Legislation on insolvency (bankruptcy)
Банковское дело и рынок ценных бумаг
Legal institution of insolvency bankruptcy is a complex institution which consists of the rules of civil criminal labor and administrative law as well as civil and arbitration processes. The specific location is given an explanation on the relevant rules of law which are directly related to the purposes of the institution of insolvency bankruptcy...
Legislation on insolvency (bankruptcy) as well as a few years ago, is today considered one of the essential elements of the mechanism of legal regulation of relations in a market economy. Legal institution of insolvency (bankruptcy) is a complex institution, which consists of the rules of civil, criminal, labor and administrative law, as well as civil and arbitration processes.
The peculiarity of this institution is that it acts and functions only within a particular level of development of market relations in the economy.
And raiding and bankruptcy - phenomena inherent in a market economy, they are closely linked and have a significant impact on the process of economic development.
With the application of the legal framework for bankruptcy can protect its members from the consequences of an economic turn of unproductive work. Also there is a need to eliminate from the market participant, while maintaining it as a producer of goods, works or services and most importantly keep the employer. Because legal entities must comply with all of his property, it is necessary to prevent the transfer of all or part of the property to pay off the creditors' claims. At the same time necessary to protect the interests of the insolvent debtor, and solve the problem of conservation or liquidation by applying legal procedures.
Many scientists object of his research involves the goals and objectives of insolvency, but approaches exist in practice and defining these concepts are of a different nature. The specific location is given an explanation on the relevant rules of law which are directly related to the purposes of the institution of insolvency (bankruptcy) and focuses on the individual bankruptcy proceedings. The main purpose or direction of the bankruptcy law is the purpose of recovery. That is, in the bankruptcy law should provide for actions eventually lead to the restoration of the solvency of the debtor giving him special preferential treatment for the rehabilitation of its business. The next goal of competition law (unwanted) - liquidation of legal entities are not able to pay the debt accounts. "
Bankruptcy law provides indifikatsiyu objectives of each insolvency procedure. Objectives monitoring procedures under Art. 2 of the Bankruptcy Act 2002 it is;
- In-depth analysis of the financial situation of the debtor;
- Preservation of the debtor's property;
- Holding of the first meeting;
Absorption mechanism, implemented through the acquisition of a controlling stake of the voting shares, was introduced in Russia in 2006. Even if the surface to compare the basic principles underlying the EU Directive on acquisitions made in 2004, and the Russian Law, adopted the rules of procedure of repression, it can be seen that they do not differ much among themselves. Russian legislator tried to consolidate under domestic law the European approach to the regulation of mergers and acquisitions. Still, it should be noted that in the law defining the details of the mechanism of redemption large blocks of shares, do not apply the term "repression" and the term "absorption".
Federal Law N 7-FZ, adopted January 5, 2006 "On Amendments to the Federal Law" On Joint Stock Companies "and some other legislative acts of the Russian Federation" (hereinafter - the Law N 7-FZ) not only change the action to this rule, and took serious legal innovations. If a person has expressed its intention to purchase a 30% stake in the company, voting (taking into account the fact that such person or persons already have refined shares), the person has the right to make a voluntary offer to acquire shares from other shareholders. The buyer has the right to make an offer to sell any shares. But he can not make an offer for the sale of all shares. The company received the voluntary offer, you must send it to each shareholder. However, shares that shareholders intend to sell, not always on the quantitative composition is identical to that amount which the buyer intends to buy, for example, it can exceed it. Rule overall management of such situations is enshrined in paragraph 2 n. 5, Art. 84.3 of the Federal Law "On Joint Stock Companies": the shares are acquired from each shareholder in proportion to the number of shares specified in the notices of sale of shares, unless otherwise stipulated in a number of voluntary offer or statements. The likely consequences of the application of the common standards: a minority shareholder, agreed to sell their shares, may in the end not to stay with the sold part of the shares and incur losses (price per share of 25% m above package price of a share in a 10%).
In the event that the stated number of shares that the shareholders are willing to sell, much higher than the number of shares that the acquirer has expressed the intention to purchase, the purchaser be entitled at its discretion to meet any application. It should be to ban partial satisfaction of the application. Such a prohibition would enable the purchaser to make a purchase that number of shares, which he intends to buy. Proposal and the subsequent notice of sale shall be eligible in conflict with each other; Different applications may have differences. It is impossible to foresee all the negative results of this state of affairs at the moment. To avoid such consequences, it should be decided that the proposal on a voluntary basis in all cases is valid public offer to conclude a contract, which is designed to limit the offeror. However, in the Federal Law "On Joint Stock Companies" recorded that the proposal can only be put option (n. 6, Art. 84.1). The Act does not stipulate whether the offer statement on the sale of shares. One can only assume that is because you can not give up the recorded statements, except in cases in which there is a suggestion of a competitor.
