Full partnership, its distinctive features and characteristics. Lawyer's Notes

A general partnership is an association of entrepreneurs on an economic basis to engage in joint financial and commercial activities within the framework of existing legislation.

According to Part 1 of Art. 69 of the Civil Code of the Russian Federation, such a partnership is considered to be a community whose participants engage in business activities exclusively jointly. All obligations undertaken by one of them and not fulfilled by him must be fulfilled by the others. Having taken upon themselves specific obligations, the participants are obliged to respond to them not only with joint, but also with personal funds, which represents a huge inconvenience for themselves, but insures clients using the services of this association.

When joining a community, you need to be prepared for the fact that it will not be possible to become a member of any other similar organization. Each association has its own corporate name, which can consist of the names of all its participants with the addition of the phrase “full partnership” or the name of one participant with the addition of the same phrase or “company”.

Founders and constituent documents

The founders of this association can be individual entrepreneurs and commercial firms. The main constituent document is the constituent agreement, the signing of which is mandatory for all participants.

name of the organization being created;
the address where it is located;
in what order the activities will be carried out;
the amount of total contributions;
the amount of the share contribution of each participant;
time of payment of entrance fees;
penalties for violation of this agreement.

In accordance with constituent agreement a legal entity is created, the procedure for implementation is decided general work, the conditions for the existence of the property of this legal entity are discussed. persons, as well as the conditions on the basis of which the partners carry out their activities.

In addition, the contract is intended to determine the terms under which anticipated profits and losses will be distributed. The agreement also specifies how the procedure for joining and leaving the partnership will proceed.

Number, rights, duties and responsibilities of participants

The main condition for the creation of such an association is the presence in it at least two participants. Their rights and obligations are determined by the constituent agreement, as well as the amount that each of them is ready to contribute to the common treasury, the so-called share capital.

When making any decision, the general partners proceed from the interests of each of them; each has one vote on the council. The exception is cases when the presence of a vote for all participants is not provided for in the constituent document; in this case, all decisions are made as a result of counting a majority of votes.

In addition to the above, each of them has the right to:

receiving income, the amount of which is commensurate with the amount of the deposit;
participation in all affairs of a legal entity;
obtaining information about the work of the partnership, its financial condition and constituent documents;
obtaining information regarding the distribution of profits received;
property remaining after reorganization;
exit from the association at any time convenient for him.

The responsibility of each general partner is distributed among everyone, regardless of the amount of contribution. This condition assumes that all participants are responsible for each other’s actions not only with their deposits, but also with their personal property.

In addition, they are obliged:

allocate part of financial assets for investment in share capital;
pay at least 50% of the total capital upon entry and pay the rest as soon as possible;
If it is impossible to fully pay the entire amount specified in the constituent document, the participant undertakes to pay a 10% penalty, calculated from the amount of the remaining debt and designed to compensate for the losses of the other partners incurred in the process of existing with incomplete capital.
keep information related to the work of the organization secret if common interests so require;
actively participate in all types of community activities;
not to carry out transactions similar to transactions in which all members of the partnership must take part, on their own behalf.

Objectives of activity

The purpose of this association is to facilitate entrepreneurial activity V various fields. Thanks to the common capital, the resulting legal entity can conduct business much better than any of the partners could do individually.

Clients' trust in the partnership is higher than in individual representatives similar business. Community activities may be related to construction, development of new technologies, tailoring industrial scale and the like.

You can learn the procedure for conducting business of such an organization in accordance with the Civil Code of the Russian Federation from the following video:

Controls

The association is managed by all the comrades who formed it, unless otherwise stated in the constituent document. All participants have one vote and have the right to act on behalf of the others. The exception is when the contract stipulates in advance the joint management of all matters.

In this case, when making another transaction that requires a decision, a council of all comrades is assembled.

When conducting business on behalf of the majority, each participant practicing this approach must have a power of attorney signed by the others. If the trust in one of the members is shaken, his powers may be terminated by a court decision, about which a corresponding entry is made in the constituent agreement.

The partnership does not have any management bodies as such, since in most cases the participants act on a common behalf.

Registration procedure

To register, you must provide the following information and documents:

name of the future organization;
the type of activity you plan to engage in;
size information authorized capital, including the procedure for its payment;
information about the chosen taxation system;
permanent address where the organization is located (it is allowed to indicate the address of rented or non-residential premises);
information about the founders, as well as copies of constituent documents.

In this case you will need to pay approx. 4 thousand rubles. The application for opening is signed by an authorized person and certified by a notary.

