Article 181.2 Adoption of the decision of the meeting
1. The decision of the meeting is considered adopted if the majority of the meeting participants voted for it and at the same time at least fifty percent of the total number of participants in the relevant civil law community participated in the meeting.
The decision of the meeting may be taken by absentee voting, including voting by electronic or other technical means (paragraph two of clause 1 of Article 160 of this Code).
2. If there are several issues on the agenda of the meeting, an independent decision is made on each of them, unless otherwise established unanimously by the meeting participants.
3. On the adoption of the decision of the meeting, a protocol is drawn up in writing. The minutes are signed by the chairman of the meeting and the secretary of the meeting.
1) the date, time and place of the meeting;
2) information about the persons who took part in the meeting;
1) the date until which the documents containing information on the voting of members of the civil law community were accepted;
2) information about the persons who took part in the voting;
4) information about the persons who conducted the counting of votes;
5) information about the persons who signed the protocol.
Full text of Art. 181.2 of the Civil Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice under Article 181.2 of the Civil Code of the Russian Federation.
1. The decision of the meeting is considered adopted if the majority of the meeting participants voted for it and at the same time at least fifty percent of the total number of participants in the relevant civil law community participated in the meeting.
The decision of the meeting may be taken by absentee voting.
2. If there are several issues on the agenda of the meeting, an independent decision is made on each of them, unless otherwise established unanimously by the meeting participants.
3. On the adoption of the decision of the meeting, a protocol is drawn up in writing. The minutes are signed by the chairman of the meeting and the secretary of the meeting.
4. The protocol on the results of in-person voting must indicate:
1) the date, time and place of the meeting;
2) information about the persons who took part in the meeting;
5) information about the persons who voted against the decision of the meeting and demanded to make an entry about it in the minutes.
5. The protocol on the results of absentee voting must indicate:
1) the date until which the documents containing information on the voting of members of the civil law community were accepted;
2) information about the persons who took part in the voting;
3) results of voting on each agenda item;
4) information about the persons who conducted the counting of votes;
5) information about the persons who signed the protocol.
Commentary on Article 181.2 of the Civil Code of the Russian Federation
1. The decision of the general meeting is taken collectively, for certain types of decisions a special procedure for their adoption may be provided - unanimously. To make a decision, it is sufficient to have a majority of votes, provided that the meeting is legal - more than half of the organization's participants took part in it.
The Civil Code of the Russian Federation provides participants with the opportunity to make a decision in absentia, i.e. voting on agenda items without personal presence at the place of the meeting. Decision-making at the general meeting by absentee voting (that is, at the same time both at the general meeting and in the form of absentee voting) is impossible.
The decision must be made by the participants on each of the issues included in the agenda, the adoption of a generalized decision on all or several issues is not allowed. A different procedure may be established only by a decision of the participants of the legal entity, adopted unanimously. The refusal of at least one of the participants to make such a decision deprives it of legitimacy and does not allow implementing a different procedure for making decisions on issues on the agenda of the general meeting.
2. Any decision of the general meeting must be drawn up in writing, with the authenticity of its provisions certified by the signatures of the participants in this legal entity. The decision of the general meeting is drawn up in a protocol, which must be signed by authorized persons. In most cases, it is sufficient to have two signatures: the chairman and the secretary of the meeting. The charter of the organization may provide for the signing of the decision of the general meeting by all participants present. The content of the protocol is determined by clause 4 of this article, which provides for a set of mandatory details of this document. By decision of the meeting participants, its content may be supplemented with other provisions. One of the novelties of this article is the requirement to indicate the start time of the general meeting, previously it was sufficient to indicate the date of its holding.
The results of absentee voting are also documented in a protocol, which is subject to the general requirements for the procedure for its registration. The absentee form of voting also implies a number of features due to the form of the meeting. The totality of such features is defined in paragraph 5 of this article.