If the shares are involved in the exchange turnover, the price of redemption is not supposed to be below the level of the average share price over the past six months (Art. 1 para. 4 of Art. 84.2). If the shares are not involved in the turnover on the stock exchange, then to draw their assessment of the independent appraiser (para. 2 para. 4 of Art. 84.2). If within six months, the purchaser has already participated in the purchase of shares, the redemption price can not be lower than the highest price at which the purchase is made shares (par. 3 p. 4 of Art. 84.2). This raises the question: what price can be applied if the appraiser estimated the share of 100 rubles., And the person who has sent a proposal previously bought the same share for 1 USD.? Interpretation of the law makes it possible to claim that paragraph. 3 p. 4 tbsp. 84.2 - is the norm special, which is subject to the priority application. So, if the direction of mandatory offer to the purchaser will purchase one share at its refined structure for 1 rbl., It will be able to offer to other shareholders to redeem their shares at this price. Adoption of such a situation, which has the ability to emerge, while fully comply with the established by Law N 7-FZ allows you unconditionally agree with the proposed in domestic doctrine that "is once again ponder the rhetorical question, and whether the legislator has capacity that issued such a law ". Offers are not used for the purchase of shares in an affiliate of the purchaser (Sec. 5 para. 8, Art. 84.2). In the event that the purchaser enters his director to the board of directors of the seller, it is considered exempt from the obligation to offer to other shareholders to sell their shares. Easy to see that the market is truly intentional acquisitions royal gift! Society should be sent to all shareholders received recommendations and proposals to be taken by the board of directors. This rule simply cancels the entire implementation of legal procedure, if the company has no board of directors. Accordingly, para. 2 para. 1, Art. 64 of the Federal Law "On Joint Stock Companies" in such cases, the functional responsibilities of the Board of Directors are performed by the General Meeting. The intention of convening a general meeting of shareholders and the date of the meeting shall give notice at least 20 days (n. 1, Art. 52 of the Federal Law "On Joint Stock Companies"). And then in the Law N 7-FZ set 15 days in order to inform the shareholders that the proposal is received. Thus, between the two standards in the same law appears virtually insoluble contradiction. By proposals aimed shareholders need to make an evaluation report (para. 4 para. 2, Art. 84.3). Shareholders that are not a part of the registry, the proposal should be sent through the dummy holder. But the duty of society to direct report includes only those who own securities and dummy holder does not apply to such owners (Sec. 2, Art. 8 of the Federal Law "On the Securities Market"). This means that the efforts of our "wise" legislator shareholders who hold shares through a dummy holder, unable to read the report, because the appraiser's report is not directed fictitious holders.
The middle part of the Federal Law "On Joint Stock Companies" - rules on compulsory redemption of shares and issue of securities to be converted into shares of an open society, minority shareholders owning 95% of shares, voting (Art. 84.8). Such persons have the right to require the other shareholders of the sale of the remaining shares to him. Request of the shareholder must be accompanied by a report on the independent evaluation, in the case of redemption of shares at market value, and the presence of a bank guarantee, which are proof of payment obligations. According to a statement request minority owner of more than 95% of the shares necessary to redeem their shares and other securities issued by the paper. Upon receipt of a request to enter into repurchase securities of the Company not earlier than 45 days and not later than 60 days after the request for redemption is necessary to draw up a list of holders of securities that are redeemable, and give it to the person who sent the request (n. N. 2, 5 Art. 84.8). From the day that date back to the list of owners of securities shall not be permitted the transfer of rights to securities redeemable and their encumbrance. Since that date, which is indicated in the request for redemption of securities is made to block all operations related to the procedure for redemption of securities in the executive system of the register of holders of securities as well as securities accounts (para. 3 p. 5, Art. 84.8). In cases where a shareholder owning 95% of the voting shares in the statement prescribed deadlines will not get from the minority shareholders of statements of intent selling their securities. Superaktsioner gets right to the very enumeration of certain funds for the purchase of securities in the notarial deposit at the location of the fictitious company or the shareholders. The transfer of funds to a fictitious identity holder pursuant to the obligations assumed (para. 2 p. 7, Art. 84.8). For the passage of three days since the superaktsionerom documents confirming the fact of payment for redeemed their securities, to the registrar of holders of securities necessary to write-off act of redeemable securities accounts of their respective owners and holders of fictitious. Then you need to produce a translation into the account of the person superaktsionera (n. 8, Art. 84.8). Thus, even if no expressions of minority shareholders wish to sell their shares, the majority owner has the right, without their consent to purchase the remaining paper, making the transfer of money on deposit with a notary or a dummy holder. It should be noted that all the same, as long as minority shareholders deem delivered appraiser value of the shares, they will be able to challenge it by applying to the courts. Does not agree with the price, the owner of the securities, in turn, has the right to appeal a claim to the arbitration court for damages he incurred in connection with the determination of prices biased redeemable securities. The lawsuit, brought by the owner of the securities is not a ground for suspending the process of redemption or determination of it as invalid (Art. 5 para. 4 of Art. 84.8).
