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Divide can not refuse, or Features section of the corporate rights in the event of a divorce party of society and division of joint property, commented lawyer ADCOM Law Firm Julia Avramenko
2013-05-28
"Divide can not refuse",
or Features section of the corporate rights in the event of a divorce party of society and division of joint property
The division of property of the spouses - it is always an emotional process, the consequences of this separation affect the rights of not only the direct participants of the action, but also can affect the rights of other persons, in particular companies is a party to one of the spouses. Lawyers advised to avoid problems with the division of business to solve all the questions in advance in the marriage contract, but what about when there is a need to separate, there is no contract, and the general consensus can not be achieved? In this case (though in all other too) spouses only road to the court, while this separation is different, because the practice gave rise to the existence of conflicting court decisions. The following will try to analyze the possible scenarios and the consequences that may arise in the case of the division of this type of property.
Under Part 1 of Art. 167 CC of Ukraine corporate law - is the right person, which is determined by the proportion of share capital (assets) of a business organization, including the entitlement of that person to participate in the management of a business organization, getting some of the profits (dividends) and the organization's assets in case of liquidation of the last in line law, as well as other powers provided by law and the statutes.
Disputes among spouses may occur on part of the contribution to the authorized capital of the company, its property and income from operations.
In its decision of 21.12.2007 № 11 "On the practice of courts of law in cases of the right to marriage, divorce, annulled and the division of marital property "plenum MAT explained, in particular, the contribution to the authorized capital of a business entity is subject to right to joint property of the spouses, but if such contribution is made at the expense of the common property of the spouses, in the interests of the family, the spouse who is not a member of society, has the right to the revenue section. If you are using one of the spouses is contrary to the general funds of Art. 65 SC Ukraine the other spouse is entitled to compensation for the value of its shares. Regarding the property of private enterprise and property PE is established that it is not subject to the common property of the spouses, but the other spouse is entitled only to the share of the revenue from this activity.
Thus, the controversy, the couple may arise on the part of the contribution to the authorized capital of the company, its property and income from operations.
In particular, in terms of determining the rights of the other spouse in the share capital and assets of the practice develops differently: in some cases, the requirements for recognition of ownership of the share capital or property of the LLC or PP is not satisfied, on the basis of the provisions of Art. 12 LU "On Business Associations" (hereinafter - the Law), which established that the owner of the property transferred by the founders and participants, is society itself, in others - the court recognized the right to a share in the second contribution to the society of the spouses if installed, it is the common property of the spouses.
The authorized capital of private enterprise and property rights is subject to the common property of spouses.
19.09.2012 The Constitutional Court ruled on the case number 17-rp/2012 (hereinafter - Decision number 17-rp/2012) and gave an interpretation of Part 1 of Art. 61 SC Ukraine, which is different than the Armed Forces of Ukraine, explained the issues of property rights of the other spouse in the share capital, namely the registered capital of private enterprise and property rights is the subject of joint ownership of spouses.
Decision Making number 17-rp/2012 did not lead to the reduction of judicial practice to a certain unity. For example, some courts after the issuance of this decision were taken into account in its findings, and it is clear on the basis that, in accordance with the requirements of Articles 147, 150 of the Constitution of Ukraine explanation of the Constitutional Court is the highest legal force, compared with an explanation of the Supreme Court. In particular, VSSU in its judgment of 13.03.2013, referring to the decision number 17-rp/2012 established the wrong conclusions courts previous instances, according to which had been denied to one of the spouses in the allocation of corporate rights in the Company , the case was transferred to a new trial.
But another solution VSSU on 22.01.2013 upheld the previous court decisions of the courts, and the appellate court, in making its decision of 31.10.2012 and solving the question of the division of corporate rights, has come to the conclusion that the right of management of the company has only one of spouse who is a party to it, corporate law are inextricably links the owner of such rights with the need to own shares in the share capital of a company depends on the will of other members of society.
However, on the issue of the rights of a spouse to share in the authorized capital should take into account the specific features directly themselves of corporate relations. Thus, recognition of the right to a share in the contribution to the charter entails changes in the composition of participants and changing the charter, however, these questions fall within the exclusive competence of the general meeting of the society by virtue of Art . Art. 41, 42 and 59 of the Act, the changes in the statute relating to the change in the composition of participants, subject to state registration in accordance with the law (Article 52 of the Law). Back off its stake in the subsidiary's equity participant is entitled, unless otherwise provided by the company charter. At the same time, participants in a preferential right to purchase a share (Cc 2 - 3 tbsp. 53 of the Act). As the art. 57 of the Law, to foreclose on the property of a limited liability company, the proportional share of the company participant in the share capital, in his personal debts is possible only in case of failure in his other assets to satisfy creditors' claims.