Liquidation and reorganization

These procedures are carried out in accordance with Art. 61 Civil Code of the Russian Federation. In addition, this association may be recognized as liquidated if if all members leave it or it consists of one member. The remaining comrade has the right to transform the organization into economical society, acting in accordance with the Civil Code of the Russian Federation. This transformation can be carried out no later than 6 months after the actual disappearance of the community.

In addition, liquidation can occur if it is provided for in the memorandum of association. In other cases, the existence of an organization is considered indefinite and not subject to either reorganization or liquidation.

Advantages and disadvantages

A general partnership has both advantages and disadvantages. Fortunately, there are much fewer of the latter, but they still exist.

So, the pros legal form are:

Additional funds. Thanks to the admission of new members to the association, it gains a lot additional funds, which can be used for further development entrepreneurial activity.
Confidence. Potential creditors trust such an organization more than firms.

The only, but very significant, disadvantage is the need to pay general debts from your own pocket. Comrades always risk not only their common property, but also their personal property.

An example of the functioning of an organization

An example is an association organized, for example, individual entrepreneurs N.I. Ivanov, V.V. Sokolov and E.P. Myagkova March 1, 2003. These entrepreneurs formed the general partnership “Ivanov and Co” for the purpose of producing knitted clothing.

During the first period of work, the profit was at least 30,000 rubles. Half of it was distributed in proportion to the amount of earnings, and the rest was divided equally among all participants, as agreed in the memorandum of association.

IN Lately It is almost impossible to find such a community, but in the past it was this organizational and legal form of doing business that was most widely used, especially on the American continent and in Russia in the 19th century.

Comparison with a partnership of faith

In addition to full partnerships, there are also limited partnerships, which are also called limited partnerships. The main difference between them is the need to pay bills with personal property if we're talking about O full version, and the absence of such a need in the second case.

Faithful partners always risk exclusively their own contributions, but their personal property remains intact.

If several comrades in faith have joined the complete union, then the latter do not accept any active participation in entrepreneurial activity, but are required to promptly pay entrance and other fees.

The community of faith has the right to carry out any commercial activity that does not contradict the law, take part in charity, provide marketing and consulting services, and create conditions for the use of the latest scientific and technical innovations.

Other important nuances

Exit from such an organization is unlimited. The participant who leaves the association is paid compensation equal to the estimated value of that part of the joint property to which he can claim. By agreement of the parties, compensation may be replaced by receipt of property in kind.

For example, a friend may demand the return of a personal car, computer, household and agricultural equipment. The amount due is determined based on the balance, which is compiled immediately after the decision to withdraw is made.

In the event of the death of a partner, his property is transferred to his heirs. Moreover, the latter cannot become members of the organization without the permission of all its participants.

When the number of comrades decreases, the size share capital increases. The exception is cases specified in the constituent document.

1. Participants general partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership.

2. A participant in a general partnership who is not its founder is liable equally with other participants for obligations that arose before his entry into the partnership.

A participant who has left the partnership is liable for the obligations of the partnership that arose before the moment of his withdrawal, equally with the remaining participants, for two years from the date of approval of the report on the activities of the partnership for the year in which he left the partnership.

3. The agreement of the participants of the partnership to limit or eliminate liability provided for in this article is void.

Commentary to Art. 75 Civil Code of the Russian Federation

1. The joint liability of the participants of a general partnership for the obligations of the partnership is a distinctive feature, “a constitutive feature of this organizational and legal form.” But since the partnership itself, as a legal entity, having separate property, is independently liable with this property for its obligations (clause 1 of Article 48, clause 1 of Article 56 of the Civil Code), the liability of the partners for the debts of the partnership is of a subsidiary (additional) nature (Article 399 Civil Code). This means that the claims of the creditors of the partnership can be presented to the partners only if the property of the partnership itself is insufficient or if there is an unfair refusal to satisfy these claims, i.e. in the event that the general partnership remains in debt to creditors and cannot repay this debt, and the collection of the property of the partnership itself does not cover this debt. In order to make a claim against the participants of the partnership, the creditor must first make a claim against the partnership itself as the main debtor, and only if the partnership, as the main debtor, refused to satisfy the creditor’s claim or did not respond to it within a reasonable time, the presented claim can be forwarded to the partners bearing subsidiary liability.

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Vitryansky V.V., Sukhanov E.A. New Civil Code Russian Federation about joint stock companies and others legal entities// Workshop on corporatization. Vol. 7. M., 1995. P. 55.

Each participant in a general partnership is liable for the obligations of the partnership with all of his property, regardless of the size of his share in the joint capital of the partnership and the size of the shares of other participants.