Federal law (in red. Law N 7 - FL) "On Joint Stock Companies" defines some more regulations to protect the rights of minority shareholders (Sec. 6 Art. 84.3, para. 2 p. 8 Art. 84.3, p. P. 7 and 8, Art. 84.7, para. 4, n. 5, Art. 84.8). In the case of tolerance violations superaktsionerom at the direction of a proposal or request for redemption, or when there is a lack of information about Waqt transfer of money on account of redeemable securities. In all other situations, the existing minority shareholders will be forced to carry out the sale of its shares, because the federal law (in red. Law N 7-FZ) "On Joint Stock Companies" intends does not provide for this kind of people the opportunity to maintain their securities. From the very beginning (2004) Draft Law N 7-FZ, to propose a mechanism of forced repurchase of shares sharply flood of negative reactions from investors, who are employees of the Russian stock market. A number of large funds that invest, came out against him. It was noted that the establishment of such a regulation in the legal field will contribute to the process of displacement of minority shareholders, including foreign ones, and this contradicts the policy aimed at attracting investment to Russia from abroad. Even the adoption of the draft law will make it possible ransom major shareholders minority interest for a song without any obstacles. In Russia and so high level of concentration of large owners, and such regulation will provide more opportunities to promote the process of repression of minority shareholders. All this greatly undermine private property, making a real situation when superaktsioner has the right to decide the fate of someone else's property without the second part, this situation can be profitable only to large industrial groups, which do not allow minority shareholders Majority concentrate 100% of the shares in the same hands. The experts, most of them also spoke negatively about the bill. There were opinions that this is a priceless gift "black" Raiders: "If someone previously expressed his desire to absorb any plant or company, he first of all, it was necessary, to get the register of shareholders, which is not always easy to do. Now you can easy to apply, to issue registry, announced its intention to purchase a 30% stake in the plant or company. And it will be obliged to provide free of charge. It should be noted that the Act MPs have invented a new cheap way of getting the register of shareholders. " In the notes of the national literature has repeatedly pointed out that the approval of such a law is timeless and can lead to the loss of their property by thousands of people. Minority shareholders have received your package in exchange for vouchers will simply be pushed out of aktsionerskogo composition. They do not pay dividends, their share "blurred", and now they will lose their property. Experts assured that this law will slow to attract household savings market funds, given that the majority of potential investors have the opportunity to purchase only a small part of the shares. For this reason, the establishment of a mechanism indispensable notify all shareholders of the desire to buy a 30% stake will not make the acquisition of more transparent. "If someone expresses a desire to buy a 30% stake without asking permission while the other shareholders, the law will give emu opportunity to do so. In this case, the process of buying a meaningful stake is simply broken down into several steps ... to cope with" black "Raiders will no such laws, and the eradication of corruption in law enforcement and the courts. "
In the explanatory notes attached to the draft Law "On Amendments to the Federal Law" On Joint Stock Companies ", which amounted to the initiators of the bill, sets out that the project takes into account the experience in the legislative regulation" mechanism of withdrawal from minority shareholders of their shares, "the United States, Germany and the UK considering as well the recent changes in the corporate law of the EU. It should be noted that in the US and the EU process of displacement of minority applies only to public companies, capital of statutory funds which are formed by raising funds extensive range of investors. Public companies have the right to place its shares on the basis of public subscription; these shares are in demand on the stock exchange. When comparing Russian open joint stock companies with foreign public companies, the Russian JSC in very rare cases may involve a wide range of funds and investors to place shares of their companies on the stock exchanges. If disappear from domestic presence of minority shareholders, these companies very soon transformed into "closed" society (and in essence and form of organization). In addition, the individual layers of the economy the process of displacement of minority necessarily lead to monopolization of the market, while at the same time to the uncontrolled rise in prices. Certainly seems to be the opinion of I. Shirinyan that blind copying of foreign corporate standards, ratification procedures regular fashion can have positive consequences for the development of the Russian economy. For example, for nearly 20 years, developed, discussed and changed the EU Directive on Takeover. In all developed countries of the world from the shareholders, there are two fundamental rights: on dividends and management. Of course, the majority shareholder is a fundamental right to control (t. E. Control over financial flows), but more importantly for the minority shareholders have the right to dividends. Currently, the Russian regular dividend payments are extremely rare. This fact is the basis of the corporate conflict between minorities and the majority shareholder in the Russian market.
