Enterprise reorganization. Forms of reorganization of enterprises. What is corporate reorganization What is corporate reorganization
What is the reorganization of a legal entity, probably everyone knows. In government institutions, it is carried out even more often than in commercial organizations. As a rule, reorganization is associated with a change in the legal form (when, for example, a unitary institution becomes state-owned), a change in the ownership of the institution's property, the merger of several organizations into one, etc. This process affects not only organizational and financial relations, but also labor relations. What is a reorganization? What forms can it take? What obligations do employers have towards employees? In what cases are they subject to dismissal? You will find answers to these and other questions in this article.
Reorganization and its forms
There is no concept of reorganization in the legislation. However, as some experts define it, this is the termination or other change in the legal status of a legal entity, entailing the relationship of legal succession of legal entities, as a result of which one or more new legal entities are simultaneously created and one or more former legal entities are terminated.
According to Art. 57 and 58 of the Civil Code of the Russian Federation, the reorganization of a legal entity is carried out in the following forms:
A merger, when a new legal entity is formed from several legal entities that terminate their activities;
Accession, when another legal entity joins one legal entity, ceasing its activities, and as a result one remains;
Division, when one legal entity is divided into several legal entities;
Separation, when another legal entity is separated from one legal entity, while both continue to operate;
Transformation, when a legal entity of one type is transformed into a legal entity of another type, while the former ceases to operate (change in legal form).
The reorganization of federal institutions is referred to in a separate regulatory legal act - Decree of the Government of the Russian Federation of July 26, 2010 N 539 "On approval of the procedure for the creation, reorganization, change in type and liquidation of federal state institutions, as well as the approval of the charters of federal state institutions and amendments to them." According to this resolution, the reorganization of a federal institution may be carried out in the form of a merger, accession, division or spin-off.
The decision to reorganize a federal institution in the form of a division, spin-off, merger (if the legal entity that has arisen as a result of the merger is a federal state institution) or merger (in the case of a federal budgetary or autonomous institution being merged with a state institution) is made by the Government of the Russian Federation.
The decision on reorganization in the form of a merger or acquisition, except for the indicated cases, is made by the federal executive body exercising the functions and powers of developing state policy and legal regulation in the established field of activity.
By virtue of Art. 57 of the Civil Code of the Russian Federation, the reorganization of a legal entity may be carried out by decision of its founders (participants) or by a body of a legal entity authorized to do so by constituent documents.
A legal entity is considered to be reorganized, except for cases of reorganization in the form of affiliation, from the moment of state registration of newly emerged legal entities. When a legal entity is reorganized in the form of a merger with another legal entity, the first of them is considered reorganized from the moment an entry is made in the Unified State Register of Legal Entities on the termination of the activities of the merged legal entity.
Labor Relations
Article 75 of the Labor Code of the Russian Federation refers to labor relations during reorganization. At the same time, in addition to the reorganization, the change of the owner of the property of the organization and the change in its jurisdiction are separately indicated.
Let us consider what is meant by the change of the owner of the organization's property and the change in its jurisdiction.
The change of the owner of the property of an organization in accordance with paragraph 32 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" is the transfer (transfer) of ownership of the organization's property from one person to another person or other persons, in particular:
When privatizing state or municipal property, that is, when alienating property owned by the Russian Federation, constituent entities of the Russian Federation, municipalities, into the ownership of individuals and (or) legal entities (Article 1 of the Federal Law of December 21, 2001 N 178-FZ "On Privatization state and municipal property", Article 217 of the Civil Code of the Russian Federation);
When the property owned by the organization is converted into state property (Article 235 of the Civil Code of the Russian Federation);
When transferring state-owned enterprises to municipal ownership and vice versa;
When transferring a federal state enterprise to the ownership of a constituent entity of the Russian Federation and vice versa.
The change of ownership of the property of a state institution is, in fact, a reorganization in the form of transformation.
