Publication date: 07.06.2024
lawyer, 23 years of experience in enforcement.
1. Recovery of a share in the authorized capital of an LLC is an out-of-court procedure using the powers of the executor.
Norms of art. 22 of the Law on LLCs are procedural in nature, these laws regulate the procedure for executing a court order, and are applied during the execution of the order.
The process of taking over the company's shares is not carried out in court, but is initiated by the executive in accordance with the procedure and requirements of the Law on Executive Proceedings and Art. 22 of the Law of Ukraine "On Limited and Additional Liability Companies" (for example, decision number The system of arbitration rules entered into force on June 3, 2010 (363/4137/15-ts).
2. Violation by the executor of the procedure for the purchase of shares of the preemptive right of the participants is considered a violation of the procedure specified in Art. 22 of the Law on Limited Liability Companies.
The Supreme Court recognizes that the members of the partnership should have the same rights regardless of the method of transferring the property to a third party or selling it at an auction (public bidding).
Before signing the contract on the transfer of the share to the manager, in accordance with Part 5 of Art. 22 of the Law on LLCs, a similar law (Part 1, Article 8 of the Civil Code), the executor must invite other members of the company (except those who have renounced the preferential right to a share). ) purchase a share at the price set by the parties to the enforcement proceedings in accordance with Part 1 of Article 57 of the Law of Ukraine "On Executive Yuan".
The implementation of the right in this way contributes to a proportional balance between the participants in the legal relationship dispute. In this case, the rights of the debt collector are not violated, since his main interest is to receive a specific amount of money to fulfill the court order, the rights of other participants are respected, which are aimed at protecting related interests. with the acquisition of a share and management of the corporation (SC of KGS dated 14.06.2022 No. 904/4790/20).
3. Incorrect assessment of the debtor's share is a violation of the procedure for the sale of property and leads to the rejection of the contract for the share of SC LLC.
As a result of case number 915/2330/19, the commercial court, which satisfied the claim, recognized that during the finalization of the contract, the defendants (executor and buyer) did not comply with the requirements of Art. 22, 24 of the LLC Law and Art. 57 of the Law on VP with regard to such.
The value of the property is primarily determined by the agreement of the parties to the enforcement proceedings; if the parties have not reached an agreement on the value of the property, the value is determined by the executor at the market price no later than 10 days from the date of the decision on the seizure of the property, taking into account the features provided for by the Law on LLCs.
This attribute is that the value of the participant's share is based on the current market value of the shares of the entire company, divided by the size of the participant's share, which is then calculated (valued) on the day before the takeover.
In contrast to the above, in this case, the relevant assessment was carried out as of 08/13/2019 (the withdrawal date), and not on 08/12/2019 (the day before the withdrawal).
Thus, the court considers that the actual transfer of property (the plaintiff's share in the authorized capital of the LLC) in the process of foreclosure on the participant's share took place in violation of current legislation.
Thus, the contract between the main state administrator and the buyer on the purchase of a share in the authorized capital of the LLC is recognized as invalid (for example, the decision of July 2, 2020 and the resolution of the KGSVS of April 13, 2021). 915/2330/19).
Regarding the method of protection, if the overriding right to purchase a share in the LLC is violated, this is discussed in the article.
About the jurisdiction of disputes about the impracticality of selling a share in the authorized capital - see the link.
4. Violation of the procedure for enforcement of a court decision is considered a form of embezzlement, the object of which is the company's funds, and not the debtor's share in the corporation.
The executor accepted the accounts of SE "Gazpostach" (hereinafter - SE), the identity of the founder is known (hereinafter - PJSC). The enforcement proceedings show that the debt actually belongs to the state, not the enterprise, and it is expected to collect UAH 36089852.91 in favor of legal entities.
In court, the complainant admitted that the SE is a separate business entity with its unique organizational and property structure, despite the fact that it was created by a PJSC (debtor) in 1994, according to the statute, the enterprise is not responsible for the founder's debt. The executor claims that his decision is legal, since, in accordance with the provisions of the Law on VP, the executor can collect the funds of the debtor - a legal entity, which are placed on his accounts, as well as on other accounts of the debtor, this is all considered legal. However, the appellate court does not agree with this conclusion due to the following.
Part 3 of Art. 96 of the Civil Code of Ukraine, a participant (founder) of a legal entity is not responsible for the obligations of a legal entity, and a legal entity is not responsible for the obligations of its participant (founder), except for cases confirmed by documents and by law. .
The charter establishes that the MP is not responsible for the obligations of the founder, and the latter is responsible for the obligations of the MP within the limits of his participation in the authorized capital (fund) of the MP.
If the debtor is a legal entity and does not have the funds necessary to repay the debt, the executor may request the foreclosure of the property of the branch, including what is a separate accounting statement. representative office and other separate subdivisions of the debtor - a recognized legal entity.
SE is a separate legal entity, therefore Art. 52 of the Law on VP does not apply to this.
In addition, according to the literal interpretation of Article 22 of the Law on VP, it regulates the method of realization by the participants of the partnership of their share in the partnership, and not the method of realization of funds.
The court recognized the executor's actions regarding the collection of debtors' funds from the state corporation as immoral, the decision is subject to cancellation (see decision No. 857/6419/19 of 07/04/2019).
The legal service "Consultant" will select a lawyer or an attorney who will conduct a legal analysis of the situation, form an appropriate procedural document (application, statement of claim, petition, etc.), and also help in collecting the evidence base for the most effective resolution of the issue. Service specialists will accompany the process from the beginning to the execution of the court decision. They will also provide advice and help in solving such issues as: preparation of amicable settlement with the creditor, Protection from collections, Arrest for inviolability, removal of seizure from real estate and funds, Removal of attachment from real estate, bankruptcy of an individual, debt reduction, etc.