Procedure has been repeatedly forced repurchase of shares was subject to review by the Constitutional Court of the Russian Federation for compliance with this provision of the Constitution of the Russian Federation. According to a consensus of shareholders, compulsory acquisition of shares is at odds with art. 35 of the Constitution. However, the Constitutional Court of the Russian Federation has legalized the right of the legislator to giving priority to the interests of major shareholders who want to concentrate corporate control. Using the so-called constitutional and legal interpretation, the Court found that the rate of displacement of the right to minority shareholders is not contrary to the Constitution. To fix this norm Russian Constitutional Court has applied the concept of "common good of society to share", while its interpretation "was a very non-traditional.
Because of imperfection standards provide corporate law had such a negative factor of social and economic life, as raiding a criminal nature. It is in all cases accompanied by the fact conceal illegal acts Raiders, just the presence of illegal pressure on the owner of the property, which is in such cases, subject to a hostile takeover, the braking process of restoring rights, etc. According to AU Fedorov, operating in the country legal framework does not allow to separate the civilized methods of doing business in the field of mergers and acquisitions from the illegal seizure of enterprises. No systemic corporate law. This implies mutually exclusive decisions of the courts. For example, one of the most widely used, criminal structures, techniques is to hold extraordinary meetings of joint stock companies (JSC). As well as the application of such an institution in the mercantile, gain, which was made possible due to the low level of legal regulation of the institute.
The main intermediate target in the absorption process of the legal entity is the opportunity to define the decision-making on core issues of the functioning of the organization. All relevant issues are addressed by the General Meeting, which is the supreme organ of JSC management. All of this is directly related to solving important for the development and functioning of society problems, such as:
- Approval of the Company's Auditor;
- Election of Board of Directors (Supervisory Board), as well as the termination of their powers ahead of schedule and the powers of the Audit Commission (Auditor) of;
- Reorganization or liquidation of the JSC;
- Declares dividends;
- Approval of transactions;
- Consolidation and splitting of shares, etc.
Declination to take the necessary decisions for the Raiders during the General Meeting (eg, re-election director) - is not an easy task. And in some cases by direct absorption it can become altogether impossible because of the impossibility of criminal organizations to recruit the necessary number of votes in a vote on a specific issue. In this case, there are ways to obtain the desired solutions, not formally violating the law, if we apply the use of spaces in the prescribed manner and procedure of the extraordinary meeting, decisions are legally equal to the decisions of the general meeting. Extraordinary General Meeting is enshrined Art. 55 of the Federal Law "On Joint Stock Companies". For the subjects of conducting a criminal takeover of interest legal fragment in which by applying some effort you can create a situation in which the statutory rate of the meeting only in the presence of at least 50% of the joint-stock company shall be construed as mandatory or optional, the upper limit amount of presence can be equal to 30%. For the procedure of criminal absorb this situation is quite achievable. For example, when the upper threshold equal to 30% of the participants and consolidation of the entire 15% stake, you can re-elect the current leader of the "majority" of votes and change the top manager, controlled by a criminal group. And subsequently, to authorize it to take the necessary decisions to absorb. Raiders tool is an extraordinary shareholders meeting. In order to achieve absolute legitimacy of the election results during a special meeting in the presence of 30% of the shareholders must fulfill the conditions stipulated by the law:
- shareholder (s), which is held on the initiative of an extraordinary general meeting, shall have not less than 10% of shares, voting (the date of the request);
- Board of Directors (Supervisory Board) of JSC must decide not to convene an extraordinary general meeting if the decision is deliberately delayed and not made within the specified statutory period, ie within five days from the date of request shareholder (s).