With regard to changing the jurisdiction (subordination) of the organization, this means the transfer of the organization from the jurisdiction (subordination) of one body to the jurisdiction (subordination) of another body.
So Art. 75 of the Labor Code of the Russian Federation establishes that when the owner of the property of an organization changes, the jurisdiction (subordination) of an organization changes or its reorganization (merger, accession, division, separation, transformation) or a change in the type of state or municipal institution, labor contracts with employees are not terminated. An exception is the possibility of terminating employment contracts with the head of the organization, his deputies and the chief accountant when changing the owner of the organization's property. The new owner may terminate employment contracts with the said persons no later than three months from the day when the right of ownership arises.
Note. The ownership of the enterprise passes to the buyer from the moment of state registration of this right (Article 564 of the Civil Code of the Russian Federation).
Upon termination of employment contracts with these persons, the new owner is obliged to pay them compensation in the amount of at least three average monthly earnings of these employees (Article 181 of the Labor Code of the Russian Federation). The basis for termination of the employment contract in such cases will be paragraph 4 of part 1 of Art. 81 of the Labor Code of the Russian Federation - change of ownership of the organization's property.
Article 75 of the Labor Code of the Russian Federation also establishes the right of an employee to refuse to continue working in connection with a change in the owner of the organization's property, a change in the organization's jurisdiction, its reorganization, or a change in the type of state or municipal institution. The employment contract in these cases is terminated in accordance with paragraph 6 of part 1 of Art. 77 of the Labor Code of the Russian Federation (an employee's refusal to continue working due to a change in the owner of the organization's property, a change in the jurisdiction (subordination) of the organization or its reorganization, a change in the type of state or municipal institution).
Paperwork
As already mentioned, labor relations with employees in the event of a change in the owner of the organization's property (with the exception of persons established by part 1 of article 75 of the Labor Code of the Russian Federation), reorganization, change of jurisdiction remain. That is, employment contracts remain the same. But they need to conclude additional agreements.
However, before the employer should notify employees of the upcoming reorganization, change of ownership of property or change of jurisdiction, as well as the right of employees to terminate the employment relationship in connection with this.
Such an obligation is not established by law, unless the terms of the employment contract are changed simultaneously with the reorganization or there is a reduction in the number of employees or staff. However, in order to exercise the right of employees to terminate labor relations, established in Art. 75 of the Labor Code of the Russian Federation, it is still necessary to do this. This raises the question: when should such notification be sent? Since this issue is not regulated by the Labor Code, other provisions should be followed. So, in the case when the reorganization is accompanied by a change in the working conditions of the employee (place of work, structural unit, wage conditions, position, etc.), the notification is sent two months before the upcoming changes by virtue of Art. 74 of the Labor Code of the Russian Federation.
At the same time, it must be borne in mind that all employees should be notified, including those on vacation or on sick leave.
So, while the employee was on her next vacation, the MU was reorganized into the regional state educational institution "Special (correctional) orphanage No. 2 for orphans and children left without parental care, with disabilities." In connection with the reorganization, the number of children increased, as a result, the mode of work of this employee was subject to change. The employee was not warned about such a change before she left the next vacation in the prescribed manner (namely, two months in advance).
The employee refused to work in the new mode, for which she was disciplined and then fired.
However, the court reinstated her in her previous position with the payment of her wages for the time of forced absenteeism and compensation for non-pecuniary damage, and the dismissal under such circumstances was declared illegal (Cassation ruling of the Khabarovsk Regional Court dated April 27, 2011 in case No. 33-2747 / 2011).
If no changes in working conditions are planned, employees must be notified as soon as possible from the moment of state registration of changes during reorganization or the entry into force of a regulatory legal act upon a change in jurisdiction. At the same time, it is not necessary to notify each employee against signature, but it is possible to convey this information to employees orally or by posting on a bulletin board, etc. At the same time, the right of employees to terminate labor relations by submitting an appropriate application should be indicated.
