A partnership of faith consists of: Limited partnership and its distinctive features

Current legislation establishes the possibility of implementing commercial activities through the establishment of organizations with authorized capitals divided into the corresponding shares of the founders. These organizations can be created in the form of partnerships, which, in turn, can be formed in such organizational and legal types as general partnership and limited partnership (limited). The immediate features of the organization and functioning of the latter will be discussed below.

Limited partnership: concept

This is a commercial organization whose members are divided into two groups. The first includes subjects (called general partners) who act on behalf of limited partners and are liable for the obligations of the latter with all their property. The second group consists of entities (called limited partners) who do not directly participate in the partnership’s commercial activities and bear the risk of probable losses caused by the latter, within the limits of the amounts entered by them in authorized capital deposits.

Basic provisions

Participants in a limited partnership who have the status of general partners carry out their activities and also bear responsibility for the corresponding obligations of the latter, in accordance with the standards established by civil law regulating the activities of participants in the general partnership.

Entities with the status of general partners have the right to participate exclusively in one limited partnership. In turn, entities that are participants in a general partnership do not have the right to have the status of general partners in a limited partnership.

The number of partnership participants with limited partner status cannot exceed twenty. If the specified amount is exceeded, the limited partnership must be converted into a business partnership within a one-year period. If, at the end of the specified period, the partnership is not transformed or the number of limited partners is not reduced to the established limits, then the partnership must be subject to liquidation through judicial proceedings.

The provisions of civil law that regulate the activities of a general partnership may be applied to the work of a limited partnership if they do not conflict with the legislative regulations ensuring the functioning of a limited partnership.

About the brand name

Another requirement provided for by law that a limited partnership must meet is this. The latter must necessarily be formulated in one of the following options:

• the names of all general partners with the addition of the phrase “limited partnership”;
• the name of at least one general partner with the addition of the phrase “limited partnership and company.”
  

In the event that the name of any investor is included in the company name, the latter acquires the status of a general partner.

Memorandum of association

The creation and subsequent activities of a limited partnership are carried out in accordance with the provisions of which are signed by all persons having the status of full partners.

In addition to those provided for in Art. 52 of the Civil Code of the Russian Federation, a limited partnership agreement must include the following information:

• conditions determining the size and composition of the share capital;
• the amount of capital shares belonging to each of the general partners;
• the procedure for changing the latter;
• composition, as well as the timing and procedure according to which contributions are made;
• liability for violation of the said order;
• the total amount of deposits made by entities with the status of depositors.

Liability of a limited partnership

As provided by law, a limited partner is liable for its obligations with all the property it owns. If the latter turns out to be insufficient to cover the debt under the obligations, creditors have the right to present their claims against all general partners or against any of them.

A general partner who does not have the status of a founder of a limited partnership is liable for obligations (that arose before his entry into the latter) to the same extent as all other general partners.

A general partner who has left a limited partnership is liable for the obligations of the latter that arose before the moment of his withdrawal to the same extent as all other participants. The period of liability for the said partner is two years, calculated from the date of approval of the report on the activities carried out by the partnership for the year in which the disposal occurred.

Management of the partnership's activities

Another issue that needs to be considered when studying a limited partnership is how it is managed. So, management of the functioning is carried out exclusively by entities with the status of full partners. The direct management procedure, as well as the conduct of business activities, by general partners is carried out in accordance with the rules established by law for general partnerships.

Limited partners do not have the right to participate in the management of the latter and cannot challenge the actions performed by the general partners related to the management of the partnership and the conduct of its affairs.

So, having considered all of the above, we can come to the conclusion that a limited partnership is one of the actively used forms of commercial activity by a legal entity, which has certain specifics, the understanding of which allows for fairly efficient business conduct.

The legal status of a limited partnership, which is also called a limited partnership, is determined by Art. 82-86 Civil Code of the Russian Federation.

In a limited partnership there are two groups of participants. The first group is full comrades who lead on his behalf entrepreneurial activity and are liable for its obligations if the partnership’s property is insufficient. The second group is investors. They do not participate in the partnership’s business activities, but bear the risk of losses associated with it within the limits of their contributions.

Economic significance of this partnership is that one part of its participants lends to another, entrusts it with certain funds for conducting business activities, and therefore such an enterprise is called a limited partnership.

Thus, a limited partnership includes participants with different legal statuses. In this sense it is mixed. Let us note, by the way, that in the legislation that determined the legal status of such partnerships before the adoption of the Civil Code of the Russian Federation, such enterprises were called mixed partnerships.