In order to get the right for the Raiders refusal to hold a meeting stakeholders in its holding, specifically allows formal irregularities in making the request. Upon receiving no satisfactory answer to the question of convening an extraordinary meeting initiators formally's right to self-hosting this meeting, that is, without taking part in its organization and conduct of the current leadership. If within the statutory period the Board of Directors (Supervisory Board) of not decide to convene an extraordinary general meeting of shareholders or a decision of refusal to convene it, the general shareholders' meeting may be convened by requesting it faces and bodies . The timely receipt of a response to a request to hold an extraordinary meeting can be achieved by supplying raiders numerous requests for a variety of issues. You bet on that track all the queries the current administration does not have time. Having obtained the right to hold meetings on their own (in the presence of the above conditions). Organizes the congregation subject absorption so that at the time of its opening will not be a quorum of 50%. An unauthorized extraordinary meeting recognized when there is uncertainty about the prospects for making the necessary decisions in the presence of the Raiders 50% quorum, that is, when the preponderance of votes may not happen in their favor. After the Extraordinary General Meeting will be considered illegitimate, will be scheduled and held again. Requirement of the law in this case, the quorum will be reduced to 30%, which will significantly increase the ability to obtain necessary to absorb the AO solution. Changes in legislation and the powers of the Court, the recent legislative changes to the regulations specified in some way reduced the variability in the application of the schemes. Federal Law № 205-FZ of 19.07.2009  the spontaneous emergence of a possible organization of an extraordinary meeting of the initiator of the meeting held under judicial control. Without a court order holding an extraordinary meeting on the initiative of the company's shareholders will not be legitimate. The Court also in this situation will have the possibility of taking one of the following solutions provided by law:
disallowing the application of the performance requirements of an extraordinary meeting;
- Oblige Society to hold a general extraordinary shareholders' meeting.
A significant impediment to solving crime problems that are associated with the interception of the rights of possession and control of a legal person, is judicial control. The Court, in studying the reasons for the refusal guide society in an extraordinary meeting may cause and listen to both sides and on this basis to take appropriate action. The presence of the court refuses an application for authorization of the EGM does the fact replace the existing guidance on controlled criminals representative impossible. In order to prevent a possible veto by a judicial authority of criminal organizations has to carefully organize more preliminary work on the development of the circumstances which will not allow the management of JSC timely decision on the legality of the requirements to hold a meeting of shareholders. Or, in the case of imposing the ban on the leadership of the congregation, the declination of the court to make a decision in favor of the plaintiff. And other possible option impact on judicial veto, which contains frankly criminal component, and are bribing the proper person. In what way can go practice can be seen in the materials further investigation of the criminal process of raiding. Need to continue to search for a legal regulation in making positive decisions for the Raiders (regardless of the above actions) for the court's consideration of the question of consent to the holding of an extraordinary meeting of its implementation is entrusted to the plaintiff (the applicant). In the presence of the plaintiff's duty to request an extraordinary meeting may be assigned to another body AO (with the consent of the representatives of this body to assume such obligation). In this case, the Board of Directors (Supervisory Board) can not be such a body. The situation becomes uncontrollable preparation meeting with dismissal from the organization and holding of an extraordinary meeting of the shareholders themselves. This circumstance requires regulation to continue the search process in the legal field and the convening of the meeting at the lack of leadership in his community involvement. Lack of control called the stage of activity of a criminal group gives ample opportunities in the use of fraudulent practices that lets you take control of participants organized meetings and provide a guaranteed advantage in favor of the organizers of the meeting in the voting process. As a result, the question of legislative control bases, conditions and procedure of extraordinary meetings provided major obstacles to wrongful absorption of legal persons and their property complexes. But it should be noted that the legislative changes can not completely eliminate the possibility of criminal raids using the institute of general meetings.
Raiding in Russia, of course, remains in 2015. But it is different from the past of its manifestations were observed in the late 90's - early 2000s. Few people can now decide to storm the industrial enterprises, fake stamps and signatures in documents in order to achieve an illegal change of ownership in the company and reduce the number of cases of collusion with notaries.
Variety of attacks to the operating business today can be divided as follows:
- The use of administrative resources - the investigating authorities, courts and prosecutors. Unfortunately, the independence of the Russian state courts, and especially the courts of general jurisdiction, leaves much to be desired. On the Internet, numerous examples of unjustified and illegal issuance of court decisions, which are the main reason was the presence of attention supervisors the progress of some of litigation;
- Black PR and information war with the media and the Internet - resources. Deliberately untrue texts on specific keywords can seriously bring down the client confidence in certain companies, as well as to extend the negative rumors among employees;
- Class actions of consumers - a new kind of raiding, which is used when the object of attack is engaged in providing services, works or sells products to individuals - consumers, the protection of the rights and interests of which is in a special federal law and many state inspections and services;
- Corporate raiding - this method gradually acquired more civilized framework and it can be called "the struggle for control in the management of business entities." Since July 2009, the Company has a joint-stock company and concluding agreements with shareholders (agreements concerning the rights of participants), the use of extensive legal practice does not exist that defines a wide field for misuse and misinterpretation of the parties to the size of their rights and duties of the boundaries of other partners. (22 ).