There is a solution to most issues arising from the regulation of relations contributions of the participants, shall be the responsibility of the participants and Art. 6 Civil Code of Ukraine prohibits unlawful interference by public authorities and local self-government, including the courts, the economic relations.
These circumstances call into question the possibility to put into practice the court's decision on the recognition of the rights of the other spouse to share in the authorized capital of the business and assets of the organization. How does go jurisprudence on the issue of implementation of such recognized by a court of corporate rights is hard to say, relevant examples of solutions in the Unified State Register of court decisions could not be found.
Given the controversy Solutions 17-rp/2012 number and said the decision dated 21.12.2007 APU for number 11, I think that the best way out of this situation is an action against the other spouse, a member of society, the value of the share of funds that were invested in the company's charter.
Thus, solving the dispute acquired by one spouse of corporate law, the definition of 11.02.2013 VSSU decision was left to the Court of Appeal of Kyiv region from 16.10.2012 unchanged, which, in turn, established the right of a spouse to receive the value of the share in the authorized capital of the society. Another decree of 13.02.2013 VSSU canceled the decision of the previous instances courts, the case was transferred to a new trial, the courts clarified the right of the spouse to share part of the national currency equivalent to the Company, as the wives of members of society, who acquired the share in the period of stay in a registered marriage with her.
Of course, this version of the separation of corporate rights of the other spouse actually lose the right to participate in the management of a business organization, but will be able to get the funds from the joint spent on capital contribution, and does not lose his right to the income derived from these contributions for the period of marriage. However, this option does not address the issue will limit the rights directly to the economic organization of compulsory inclusion of the other spouse of the participants or forced reduction of the authorized capital of the society.
In any case, when dealing with such issues in court to prove and establish the circumstances, such as a statutory contribution of community property or personal private property of one spouse in understanding the requirements of Art. 57 SC Ukraine has increased to the size of the capital during the marriage, whether the property is used in the interests of the spouses.
CONCLUSION:
As you can see, the problem of the separation of the corporate rights of the spouses is still open, there is the issue of the impossibility of realizing individual judgment in practice. Although the number 17-rp/2012 decision rightly with the terms of the division between the couple acquired during the marriage property, together with the fact that this decision requires further clarification in the context of corporate relations, and the absence of such explanations will continue to produce conflicting jurisprudence.
lawyer ADCOM Law Firm
Julia Avramenko
"Divide can not refuse",
or Features section of the corporate rights in the event of a divorce party of society and division of joint property
The division of property of the spouses - it is always an emotional process, the consequences of this separation affect the rights of not only the direct participants of the action, but also can affect the rights of other persons, in particular companies is a party to one of the spouses. Lawyers advised to avoid problems with the division of business to solve all the questions in advance in the marriage contract, but what about when there is a need to separate, there is no contract, and the general consensus can not be achieved? In this case (though in all other too) spouses only road to the court, while this separation is different, because the practice gave rise to the existence of conflicting court decisions. The following will try to analyze the possible scenarios and the consequences that may arise in the case of the division of this type of property.
Under Part 1 of Art. 167 CC of Ukraine corporate law - is the right person, which is determined by the proportion of share capital (assets) of a business organization, including the entitlement of that person to participate in the management of a business organization, getting some of the profits (dividends) and the organization's assets in case of liquidation of the last in line law, as well as other powers provided by law and the statutes.
Disputes among spouses may occur on part of the contribution to the authorized capital of the company, its property and income from operations.
In its decision of 21.12.2007 № 11 "On the practice of courts of law in cases of the right to marriage, divorce, annulled and the division of marital property "plenum MAT explained, in particular, the contribution to the authorized capital of a business entity is subject to right to joint property of the spouses, but if such contribution is made at the expense of the common property of the spouses, in the interests of the family, the spouse who is not a member of society, has the right to the revenue section. If you are using one of the spouses is contrary to the general funds of Art. 65 SC Ukraine the other spouse is entitled to compensation for the value of its shares. Regarding the property of private enterprise and property PE is established that it is not subject to the common property of the spouses, but the other spouse is entitled only to the share of the revenue from this activity.
Thus, the controversy, the couple may arise on the part of the contribution to the authorized capital of the company, its property and income from operations.
In particular, in terms of determining the rights of the other spouse in the share capital and assets of the practice develops differently: in some cases, the requirements for recognition of ownership of the share capital or property of the LLC or PP is not satisfied, on the basis of the provisions of Art. 12 LU "On Business Associations" (hereinafter - the Law), which established that the owner of the property transferred by the founders and participants, is society itself, in others - the court recognized the right to a share in the second contribution to the society of the spouses if installed, it is the common property of the spouses.