With employees who have submitted such a statement, the employment contract is terminated. The following entry is made in the work book: "The employment contract was terminated due to the employee's refusal to continue working in connection with the reorganization of the organization, paragraph 6 of the first part of Article 77 of the Labor Code of the Russian Federation."
And on what basis should an employee be fired if he does not agree to continue working due to a change in the terms of the employment contract: according to paragraph 6 or 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation (refusal of the employee to continue work due to a change in the terms of the employment contract determined by the parties)?
Since there are no clarifications on this issue, we believe that dismissal under paragraph 6 of part 1 of Art. 77 of the Labor Code of the Russian Federation. In any case, the employee can always quit of his own free will.
Note! Dismissal of an employee under paragraph 6, part 1, Art. 77 of the Labor Code of the Russian Federation should be drawn up after the completion of the reorganization, that is, from the moment an entry is made in the state register.
With employees who continue to work, it is necessary to conclude additional agreements to employment contracts. The agreements indicate all changes, including changes in the terms of the employment contract, that occurred as a result of the reorganization. In addition, you must make an entry in the work book.
Since the Instruction for filling out work books, approved by Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 N 69, does not regulate the procedure for making such entries in the work book, it is assumed that the entry in this case should be similar to the entry on changing the name of the organization (clause 3.2 of the specified instruction) , for example: "Municipal unitary enterprise "Fakel" was reorganized in the form of transformation into a closed joint-stock company "Svetoch" from 07/15/2014".
Downsizing during reorganization
Quite often, when an institution is reorganized (for example, during a merger, division, spin-off), there is a reduction in the number of employees or staff.
In the Letter of Rostrud dated 05.02.2007 N 276-6-0 on this matter, it is noted that the reorganization may be accompanied by an actual reduction in the number of employees or the staff of the organization. At the same time, as a rule, the staffing table changes, new structural divisions, positions can be introduced into it, individual positions can be excluded from it.
In this case, as officials point out, we can talk not about the priority right to hire, but about the priority right to stay at work in the event of a reduction in the number of employees or staff. The preferential right to stay at work is granted to employees with higher labor productivity and qualifications.
With equal labor productivity and qualifications, preference in leaving at work is given to families with two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is a permanent and main source of livelihood for them), persons in whose family there are no other employees with independent earnings, employees who received an industrial injury or occupational disease during the period of work with this employer, disabled veterans of the Great Patriotic War and disabled combat operations for the defense of the Fatherland, employees who improve their skills at the direction of the employer on the job.
Note! If the position of the employee is retained in the new staffing table, there are no grounds for dismissal due to staff reduction.
According to Art. 180 of the Labor Code of the Russian Federation about the upcoming dismissal due to a reduction in the number of employees or staff, employees are warned by the employer personally against signature at least two months before the dismissal. With the written consent of the employee, the employment contract with him may be terminated before the expiration of the specified period.
Thus, two months before the reorganization, which is accompanied by a reduction in staff, employees must be notified of this. In addition, the employer is obliged to offer the reduced employee another job available to him (vacant position) in accordance with Part 3 of Art. 81 of the Labor Code of the Russian Federation. You can do all this in one notification.
It should be noted that if a reduction in the number of employees or staff is carried out in connection with a change in the owner of the organization's property, then by virtue of Part 4 of Art. 75 of the Labor Code of the Russian Federation, such a reduction is allowed only after state registration of ownership by the new owner. That is, only after registration of ownership, the new owner begins the reduction procedure.
If an employee refuses to work in a new vacant position or there is no such position in the organization, the employment contract with him is terminated under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation, and the dismissed employee is paid a severance pay in the amount of the average monthly earnings. He also retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (with severance pay), and in exceptional cases, the average monthly salary is retained for the third month from the date of dismissal by decision of the employment service body, provided that that within two weeks after the dismissal, the employee applied to this body and was not employed by him (Article 178 of the Labor Code of the Russian Federation).