Next, you need to identify the main causes of the origin and prosperity of raiding in Russia:
• Total corruption and low levels of law enforcement,
• The low level of culture of the business environment,
• Imperfect legal framework,
• Imperfect market institutions
• Negative public attitudes towards private ownership and entrepreneurs themselves.
By analyzing the above statistics, causes, stages raids in the country come to the surface features of the development of the Russian market of hostile takeovers:
1. Priority is given to operational measures to protect grips, ie when the raider attack "in full swing". At a time when it is primitive measures can minimize the risk of acquisitions.
2. The fight takes place only because of the controlling stake (50% plus one share) because any lesser number (even a blocking stake) do not provide a guaranteed control over the enterprise.
3. Hostile usually absorbed by joint-stock companies as more affordable because of our legislation to attack from the side.
4. "resistance" of the company - the aggressor, with evidence of his victory - the use of administrative resources.
5. There is a special "index reyderprigodnosti."
The higher the index company, the more likely that this company will absorb hostile. The index is a sum of the multiplied due to the weight. The weighting factor for each index and its depends on the degree reyderprigodnosti - 0.1 (minimum interest for the Raiders) to 0.7 (maximum interest for the Raiders). Next, we consider the most rasprostranѐnnye capture techniques that are currently in use by the Russian raiders:
1. Fraud - falsification of documents: minutes of meetings, imitation signatures, creation of artificial documents, filing their registration in the Legal Entities.
2. "greenmail" - carries a psychological nature. Applied within the legal system does not violate any legal regulations. Viewed as a stand-alone type of business.
3. The power grip (using force).
4. Bankruptcy (rarely used in recent years). Methodology for bankruptcy at the moment an order of magnitude less used since perfected the bankruptcy law, and public opinion to this question is always on the lookout. However, before the bankruptcy was the main way to capture a variety of corporations and enterprises. This method is reliable, but it is easy to recognize it - strongly evident, and it is the lowest (initial) their level.
5. Administrative methods originating from local or federal authorities. Businessman give what any remuneration for the business, but it had taken in favor of the state or, pouring non-state actors.
6. Purchase of shares. Blurring the property by issuing shares of minority shareholders without a look at them right - quasi-statutory method. For example: Purchase of shares - not raiding.
However, if you take possession of a major stake, initiate a doubling of the share capital and to mobilize all efforts, to release additional shares to be bought up immediately, then it will be found to be unlawful. But despite this external form is perfectly legal. Make an additional issue can only owner, if issued shares shall not the owner, the action - illegal.
7. "Antireyderstvo." This new tool of redistribution of property.
Raiders took it on his arms recently. This shameless way carries the complete conversion of the Raiders in "antireyderov." It is because of this now almost all of the raiders are trying to join the ranks of fighters against corruption: making it to hide its true face, they look like new commentators anticorruption laws. For irrevocable legitimation of theirs position they draw in their campaign for unlawful weaning property public organizations.
In the Russian practice created this typology (classification) of aggressive acquisitions:
1. On the basis of the legal process (by the intensity of the violation of norms and laws):
- Legal (or "white") - absolutely meets all the norms of law, legal action Raiders do not contradict the laws; Basically, this technology - "greenmail" or corporate blackmail, and with this application in the legislation, the manipulation of public opinion, the decline on its side representatives of the authorities, approval and provoking protest activity Corporation employees, transfer and disclosure of compromising corporate management reporting in the appropriate tax and other bodies;
- Implicit (or "gray") - meet the standards of the law, but not in this case does not refer to voluntary participation in the transaction one of the parties, the connection formally legal and illegal methods. These might include such actions as the most experienced expert would be unable to recognize the legality of the degree of the offense. For example, it may be a change in decision-making members of the judiciary, law enforcement, or the creation of an atmosphere in which the normal functioning of the daily workflow becomes no longer possible, posting negative or compromising materials in the media, veiled pressure on the parties (management) responsible for situation, administrative resources, various diversions, etc., may also be a violation of civil or administrative law);
- Illegal (or "black") - power, illegal seizure of property, violation of rights, interests and desires of one of the participants. We are talking about the use of methods such as blackmail, hostage-taking, corruption, power capture of the territory of the enterprise, fake court decisions, statutory documents, minutes of meetings of shareholders etc ..
