and the signatures of the parties to such an agreement must be certified in accordance with the procedure established by the Law.
At the same time, the Law of Ukraine “On Limited and Additional Liability Companies” does not set out the “established procedure” of certifying the signatures, which applies to this particular case. Probably, the legislator implies notarization of signatures in line with the provision established in clause 9 of part 1 of Article 15 of the Law of Ukraine “On State Registration of Legal Entities, Individuals – Entrepreneurs and Public Formations”, according to which the validity of the signatures in the constituent document of the legal person must be notarized.
Members of the LLC / JSC, as well as third parties – the creditors of the company may be parties to the corporate agreement may be. That is, the actual influence on the management of the partnership by persons who are not its participants has been legalized. At the same time, neither any governing body of the company, nor the company itself can be the party to the corporate agreement.
The parties (creditors) of the LLC / JSC may conclude a corporate agreement by operation of law, that is, regardless of whether the right to conclude such a contract is envisaged in the company’s charter or not.
A corporate agreement can establish a method of voting, agree on the purchase of a share at a specified price, obtaining alienated shares.
Also, the conditions under which the member of the company is entitled or obliged to sell or purchase a share, interim measures and civil relief for violation of the contract may be listed.
In its turn, the breach of the contract on corporate governance is not a ground for the invalidation of the decisions of the bodies of the LLC or JSC.
A corporate agreement that establishes the obligation of the members to vote in accordance with the instructions of the management bodies of the Company is null and void. Information about the contract is confidential. Violation of an agreement on selling or purchasing a share at a specified price will objectively lead to a trial of the case on enforcement of the contract.
However, violation of the terms of the contract can not be the basis for the invalidation of decisions of the management bodies of the companies.
It should be noted that the conclusion of a corporate agreement is the right, and not the obligation of the founders of the Company, and the terms of such an agreement are binding only for the persons who have concluded it.
To put it simple, a corporate agreement is a document by which the members of the company agree to interact with each other, as well as with the Company in a certain way. Along with the Charter of the Company (LLC or Additional Liability Company), such a contract sets the rules of the game for the founders (members).
Therefore, if the Charter of the Company is a public document, the corporate agreement is a confidential, internal document.
Another innovation of corporate legal relations, previously absent in the corporate law of Ukraine, is an irrevocable power of attorney.
Until the adoption of the draft Law of Ukraine “On Limited and Additional Liability Companies “, an irrevocable power of attorney could be issued for a specific term on the basis of Part 4 of Article 249 of the Civil Code of Ukraine in cases expressly provided by the Law.
The only such case was provided for in Article 10 of the Law of Ukraine “On Financial and Credit Mechanisms and Property Management during House Building and Real Estate Operations”, according to which, during the validity of the contract, the developer is entitled to issue an irrevocable power of attorney to the manager for the right to delegate the functions of the developer to a third party in case of developer’s breach of terms of the contract with the manager.
With the enactment of the new Law, an irrevocable power of attorney is issued for the performance or enforcement of obligations of company members arising from the conclusion of a corporate agreement, in particular regarding the right to a share in the share capital or powers of a member, and must be notarized.
The legal nature of the irrevocable power of attorney is of a mixed nature. On one hand, issuing a power of attorney is a fiduciary transaction (that is, one that is based on a particularly trusting relationship between the parties). On the other hand, after the power of attorney has been issued, the principal’s right to revoke it are limited.
Unlike the “ordinary power of attorney”, the irrevocable one primarily protects the interests of the agent, and not the principal.
Thus, the main function of an irrevocable power of attorney is to ensure enforcement of the obligation. For example, when the parties to a corporate agreement agreed to vote at a general meeting in a particular way, one party issues the irrevocable power of attorney to the other party to vote on its behalf at the general meeting of the company’s members. If the parties have agreed to refrain from the selling of their shares in the share capital, they may exchange irrevocable powers of attorney to carry out activities related to the selling of such shares.
The irrevocable nature of the power of attorney does not mean that the principal has no right to terminate it if the agent violates the rights and interests of the principal.
If there is a dispute regarding the termination of the irrevocable power of attorney and waiver by the member-principal, the court may revoke such power of attorney.
Irrevocable power of attorney must be notarized. It can not be reassigned to another person. It ceases when an obligation for execution or enforcement of which it was issued has ceased,.
Summing up, I believe that with the adoption of the Law of Ukraine “On Limited and Additional Liability Companies”, the institution of the irrevocable power of attorney will be able to provide a higher level of reliability of operations for the sale of corporate rights (shares) and other transactions in which the agent seeks to obtain certainty of ultimate intentions of the member or shareholder, and corporate agreements will become an effective tool for managing business and regulating the relations between the parties.

550 Просмотров