If the employment contract is terminated earlier than two months, the employee is paid additional compensation in the amount of his average earnings, calculated in proportion to the time remaining until the expiration of the notice of dismissal.
Please note that if an employee is subject to dismissal due to a reduction in staff or the number of employees, then replacing this ground for dismissal with dismissal under paragraph 6 of part 1 of Art. 77 of the Labor Code of the Russian Federation or, at its own request, may be declared illegal by the court, since it deprives the employee of the right to receive guarantees established by the Labor Code in the event of dismissal due to staff reduction.
Separately about vacation
Since employers often make mistakes when granting paid annual leave in case of reorganization, this issue deserves special attention.
Recall that the right to use leave for the first year of work arises for the employee after six months of his continuous work with this employer. By agreement of the parties, an employee may be granted paid leave before the expiration of six months (Article 122 of the Labor Code of the Russian Federation).
The sequence of granting paid vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than two weeks before the start of the calendar year.
Note! The vacation schedule is mandatory for both the employer and the employee (Article 123 of the Labor Code of the Russian Federation).
As mentioned above, when the institution is reorganized (including when the owner of the property changes), the employment relationship continues, respectively, the employee retains the right to leave and the length of service for granting leave is not interrupted. And vacation schedules drawn up before the reorganization remain valid. Thus, employees must go on vacation in accordance with the current vacation schedule.
Question. For the period of work from 01/05/2014 to 01/04/2015, according to the vacation schedule, the employee must be granted leave of 40 calendar days from 09/30/2014 to 11/10/2014. From 11/01/2015, the institution is planned to be reorganized. Can an employer, before the reorganization, provide vacation not in the amount of 40 days, but in proportion to the time worked by the employee before the reorganization?
Since the employment relationship with employees continues, leave must be granted according to the vacation schedule. At the same time, by agreement between the employee and the employer, annual paid leave can be divided into parts. At the same time, at least one of the parts of this vacation must be at least 14 calendar days (Article 125 of the Labor Code of the Russian Federation).
Article 124 of the Labor Code of the Russian Federation establishes cases of transferring vacation for another period. In exceptional cases, when granting leave to an employee in the current working year may adversely affect the normal course of work of the organization, it is allowed, with the consent of the employee, to transfer the leave to the next working year. At the same time, leave must be used no later than 12 months after the end of the working year for which it is granted.
Thus, if the employee agrees to divide the vacation into parts and transfer the second part of the vacation to another time (in this case, after the reorganization) or to the next working year, this can be done. At the same time, an application must be requested from the employee asking for the division and transfer of vacation, it is also necessary to make changes to the vacation schedule.
If the employee does not agree, the employer is obliged to provide him with leave according to the schedule in full, regardless of whether it falls on the reorganization period.
If the employee has exercised his right to terminate the employment contract in connection with the reorganization under paragraph 6 of part 1 of Art. 77 of the Labor Code of the Russian Federation, on the day of dismissal, he is paid monetary compensation for all unused vacations.
The same rule applies when the reorganization is accompanied by a reduction in the number of employees or staff. That is, if an employee leaves due to a reduction in the number of employees or staff, and according to the vacation schedule, he is given leave until two months before the termination of the employment contract, or he partially goes beyond this period, then he must be granted leave.
In addition, according to Art. 127 of the Labor Code of the Russian Federation, upon a written application of an employee, unused vacations can be granted to him with subsequent dismissal (except in cases of dismissal for guilty actions). In this case, the day of dismissal is considered the last day of vacation.
Also note that when paying compensation for unused vacation upon dismissal of an employee in accordance with the Rules on regular and additional vacations approved by the NCT of the USSR on April 30, 1930 N 169, in the event of liquidation of an enterprise or institution or its individual parts, reduction of staff or work, and also, in the event of reorganization or temporary suspension of work, an employee who has worked from 5.5 to 11 months receives full compensation, that is, for the entire annual and additional paid leave due to him.
* * *
Summing up, let us draw your attention to the main points related to the reorganization of the institution.