The legal status of general partners is similar to that of PT participants. Therefore, it is not specifically defined, and to regulate the rights and obligations of general partners, the rules of the Civil Code of the Russian Federation relating to participants in a private partnership are used. In this regard, the legal status in a limited partnership is defined briefly in the Civil Code of the Russian Federation - only five articles are devoted to it. There is no other law about it.

Only individual entrepreneurs and commercial organizations can be general partners in a limited partnership, as well as participants in a general partnership. In this case, participation in only one limited partnership is allowed. You cannot be a general partner in a partnership or faith and at the same time a participant in a general partnership. The meaning of these rules is that general partners in TV, like participants in PT, bear joint and several liability for the obligations of the partnership, and their participation in several partnerships would reduce the property base of such liability. The company name of a limited partnership includes the name of at least one partner, while the names of investors should not be indicated; if this is done, then the investor becomes a general partner. In this case, he will have to bear responsibility for the obligations of the partnership.

A limited partnership is created on the basis of a memorandum of association, which is signed only by general partners. In it, the contribution of each general partner is determined separately, just as in relation to investors, only the total amount of their contributions is established (Article 83 of the Civil Code of the Russian Federation).

Only general partners participate in the management and conduct of the affairs of a limited partnership. The same rules apply as in a general partnership. Investors do not have the right to participate in the management and conduct of the affairs of the limited partnership, but they can act on its behalf by proxy. Investors do not have the right to challenge the actions of general partners in managing and conducting the affairs of the partnership (Article 84 of the Civil Code of the Russian Federation).

The duty of the investor of the limited partnership is to contribute to the share capital. It is certified by a certificate of participation issued to the investor by the partnership.

The TV investor has the right to receive a part of the partnership’s profit, get acquainted with its annual reports and balances, at the end of the financial year, withdraw from the partnership and receive his contribution, transfer his share in the share capital or part of it to another investor or a third party. At the same time, investors enjoy a preferential right over third parties to purchase a share (part thereof) (Article 85 of the Civil Code of the Russian Federation).

In a limited partnership there must be both general partners and investors. When all investors leave, the partnership is liquidated. By decision of the general partners in this case, the limited partnership can be transformed into a general partnership. A limited partnership is maintained if it has at least one general partner and one investor.

When a limited partnership is liquidated, including in the event of bankruptcy, the investors have a priority right over the general partners to receive a contribution from the property of the partnership remaining after satisfying the creditors' claims, which is distributed between the general partners and investors in proportion to their shares in the joint capital. Consequently, when a limited partnership is liquidated, investors are in a privileged position over general partners. This should compensate them for the risk associated with it. that they transfer their funds to a limited partnership, the property of which is managed only by general partners (Article 86 of the Civil Code of the Russian Federation).

Limited partnership (limited partnership) - a partnership in which, along with the participants who carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with their property (general partners, complementaries), there are one or more participants - investors (command partners) who bear the risk losses associated with the activities of the partnership within the limits of the amounts made by them and do not take part in the implementation of business activities.

To create a limited partnership, at least one partner and one limited partner are required.

The legislation considers partnerships as associations of persons. This means that the members of the partnership must participate in its activities. Therefore, they can be members of only one partnership. At the same time, both individuals and legal entities in any combination can participate in partnerships.

As a rule, the affairs of a limited partnership are managed by the partners. They lead the society and exercise its representation. In terms of internal relationships, the management functions of the company are usually carried out with the consent of the limited partners. Often this conciliation power within large companies is presented to a board consisting of limited partners. Complementaries are subject to the same provisions as in general partnerships.

Investors do not have the right to participate in the management and conduct of the affairs of the partnership on faith and act on its behalf except by proxy. They do not have the right to challenge the actions of their general partners in managing and conducting the affairs of the partnership.

Each complementary has the right to act on behalf of the partnership, unless the constituent agreement stipulates that all complementaries conduct business jointly, or the conduct of business is entrusted to individual general partners.

When conducting the affairs of a partnership jointly, its general partners require the consent of all general partners to complete each transaction.

If the management of the affairs of the partnership is entrusted by its participants to one or some of them, the remaining participants, in order to carry out transactions on behalf of the partnership, must have a power of attorney from the general partner who is entrusted with the management of the affairs of the partnership.

