3 articles 67.1 of the civil code of the Russian Federation. How to formalize the decision of the general meeting of participants of LLC. Who signs the decision of the general meeting of participants

18.09.2021

Full text of Art. 67.1 of the Civil Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice under Article 67.1 of the Civil Code of the Russian Federation.

1. Management in a general partnership and a limited partnership is carried out in accordance with the procedure established by Articles 71 and 84 of this Code.

2. The exclusive competence of the general meeting of participants in a business partnership, along with the issues specified in paragraph 2 of Article 65.3 of this Code, includes:
1) change in the size of the authorized capital of the company, unless otherwise provided by laws on business companies;
2) making a decision to transfer the powers of the sole executive body of the company to another economic company (managing organization) or an individual entrepreneur (manager), as well as approving such a managing organization or such manager and the terms of the contract with such a managing organization or such manager, if the charter of the company decides these issues are not within the competence of the collegial management body of the company (paragraph 4 of Article 65.3);
3) distribution of profits and losses of the company.

3. The adoption of a decision by the general meeting of participants in a business partnership and the composition of the participants in the company who were present at its adoption are confirmed in relation to:
1) a public joint-stock company by a person who maintains the register of shareholders of such a company and performs the functions of a counting commission (paragraph 4 of Article 97);
2) a non-public joint-stock company by notarization or certification by a person who maintains the register of shareholders of such a company and performs the functions of a counting commission;
3) limited liability companies by notarial certification, unless another method (signing of the protocol by all participants or part of the participants; using technical means to reliably establish the fact of the decision; otherwise, not contrary to law) is not provided for by the charter of such a company or by a decision of the general meeting participants of the company, adopted by the participants of the company unanimously.

4. A limited liability company, in order to verify and confirm the correctness of its annual accounting (financial) statements, has the right, and in cases provided for by law, is obliged to annually engage an auditor who is not connected by property interests with the company or its participants (external audit). Such an audit can also be carried out at the request of any of the company's participants.

5. To check and confirm the correctness of the annual accounting (financial) statements, a joint-stock company must annually engage an auditor who is not connected by property interests with the company or its participants.

In cases and in accordance with the procedure provided for by law, the charter of the company, the audit of the accounting (financial) statements of the joint-stock company must be carried out at the request of shareholders whose aggregate share in the authorized capital of the joint-stock company is ten percent or more.

(The article was additionally included from September 1, 2014 by the Federal Law of May 5, 2014 N 99-FZ)

Commentary on Article 67.1 of the Civil Code of the Russian Federation

1. The norms of the commented article indicate a combination of general and special procedures for managing a business company or partnership. Features of the management of certain types of corporations are determined by the norms of special laws. Issues related to the jurisdiction of a particular governing body, along with special instructions, can also be specified in constituent documents. The provisions of clause 2 of this article are aimed at detailing the powers of the general meeting of participants in a business entity. They reflect the general list of issues on which decisions can be taken by this body.

2. Decisions of the general meeting of participants are documented in minutes, which are signed by the chairman and secretary of the meeting. A special requirement for the minutes is the need to confirm the fact of holding a general meeting. In particular, by signing the protocol by all participants of the company. This form of confirmation of the fact of holding a meeting is provided only for a limited liability company, and only if there is a special order to this effect in the constituent documents of the organization. In all other cases, we are talking about two main forms:
- about notarization - this is the most common form. The notary certifies not so much the fact of the meeting as the authenticity of the signature under the protocol. The authenticity of the signature is indirectly confirmed by the fact that the meeting was held. However, the most effective in this case is the notarization of the signature of each of the participants;
- on certification by the registrar. This form is applied to a joint-stock company that has entrusted the maintenance of the register of shareholders to a specialized organization. A specialized organization can be involved only under an agreement for the provision of services for counting votes and certification of documents.

3. One of the features of corporate management is the confirmation of the reliability of accounting (financial) statements by the results of an independent audit, and for a joint-stock company it is an obligation, for a limited liability company it is both a right and an obligation. In particular, in order to verify and confirm the correctness of the annual accounting (financial) statements, a joint-stock company must annually engage an auditor who is not connected with property interests with the company or its participants.

A limited liability company, in order to verify and confirm the correctness of its annual accounting (financial) statements, has the right, and in cases provided for by law, is obliged to annually engage an auditor who is not connected by property interests with the company or its participants (external audit). Such an audit can also be carried out at the request of any of the company's participants.

The determining criterion for the selection of an auditor (audit organization) is its independence - the absence of:
- family ties
- labor relations;
- other relations of the auditor with the participants and management bodies of the corporation.