1. In case of reorganization of the institution, labor relations with employees continue. An exception is the possibility of terminating employment relations with the head, his deputies and the chief accountant when the owner of the organization's property changes.
2. Employees must be notified of the upcoming reorganization, as a result of which the terms of the employment contract are changed or the staff or number of employees is reduced, two months in advance.
3. Employees must be informed of any reorganization in order to exercise their right to dismiss under paragraph 6 of part 1 of Art. 77 of the Labor Code of the Russian Federation.
4. Additional agreements are concluded with employees to labor contracts, as well as entries are made in their work books on the reorganization of the institution.
5. The next annual leave is granted to employees in the reorganized institution according to the vacation schedule approved before the reorganization.
6. If the employee wishes to terminate the employment relationship in connection with the reorganization, change of ownership or change of jurisdiction, he is dismissed under paragraph 6 of part 1 of Art. 77 of the Labor Code of the Russian Federation after the state registration of changes or the entry into force of a regulatory legal act on a change in jurisdiction. No benefits will be paid to the employee upon such dismissal.
7. If during the reorganization there is a reduction in the number of employees or staff, employees are dismissed under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation with the payment of severance pay.
What is Reorganization? The meaning of the word "Reorganization" in popular dictionaries and encyclopedias, examples of the use of the term in everyday life.
Business Reorganization – Economic dictionary
TRADE READJUSTMENTSee REORGANIZATION; BUSINESS CYCLE
External Debt Reorganization – business vocabulary
External Debt Reorganization – Economic dictionary
a change in the terms of repayment of external debt, agreed upon by the debtor country and creditor countries or organizations, carried out in connection with the inability of the debtor to repay its debt obligations within the originally established deadlines.
External Debt Reorganization – Economic dictionary
revision, easing the terms of external debt service in favor of the borrower.
External Debt Reorganization – Economic dictionary
A change in the terms of repayment of an external debt, agreed upon by the debtor country and the countries or organizations-creditors, carried out in connection with the inability of the debtor to repay its debt obligations within the originally established terms.
External Debt Reorganization – Law Dictionary
Reorganization J. - Explanatory Dictionary of Efremova
1. Reorganization, transformation, change in the structure of smth.
– Economic dictionaryTransformation of a legal entity into another (other) legal entities. The reorganization of a legal entity can be carried out in the form of a merger, accession, division, separation, transformation. Legal features of the reorganization of legal entities are determined by Articles 57-60 of the Civil Code of the Russian Federation. Features of payment of taxes during the reorganization are established by Article 50 of the Tax Code of the Russian Federation. A legal entity is considered to be reorganized, except for cases of reorganization in the form of affiliation, from the moment of state registration of newly emerged legal entities. When a legal entity is reorganized in the form of a merger with another legal entity, the first of them is considered reorganized from the moment an entry is made in the unified state register of legal entities on the termination of the activities of the merged legal entity. See merging, joining, splitting, isolating, transforming.
Reorganization of a Legal Entity – Economic dictionary
Termination or other change in the legal status of a legal entity, entailing relations of succession of legal entities. In accordance with Art. 57 of the Civil Code of the Russian Federation R.ju.l. possible in the following forms: merger (two or more legal entities become one), accession (one or more entities join another), division (a legal entity is divided into two or more legal entities), spin-off (one or more several legal entities, while the first legal entity continues to exist) and transformation (a legal entity of one type is transformed into a legal entity of another type). R.y.l. may be carried out by decision of its founders (participants) or the body of a legal entity authorized to do so by the constituent documents. In the cases established by law, R.y.l. in the form of its division or separation from its composition of one or more legal entities is carried out by decision of authorized state bodies or by a court decision. a legal entity is divided into two or more), separation (one or more others are separated from the legal entity, while the first one continues to exist), and transformation (a legal entity of one type is transformed into a legal entity of another). R.y.l. may be carried out by decision of its founders (participants) or the body of a legal entity authorized to do so by the constituent documents. In the cases established by law, R.y.l. in the form of its division or separation from its composition of one or more legal entities is carried out by decision of authorized state bodies or by a court decision.
