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Publication date: 19.04.2024
I am studying in the third year of the State University of Economics and Technology.I specialize in contractual, economic and corporate law, in particular, I provide consultations and write articles.
A partner's share is a part of rights and obligations that belongs to a specific participant in an enterprise acting as a legal entity. This share is determined by the articles of association (for companies such as limited liability companies or joint stock companies) or by agreement between the participants (for general and limited partnerships). Enforcement of the participant's share is possible within the framework of executive proceedings, which is the process of fulfilling the obligations specified in such documents. In particular, this is possible only if the participant fails to fulfill his own obligations and other property is insufficient to satisfy the demands of creditors. This may include the collection of funds, property or other assets of the debtor, which represent a contribution to the authorized capital to satisfy the creditor's requirements. The foreclosure procedure may vary depending on the type of business partnership in which the debtor has a share.
Foreclosure on a share in an LLC and VAT:
1. The first step is to send a notice by the executor to the company in which the debtor has a share. The notice must express the executor's intention to foreclose on the share. Along with the notification, the corresponding resolution on the imposition of arrest is also sent.
2. In turn, the company must provide him with all the necessary documentation, including financial statements, within 30 days of receiving the notice from the executor. to calculate the value of the share.
3. Next, the executor calculates the cost in accordance with the received documentation and at the same time offers other participants to purchase the debtor's share. This stage should not exceed 15 days after the expiration of the above-mentioned period.
4. The next step is to pay the price of the share by the buyer within 10 days. The executor, in turn, transfers the share to the buyer, subject to its payment. If the payment is not made within 10 days, the corresponding sales contract will be considered terminated. As a result, if the required amount of money is not paid, the share is transferred to the auction, where it will be sold in the general manner.
Foreclosure on the share of a member of a production cooperative:
According to Art. 136 of the Central Criminal Code, it is permissible to foreclose on the share of a debtor who is a member of a production cooperative in the manner provided by the charter of the cooperative or the law, in the event that he does not have enough other property for this. In fact, in order to impose an arrest on the participant's share, it is necessary to have several grounds, namely: a valid claim of the creditor and the insufficiency of other property.
With regard to the first reason, it should be noted that only creditors have the right to demand the allocation of a share for further foreclosure. as persons who have certain property claims against debtors. At the same time, the right of claim should not be limited, because they must be properly and properly confirmed with the help of executive documents, a court decision, or a notary's executive inscription. If there is no proper confirmation, the cooperative will refuse to allocate a share. If, by right, the creditor confirms the requirements with an executive document, then the executor will oblige the cooperative to allocate a share.
With regard to the second of the above grounds, it is worth noting that the creditor has the obligation to prove that the debtor's other property is insufficient to satisfy the creditor's claims. The court, when making a decision to collect a certain amount of money from the debtor, does not investigate what will be used to enforce the decision, and therefore such a reason as insufficient property can be established already at the stage of enforcement proceedings. Foreclosure on a share is possible only in the case when all possibilities of foreclosure on other property of the debtor have already been implemented. And only under such conditions it is possible to detect insufficiency, and accordingly, the need to foreclose on the share.
Assistance of a lawyer in the protection of debtors:
A lawyer in the process of protecting debtors in the framework of executive proceedings will promote the legality of all actions to satisfy the creditor's demands, and if the charges were imposed illegally, will help achieve the removal of the seizure. A lawyer can be idle both during the pre-trial settlement of disputes with the creditor and in the case of judicial dispute regulation.
