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

of December 9, 1999 No. 90/14

About some questions of application of the Federal Law "About Limited Liability Companies"

For the purpose of ensuring the correct application by courts and Arbitration Courts (further - courts) the Federal Law of February 8, 1998 "About limited liability companies", and also considering that courts had questions requiring permission, 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.

1. By consideration of the disputes connected using the Federal Law "About Limited Liability Companies" (further - the Law), courts should recognize that its action extends to all limited liability companies, including those which acquired such form of business according to article 6 of the Federal Law of October 21, 1994 "About enforcement of part one of the Civil code of the Russian Federation", providing application of regulations of the legislation on limited liability companies to earlier created limited liability partnerships and obliging the last to bring the constituent documents into accord with regulations of Chapter 4 of the Code about limited liability companies according to the procedure and the terms determined by the Law.

Based on Item 3 of Article 95 of the Civil code of the Russian Federation of the rule of the Code about limited liability companies, and respectively, and provisions of the Law are applied also to additional liability companies as other is not provided by the special rules established for these societies.

2. According to Item 2 of article 1 of the Law of feature of legal status, procedure for creation, reorganization and liquidation of limited liability companies in spheres of banking, insurance and investing activities, and also in the field of production of agricultural products are determined by the Federal Laws.

Article 87 of the Civil code of the Russian Federation (of July 8, 1999) provides in editions of the Federal Law that features of legal status of the credit institutions created in the form of limited liability companies, the rights and obligations of their participants are determined by the laws regulating activities of credit institutions.

Courts need to mean that the circle of the questions specified in the given provisions of the law and the Code on which features of legal regulation of the societies called in them can be established in other Federal Laws is exhaustive. On other questions including connected with guarantees and methods of protection of the rights of members of societies (except the credit institutions created in the form of limited liability companies), general provisions of the Law are applied.

Features of legal status, procedure for creation, reorganization and liquidation of limited liability companies in the field of agricultural production concern only to those from them which are created based on kolkhozes, sovkhozes and other companies which are directly occupied with agricultural production or are again formed for conducting activities in this sphere, and do not extend to the societies operating in the industry and performing conversion of agricultural products, performance of works and rendering services for agricultural producers.

3. In case of the dispute resolution, raising the questions of determination of the location of society (in particular, in case of determination of the place of execution of monetary commitments), courts need to be guided by Article 54 of the Civil code of the Russian Federation and Item 2 of article 4 of the Law according to which the location of the legal entity is determined by the place of its state registration. At the same time it is necessary to consider that the Law according to the called article of the Code allows withdrawal from this rule, providing that by constituent documents of society the place of its stay the place of permanent finding of governing bodies of society or the main place of its activities can be determined.

4. Courts by hearing of cases need to mean that the Law limits number of members of society whom there shall be no more than fifty. If the specified limit is exceeded, society shall be transformed within year to open joint stock company or to production cooperative (Item 3 of article 7 of the Law). In case of failure to carry out of this requirement and not reducing number of participants in the specified time society is subject to liquidation judicially based on Item 2 of Article 61 and Article 88 of the Civil code of the Russian Federation.

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