Reorganization of an enterprise is an alternative process that is used to create new companies or terminate existing ones. The reorganization process is regulated by the Civil Code of the Russian Federation, as well as other special regulations, which already narrowly reveal the features of the reorganization of an enterprise of one kind or another.
Forms of reorganization
Let's take a closer look at this issue. The civil legislation establishes the types and forms in accordance with which the reorganization of an enterprise can take place. These are the five varieties listed below.
The so-called mixed type should also be included in the same section. It is essentially a reorganization that uses two forms. For example, during the separation of a legal entity of one organizational form, two completely different companies can be formed.
All of the listed forms of reorganization of a legal entity are briefly discussed below.
Selection
The main distinguishing feature of this type of reorganization of the enterprise is that it does not involve liquidation, termination of activities. In the course of such a procedure, a new legal entity, or even several, is formed. At the same time, the newly formed companies are endowed with the rights and obligations that the original enterprise had earlier. The transfer of these rights and obligations takes place in accordance with the deed of transfer, where it should be stated what exactly is transferred to the new company. This document should define what remains with the original organization.
At the same time, the principle of equitable distribution of assets must be observed. It lies in the fact that the duties transferred to new organizations are provided with appropriate assets (property). This is due to the protection of the rights of creditors.
Separation
During the division, the initial organization interrupts its vital activity, it is excluded from the unified state register from the moment of the formation of new enterprises. As a rule, the division of the company occurs when it is necessary to divide the business between the founders. Although, of course, there may be other reasons. The division between new companies of assets and liabilities takes place on the basis of the same deed of transfer.
The decision on reorganization, as in all other cases, is taken by the authorized body of the enterprise in accordance with its constituent documents or in accordance with the requirements of the law.
Accession
Merger reorganization is mainly used when small companies wish to join larger ones. This type of reorganization can also be called an acquisition. Naturally, when joining, only one organization remains. The affiliated companies end their operation, and their participants receive a share in the remaining organization.
merger
Forms of reorganization of a legal entity include such a variety as a merger. This view is somewhat similar to joining, but with the only difference that a completely new face is formed as a result of such a procedure. The deed of transfer is still used here, and the constituent documents prescribe what shares the participants in the merged organizations receive.
As a rule, such shares are proportional to the assets that the original companies had. Accordingly, the more such assets in the total number, the greater the share of the participant.
transformation
This form of reorganization is very interesting from the point of view that, in fact, no new organizations appear during it and there is no termination of the activities of existing ones. In fact, the reorganization occurs by changing the organizational form. Such a procedure is necessary when, due to some objective reasons, the form of the company should be changed (for example, the reorganization of a CJSC into an LLC).
However, in this case, it should be remembered that organizations cannot be transformed into any other statutory forms that they please. Special regulations governing the activities of a certain type of company have established what they can be transformed into. For example, the reorganization of an LLC can take the form of transformation into a production cooperative, business company or other type of partnership.
additional information
The reorganization of an enterprise is not only the above points, but also additional preparatory work, and notification of the registering authority, and informing creditors about the planned action.
This process takes place, or rather, it begins with the adoption of an appropriate decision by the authorized body. As a rule, such a body, if it is a reorganization of an LLC, is the general meeting of participants. After the adoption of such a decision, an inventory commission is convened, the task of which is to count all the property of the person or persons being reorganized. Based on the data of this commission, a transfer act is drawn up.
Of considerable importance is the notification of the registration authority about the decision to reorganize. This notice must be sent no later than three days. Further, it is necessary to publish the same information for creditors in printed publications, in which the period for filing claims should be indicated.
The reorganization of an enterprise is a very laborious and lengthy process in which numerous problems can arise. There are also many nuances that need to be taken into account when carrying out a reorganization of a certain type. That is why, before proceeding with these actions, it is necessary to carefully consider all future steps.
