What is the difference between a public joint stock company and a joint stock company? What is the difference between a public joint-stock company and a non-public one.

Engineering systems 13.10.2019

As a rule, national legislation regulating the stock market imposes certain disclosure requirements on companies whose shares can be offered for purchase to an unlimited number of persons and / or traded on the stock market. Companies that meet these requirements are called public companies.

From an investor's point of view, shares of a public company may be considered a more liquid asset than shares of non-public companies for the following reasons:

shares may be offered for sale to an unlimited number of persons;
a potential buyer can evaluate the company from open (including independent) sources;
shares of a public company are traded on an exchange, where it is easier for a seller to find a buyer than in an unorganized market;
information about transactions made on the organized market (the price and volume of the transaction) is available in open sources to both the buyer and the seller and can be used as a basis for evaluating the package for sale.

A public company that went public on the stock exchange, but for some reason ceased to operate, is called a shell company (shell company).

Notes

Public and non-public companies as subjects of business law

federal law No. 99-FZ, adopted on May 5, 2014, amendments were made to civil law regarding organizational and legal forms legal entities. On September 1, 2014, the new provisions of Article 4 of the first part of the Civil Code of the Russian Federation entered into force:

1. Such a form of legal entities as CJSC is now abolished.

2. All business entities are divided into public and non-public companies.

What are public and non-public joint stock companies

Public Joint Stock Company considered public if its shares and securities publicly posted or handled in the securities market. A joint stock company is also considered public, if the articles of association and company name indicate that the company is a public. All other joint stock companies (JSC) and limited liability companies (LLC) will become non-public

What is a public company

Such organizations are required to disclose information about their owners and affiliates, as well as about significant facts that can affect the activity of the issuer. This is necessary in the interests of potential shareholders to increase the transparency of the process of investing in the company's securities.

Public companies are characterized by the following features:

- shares of the company can be acquired and freely sold by an unlimited circle of persons;

Information about the ownership structure and results economic activity joint-stock company is in open sources;

Securities of a public company are placed on the stock exchange or sold by open subscription, including through the use of advertising;

Data on completed transactions with the company's shares (their number and price) is available to all market participants and can be used to analyze the dynamics of the value of securities.

Conditions for classifying a company as a public company

According to the new standards (Article 66.3. No. 99-FZ), a joint-stock company is recognized as public in 2 cases:

1. The company issues its shares for free circulation by means of an open subscription or placement on the stock exchange, in accordance with the law "On the Securities Market".

2. The name and charter indicate that the organization is public.

If an already operating company has the characteristics of an open joint-stock company, it receives a public status, regardless of whether this is mentioned in the name of the company. CJSC and other organizations that do not have these features are recognized as non-public.

Consequences of acquiring public status

The publicity of the society implies increased responsibility and stricter regulation of its functioning, since it affects property interests a large number shareholders.

1. open joint-stock companies operating as of September 1, 2014 must register changes in their corporate name in the Unified State Register of Legal Entities, including an indication of publicity in it. At the same time, there is no need to make adjustments to the title documents, if they do not contradict the norms of the Civil Code - this can be done at the first change in the constituent documents of the JSC.

2. From the moment of fixing the status of publicity in the name of the organization in the Unified State Register of Legal Entities, it acquires the right to post their shares on the stock market

3. A public company must have a collegial management body consisting at least 5 members.

4. The maintenance of the register of shareholders of a public JSC is transferred to an independent licensed company.

5. Organization not entitled interfere with the free circulation of their shares: impose restrictions on the size and value of the package in the hands of one investor, give individuals a pre-emptive right to purchase securities, prevent in any way the alienation of shares at the request of the shareholder.

6. The issuer is obliged to open access post information about your activities:

annual report;

annual financial statements;

list of affiliates;

JSC charter;

decision to issue shares;

notification of holding a meeting of shareholders;

other data provided by law.

Legislators believe that economic organizations in the form of a CJSC, in fact, they are not joint-stock companies, since their shares are distributed among a closed list of participants and may even be in the hands of a single shareholder. Thus, these companies practically do not differ from limited liability companies and can be transformed into an LLC or a production cooperative.