Joint liability of the participants means that the creditor has the right to demand the fulfillment of the partnership’s obligation both from all partners jointly and from each of them separately, both in full and in part of the debt (clause 1 of Article 323 of the Civil Code). All joint and several debtors, who are partners, are considered obligated until the obligation is fully fulfilled. Since in this case all the partners are joint and several debtors for the obligations of the partnership, accordingly, all the rules of the Civil Code of the Russian Federation on joint liability, provided for in Art. Art. 322 - 325 of the Code.

Thus, a creditor who has not received full satisfaction from one of the partners as a joint and several debtor has the right to demand what was not received from the remaining participants of the partnership (clause 2 of Article 323 of the Civil Code).

Fulfillment of a joint and several obligation for the obligations of the partnership in full by one of the partners releases the remaining debtors from fulfilling such an obligation to the creditor, and the obligation is terminated.

Fulfillment of a joint and several obligation in full by one of the comrades general rule generates a recourse claim to the other partners in equal shares (clause 2 of Article 325 of the Civil Code).

2. Paragraph 2 of the commented article establishes the rules on the liability of partnership participants in cases where, at the time of the occurrence of an obligation or the presentation of a claim, one or another partner already or does not yet have the status of a participant in the partnership.

These rules are a feature of the joint liability of participants in a general partnership and are as follows.

A participant in a general partnership is liable for all obligations of the partnership, including those that arose before his entry into the partnership (as you can see, this rule applies to partners who did not participate in the establishment of the partnership). The entry of a new participant into the partnership may occur as a result of the admission of a new partner to the partnership or as a result of the transfer of a share by the participant to a third party with the consent of the remaining participants (Article 79 of the Civil Code).

The withdrawal of a participant from the partnership is also not a basis for releasing him from liability for the obligations of the partnership. Such a retired participant continues to be liable for the obligations of the partnership that arose before his departure, jointly and severally on an equal basis with the remaining participants. The law only limits the period for possible prosecution of such a participant: the retired partner is liable for the obligations of the partnership for two years from the date of approval of the report on the activities of the partnership for the year in which he left the partnership. The established two-year period is a shortened period of limitation in relation to the obligations of the withdrawing participant with special rule the beginning of its course.

3. The rules on the liability of participants provided for in the commented article are mandatory in nature and cannot be changed or canceled by agreement of the parties. Moreover, clause 3 directly prohibits any agreement to eliminate or limit the liability of partnership participants, indicating its nullity.

The literature suggests that it is precisely this strict liability of the participants in a general partnership that makes it very attractive to potential counterparties (creditors). At the same time, the reliability, including creditworthiness, of the partnership increases in the eyes of other participants in property turnover, because the creation of a full partnership indicates the confidence of the participants in the success of the business and their honest attitude towards all creditors. However, as the practice of applying the Civil Code of the Russian Federation has shown (which has been in force for more than 15 years modern Russia), the organizational and legal form of a general partnership does not at all attract entrepreneurs themselves as a form of doing business. And this happens, most likely, precisely because of the risk of unlimited liability for the obligations of the partnership.

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See: Vitryansky V.V., Sukhanov E.A. New Civil Code of the Russian Federation on joint-stock companies and other legal entities // Workshop on corporatization. Vol. 7. P. 55.

1. Participants in a general partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership.

2. A participant in a general partnership who is not its founder is liable equally with other participants for obligations that arose before his entry into the partnership.

3. The agreement of the participants of the partnership to limit or eliminate liability provided for in this article is void.

Comments to Art. 75 Civil Code of the Russian Federation

1. The joint liability of all participants in the partnership for its obligations is one of the main distinctive features full partnership. It is this feature that the general partnership owes its name. Joint and several liability means that the creditor has the right to make a claim both against all partners jointly and against any of them separately, both in full and in part of the debt. Issues of joint and several liability are regulated in Art. Art. 322 - 325 Civil Code.

2. The joint liability of partners is subsidiary, i.e. Before presenting a claim against the participants of the partnership, the creditor must present a claim against the partnership itself (see commentary to Article 399).

3. The liability of a participant extends to all obligations incurred by the partnership from the moment of its establishment, even if the participant joined it later. By entering into a general partnership, a new participant accepts the partnership as a whole, including all its obligations.

4. The withdrawing participant, within two years from the date of approval of the report on the activities of the partnership for the year in which he left the partnership, is liable equally with the remaining participants for the obligations of the partnership that arose before the moment of his withdrawal. The creditor, entering into a relationship with the partnership, expects that its composition will remain the same, and, accordingly, evaluates the future possibilities of collection. Therefore, the immediate release of the withdrawing participant from liability for the obligations of the partnership would lead to a serious infringement of the rights of creditors.

5. The rules on the liability of participants for the obligations of a general partnership are mandatory. They cannot be canceled or changed by agreement of comrades.