The authority to conduct the affairs of the partnership granted to one or more complementaries may be terminated by the court at the request of one or more other complementaries if there are serious grounds for this, in particular due to a gross violation by the authorized person or persons of their duties or his revealed incapacity to reasonably conduct the affairs. Based court decision the necessary changes are made to the founding agreement of the partnership.

2.3. Advantages and disadvantages of partnerships

Advantages.

Ease of organization. Like a sole proprietorship, a partnership is easy to form. In almost all cases, a written agreement (partnership agreement) is concluded, and, as a rule, this does not involve burdensome bureaucratic procedures.

More financial resources. The unification of several participants in a partnership allows it to expand its financial resources in comparison with the resources of an individual private enterprise. Partners can pool their money together, and their venture usually appears less risky to bankers.

Collaborative management. By having multiple partners in the business, a higher degree of specialization is possible. With carefully selected partners, it is much easier to manage the daily activities of the enterprise. Members of the partnership provide each other with time free from business activities, and also have complementary qualifications and views.

Disadvantages of partnerships.

Unlimited liability. Each general partner (in both types of partnership) is responsible for the debts of the company, regardless of whose actions caused this debt. In fact, each partner is responsible for all failures of the enterprise - not only for the result of their own management decisions, but also for the consequences of the actions of any other partner.

Disagreements between members. When multiple people are involved in governance, this division of power can lead to inconsistent policies or inaction when decisive action is required. It's even worse if partners disagree on strategic issues.

Limited life. The duration of the partnership's activities is unpredictable. Withdrawal from a partnership or the death of one of the partners, as a rule, entails the disintegration and complete reorganization of the company, the complete cessation of its activities.

Limited financial resources. The financial resources of partnerships remain limited, although they usually exceed the capabilities of individual private firms. But three or four partners may also lack the funds to successfully grow their venture.

Difficulty in liquidation. Once you have committed yourself to a partnership, leaving it is not so easy. When a company closes, the question of what will go to whom and what will happen next is often very difficult to resolve. It is surprisingly common for law firms to encounter errors in partnership agreements and conclude that division is difficult to implement.

A general partnership is a fairly rigid organizational and legal structure that allows only such a partnership between individuals and legal entities, where everyone bears unlimited joint and several liability for the financial obligations of the partnership.
As we noted above, it is precisely this circumstance that is for Russian business undesirable factor; Both individual and collective entrepreneurs prefer other forms for organizing and registering an enterprise - for example, those associated with financial responsibility that does not apply to the personal property of business organizers. Those persons who wish to take on increased monetary and moral obligations to other partners and employees can do this by writing in memorandum of association that in exchange for the right to manage the enterprise they are ready to bear unlimited joint and several liability. Accordingly, all other individuals or legal entities who simply want to passively participate in the profits of the partnership, receiving a certain percentage on the invested capital, do not want to take so much risk. The maximum that they can afford to lose is their contribution to the share capital of the enterprise.

For such cases, the laws of many countries (including the Russian Civil Code) provide for a special organizational and legal form of business, called a limited partnership, which is also called a limited partnership, due to the fact that trust in such a business community plays a paramount role.

In a more precise formulation, a limited partnership (or limited partnership) is a partnership that unites both general partners who bear full joint liability and contributory members (limited partners) who are liable to the extent of the contribution made.

A limited partnership, like a general partnership, is created and operates on the basis of a constituent agreement, which is signed by all its participants. The constituent agreement contains information such as the name of the legal entity, its location, the procedure for managing its activities; information on the size and composition of the share capital, on the timing of contributions of participants to the capital of the limited partnership, on liability for violation of obligations to make contributions.

The management of the activities of a limited partnership is carried out by the general partners due to the fact that they bear full responsibility for the results of its activities. Member-investors (who are also called “limited partners” in French) do not have the right to participate in the management and conduct of the affairs of the partnership, as well as to challenge the actions of general partners in terms of management and business.

Most often in domestic business practice, the organizational and legal form of a limited partnership is used in the investment business (for example, in mutual funds), in law firms, and in service enterprises.

The advantages and disadvantages of a limited partnership are similar to a general partnership with the only difference being that the liability of limited partners is limited to the size of the contribution made and this circumstance gives them a number of advantages:

· Firstly, it allows limited partners to act as rentiers, receiving interest on the invested capital;

· Secondly, this rentier may be of a special nature, since the contribution made to the share capital of a limited partnership may be in non-monetary form, but, for example, in the form of an intellectual product (a patent for an invention, a computer program, etc.) ;

· Thirdly, a limited partner can be a participant in several limited partnerships, while the law prohibits general partners from being participants in two or more general or limited partnerships;

· Fourthly, in the event of liquidation of a limited partnership, limited partners have a priority right over general partners to receive compensation from the property of the partnership remaining after satisfaction of the creditors' claims.

