LETTER OF THE MINISTRY OF JUSTICE OF UKRAINE

of September 20, 2013 No. 533-0-2-13/6.1

(Extraction)

The Ministry of Justice of Ukraine within competence considers the address concerning provision of explanations of some regulations of the legislation of Ukraine and the following is reported.

Concerning "Whether the Company without Appointment of the Director (Other Head) Can Work" and "Whether the Director Can Be the Single Employee of the Company and, in Particular, Keep Financial Accounting"

According to article 62 of the Economic code of Ukraine the company is the independent subject of managing created by competent authority of the government or local government body, or other subjects for satisfaction of public and personal needs by systematic implementation of productive, research, trading, other economic activity according to the procedure, provided by this Code and other laws.

Depending on method of education (organization) and forming of the authorized capital in Ukraine unitary and corporate enterprises are effective.

The unitary enterprise is created by one founder who allocates property necessary for this purpose, creates the authorized capital which is not divided into shares (shares) according to the law approves the charter, distributes the income, is direct or through the head who it is appointed, directs the company and creates its labor collective on the basis of labor hiring, resolves issue of reorganization and liquidation of the company. The companies state, utility, the companies founded on property of consolidation of citizens, the religious organization or on private property of the founder are unitary.

The corporate enterprise is formed, as a rule, by two or more founders according to their joint decision (agreement), acts on the basis associations of property and/or business or labor activity of founders (participants), their general management by cases, on the basis of corporate laws, including through the bodies created by them, participations of founders (participants) in income distribution and risks of the company. Cooperative entities, the companies which are created in the form of economic society, and also other companies including founded on private property of two or more persons (part one, third - the fifth article 62 of the specified Code) are corporate.

Besides, it should be noted that by article 135 of the Economic code of Ukraine it is determined that the owner of property has the right solely or together with other owners on the basis of the property ought to it (them) to base the economic organizations or to perform economic activity in other forms of business of managing which are not prohibited by the law at discretion determining the purpose and subject of economic activity, structure of the subject of managing formed by it, structure and competence of its governing bodies, procedure for use of property, other questions of management of activities of the company, and also to make the decision on the termination of economic activity of the subjects of managing based by it according to the legislation.

The owner has the right personally or through the bodies authorized by it for the purpose of implementation of business activity to found the economic organizations, assigning to them the property belonging to it on the property right, the right of economic maintaining, and for implementation of non-commercial economic activity - on the right of operational management, to determine the purposes and object of activity of such organizations, structure and competence of their governing bodies, procedure for adoption of decisions by them, structure and procedure for use of property, to determine other conditions of managing in the constituent documents of the economic organization approved by the owner (authorized by it body), and also to perform directly or through the bodies authorized by it in the limits established by the law, other managerial powers concerning based the organizations and to stop its activities according to this Code and other laws.

Considering brought, the owner of the company bases and determines conditions of activities of the company taking into account the requirements established by the law to the form of business of the company chosen by it.

In particular, the company can be created in the form of the unitary enterprise.

So, article 65 of the Economic code of Ukraine provides that for management of economic activity of the company the owner (owners) or the body authorized by it appoints (elects) the director.

In case of hiring of the director the agreement (contract) in which the term of hiring, the right, obligation and responsibility of the head, condition of its material security, condition of its dismissal from position, other terms of employment as agreed by the parties are determined is signed with it.

The director without power of attorney acts on behalf of the company, represents its interests in public authorities and local government bodies, other organizations, in the relations with legal entities and citizens, creates administration of the company and resolves issues of activities of the company in the limits and procedure determined by constituent documents.

Also economic societies according to Article 113 of the Civil code of Ukraine can be created in the form of complete society, limited society, society with the limited or accessorial liability, joint-stock company.

So, by Article 122 of the Civil code of Ukraine it is determined that each participant of complete partnership has the right to act on behalf of partnership if by the foundation agreement it is not defined that all participants run business jointly or business management is entrusted to certain participants. <...>

According to article 136 of the specified Code of management of activities of limited society it is performed by complete participants according to the procedure, established by this Code for complete society.

Article 145 of the specified Code provides that the supreme body of limited liability company is general meeting of his participants. In limited liability company the executive body (joint or individual) performing the current management of its activities and accountable to general meeting of his participants is created. The executive body of society can be elected as well not from the list of members of society. Competence of executive body of limited liability company, procedure for adoption of decisions by it and procedure for making of actions on behalf of society are established by this Code, other law and the charter of society.

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