3.Applicable law:
- ZhK RF;
- Federal Law No. 14-FZ of 08.02.98 "On Limited Liability Companies";
- Federal Law of 08.05.96 N 41-FZ "On production cooperatives";
- Federal Law No. 7-FZ of January 12, 1996 "On non-profit organizations";
- Federal Law No. 208-FZ of December 26, 1995 "On Joint Stock Companies".
4. Court practice:
- Decree of the Federal Antimonopoly Service of the Urals District of December 11, 2013 in case No. F09-10737/2013;
- cassation ruling of the Sverdlovsk Regional Court dated February 17, 2011 in case No. 33-2393/2011;
- the appeal ruling of the IC in civil cases of the Sverdlovsk Regional Court dated 08/06/2013 in case No. 33-8595/2013.
Consultations and comments of lawyers on Article 181.2 of the Civil Code of the Russian Federation
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Article 181.1. Key points
1. The rules provided for by this Chapter shall apply, unless otherwise provided by law or in the manner prescribed by it.
2. The decision of the meeting, to which the law associates civil law consequences, gives rise to legal consequences, to which the decision of the meeting is directed, for all persons who had the right to participate in this meeting (participants of a legal entity, co-owners, creditors in bankruptcy and others - participants in civil legal community), as well as for other persons, if it is established by law or follows from the essence of the relationship.
Article 181.2. Adoption of the decision of the meeting
1. The decision of the meeting is considered adopted if the majority of the meeting participants voted for it and at the same time at least fifty percent of the total number of participants in the relevant civil law community participated in the meeting.
The decision of the meeting may be taken by absentee voting.
2. If there are several issues on the agenda of the meeting, an independent decision is made on each of them, unless otherwise established unanimously by the meeting participants.
3. On the adoption of the decision of the meeting, a protocol is drawn up in writing. The minutes are signed by the chairman of the meeting and the secretary of the meeting.
1) the date, time and place of the meeting;
2) information about the persons who took part in the meeting;
1) the date until which the documents containing information on the voting of members of the civil law community were accepted;
2) information about the persons who took part in the voting;
4) information about the persons who conducted the counting of votes;
5) information about the persons who signed the protocol.
Article 181.3. Invalidity of the decision of the meeting
1. The decision of the meeting is invalid on the grounds established by this Code or other laws, by virtue of its recognition as such by the court (disputable decision) or regardless of such recognition (void decision).
An invalid decision of a meeting is voidable, unless it follows from the law that the decision is null and void.
2. If the decision of the meeting is published, the notice on the recognition by the court of the decision of the meeting as invalid must be published on the basis of the decision of the court in the same publication at the expense of the person who, in accordance with the procedural legislation, is charged with court costs. If information about the decision of the meeting is entered in the register, information about the judicial act by which the decision of the meeting is declared invalid must also be entered in the appropriate register.
Article 181.4. Contestability of the meeting's decision
1. The decision of the meeting may be recognized by the court as invalid if the requirements of the law are violated, including if:
1) there has been a significant violation of the procedure for convening, preparing and holding a meeting, which affects the will of the participants in the meeting;
2) the person speaking on behalf of the meeting participant did not have the authority;
3) there has been a violation of the equality of rights of participants in the meeting during its conduct;
4) there has been a significant violation of the rules for drawing up the protocol, including the rule on the written form of the protocol (paragraph 3 of Article 181.2).
2. The decision of the meeting cannot be recognized by the court as invalid on the grounds related to the violation of the decision-making procedure, if it is confirmed by the decision of the subsequent meeting, taken in the prescribed manner before the decision of the court.
3. A decision of a meeting may be challenged in court by a member of the relevant civil law community who did not take part in the meeting or voted against the adoption of the challenged decision.
4. The decision of the meeting may not be recognized by the court as invalid if the vote of the person whose rights are affected by the disputed decision could not affect its adoption and the decision of the meeting does not entail significant adverse consequences for this person.
5. The decision of the meeting may be challenged in court within six months from the day when the person whose rights were violated by the adoption of the decision found out or should have known about it, but not later than within two years from the day when information about the adopted decision became publicly available to members of the relevant civil law community.