More recently, this classification have added the fourth kind - "Cornflowers" raiding "cornflower" raider is, most often, a senior civil servant, who directs or engages to raider gang raider seizure of any household object. Unfortunately, grab samples of similar objects abound.
1. At the focus and motivation absorption:
- Spec absorption is called absorption, with the main purpose of obtaining the asset and its subsequent sale to third parties for profit.
- Production absorption is called absorption enterprise to acquire assets and their further use in the production of personal interests or its entry into the structure of customer acquisition. Faced with these types:
2. Absorption of the territory - the absorption of the company with the main objective to raise capital and to cement the position of the absorption of the customer at a predetermined site.
3. Branch absorption called targeted takeovers in advance due to the industry with the main objective to multiply the share of production in the industrial customer of the market.
- Competitive absorption is called absorption enterprise with core businesses in order to eliminate competition from the market due to the product, getting rid of the market space for product sales customer uptake within the constraints of the market implementation. In most of these cases the absorbed company, sold, or have shifted.
4. The level and significance of acquired businesses:
Regional companies such absorption is called when the assets and business of the enterprise does not show a significant effect on the market manufactured goods to them. The absorption of this type of enterprises, often without pulling a strong public response.
Interregional absorption enterprises called absorption exciting venture a significant share of sales (at least 5) in the national market them manufactured goods.
Inter-absorption often immediately made public.
Absorption of such enterprises indicate that changing the position of the absorption of the customer on the market of certain products at the level of the state's economy.
International absorption is called absorption of international companies, corporations, market implementation of which is estimated in terms of the global economy.
5. According to the procedure of working with enterprise-level objects:
- Hostile takeover call these acquisitions, in which the leading role is played by the pressure force on the management of acquired businesses, it includes a large number of complaints, the search and application of compromising materials for the fabrication of criminal cases against members of the leadership of the absorbed companies.
- Administrative absorption referred to this type of acquisitions, when the enterprise-object attracted attention of any authorities, including on issues that are not integrated with the corporate leadership. For example, a corporation, heavily polluting, may well become a takeover target by using coercive power on environmental issues. In this case, use the fact absorbers pressure from the government to the enterprise and achieve their goals.
- Legal absorption is called absorption enterprise using pressure through the prosecution, for example, applying the rights of a shareholder.
- Functional absorption is called absorption, which is carried out at the expense of maneuverability, speed and special technology absorption. This type of acquisitions are generally characterized as skillful work sinks with packages of shares (stakes), rapid consolidation and application of the rights of shareholders by combining the use of absolutely all the available methods of attack.
- Pulp absorption call this type of absorption when using criminal schemes, implement the commission of one or more offenses.
Criminal bankruptcy is called the phenomenon of deliberate socially dangerous illegal actions by the artificial creation of insolvency or seizure fixed on embezzlement. Criminal bankruptcy and raiding objectively combined with security threats such economy as:
- An increase in the unemployment rate;
- Tax evasion;
- An increase in corruption of the judiciary and civil servants;
- Monopolization of a number of market segments;
- The decline and destruction of production;
- Loss of competitiveness;
- Discrediting of representatives of federal and regional authorities, courts and law enforcement agencies;
- Deterioration of the investment climate;
- Launch of money laundering by illegal means;
- Stimulating of the criminal bankruptcy and aggressive grabs.
Hostile takeovers and criminal bankruptcy to play the role of central types of criminal activity: in the absence of effective measures to counter these types accepted lively grow and spread from the center to the periphery of the high speed. It is illegal phenomenon does not coincide with its purpose - to promote adherence to human rights, intensive stabilization of society and the state and managed by such articles 196 (intentional bankruptcy) and 197 (fictitious bankruptcy).
If you do not take care of these articles are also very relevant in the analysis of transactions are such articles:
- Article 199 (tax evasion and (or) fees to the organization) is used to destroy the legal enterprise. It is used for the sale and withdrawal of assets from the company and often carried out with the direct participation of the Federal Tax Service. The greatest activity and fame received today.
- Article 201 (abuse of authority) acts made by officials of commercial organizations. Most often used to display and sale of assets. Together with this - transactions that go beyond the limits of competence of these officials. Adoption of unlawful decisions;
- Article 285 (abuse of power) is applied at a pressure on the victims' "conflict" for the formation of interference in the work of the enterprise, for example, to engage in administrative responsibility, revocation of the license without a legitimate reason.
- Article 291 (bribery) is used to bribe officials and service.