Reorganization of the enterprise can be both a way to achieve new goals and a means of correcting critical errors. This article describes its types and how it is carried out.
Reorganization: definition and why it is needed
There are three main organizational and legal forms of registration of private enterprises: LLC (stands for “limited liability company”), CJSC and OJSC (closed / open joint-stock company). However, a registered enterprise may change significantly over time. Production volumes decrease or increase, the specifics of activity and the management structure change. This leads to the need for innovation in terms of organization.
If the enterprise is unprofitable, something needs to be changed. If the initial goals set by the company's management have already been achieved, it's time to move to a new level, which is associated with expanding the sales market and powers, improving relations with partners. It happens that the OPF no longer corresponds to the format established by the laws. In each of these situations, such a "political" measure as reorganization can help.
Reorganization- this is the completion of the enterprise, which is accompanied by the transfer of its obligations and rights to another company. This measure leads to the formation of one / several newly formed enterprises that "inherit" property and other rights, as well as obligations of the reorganized entity.
Often, reorganization is carried out instead of liquidation. This is due to the economic inexpediency of the bankruptcy procedure and the possibility of maintaining the main assets.
There are several types of reorganization. They differ in the structure and scope of the transferred rights.
The procedure for the reorganization of a legal entity
Here is how the mechanism of actions of the management during the reorganization of legal entities looks like:
- 1. A decision is made on the need to reorganize the enterprise.
- 2. The state registrar is notified of this decision within 3 working days.
- 3. A commission is being set up to carry out reorganization measures.
- 4. The media publishes messages about the reorganization.
- 5. A deed of transfer is drawn up.
- 6. Within the specified period, the relevant papers are provided to the state registrar.
Types and methods of reorganization
Among the methods of reorganization, a special place is occupied by the transformation of a legal entity, during which there is a change in organizational and legal forms. All rights (including property), as well as obligations are transferred to the newly formed enterprise.
The decision on the need for reorganization is made by the founders or authorized bodies. There are five types of reorganization. Here they are:
- Transformation. In this case, one organization turns into another.
- Accession. This means that one or more legal entities join an already registered enterprise.
- merger- several legal entities become a single entity.
- Selection. In this situation, one or more organizations leave the main one.
- Separation. One legal entity ends its activities and is divided into several "successors".
As soon as the state registrar has recorded the fact of reorganization, the legal entity is officially considered reorganized. However, reorganization through separation or separation occurs only by decision of state bodies with appropriate powers, as well as the court.
When a merger, accession or transformation occurs, the transfer of obligations and rights is certified by deeds of transfer. When dividing and highlighting, this function is performed by the dividing balance.
If management decides to reorganize, it must notify its creditors of this, and in writing.
Having engaged in the reorganization, the legal entity within 3 working days is obliged to send to the state registration authority such documents as a notice of the beginning of the reorganization and a decision on the reorganization process.
Reorganization problems
Reorganization is a rather risky event, because it is not a single procedure, but a multi-stage process in which founders and creditors are involved.
The decision is also accompanied by legal difficulties. True, unitary enterprises cope without any problems, because their owner does not need approval. It is more difficult for companies with additional liability and LLC.
It is also important that the executive body in the process of reorganization is obliged to inform the tax service about the decision. This is done within 5 days. Such notice may result in verification.
Reorganization can provoke both positive and negative changes in the life of the enterprise. But, one way or another, changing the form and structure is associated with numerous difficulties of a legal nature.
Reorganization is the process of terminating the activities of a certain legal entity with the transfer of its rights and obligations successor - another legal entity.