Reorganization of a closed joint-stock company into a limited liability company is not obligatory. A CJSC has the right to retain its shareholder form and acquire the status of a non-public company in that case, if there are no signs of publicity.

Amendments to the civil law practically do not affect OOO. According to the new classification, these legal entities are recognized non-public automatically. They are not subject to any re-registration obligations in connection with the new status.

Non-public joint-stock companies

A non-public joint-stock company is a legal entity that meets the following criteria:

the minimum amount of the authorized capital is 10,000 rubles;

the number of shareholders is not more than 50;

the name of the organization does not indicate that it is a public

the company's shares are not placed on the stock exchange and are not offered for purchase by open subscription.

from the corporate name of CJSC it follows delete the word "closed".

Recognition of a JSC as non-public provides it with much greater freedom in managing its activities compared to a public company. Thus, the former CJSC is not obliged to publish information about its work in open sources. By decision of the shareholders, the management of the organization may be completely transferred to the hands of the board of directors or the sole executive body of the company. The meeting of shareholders has the right to independently determine the nominal value of shares, their number and type, to grant additional rights to individual participants. JSC securities are bought and sold in a simple transaction.

All decisions of the JSC must be certified by a notary or a registrar. The maintenance of the register of shareholders of a non-public joint-stock company is transferred to a specialized registrar.

LLCs as non-public companies

The minimum amount of the authorized capital is 10,000 rubles;

Composition of participants - maximum 50;

The list of participants is maintained by the company itself, all changes are registered in the Unified State Register of Legal Entities;

The powers of the participants by default are set according to their shares in the authorized capital, but can be changed if the non-public company has a corporate agreement or after making the relevant provisions in the company's charter with fixing amendments to the Unified State Register of Legal Entities;

The transaction for the alienation of shares is notarized, the fact of the transfer of rights is entered into the Unified State Register of Legal Entities.

Unlike documentation public companies, the information contained in the corporate agreement of a non-public limited liability company is confidential and is not disclosed to third parties.

Registration of decisions of the participants of the company must be carried out in the presence of a notary. However, there are other possibilities that do not contradict the law, namely:

Introducing amendments to the charter that define a different way of confirming the decisions of the meeting of participants in the LLC;

Mandatory certification of the protocols of the company with the signatures of all participants;

Application technical means, fixing the fact of acceptance of the document.

Along with CJSC, the form of legal entities ALC (additional liability company) is also excluded from civil law circulation. According to the new rules, such organizations must re-register as non-public LLCs.

A new criterion for the classification of companies in the Civil Code of the Russian Federation is the criterion of their publicity. According to paragraph 1 of Art. 66.3 A public corporation is a joint-stock company whose shares and securities convertible into its shares are publicly placed (by open subscription) or publicly traded on the terms established by securities laws. The rules on public companies also apply to joint-stock companies, the charter and company name of which contain an indication that the company is public. Accordingly, a company that does not meet the above criteria is recognized as non-public.

Although in law it refers to public companies in general, but in reality we can only talk about the application of this classification to joint-stock companies. It is correctly noted in the literature that only joint-stock companies can be subjected to such a classification, meaning the establishment of more stringent requirements for the status of public JSCs, whose shares are listed on stock exchanges, and whose participants (shareholders) need increased protection from various abuses. But in relation to limited liability companies, it loses its meaning, since under no circumstances can LLCs become public business companies - they have nothing to quote on stock exchanges *(23) .

A public joint-stock company may, by terminating the circulation of shares on the market, become non-public and vice versa. Therefore, the adoption by the majority of shareholders at the general meeting of the decision to change the name of the joint-stock company, namely the inclusion of an indication of its public nature, as well as the decision to make appropriate changes to the charter, allows changing the status of this joint-stock company. paragraph 11 of Art. 3 of Law N 99-FZ, joint-stock companies established before the date this Law enters into force and meeting the criteria of public "joint-stock companies" are recognized as public, regardless of the indication. At the same time, joint-stock companies established before September 1, 2014 ) and meeting the criteria of public joint-stock companies ( paragraph 1 of article 66.3 Civil Code of the Russian Federation) are recognized as public joint-stock companies, regardless of whether their company name indicates that the company is public.