- Article 292 (forgery) is used for the interpretation and / or modification of the legal nature and meaning of any Act - the document. The most frequently used in activities related to land ownership.
- Article 293 (negligence) often violations that allow employees and officials look like carelessness. They do not do anything (not issued in a timely manner documents shall deliver the information and documents that do not have the right to provide, etc.). Crime borderline between art. 285 and 286, but vse-taki, the sanction is much softer. Often the actions of corrupt officials mistakenly interpret it as negligence.
- Article 294 (obstruction of justice and manufacture of preliminary investigation) is usually applied when the outcome of the dispute are interested influential officials. It is extremely difficult to prove.
- Article 303 (falsification of evidence) committed by law enforcement officials during the investigation.
In our country the situation with the use of raiding can announce in three words: the law almost always powerless. Indeed, a feature of the rule of law in Russia and other countries of continental law shows their design, and any crime could be enshrined in law by establishing common and typical features of these illegal activities and collect them into a single structure.
The complexity of the legal prohibition of raiding in Russia explain this: too few typical signs, homogeneous for all raiding incidents in order to portray a unified corpus delicti for absolutely all accidents hostile takeovers and fix it in the Criminal Code. When raider attacks use a variety of schemes to achieve their own goals set methods for each video capture unique and even if includes several methods provided the Criminal Code, to prove them practically very difficult because that absolutely all the actions implemented within a single enterprise.
"The big drawback to an effective criminal-law fight against corporate raids, acts that the Criminal Code does not include articles with ease to combat corporate raids objects outside of property, plant and property, and quite often in practice such actions qualified for his articles that provide liability for arbitrariness (Art. 330), fraud (Art. 159), the organization of a criminal community (criminal organization) or membership in it (her) (Art. 210), in order to extort blackmail (art. 163), unlawful disclosure and obtaining information included in commercial, tax and banking secrecy (Art. 183), coercion to a deal or refusal of its fulfillment (Art. 179). "
Needless to current legislation of our fatherland prevent seizures Prevention and Protection glorify enterprises. At the moment, the activity in this market because of the crisis fell, however, can not say that she had gone to the past practice of taking companies to gain control over financial flows or chance resale of productive assets. Nowadays, virtually any company, if the value of its marketable assets exceeds 5 million. USD., or the average income for the year close to 10 million. US., may be subject to seizure or attempted hostile takeover.
Raider business in any state must necessarily be governed by the law, which is constantly updated and supplemented with new modifications, and Russia is no exception.
July 5, 2010 entered into force the Federal Law "On Amendments to the Criminal Code of the Russian Federation and Article 151 of the Criminal Procedure Code of the Russian Federation", it is from the very beginning, during the consideration of the bill, started calling the law "On raiding".
At the same time, the Federal Law "On Amendments to the Criminal Code of the Russian Federation" or, if interpreted conditionally - the Law "On raiding" provides only unlawful seizure of firms - that is, the actions of individuals and organizations, in direct violation of the law and the interests of the owners of the company captured .
If we start from the context inscribed in the Criminal Code amendments, we can draw the following conclusions that raiding in Russia - fearing possible way:
Activities for falsification of Companies House, a register of holders of securities or depository accounting system. This refers to, the issuance of false information in advance in order to modify the registration data of the enterprise (its directors, founders, etc.).
Effects which lead to the introduction of the system of depository accounting or in the register of holders of securities obviously unverified information through the use of unauthorized access.
Actions that lead to inclusion in the register of holders of securities of unverified information, and equally deliberate destruction or forgery, because of which were made to write or change in the register of holders of securities, in the case where mandatory storage of the documents prescribed in the legislation of the Russian Federation. Activities for the substitution of decisions of the general meeting of shareholders (members) of a business entity or decision of the Board of Directors (Supervisory Board) of the economic obschestva.75
Deliberate actions that lead to the introduction by an official in any of the Unified State Register in advance unverified information, as well as deliberate destruction or forgery of documents.
So we see that the Russian legislation under raiding forgery believes the information and internal documents of the company, for the purpose of power and illegal change of the owner or chief, modification amount of the authorized capital or equity entities.
All of these actions, depending on their severity, shall be punished by imprisonment or, or fines, or taking away a person's right to hold certain positions or engage in some form of activity. The amount of penalty ranges from 100 000 to 500 000 and imprisonment term can reach up to ten years.
For stronger financial, informational and advisory protection and assistance to businesses and companies in the problems with corporate raids in the country is based organizations that are directly involved in the study, monitoring market associations and refinement techniques such transactions.
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