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

of February 5, 1998 No. 4/2

About application of Item 3 of article 94 of the Federal law "About Joint-stock Companies"

For the purpose of ensuring uniform application by courts and Arbitration Courts (further - courts) Item 3 of article 94 of the Federal law "About Joint-stock Companies" * (in edition of the Federal Law adopted by the State Duma on May 17, 1996) the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation decide to make to courts the following explanations.

According to Item 3 of article 94 of the Law constituent documents of the joint-stock companies created before enforcement of the called Law were subject to reduction in compliance with it till July 1, 1997. The constituent documents of joint-stock companies which are not brought into accord with the Law before the specified date are considered as invalid. Proceeding from it courts in case of the dispute resolution need to mean the following.

1. The joint-stock company created before introduction of the Law in action in case of not reduction till July 1, 1997 of the constituent documents in compliance with the provisions of the law can be liquidated by a court decision based on Item 2 of Article 61 of the Civil code of the Russian Federation upon the demand of state body or local government body which is granted the right to presentation of such requirement (Item 3 of article 61 of the Code).

In case of revenues to consideration of Arbitration Court of the claim for liquidation of joint-stock company for the bases specified in paragraph one of this Item, the court needs to analyze carefully constituent documents (charter) of society, meaning that in case of detection of discrepancy of the provisions containing in them to the provisions of the law the court according to the procedure of preparation of case for legal proceedings (Item 3 of Article 112 of the Arbitral Procedure Code of the Russian Federation) can suggest society to take measures for elimination of the discrepancies which are available in constituent documents (charter) with the Law by entering into them of necessary changes and amendments with their registration in accordance with the established procedure. The Arbitration Court can also postpone consideration appointed to hearing of the case, having suggested joint-stock company to eliminate the discrepancies which are available in constituent documents with the Law no later than the court of term (Article 120 of the Arbitral Procedure Code of the Russian Federation) established in determination. In case of failure to carry out of the instructions of court this according to the procedure of preparation of case for legal proceedings or in determination about adjournment of consideration of the case, the court resolves issue of liquidation of the relevant joint-stock company based on Item 2 of Article 61 of the Civil code of the Russian Federation, meaning that activities of society which constituent documents are invalid, shall be considered as performed with violation of the law.

2. According to Item 8 of Article 63 of the Civil code of the Russian Federation and article 24 of the Law liquidation of the legal entity (joint-stock company) is considered complete, and the legal entity (joint-stock company) stopped existence after entering of record about it into the state register of legal entities. Proceeding from it the joint-stock company against which proceedings on its liquidation in connection with not reduction by it till July 1, 1997 the constituent documents in compliance with the Law are initiated remains acting before completion of its liquidation and exception of the state register of legal entities. During the period since July 1, 1997 to completion of liquidation of such joint-stock company its activities are regulated by regulations of the current legislation without provisions of the charter of the society which is since July 1, 1997 according to Item 3 of article 94 of the Law invalid.

Only legislation regulations (without charter provisions) regulate also activities of the joint-stock companies which did not provide timely reduction of constituent documents in compliance with the Law, but eliminated this violation afterwards (including based on the arbitration court ruling which is taken out according to the procedure of Article 112 or Article 120 of the Arbitral Procedure Code of the Russian Federation), during the period since July 1, 1997 to registration in accordance with the established procedure of constituent documents in the new edition.

3. The transactions made by the specified joint-stock companies during the period since July 1, 1997 to exception of the relevant society of the state register of legal entities (in case of liquidation) or before registration of the changes and additions made to constituent documents (the charter in the new edition), are valid if they do not contradict the legislation regulations regulating the corresponding legal relationship.

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* Further - the Law

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