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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of June 26, 2018 No. 27

About contest of large deals and transactions in which making there is interest

For the purpose of ensuring unity of practice of application by courts of the legislation on the economic societies Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make the following explanations.

General provisions about contest of large deals and transactions with interest

1. By consideration of the requirement about recognition of the transaction invalid as made with violation No. 208-FZ provided by the Federal Law of December 26, 1995 "About joint-stock companies" (further - the Join-stock companies law) and the Federal Law of February 8, 1998 No. 14-FZ "About limited liability companies" (further - the Law on limited liability companies) procedure for making of large deals, is subject to application Article 173.1 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation), and with violation of procedure for transactions in which making there is interest (further - transactions with interest), - Item 2 of article 174 Civil Code of the Russian Federation (Item 6 of Article 79, Item 1 of Article 84 of the Join-stock companies law, Item 6 of Article 45, item 4 of article 46 of the Law on limited liability companies) taking into account the features established by the specified laws.

2. The term of limitation period according to requirements about recognition of large deals and transactions with interest invalid and application of effects of their invalidity is estimated by rules of Item 2 of article 181 Civil Code of the Russian Federation and constitutes one year.

The term of limitation period in claims for recognition of the invalid transaction made with violation of procedure for its making and for application of effects of its invalidity including when such requirements on behalf of society are imposed by the member (shareholder) or the board member (supervisory board) (further - the board of directors), is estimated from the date of when person who independently or together with other persons performs powers of sole executive body learned or owed learn that such transaction is made with violation of requirements of the law to procedure for its making including if it directly made this transaction.

If person who independently or together with other persons performs powers of sole executive body was in collusion to other party of the transaction, the term of limitation period is estimated from the date of when learned about the corresponding circumstances or owed recognize person who independently or together with other persons performs powers of sole executive body, other, than person who made the transaction. Only in the absence of such person until presentation by the member of economic society or the board member of the requirement prescriptive limit is estimated from the date of when learned about the called circumstances or the participant or the board member who imposed such requirement shall learn.

3. When according to Item 2 of this resolution the moment of the beginning of current of term of limitation period is determined depending on when that the transaction is made with violation of requirements of the law to procedure for its making, learned or the participant (shareholder) who imposed requirement shall learn, it is necessary to consider the following:

1) when the claim is made jointly by several participants, limitation period is not considered passed if at least one of such participants did not pass the term of limitation period on the address with the relevant requirement provided that this participant (participants) has necessary according to the law for presentation of such requirement the number of voting shares of society (voices) (Item 6 of Article 79, Item 1 of Article 84 of the Join-stock companies law, Item 6 of Article 45, item 4 of article 46 of the Law on limited liability companies);

2) if society publicly opened data on the disputed transaction according to the procedure, stipulated by the legislation about the security market, it is considered that his participants (shareholders) learned about the disputed transaction from the moment of public disclosure of information when from it it was possible to draw conclusion on making of such transaction with violation of procedure for making;

3) it is supposed that the participant shall learn about transaction with violation of procedure for making of large deal or the transaction with interest no later than date of annual general meeting of participants following the results of year in which the disputed transaction was made, except as specified, when information on transaction disappeared from participants and (or) from the materials provided to participants when holding general meeting it was impossible to draw conclusion on making of such transaction (for example if did not follow from the balance sheet that the structure of capital assets in comparison with previous year changed);

4) if the stated above rules cannot be applied, then it is considered that the participant (shareholder) anyway shall learn about making of the disputed transaction more than a year ago (Item 2 of article 181 Civil Code of the Russian Federation) if he long time (two or over a year in a row) did not participate in general meetings of participants (shareholders) and did not request information on activities of society.

4. In case of assessment of observance of rules of making of large deal or the transaction with interest it is necessary to recognize that in the decision on consent to making (approval) of the transaction (article 157.1 Civil Code of the Russian Federation) (further - the decision on approval, approval), by the general rule, person (persons) which is its party (parties), the beneficiary (beneficiaries) and also its main conditions shall be specified (conditions, for example, the price having essential value for decision making about its approval, subject, term, availability of obligation to provide ensuring obligation fulfillment, etc.) or procedure for their determination. The committed transaction is considered approved if its main conditions corresponded to the data on this transaction which found reflection in the decision on approval of its making or in the draft of the transaction attached to this decision.

Subsequent change of the main conditions of the approved and committed transaction is the independent transaction (article 153 Civil Code of the Russian Federation) and needs new approval.

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