The corporate name of a general and limited partnership must contain words indicating the organizational and legal form of the partnership and the names of one or more general partners. For example: Full Partnership “Ivanov, Andreev and Company”, or Limited Partnership “Petrov and Company” (can also be represented in the abbreviated form – “Petrov and Co”). Moreover, the name of the limited partner should not be included in the name of the partnership; otherwise, the limited partner automatically becomes a full partner.

Partnership on faith is a rudiment in Russian legal system. This form of organization destroys all the theoretical principles for which legal entities were invented. Unfavorable living conditions, as well as the archaic nature of the structure, made this organizational and legal form extremely inconvenient. And even the most experienced lawyers very rarely meet with companies that have chosen this method of registering a legal entity.

What is a partnership

This is a form of economic society the main objective which is to make a profit. It can consist of at least two persons, who can only be individual entrepreneurs or legal entities.

Why two members? It's simple - you can't "partner" with yourself. Therefore, there must be at least two investors.

What is regulated

The main regulatory source regulating the issue of limited partnership is the Civil Code of the Russian Federation. There is a whole subparagraph dedicated to this form of legal entity (Articles 69-86). Dive deeper into regulatory framework, perhaps, is not necessary, because the likelihood that someone in their practice will meet such a company is extremely small.

The difference between a partnership of faith and a full one

A general partnership consists of persons who, on the basis of a concluded agreement, carry out activities on behalf of the partnership and bear the burden of its obligations.

In a limited partnership, in addition to general partners, there are also limited partners, who are also investors. These are persons who have made a monetary contribution to the activities of a legal entity and are liable for obligations only within the limits of this sum of money.

Participants

Participants in a limited partnership may be:

• citizens carrying out entrepreneurial activities;
• legal entities;
• Russian Federation and its constituent entities;
• government and municipal institutions, but with the permission of the property owner. These are the state, subject of the federation or municipal district.

It is worth noting that state or municipal bodies, as well as certain categories of citizens in respect of whom the law would impose such a ban, cannot be members.

It is important to remember that one person can be a member of only one limited partnership.

Historical reference

A partnership is one of the first historically established forms of legal entities. Its roots go deep into Roman law.

The word “limited” comes from the Italian language and means “to give for safekeeping,” thus characterizing the essence of the contributions that partners make to the share capital.

This form of organization has become popular in the West and especially in the United States of America. This is explained by the fact that western world distinguished by high corporate and business culture, and business contacts were established hundreds of years ago. Thanks to this fact, partners can completely trust each other without fear of losing not only capital, but also personal property. This is how limited partnerships appeared: capital was pooled, and business activity increased. In Russian realities, this legal entity has acquired a truly ugly form.

Rights

The rights in a limited partnership for each investor are established in Russian legislation. This is a closed list that can be expanded by the constituent agreement, but local documents cannot make it narrower.

What rights does a comrade in faith have:

• receive profit from the activities of the organization in the manner established by the constituent agreement and in the amount of its share in the share capital;
• demand the formation financial reports on the activities of a legal entity in the manner established by the constituent agreement;
• withdraw from the partnership at the end of the financial year and receive the invested funds back;
• transfer your contribution to another partner, since it is the founders who have the right to the initial purchase of a share in the share capital of a legal entity.

Additional rights of general partners, as well as investors of a limited partnership, must be established by the constituent agreement with the consent of each participant in the company.

Control

Limited partners cannot participate in the management of a legal entity. Their role ends with providing input and being able to receive reports on the organization's activities.

General partners can manage the partnership based on faith in following forms:

• It is initially presumed that each partner can carry out activities on behalf of the company, unless the articles of association provide otherwise. At the same time, no one has the right to challenge a transaction with third parties, citing the fact that one of the partners was not authorized to complete it. An exception is the case when the transaction was completed, and the third party knowingly knew that the representative was not authorized to complete it;
• the constituent agreement may provide for the option of sole management of the organization by one or a group of several partners;
• comrades can decide to jointly manage the organization. In this case, the consent of each member of the organization will be required to complete the transaction.

In fact, this is not the limit. The memorandum of association allows you to think through any options for the management organization of a limited partnership. But do not forget: the law requires that general partners carry out activities on behalf of the company.