6. The person contesting the decision of the meeting must notify in advance in writing the participants of the relevant civil law community of the intention to file such a claim with the court and provide them with other information relevant to the case. Participants of the relevant civil law community who have not joined such a claim in the manner prescribed by the procedural legislation, including those having other grounds for challenging this decision, subsequently have no right to apply to the court with claims to challenge this decision, unless the court recognizes the reasons for this appeal are valid.
7. A contestable decision of a meeting, declared invalid by a court, is invalid from the moment of its adoption.
Article 181.5. The nullity of the meeting's decision
Unless otherwise provided by law, the decision of the meeting is void if it:
1) adopted on an issue not included in the agenda, except for the case when all participants of the relevant civil law community took part in the meeting;
2) adopted in the absence of the required quorum;
3) adopted on an issue not related to the competence of the meeting;
4) contradicts the foundations of law and order or morality.
Commentary on chapter 9.1
For the first time, the Civil Code introduced a chapter regulating such a type of legal acts as decisions of meetings.
The purpose of this chapter is to establish general rules on the adoption of decisions by meetings of both legal entities and other participants in civil circulation (co-owners of apartment buildings, creditors of a bankrupt, etc.), as well as on the recognition of such decisions as invalid.
Although the provisions of this chapter are of a general nature, they apply only in cases where the law or in the procedure established by it does not provide otherwise. Accordingly, they do not apply to the decisions of meetings of business companies and other legal entities for which special rules have been established.
The rules of this chapter are subject to application to the decisions of meetings adopted after the date of entry into force of Law N 100-FZ, i.e. after September 1, 2013 (clause 8, article 3 of Law N 100-FZ).
Article 181.1. Key points
Commentary on Article 181.1
1. One of the novelties of the Civil Code was the expansion of the list of legal facts due to the decisions of the meetings. Article 8 of the Civil Code was supplemented with a special basis for the emergence of civil rights and obligations (subclause 1.1, clause 1), and after this, the legislator introduced a new chapter into the Civil Code. 9.1, devoted to the procedure for adoption and legal consequences of decisions of meetings. The content of the articles of the chapter reveals the general provisions of the decisions of the meetings, the procedure for their adoption, the grounds for declaring them invalid due to contestability or nullity.
The introduction of such a chapter in the Civil Code is connected with the needs of practice, including the judiciary. Until now, those civil law communities for which there are no uniform requirements for holding meetings and fixing decisions made, either had to use the rules on general meetings of owners of common property in accordance with corporate or housing legislation, or invent their own decision-making procedures, as a result of which someone's rights could be violated. For example, to date, the legislation does not contain detailed regulation of issues related to decisions of meetings of creditors in bankruptcy or decisions of meetings of participants in common property.
According to clause 4.2.1 sect. II of the Concept for the Development of Civil Legislation in the Civil Code, it was necessary to regulate such a type of legal acts as decisions of meetings (decisions of participants in a legal entity, decisions of co-owners, decisions of creditors in a bankruptcy case, etc.), an essential feature of which, as legal acts, is their obligatory force of law for all participants of the meeting, including those who did not take part in the meeting or voted against the decision.
Some authors hastily, in our opinion, concluded that the placement of this chapter in the section on transactions and representation "involuntarily suggests their common legal nature" (Ivanishin P.Z. The decision of the meeting as the basis for the emergence of civil rights and obligations / / Civil Law, 2011, N 2, pp. 8 - 12). It seems that the decisions of the meetings have an independent legal nature. The discussion about the similarity of the nature of the decisions of meetings and transactions is not so sharp today, since judicial practice recognizes the lack of identity between them. For example, in one of the decisions, the court stated: "... the general meeting of participants in the company, as the supreme body of management of the company, is not a subject of civil legal relations, in connection with which the decision of the general meeting of participants, although it can establish, change or terminate civil rights and obligations, but in essence, it is not a transaction, but an administrative act of the management body of a legal entity, and therefore the decision of the general meeting cannot give rise to any legal consequences for third parties.Thus, since the decisions of the general meeting of participants in the company are not transactions, the legislation establishes a special procedure for challenging these decisions" (Decision of the Sixth Arbitration Court of Appeal dated October 9, 2012 N 06AP-4476/2012 in case N A04-4080/2012). It follows from this that "legislation on transactions cannot be applied to disputed legal relations," the Arbitration Court of the Republic of Karelia supports colleagues (decision of the Arbitration Court of the Republic of Karelia dated April 29, 2009 in case N A26-1007 / 2009). Apparently, this position is shared by the legislator, as he seeks in every possible way to delimit these legal institutions in the Civil Code.