The reorganization of a legal entity can be carried out by decision of its founders (participants) or a body of a legal entity authorized to do so by constituent documents (clause 1, article 57 of the Civil Code of the Russian Federation). The reorganization of a joint-stock company is carried out by decision of the general meeting of shareholders by a three-quarters majority vote of shareholders - owners of voting shares participating in the general meeting of shareholders (clause 2, part 1, article 48, article 49 of the JSC Law). The decision on the issue of reorganization belongs to the exclusive competence of the general meeting of shareholders, this issue cannot be transferred for decision to the executive body or the Board of Directors (Supervisory Board) of the company (clause 4 of article 49 of the JSC Law).
According to the Civil Code of the Russian Federation, reorganization can be carried out in the form of:
1. Mergers. When legal entities merge, all their rights and obligations are transferred to the newly created legal entity, and they themselves terminate their activities.
2. Attachments. When one or more legal entities join another, all rights and obligations of the joined legal entities are transferred current legal entity according to the transfer balance.
3. Separations. A legal entity terminates its activities as a legal entity, and transfers its rights and obligations to newly created legal entities.
4. Selection. The "old" legal entity continues to operate, but transfers part of its rights and obligations to new, newly created legal entities on the basis of a separating balance sheet.
5. Transformation. The organizational and legal form of a legal entity is changing. For example, it is converted from LLC to JSC.
In accordance with the Civil Code of the Russian Federation, Article 57, a person is considered reorganized from the moment of state registration of newly created legal entities.
Liquidation of a legal entity differs from restructuring in that liquidation is a way to terminate the activities of an organization without transferring its rights and obligations to another person (without appointing a successor), and during reorganization, the appointment of a successor is mandatory.
Reasons for the reorganization:
1. Sales volumes of manufactured products have fallen.
2. Individual divisions of the firm are not competitive.
3. Unsatisfactory motivation of employees.
4. Priority of production over sale.
5. Excessive number of administrative and managerial apparatus and the complexity of the organizational and managerial structure of the enterprise.
6. Performing any kind of work on your own (for example, repair and construction work, equipment repair).
7. Weak susceptibility to innovation.
8. Weak interest in quality improvement.
The founders (participants) of a legal entity or the body that made the decision to reorganize the legal entity are obliged to notify in writing the creditors of the legal entity being reorganized. The creditor of the reorganized legal entity has the right to demand the termination or early performance of the obligation, the debtor of which is this legal entity, and compensation for losses in connection with the forced termination of the contract due to reorganization. If the separation balance sheet does not make it possible to determine the legal successor of the reorganized legal entity, the newly emerged legal entities shall be jointly and severally liable for the obligations of the reorganized legal entity to its creditors (Article 60 of the Civil Code of the Russian Federation). In accordance with Art. 323 of the Civil Code of the Russian Federation, creditors in such cases have the right to present their claims to all newly created legal entities or to any of them in full, and the one who satisfies their requirements has the right, by way of recourse, to recover from the remaining newly created legal entities the amount paid by them in equal shares, excluding his share.
The reorganization of a legal entity is recommended to coincide with the end of a certain reporting period (year or quarter). The company is considered reorganized, except for cases of reorganization in the form of affiliation, from the moment of state registration of newly emerged legal entities. Registration must be completed within five days. The basis for refusal to register is the failure to submit the separation balance sheet together with the constituent documents, or the absence in these documents of provisions on the succession of obligations for the obligations of the legal entity being reorganized, or the inconsistency of the constituent documents with the law.
Partition balance
The separating balance sheet must contain provisions on the succession of all obligations of the reorganized legal entity in relation to all its creditors and debtors, including obligations disputed by the parties. The separation balance sheet is approved by the founder (participants) of the legal entity or the body that made the decision on the reorganization, and submitted together with the constituent documents for state registration of newly established legal entities or amendments to the constituent documents of existing legal entities. The rights and obligations transferred by way of succession may include not only property, but also non-property rights (for example, the right to a company name, to use a trademark registered in the established manner, etc.). The preparation of the separation balance sheet must be preceded by an inventory. The moment of transfer of rights and obligations in respect of property to a newly established legal entity as a result of reorganization is the date of signing and approval of the separation balance sheet by the founder or the body that made the decision on reorganization.