Information about the public status of a joint-stock company must be known to all third parties directly from the name of this legal entity. Thus, a public joint-stock company is obliged to submit, for inclusion in the Unified State Register of Legal Entities, information about the company's company name, containing an indication of its public status. Also, this status should be reflected in the charter approved by the decision of the meeting of shareholders.

The following features of public companies can be distinguished:

First, the responsibility for maintaining the register of shareholders of a public company and performing the functions of its counting commission should be assigned to a professional independent organization. The same organization will have to confirm the authenticity of the minutes of general meetings of public joint-stock companies.

Secondly, in a public joint stock company, the number of shares owned by one shareholder, their total nominal value, as well as the maximum number of votes granted to one shareholder cannot be limited.

Thirdly, public companies have a duty of public accountability.

As for non-public joint-stock companies, their activities are less regulated by law. Yes, according to paragraph 3 of Art. 66.3 The Civil Code, by decision of the participants (founders) of a non-public company, adopted unanimously, the following provisions may be included in the charter of the company:

1) on transfer for consideration by the collegial management body of the company ( paragraph 4 of article 65.3) or the collegial executive body of the company on issues referred by law to the competence general meeting participants of a business partnership, except for the following issues:

amending the charter of a business company, approving the charter in a new edition;

reorganization or liquidation of a business company;

determination of the quantitative composition of the collegiate management body of the company ( paragraph 4 of article 65.3) and the collegial executive body (if its formation is referred to the competence of the general meeting of participants of the economic company), election of their members and early termination of their powers;

determining the number, par value, category (type) of declared shares and the rights granted by these shares;

increasing the authorized capital of a limited liability company disproportionately to the shares of its participants or by accepting a third person as a participant in such a company;

approval of internal regulations or other internal documents that are not constituent documents ( article 52, paragraph 5) economic company;

2) on assigning the functions of the collegial executive body of the company to the collegial management body of the company ( paragraph 4 of article 65.3) in whole or in part, or on the refusal to create a collegial executive body, if its functions are carried out by the specified collegial management body;

3) on the transfer to the sole executive body of the company of the functions of the collegial executive body of the company;

4) on the absence of an audit commission in the company or on its creation only in cases provided for by the charter of the company;

5) on a procedure different from the procedure established by laws and other legal acts for convening, preparing and holding general meetings of participants in a business company, making decisions by them, provided that such changes do not deprive its participants of the right to participate in the general meeting of a non-public company and to receive information about him;

6) on requirements that are different from those established by laws and other legal acts of the requirements for the quantitative composition, the procedure for the formation and holding of meetings of the collegial management body of the company ( paragraph 4 of article 65.3) or collegial executive body of the company;

7) on the procedure for exercising the pre-emptive right to purchase a share or part of a share in the authorized capital of a limited liability company or the pre-emptive right to acquire shares placed by a joint-stock company or securities convertible into its shares, as well as on the maximum share of participation of one participant in a limited liability company in the authorized the capital of the company;

8) on the assignment to the competence of the general meeting of shareholders of issues that are not related to it in accordance with this Code or law about joint-stock companies;

9) other provisions in cases provided for by laws on business companies.

The question of the need to separate business entities into public and non-public arose quite a long time ago. In fact, such a division existed before, but it was not legally formalized.

This is due to the fact that the vast majority of open joint-stock companies, despite their organizational and legal form, have always been non-public companies in their essence. They did not publicly subscribe to securities, and their securities were not traded on stock exchanges. However, the largest joint-stock companies could be attributed to public companies, since their shares were publicly subscribed and they were traded on the stock exchange.

However, due to the fact that at one time, as part of the privatization of state and municipal property, the organizational and legal form of an open joint-stock company was essentially imposed on most of them, they were forced to comply with the requirements of the legislation on disclosure of information, while incurring various kinds of costs. . Over many joint-stock companies, there was a threat of penalties for violation or improper fulfillment of these requirements by the regulator. And this despite the fact that the information coming from such joint-stock companies in the information field of the securities market was of little interest to its participants, thereby clogging it.

The fundamental difference between public and non-public companies lies in the fact that mandatory regulation is applied to public companies to a greater extent, which excludes discretion for companies that raise funds from an indefinite number of investors. Whereas in relation to non-public companies GC RF, taking into account the changes made law N 99-FZ, allows for dispositive (permissible) regulation, which provides the opportunity to choose one or another option.