When comparing the legal regulation of decisions of meetings in Russian and German law, O.M. Rodionova writes that the decision of the meeting is not an action, but objectified in the form of an act-document, the result of activities to organize the exercise of the subjective right to vote by the participants in the meeting (see: Rodionova O.M. On the legal nature of decisions of meetings and their invalidity in German and Russian civil law // Civil Law Bulletin, 2012, N 5, pp. 66 - 93).
From the text of the law, however, it follows that the decision of the assembly is an act of expressing the collective will. At the same time, in contrast to unilateral transactions or agreements, in order for a decision to become effective, it is not required that the will be expressed by all subjects who are granted the right to make a decision. In addition, the decision of the meeting is, as a rule, part of the legal composition. That is, for the legal consequences desired by the civil law community to occur, not only a decision as such is required, but also the presence of other facts specified in the law. For example, the decision to elect the general director of the company also requires the signing of an agreement with such a person.
2. The provisions on the decisions of meetings should apply to the decisions of meetings adopted after September 1, 2013 (clause 8, article 3 of Law N 100-FZ).
It is very important to indicate the law that the rules provided for in Ch. 9.1 of the Civil Code are applied, unless otherwise provided by law or in the manner prescribed by it. Attention was drawn to this even at the stage of preparation and discussion of the bill. In particular, it was noted that the rules of Ch. 9.1 The Civil Code is not an audit of the rules on meetings of joint-stock companies and limited liability companies. Therefore, in paragraph 2 of Art. 181.1 specifically made an indication that this chapter is valid only in situations where this issue is not regulated by a special law or charter. Thus, this chapter, according to the assurances of the representatives of the working group, does not concern either business entities or other types of legal entities, where this issue has already been resolved.
Thus, the rules on decisions of assemblies are applied in cases where there are no special rules regarding assemblies of certain civil law communities.
3. According to paragraph 2 of Art. 181.1 of the Civil Code, the decision of the meeting, to which the law associates civil legal consequences, gives rise to legal consequences, to which the decision of the meeting is directed, for all persons who had the right to participate in this meeting, as well as for other persons, if this is established by law or follows from the essence of the relationship .
The introduction of the concept of "civil legal community" into the text of the law, the participants of which make decisions at a meeting, should be recognized as a novelty of civil legislation as a whole.
As an example of such communities, the commented article indicates members of a legal entity, co-owners, creditors in bankruptcy. Since the list is not exhaustive, they include parent meetings, meetings of co-owners, heirs, members of a garage cooperative, summer residents, neighbors, etc.
At the same time, in relation to legal entities, the text of the article refers specifically to their participants, and not to members of collegiate bodies (board of directors, board, etc.). Consequently, the rules on decisions of meetings do not directly apply to the procedure for making and challenging decisions of the bodies of a legal entity.
The introduction of a new concept denoting collective formations seems to be significant. It has already been noted in the literature that associations that are not recognized as subjects of civil law still have legal capacity, including outside civil law relations (see for more details: Kharitonova Yu.S., Ivanov V.I. Atypical subjects of law in the light of the theory convergence of private and public law // Russian legislation: trends and prospects: Monograph / Edited by N.A. Frolova, M., 2013).
Recognition in the legislation of the legal consequences of decisions of meetings of legal and non-legal civil society communities in this sense corresponds to the existing needs of theory and practice.
