Recommendations
Made by the First Inter-Regional Coordination
Workshop on SEO registration and licensing of
specific activities
3. Detailed comments to
the recommendations
3.1 State registration
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The information on SEO activities should
be reflected, taking into account human rights
and freedoms (freedom of entrepreneurship)
- on the one hand, and information transparency
and availability for the third parties - on
the other hand.
This
recommendation aims at focusing the legislator's
attention on the necessity to create the balance
of interests of the registered economic operators
and the third parties, entitled to the access
to information on their activity, in the law.
The Uniform State Register should contain
the most comprehensive information on economic
operators. It would allow to identify a legal
entity or a private entrepreneur in the economic
turnover, providing for the protection of
the rights and interests of the third parties
entering into contractual relationships with
a given economic operator. Alongside with
this it is necessary to consider the lawful
rights and interests of entrepreneurs, which
can be violated by excessive disclosure of
information on their commercial activity.
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The applicant should be granted an option
to submit the information on the directions
of his (her) activities to the Register.
In
the opinion of the participants of the workshop,
the Uniform State Register should among other
data contain the information on the major
activities (spheres of activity), an entity
created in the process of its state registration
is going to pursue. This information is subject
to entry on request of the applicant. This
would allow the third parties to make adequate
judgements on their relationships with a potential
partner on a certain deal. Thus, for example,
signing a foodstuff delivery contract with
an organization that indicated housing construction
as its core business in the Register would
witness for a certain risk of non-fulfillment
of the contractual obligations by the supplier.
Besides, the indication of such information
in the Register would save an entrepreneur
the necessity to get additionally listed with
the statistical bodies, for this will be done
by the registration body on its own.
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It seems feasible to include into the Register
the information on persons (parties), which
due to corporate legal relationships with
the respective legal entity may be vicariously
or jointly liable for the obligations of the
latter.
This
recommendation supports further development
of the institutions of third parties' liability
for the obligations of legal entities with
the purpose of securing the creditors' rights.
On
the basis of the current legislation the experts
identified three categories of persons, the
information on which should be included into
the Register:
- should the company be a daughter one, specify,
which company or partnership is the mother
one;
- specify the founders (participants) of a
legal entity, as well as other parties authorized
to issue instructions binding upon this legal
entity or entitled to control its activities
by other means;
- include the information on affiliated persons,
defined in conformity with Article 4 of the
Law "On competition and limits to the monopolistic
activity on commodity goods' markets" of March
22, 1996 ¹ 948-I.
The
availability of this information in the State
Register will allow to protect the interests
and lawful rights of third parties on condition
of unscrupulousness of individual economic
operators in respect of fulfillment of their
obligations.
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There should be a possibility to include
specific information retrieved from the balance
sheet approved by the respective tax body,
as well as other information on the financial
standing of the SEO, into the Register.
This
recommendation agrees with Item "f" Article
2 of the First Directive. According to its
provisions, the data of the balance sheet
and the profit and loss account should be
entered into the register for each fiscal
year. The experts, however, took into account
that the disclosure of all the financial data
of the corporate activity in today's Russian
environment may affect the stability of Russian
economy. Thus, they concluded that for the
moment only the minimum of financial data
should be included into the Register on condition
of gradual expansion of the said financial
data.
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The system of state registration of economic
operators should envisage individual identification
numbers assigned to every person (entity)
registered with the Register, with the respective
indication of this identification number in
the Register.
In
the transition period of establishing the
system of state registration it seems possible
to continue the use of individual identification
taxpayer's number (INN) as an instrument of
a economic operator's identification in social
legal relationships. Taking into account the
experience of EC countries, for future it
seems feasible to turn to the universal use
of the only and unique number.
This
number may be used in legal relationships
(both private and social) with any third party
for the purposes of identifying an economic
operator. The delivery of this identification
number to a third party allows the latter
to get familiarized with the data of the Register.
Consequently, it relieves the owner of the
number from the liability and risks related
to possible references of the third party
to a misidentification or the lack of information
reflected in the Register.
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It is suggested to substantially raise
the lowest limit of the value of assets invested
as the charter capital on establishment of
a commercial organization, whereby an independent
expert evaluation of the non-cash investment
is required.
In
conformity with Item 2 Article 15 of the Federal
Law of February 8, 1998 ¹ 14-FZ "On limited
liability companies", as well as with Item
3 Article 34 of the Federal Law of December
26, 1995 ¹ 208-FZ "On joint-stock companies",
should a non-cash investment be made into
the charter capital of a limited liability
company with its value exceeding 200 minimal
monthly salaries, or should the par value
of the purchased shares or other securities
of a joint-stock company exceed 200 minimal
monthly salaries established by the federal
law, it is necessary to have an independent
valuator establish the monetary value of the
non-cash investment.
In this case, should
non-cash investments have been made into the
charter capital, both the participants of
the company and the independent valuator in
case of corporate assets deficiency are jointly
and vicariously liable for the obligations
of the company in the amount equal to excessive
evaluation of the non-cash investments. This
liability lasts for three years from the moment
of the state registration or from the moment
of modification of the corporate charter.
Considering the above,
the conduct of an independent evaluation of
a non-cash investment exceeding 200 minimal
monthly salaries (which is approximately RUR17
000) sometimes demands for substantial financial
costs from an economic operator, for an independent
valuator assumes a considerable responsibility
for the reduction of the investment value.
In practice this is an obstacle to the extensive
use of non-cash investments as a constituent
of charter capitals. In connection with the
above the experts recommended to increase
the minimal limit of the value of assets invested
as a charter capital when establishing a commercial
organization, which would call for an independent
evaluation of the non-cash investment.
This rule should be
common for all organizational and legal types
of commercial organizations with the exception
of cases directly envisaged by law for individual
organizations executing specific activities.
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Interregional
Seminar
Detailed
comments to
the recommendations
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