There are few public companies in Russia, the vast majority of joint-stock companies are non-public. Together with the legal form of a limited liability company prevailing in Russia (94% of the total commercial organizations*(24) ) non-public companies make up the vast majority of legal entities in the business sector. The application of dispositive regulation to all these subjects allows us to conclude that Russian legislation in the field of entrepreneurial activity has been liberalized.

Question: Which joint-stock companies are public and which are non-public?

Answer: The signs of a public joint stock company are established by paragraph 1 of Article 66.3 of the Civil Code of the Russian Federation.

A joint-stock company is public:

The charter and company name of which contain an indication that the company is public, even if the shares of the company are not placed by open subscription and are not publicly traded;

The shares of which and the securities of which, convertible into its shares, are publicly placed (by open subscription);

The shares of which and the securities of which, convertible into its shares, are publicly traded under the conditions established by the laws on securities. At the same time, the charter of such a company and its company name may not contain an indication that the company is public.

A joint stock company that does not meet the above criteria is recognized as non-public (Item 2 of Article 66.3 of the Civil Code of the Russian Federation).

Article 7. Federal Law "On JSC". Public and non-public companies (as amended by the Federal Law of June 29, 2015 N 210-FZ) gives more complete definition public or non-public society.

1. A company may be public or non-public, which is reflected in its charter and trade name.
2. A public company has the right to place shares and issuance securities convertible into its shares through an open subscription. Shares of a non-public company and equity securities convertible into its shares may not be placed by public subscription or otherwise offered for purchase to an unlimited number of persons.
3. .............................................................................................................................................

In total, we can conclude that a public joint-stock company can be recognized as:

1. JSC, the charter and name of which contain an indication of this (voluntary publicity). There were no requirements for making such changes to the company's charter until 07/01/2015.

2. JSC, the shares of which are publicly placed (by open subscription) or were placed (clause 1 of the Letter of the Central Bank of the Russian Federation of August 18, 2014 No. 06 - 52/6680).

3. JSC, whose shares are publicly traded (at organized trading or by offering to an unlimited number of persons) or have been traded (clause 1 of the Letter of the Central Bank of the Russian Federation dated August 18, 2014 No. 06 - 52/6680).
4. JSC, the shares of which are publicly traded / have been traded. Public circulation means, among other things, the sale of shares in the course of privatization in ways that imply the participation of an unlimited number of acquirers, for example, a sale to:
- auction;
- commercial competition;
- investment competition (bidding);
- specialized auction;
- specialized voucher auction.
To have a sign of a public company, it is necessary that at least one transaction takes place during the auction. If the privatization plan provided for the sale to an unlimited number of persons, but no transactions were concluded as a result of the auction, then there is no sign of publicity. A public circulation is understood as a circulation carried out only in accordance with the legislation on securities. Those. not taken into account:
- sale at auction in the course of enforcement proceedings;
- sale at auction during bankruptcy proceedings, etc.

A public joint stock company is a new term in Russian civil law. At first glance, it may seem that non-public and public joint-stock companies are just new names for CJSC and OJSC. But is it really so?

What does a public joint stock company mean?

Federal Law No. 99-FZ of May 5, 2014 (hereinafter referred to as Law No. 99-FZ) supplemented the Civil Code of the Russian Federation with a number of new articles. One of them, Art. 66.3 of the Civil Code of the Russian Federation introduces a new classification of joint-stock companies. The already familiar CJSC and OJSC have now been replaced by NAO and PJSC - non-public and. This is not the only change. In particular, the concept of an additional liability company (ALC) has now disappeared from the Civil Code of the Russian Federation. However, they were not particularly popular anyway: according to the Unified State Register of Legal Entities as of July 2014, there were only about 1,000 of them in Russia - with 124,000 CJSCs and 31,000 OJSCs.

What does public joint stock company mean? In the current version of the Civil Code of the Russian Federation, this is a joint-stock company in which shares and other securities can be freely sold on the market.