The procedure for selecting an auditor and the need for an audit is determined in accordance with the constituent documents of the organization. This right is granted to a member of the company with a share in the authorized capital of at least 2%, or to any member of the company. An exception to this rule is provided only for a joint-stock company, in which the right to initiate an audit and select an auditor arises from a shareholder who owns 10% or more percent of the shares. The established barrier can also be overcome by adding up the shares of several shareholders who intend to verify the accuracy of the information contained in the reports submitted for approval by the meeting.

4. Applicable law:
- Federal Law No. 208-FZ of December 26, 1995 "On Joint Stock Companies";
- Federal Law No. 14-FZ of February 8, 1998 "On Limited Liability Companies".

Consultations and comments of lawyers on Article 67.1 of the Civil Code of the Russian Federation

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1. Management in a general partnership and a limited partnership is carried out in accordance with the procedure established by Articles 71 and 84 of this Code.

2. The exclusive competence of the general meeting of participants in a business partnership, along with the issues specified in paragraph 2 of Article 65.3 of this Code, includes:

1) change in the size of the authorized capital of the company, unless otherwise provided by laws on business companies;

2) making a decision to transfer the powers of the sole executive body of the company to another economic company (managing organization) or an individual entrepreneur (manager), as well as approving such a managing organization or such manager and the terms of the contract with such a managing organization or such manager, if the charter of the company decides these issues are not within the competence of the collegial management body of the company (paragraph 4 of Article 65.3);

3) distribution of profits and losses of the company.

1) a public joint-stock company by a person who maintains the register of shareholders of such a company and performs the functions of a counting commission (paragraph 4 of Article 97);

2) a non-public joint-stock company by notarization or certification by a person who maintains the register of shareholders of such a company and performs the functions of a counting commission;

3) limited liability companies by notarial certification, unless another method (signing of the protocol by all participants or part of the participants; using technical means to reliably establish the fact of the decision; otherwise, not contrary to law) is not provided for by the charter of such a company or by a decision of the general meeting participants of the company, adopted by the participants of the company unanimously.

The minutes of the general meeting of LLC participants, as a general rule, are subject to mandatory notarization. However, the participants are given the opportunity to establish other, in addition to notarization, ways to confirm the adoption of a decision by the general meeting. The options for wording in the Charter are suggested below.

Rationale:

Federal Law No. 99-FZ of May 5, 2014 “On Amending Chapter 4 of Part One of the Civil Code of the Russian Federation and on Recognizing Certain Provisions of Legislative Acts of the Russian Federation as Invalid” Art. 67.1, the provisions of which regulate the features of management and control in business partnerships and companies.

According to paragraphs. 3 p. 3 art. 67.1 of the Civil Code of the Russian Federation, as amended by Federal Law No. 99-FZ, the adoption by the general meeting of participants of a business company of a decision and the composition of the participants of the company who were present at its adoption are confirmed in relation to a limited liability company by notarization, if there is no other way (signing of the protocol by all participants or part of the participants ; using technical means that make it possible to reliably establish the fact of a decision; otherwise, not contrary to law) is not provided for by the charter of such a company or by a decision of the general meeting of participants in the company, adopted by the participants of the company unanimously.

Thus, from September 1, 2014, the minutes of the general meeting of LLC participants, as a general rule, are subject to mandatory notarization. However, the participants are given the opportunity to establish other, in addition to notarization, ways to confirm the adoption of a decision by the general meeting. Such methods must be fixed either in the charter of the LLC, or in the decision of the general meeting of its participants, adopted unanimously.

Examples of wording:

The adoption by the general meeting of the Company's members of the decision and the composition of the members of the Company who were present at its adoption are confirmed by the signing of the minutes of the general meeting by all the members of the Company who were present at the meeting
Adoption of a decision by the general meeting of the Company's members and the composition of the members of the Company who were present at its adoption, signing the minutes by the chairman and secretary of the meeting, who are members of the Company, etc.

Please note that the law may have changed. The opinion of the expert is based on the provisions of the legislation in force at the date of preparation of the consultation

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New edition Art. 67.1 of the Civil Code of the Russian Federation

1. Management in a general partnership and a limited partnership is carried out in accordance with the procedure established by Articles 71 and 84 of this Code.

2. The exclusive competence of the general meeting of participants in a business partnership, along with the issues specified in paragraph 2 of Article 65.3 of this Code, includes:

1) change in the size of the authorized capital of the company, unless otherwise provided by laws on business companies;

3) distribution of profits and losses of the company.

1) a public joint-stock company by a person who maintains the register of shareholders of such a company and performs the functions of a counting commission (paragraph 4 of Article 97);

2) a non-public joint-stock company by notarization or certification by a person who maintains the register of shareholders of such a company and performs the functions of a counting commission;