4. The decision of the meeting gives rise to legal consequences for all persons who had the right to participate in this meeting, as well as for other persons, if this is established by law or follows from the essence of the relationship.
The right to participate in the meeting are persons who are members of the community at the time of the announcement of the upcoming meeting to decide on certain issues. The general procedure for making decisions of any meetings is established in Art. 181.2 of the Civil Code. With regard to the establishment, modification or termination of the rights of third parties by decisions of meetings, in this case the law formulated a general rule, which was not always supported by the courts. Without recognizing the decision of the meeting as a transaction, the legislator cannot, however, fail to point out that the decision of the meeting on the appointment of a head or the reorganization of an organization affects the rights of third parties.
Article 181.2. Adoption of the decision of the meeting
Commentary on Article 181.2
1. In the commented article, the legislator systematized the general requirements for the procedure for holding meetings of civil law communities, thereby regulating the procedure for holding a meeting, whose decision has civil law consequences.
The commented article establishes a general rule that the decision of the meeting is considered adopted if the majority of the meeting participants voted for it and at the same time at least 50% of the total number of participants in the relevant civil law community participated in the meeting.
It is generally accepted that when the law speaks of the majority, it is precisely the simple majority that is meant, i.e. number of votes exceeding 50% by at least one vote. This rule is traditionally used for decision-making at meetings of participants in business companies, cooperatives, owners of the common property of an apartment building and other communities.
Having a quorum at the meeting is essential. For example, the presence of a general meeting of shareholders on an issue put to a vote is adopted by a majority vote of the shareholders - owners of voting shares of the company participating in the meeting, unless otherwise provided for by law (Article 49 of the Law on Joint Stock Companies).
On this occasion, in paragraph 26 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation N 19, an explanation was made that in cases where the parties participating in the dispute considered by the court refer to the decision of the general meeting of shareholders in support of their claims or objections to the claim, while the court established that that this decision was made in the absence of a quorum for holding a general meeting or making a decision, the court must, regardless of whether it was challenged by any of the shareholders or not, evaluate such a decision as null and void and resolve the dispute, guided by the norms of law. The relevant provision is enshrined in the current version of Art. 49 of the Law on joint-stock companies: decisions of the general meeting of shareholders, adopted in the absence of a quorum for holding a general meeting of shareholders or without the majority of votes of shareholders necessary for making a decision, are not valid, regardless of whether they are appealed in court.
This rule can become a guideline for determining the quorum at meetings of civil law communities other than corporate ones. Based on the literal interpretation of the text of the commented article, the quorum for the legitimacy of the meeting and the adoption of any decision of any civil law community is the presence of a simple majority of community members at the meeting. Otherwise, the decision of the meeting is recognized as having no legal force (see the commentary to Article 181.5 of the Civil Code), and the meeting is declared invalid.
2. Separate legislative acts establish other rules for making decisions on certain issues, which, based on paragraph 1 of Art. 181.1 of the Civil Code, as special ones, take precedence over the general rule.
So, according to Art. 36 of the Law on Consumer Cooperatives, the decision of the general meeting of representatives of the consumer societies of the union on issues of its exclusive competence is taken by a qualified majority of votes (the decision to reorganize the union requires at least 3/4 of the votes of representatives of the consumer societies of the union present at the general meeting of representatives).
In accordance with Art. 44 and 46 of the LCD, the general meeting of owners of common premises in an apartment building makes decisions on the reconstruction of the apartment building, on the use of the capital repair fund, on the limits of the use of the land plot on which the house is located, on the use of the common property of the owners of common premises by other persons by a qualified majority of 2/ 3 votes out of total homeowner votes.
More stringent requirements may be imposed on the decisions of meetings of other civil law communities. However, if this is not expressly provided for in the law, communities will need to develop such requirements themselves.
More complicated is the case when the charter of a legal entity establishes the requirement for a decision to be made by a qualified majority of votes or unanimously, in contrast to the established general requirement of a special law.