The rules on a public joint-stock company apply to a joint-stock company whose charter and name indicate that the joint-stock company is public. For PJSCs established before 09/01/2014, whose company name contains an indication of publicity, the rule established by paragraph 7 of Art. 27 of the law "On amendments ..." dated June 29, 2015 No. 210-FZ. Such a PJSC that does not have public issues of shares before 07/01/2020 must:

apply to the Central Bank with an application for registration of a share prospectus,
remove the word "public" from its name.

In addition to shares, a joint-stock company may also issue other securities. However, Art. 66.3 of the Civil Code of the Russian Federation provides for the status of publicity only for those securities that are convertible into shares. As a result non-public companies may introduce securities into public circulation, with the exception of shares and securities convertible in them.

What is the difference between a public joint stock company and an open

Consider different from JSC. Although the changes are not fundamental, their ignorance can seriously complicate the life of the management and shareholders of PJSC.

Disclosure

If earlier the obligation to disclose information about the activities of an OJSC was unconditional, now public society has the right to apply to the Central Bank of the Russian Federation with an application for exemption from it. This opportunity can be used public and non-public companies, however, it is for public release that is much more relevant.

In addition, for an OJSC, it was previously required to include information about the sole shareholder in the charter, as well as publish this information. Now it is enough to enter data into the Unified State Register of Legal Entities.

Preemptive right to purchase shares and securities

An open joint-stock company was entitled to provide in its charter cases when additional shares and securities are subject to preferential purchase by existing shareholders and holders of securities. Public Joint Stock Company is obliged in all cases to be guided only by the Federal Law "On Joint Stock Companies" dated December 26, 1995 No. 208-FZ (hereinafter - Law No. 208-FZ). References to the articles of association are no longer valid.

Register keeping, counting commission

If in some cases it was allowed to maintain a register of shareholders for an JSC on their own, then public and non-public joint-stock companies are always required to delegate this task to specialized licensed organizations. At the same time, for a PJSC, the registrar must be independent.

The same applies to the counting commission. Now, issues related to its competence should be decided by an independent organization that has a license for the corresponding type of activity.

Society management

Public and non-public JSCs: what are the differences?

By and large, the rules that previously applied to OJSCs apply to PJSC. NAO, on the other hand, is mainly former ZAO.
The main feature of a PJSC is an open list of potential buyers of shares. NAO, on the other hand, is not entitled to offer its shares at public auction: such a step, by virtue of the law, automatically turns them into PJSC even without amending the charter.
For PJSCs, the management procedure is rigidly enshrined in law. For example, the rule is still preserved, according to which the competence of the board of directors or the executive body cannot include issues that are subject to consideration by the general meeting. A non-public company, on the other hand, can transfer some of these issues to a collegiate body.
The status of the participants and the decision of the general meeting in the PJSC must without fail be confirmed by a representative of the registrar. The NAO has a choice: you can use the same mechanism or contact a notary.
Non-public joint stock company still have the right to provide in the charter or corporate agreement between shareholders the right to preemptive purchase of shares. For public joint stock company such an order is absolutely unacceptable.
Corporate agreements concluded in PJSC should be disclosed. For the NAO, it is sufficient to notify the company about the fact of concluding such an agreement.
The procedures provided for by Chapter XI.1 of Law No. 208-FZ, concerning offers and notices of securities repurchase, after September 1, 2014, do not apply to JSCs that, through changes in the charter, have officially fixed their status as non-public.

Corporate agreement in joint-stock companies

An innovation that largely concerns PJSCs and NAOs is also a corporate agreement. Under this agreement between shareholders, all or some of them undertake to use their rights only in a certain way:

take a unified position in voting;
establish a common price for all participants for their shares;
allow or prohibit their acquisition in certain circumstances.

However, the agreement also has its limitations: it cannot oblige shareholders to always agree with the position of the JSC's governing bodies.

In essence, the methods of establishing unified position all or part of the shareholders have always existed. However, now changes in civil law have transferred them from the category of "gentleman's agreements" to the official plane. Now the violation of a corporate agreement may even become a reason to recognize the decisions of the general meeting as illegal.

For non-public companies, such an agreement may be an additional means of management. If all shareholders (participants) participate in the corporate agreement, then many issues related to the management of the company can be resolved through changes not in the charter, but in the content of the agreement.

In addition, a duty has been introduced for non-public companies to enter information on corporate agreements into the Unified State Register of Legal Entities if the powers of shareholders (participants) under these agreements seriously change.