Responsibility

Weakness This organizational and legal form is the full responsibility provided for by law for ordinary comrades.

They are jointly liable not only with their share in but also with their personal property. So bankruptcy can end with very sad consequences. The only pleasant side is that each participant in a partnership of this form is responsible in accordance with the percentage of his contribution to the total capital.

In a partnership of faith, the responsibility is different. After all, there are also limited partners who bear responsibility within the limits of their contribution and thus guarantee the safety of their personal property, but do not participate in management. This turns out to be a kind of payment made by the investor of the limited partnership for a guarantee of financial security.

Registration

Registration of business entities in the territory Russian Federation carried out by authorized tax authorities.

To register a limited partnership, you will need the following information:

• name of the future company;
• the main types of activities that the legal entity plans to engage in;
• extract from the Unified Register of Legal Entities or individual entrepreneurs for each of the future comrades;
• the exact address future organization(office, rented building, etc.);
• information about the identity documents of the founders individuals, as well as their tax identification number.

When submitting documents, you will need to pay a state fee; today it is 4,000 rubles. Registration is carried out no later than 30 days in general procedure.

Constituent documents

The only constituent document of a limited partnership is the memorandum of association. This fact is one of the important differences from other business companies, where such a document is the charter.

The constituent agreement reflects the following information:

• The law sets certain requirements regarding this issue, but we will touch on this later;
• location of the partnership;
• information about the financial component of the share capital (its composition, indicating the shares of each investor and partner, the total amount of the resulting amount);
• the procedure for individual participants to make their contributions;
• possible liability of each of the participants or investors in a limited partnership for violation of their obligations to make contributions.

Changes to the constituent agreement can be made with the consent of all participants, provided that such a possibility is provided for in the initial version of the agreement.

The only advantage of the existence of this organizational and legal form is that there is no requirement for minimum size share capital. Participants in a limited partnership can form it from any amount. It is important to remember this when preparing the constituent documents.

The name of this form of legal entity is the most fun fact in all regulations regulating this issue. To avoid intrigue, you can find examples of partnerships of faith.

The Civil Code establishes that the name must consist of the surname of one of the participants (usually the most famous and significant is chosen) and the phrase “and company.” Or from the surnames of all participants and the phrase “full partnership/limited partnership.” That is, the company name is “Ivanov and Company” or “Ivanov. Petrov. Sidorov. Full Partnership”.

Marketers and enterprise naming specialists are crying out loud. The global rules stating that a company name should reflect as objectively as possible the activities that the company is engaged in, the work of the company name with society and other marketing things - all this was buried by the merciless Civil Code. And, of course, lawyers should not be concerned about such issues, but such an archaic attitude to the issue of naming is similar to anything but the modern market.

Second interesting fact concerns the possibility of a full partner leaving. The personal-trust nature of the relationship in this organizational and legal form of a legal entity implies that a personal change in the members of the partnership can occur only if such a possibility is provided for in the constituent agreement. Otherwise, if one of the general partners wants to end things and leave the organization, everyone else has no choice but to liquidate the company.

Scholars express the opinion that a limited partnership is essentially a continuing contract in which each partner is a party to the transaction. Accordingly, the desire of one of the members of the organization to leave is an expression of will to terminate this agreement unilaterally.

In general, whatever one may say, the form of business management is very inconvenient. Everywhere some difficult obstacles and obstacles await our comrades.

Scientific controversy

The expediency of the existence of such an organizational and legal form of legal entities is constantly being questioned.

Why is there a need for a legal entity that does not protect the individuals behind its establishment? This is a real mystery. Organization that destroys main reason why this form of relationship appeared at all is either great stupidity or a desire for archaism.

The risk of losing all your personal property, the inability to carry out a high-quality marketing naming policy, the inability to be a friend in more than one company - these are all echoes of Soviet authoritarianism, when there was no real market even in the plans, and every step of a potential businessman was monitored, regulated and punished. Partnership on faith is an absurdity that does not fit into modern system civil law. At the same time, for some reason it has experienced reforms and reorganizations of the system of legal entities in the domestic civil law many times.

More detailed information Scientific disputes can be seen in the works of legal scholars, as well as in specialized sections of legal conferences.

What will happen next with this organizational and legal form? We can only guess. Will the legislator come to his senses and abandon them, along with other rudiments of domestic civil law? Considering the practice of reforming the industry, we can say with confidence that no. But limited partnerships will remain an exclusively nominal form, which is not needed by the business for which this section of the Civil Code of the Russian Federation was actually written.