The authorized capital of private enterprise and property rights is subject to the common property of spouses.
19.09.2012 The Constitutional Court ruled on the case number 17-rp/2012 (hereinafter - Decision number 17-rp/2012) and gave an interpretation of Part 1 of Art. 61 SC Ukraine, which is different than the Armed Forces of Ukraine, explained the issues of property rights of the other spouse in the share capital, namely the registered capital of private enterprise and property rights is the subject of joint ownership of spouses.
Decision Making number 17-rp/2012 did not lead to the reduction of judicial practice to a certain unity. For example, some courts after the issuance of this decision were taken into account in its findings, and it is clear on the basis that, in accordance with the requirements of Articles 147, 150 of the Constitution of Ukraine explanation of the Constitutional Court is the highest legal force, compared with an explanation of the Supreme Court. In particular, VSSU in its judgment of 13.03.2013, referring to the decision number 17-rp/2012 established the wrong conclusions courts previous instances, according to which had been denied to one of the spouses in the allocation of corporate rights in the Company , the case was transferred to a new trial.
But another solution VSSU on 22.01.2013 upheld the previous court decisions of the courts, and the appellate court, in making its decision of 31.10.2012 and solving the question of the division of corporate rights, has come to the conclusion that the right of management of the company has only one of spouse who is a party to it, corporate law are inextricably links the owner of such rights with the need to own shares in the share capital of a company depends on the will of other members of society.
However, on the issue of the rights of a spouse to share in the authorized capital should take into account the specific features directly themselves of corporate relations. Thus, recognition of the right to a share in the contribution to the charter entails changes in the composition of participants and changing the charter, however, these questions fall within the exclusive competence of the general meeting of the society by virtue of Art . Art. 41, 42 and 59 of the Act, the changes in the statute relating to the change in the composition of participants, subject to state registration in accordance with the law (Article 52 of the Law). Back off its stake in the subsidiary's equity participant is entitled, unless otherwise provided by the company charter. At the same time, participants in a preferential right to purchase a share (Cc 2 - 3 tbsp. 53 of the Act). As the art. 57 of the Law, to foreclose on the property of a limited liability company, the proportional share of the company participant in the share capital, in his personal debts is possible only in case of failure in his other assets to satisfy creditors' claims.
There is a solution to most issues arising from the regulation of relations contributions of the participants, shall be the responsibility of the participants and Art. 6 Civil Code of Ukraine prohibits unlawful interference by public authorities and local self-government, including the courts, the economic relations.
These circumstances call into question the possibility to put into practice the court's decision on the recognition of the rights of the other spouse to share in the authorized capital of the business and assets of the organization. How does go jurisprudence on the issue of implementation of such recognized by a court of corporate rights is hard to say, relevant examples of solutions in the Unified State Register of court decisions could not be found.
Given the controversy Solutions 17-rp/2012 number and said the decision dated 21.12.2007 APU for number 11, I think that the best way out of this situation is an action against the other spouse, a member of society, the value of the share of funds that were invested in the company's charter.
Thus, solving the dispute acquired by one spouse of corporate law, the definition of 11.02.2013 VSSU decision was left to the Court of Appeal of Kyiv region from 16.10.2012 unchanged, which, in turn, established the right of a spouse to receive the value of the share in the authorized capital of the society. Another decree of 13.02.2013 VSSU canceled the decision of the previous instances courts, the case was transferred to a new trial, the courts clarified the right of the spouse to share part of the national currency equivalent to the Company, as the wives of members of society, who acquired the share in the period of stay in a registered marriage with her.
Of course, this version of the separation of corporate rights of the other spouse actually lose the right to participate in the management of a business organization, but will be able to get the funds from the joint spent on capital contribution, and does not lose his right to the income derived from these contributions for the period of marriage. However, this option does not address the issue will limit the rights directly to the economic organization of compulsory inclusion of the other spouse of the participants or forced reduction of the authorized capital of the society.
In any case, when dealing with such issues in court to prove and establish the circumstances, such as a statutory contribution of community property or personal private property of one spouse in understanding the requirements of Art. 57 SC Ukraine has increased to the size of the capital during the marriage, whether the property is used in the interests of the spouses.
CONCLUSION:
As you can see, the problem of the separation of the corporate rights of the spouses is still open, there is the issue of the impossibility of realizing individual judgment in practice. Although the number 17-rp/2012 decision rightly with the terms of the division between the couple acquired during the marriage property, together with the fact that this decision requires further clarification in the context of corporate relations, and the absence of such explanations will continue to produce conflicting jurisprudence.
lawyer ADCOM Law Firm
Julia Avramenko