Renaming JSC into a public joint stock company

For those JSCs that have decided to continue working in the status public joint stock company required to amend the articles of incorporation. The deadline for this is not established by law, but it is better not to delay it. Otherwise, problems may arise in relations with counterparties, as well as ambiguity about which norms of the law should be applied in relation to PJSC. Law No. 99-FZ establishes that the unchanged charter will be applied to the extent that it does not contradict the new norms of the law. However, what exactly contradicts and what does not is a moot point.

Renaming can be done in the following ways:

At a specially convened extraordinary meeting of shareholders.
At a shareholder meeting that decides other current issues. In this case, the change in the name of the JSC will be highlighted as an additional item on the agenda.
At the mandatory annual meeting.

Re-registration of old organizations into new public and non-public legal entities

The changes themselves can only concern the name - it is enough to exclude the words “open joint stock company” from the name, replacing them with the words “ public joint stock company". However, at the same time, it should be checked whether the provisions of the previously existing charter contradict the norms of the law. In particular, special attention should be paid to the rules regarding:

board of directors;
pre-emptive right of shareholders to purchase shares.

In accordance with Part 12 of Art. 3 of Law No. 99-FZ, a company will not need to pay a state duty if the changes relate to bringing the name in line with the law.

In addition to joint-stock companies, signs of publicity and non-publicity now apply to other organizational forms legal entities. In particular, the law now directly classifies LLC as a non-public entity. For a public joint stock company, amendments to the charter must be made. But is it necessary to do this for those companies that, by virtue of the new law, should be considered as non-public?

In fact, for non-public companies, changes are not necessary. Nevertheless, it is still desirable to make such changes. This is especially important for the former ZAO. Otherwise, such a name would be a defiant anachronism.

Sample charter of a public joint stock company: what to look for?

During the time that has elapsed since the adoption of Law No. 99-FZ, many companies have already passed the procedure for registering amendments to the charter. Those who are just about to do this can use the sample PJSC charter.

However, when using the sample, it is necessary, first of all, to pay attention to the following:

The articles of association must contain an indication of publicity. Without this, society becomes non-public.
Be sure to involve an appraiser in order to authorized capital made a contribution. Meanwhile, in the case misjudgment both the shareholder and the appraiser must respond subsidiarily within the amount of the overstatement.
If there is only one shareholder, it may not be indicated in the charter, even if such a clause is contained in the sample.
It is possible to include in the charter provisions on the audit procedure at the request of shareholders owning at least 10% of the shares.
Convert to non-profit organization is no longer allowed, and there should not be such norms in the charter.

This list is far from complete, so when using samples, you should carefully check them with current legislation.

The term "public joint stock company": translation into English

Since many Russian PJSCs carry out foreign trade operations, the question arises: how should they now be officially called in English?

Previously, in relation to OJSC, it was used English term open joint stock company. By analogy with it, the current public joint stock companies may be called a public joint-stock company. This conclusion is also confirmed by the practice of using this term in relation to companies from Ukraine, where PJSCs have existed for a long time.

In addition, one should take into account the difference in the legal terminology of English-speaking countries. Thus, by analogy with UK law, the term "public limited company" is theoretically acceptable, and with US law - "public corporation".

The latter, however, is undesirable, since it can mislead foreign contractors. Apparently, the public joint-stock company option is optimal:

it is mainly used only for organizations from post-Soviet countries;
quite clearly marks the organizational and legal form of society.

So, in the end, what can be said about the innovations in civil law relating to public and non-public legal entities? In general, they make the system of organizational and legal forms for commercial organizations in Russia more logical and harmonious.

Making changes to the bylaws is easy. It is enough to rename the company according to the new rules of the Civil Code of the Russian Federation. A step forward can be considered the legalization of agreements between shareholders (a corporate agreement in accordance with Article 67.2 of the Civil Code of the Russian Federation).

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What is the difference between a public joint stock company and a joint stock company? What is the difference between a public joint-stock company and a non-public one.

Notes

see also

See what a "Public Company" is in other dictionaries:

Public and non-public companies as subjects of business law

In total, we can conclude that a public joint-stock company can be recognized as:

What does a public joint stock company mean?