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Publication date: 27.05.2024
lawyer, 23 years of experience in enforcement.
Transformation of a private entrepreneur into a limited liability company.
If a natural person is engaged in entrepreneurial activity and is officially registered as a non-legal entity - an entrepreneur in accordance with Article 58 of the Civil Code of Ukraine, he is considered a subject of entrepreneurial activity in accordance with the norms defined by Article 128 of the Commercial Code of Ukraine.
The formation of economic entities, as specified in Article 56 of the Civil Code, can occur by transforming one enterprise into another.
Transformation is a change in the organizational and legal structure of an enterprise, which leads to its termination and the transfer of all assets, rights and obligations to a new business entity. According to Article 51 of the Civil Code of Ukraine and the clarification of the Ministry of Justice dated January 14, 2011 regarding the application of legislation to natural persons engaged in entrepreneurial activity, normative legal acts regulating the economic activity of legal entities are also applied. to natural persons-entrepreneurs, unless otherwise established by law or the nature of the relationship. Therefore, the decision on repurposing must be made by an individual entrepreneur in writing and signed by him.
According to Article 11 of the Law of Ukraine "On Limited and Additional Liability Companies", the founding document of the company is the charter. The first version of the charter must be signed by all members of the organization with notarization of the authenticity of these signatures. The necessary information that must be contained in the company's charter is detailed in part 5 of the specified article.
The official recognition by the state of the creation or termination of a legal entity that does not have such a name is the state registration of business entities, as specified in Clause 4, Part 1 of Article 1 of the Law of Ukraine "On State Registration of Legal Entities, Individual Entrepreneurs and Public Organizations".
The list of documents required for state registration of a legal entity is defined by Article 17 of Law No. 755-IV.
According to Clause 2 of Art. 17 of Law No. 755-IV, natural persons who apply for registration of a limited liability company have the opportunity to choose a simplified taxation system. To do this, they need to submit an application indicating the advantage of a simplified taxation system, as well as a registration application for voluntary inclusion by the payer of value added tax (or an application for inclusion in the Register of non-profit institutions and organizations). .
After receipt of documents, consideration and processing of the application for state registration and other procedures for registration of legal entities, defined in Art. 26 of Law No. 755-IV, are carried out promptly within 24 hours.
After evaluating the results of the inspection, the state registrar makes a decision to continue registration, stop consideration of documents or refuse state registration. An exhaustive list of the grounds on which the state registrar stops consideration of submitted documents is defined by Article 27 of Law No. 755-IV.
The cancellation process is completed within 24 hours of receiving the documents. Review and evaluation of documents is suspended for a maximum period of 15 days after the date of suspension.
There are several grounds for refusal of state registration, in particular: lack of authority on the part of the person who submits the documents, presence of a court decision in the Unified State Register prohibiting the registration, the presence of issues that caused the delay, the consideration of the documents has not been resolved, if the documents contradict requirements of the Constitution and laws of Ukraine, if the legal procedure for creating a legal entity is violated, if the name of the legal entity does not meet the requirements of the law, and if the founder or participant of the legal entity has passed the state registration of the termination of another legal entity as a result of its liquidation. Additional grounds for refusal are contained in Article 28 of Law No. 755-IV.
Having established the absence of valid reasons for stopping the review of documents and refusing state registration, the state registrar conducts registration procedures by entering information into the Unified State Register. After performing these actions, extracts from the register are formed, which are made public on the portal of electronic services. At the request of the applicant, a printed copy of the extract, sealed with the signature and seal of the state registrar, can be provided.
In case of dissatisfaction with the decisions, actions or inaction of the state registrar, individuals have the opportunity to appeal these issues through the Ministry of Justice of Ukraine and its territorial bodies or by applying to the court, as specified in Article . 34 of Law No. 755-IV.
The second part of the mentioned article highlights the powers of the Ministry of Justice and its regional departments regarding the consideration of complaints. Individuals have the right to submit an appeal to the Ministry of Justice of Ukraine and its territorial bodies within 60 days from the day of the contested decision or from the day when they became or could have learned about the violation of their right as a result of the actions or inaction of the state registrar (as specified in Part 3 of Article 34 of Law No. 755-IV).
Part 5 of the said article defines the necessary criteria for a complaint. The official filing date is defined as the day the complaint is physically received by the Ministry of Justice of Ukraine or its territorial body.
After a thorough review of the complaint, the Ministry of Justice of Ukraine and its territorial bodies carefully consider and make a reasoned decision to refuse to satisfy the complaint or to partially or fully satisfy it.
Part of the 8th Art. 34 of Law No. 755-IV is the basis for refusing to satisfy the complaint.
In case of refusal of the territorial body of the Ministry of Justice of Ukraine to satisfy the request, there are two options of appeal: directly to the Ministry of Justice or through the court. If the Ministry of Justice of Ukraine refuses to grant the request, the only way out is through the court.
After the review of the complaint is completed, the Ministry of Justice of Ukraine and its territorial bodies have the authority to make a reasoned decision regarding the procedure for reviewing the complaint. The decision made based on the results of the review of the complaint is immediately notified to the complainant within 3 working days from the date of its receipt. Therefore, this stage can lead to the possible termination of the activity of a natural person-entrepreneur.
Legal service "Consultant" will provide professional legal services for business. Lawyers and lawyers will provide qualified legal support to the business and help prepare a legal entity for incorporation, preparation of a claim to a debtor, as well as provide assistance in the preparation of a contract preparation, conduct counterparty verification, etc.