For example, according to Art. 11 of the Law on Joint Stock Companies, the charter of the company must contain information on the procedure for preparing and holding a general meeting of shareholders, including a list of issues on which decisions are made by the management bodies of the company by a qualified majority of votes or unanimously. A similar rule is established in paragraph 2 of Art. 12 of the Law on Limited Liability Companies: the charter of the company, among other things, must contain information on the procedure for making decisions by the company's bodies, including on issues decisions on which are taken unanimously or by a qualified majority of votes. According to Art. 9 of the Law on Consumer Cooperation, the charter of a consumer society should determine the composition and competence of the management and control bodies of the consumer society, the procedure for their decision-making, including on issues decisions on which are made by a qualified majority of votes.
Thus, the regulations governing the creation and operation of certain types of legal entities make it possible to stipulate in the charter the requirement for a larger number of votes for decision-making than is established in the laws themselves. In such cases, the legislator obliges to fix in the charter the rules for making decisions on issues, decisions on which are taken by a majority of votes.
Along with this, the law may provide for cases when the decision of the general meeting of participants in the civil law community must be taken unanimously. The wording of the commented article does not prohibit the community from independently strengthening the requirement for a unanimous decision-making procedure, which should be fixed in advance. But with a literal interpretation of the above norm, one may encounter the impossibility of strengthening this requirement for decision-making. In practice, disputes are not uncommon about which procedure for making a decision on the number of required votes is a priority if there are discrepancies on this issue in the law and the charter of a legal entity.
For example, in relation to the introduction into the charter of an LLC of rules on making decisions on certain issues within the competence of the general meeting of participants, unanimously, the courts take opposite positions. In some cases, the courts believe that the charter may provide for the need for a unanimous decision of the participants in the general meeting on those issues for which the law does not require a unanimous decision, since the list of issues requiring a unanimous decision by all participants in the company can be expanded in the charter at the discretion of the participants society, and the law does not define the upper limit of votes for making a decision (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of October 23, 2012 N 6530/12 in case N A51-8502 / 2010).
In other cases, the courts take the opposite decision that the charter of the company cannot provide for a unanimous decision of the general meeting of participants on those issues for which the law does not provide for a unanimous decision, since the law imperatively establishes cases when it is necessary to make a decision by all participants companies unanimously (clause 8, article 37 of the Law on Limited Liability Companies). In other cases, decisions are made by a simple or qualified majority of votes from the total number of participants in the company (Resolution of the FAS of the Moscow District of February 26, 2008 N KG-A40 / 141-08 in case N A40-26096 / 07-132-254).
The first of the given positions of the courts seems to be preferable. The legislator leaves the participants of civil law communities to independently decide what requirements to impose on the procedure for making decisions on the number of votes that voted for them. The imperative nature of the rules on the adoption of certain decisions unanimously should be understood as the impossibility of simplifying decision-making specifically on these issues, but it does not affect the possibility of further tightening the requirements for making decisions on other agenda items on which a decision is made.
System interpretation of paragraph 1 of Art. 181.1 and paragraph 1 of Art. 181.2 of the Civil Code allows us to talk about the priority application of the rules of the charter adopted on the basis of the law, on a qualified or unanimous decision on a specific issue before the general provisions on a simple majority of votes for a decision.
3. The commented article establishes that the decision of the meeting may be taken by absentee voting. Absentee voting is the adoption of a decision without holding an in-person meeting, i.e. without the joint presence of members of the civil law community to discuss agenda items and make decisions on issues put to a vote.
The procedure for conducting absentee voting provides for the transfer in writing of the decisions of the meeting participants on the issues put to vote to the place or address indicated in the notice of the meeting. At the same time, the legislator does not establish which particular meeting - initial, regular or extraordinary - can be held in person, and which one can be held in absentia. It follows from the meaning of the law that the form of absentee voting is applicable to any type of community meeting.
The rules on the procedure and features of holding meetings in the form of absentee voting are contained in various regulatory acts. For example, according to paragraph 3 of Art. 21 of the Law on horticultural, horticultural and dacha non-profit associations of citizens, if necessary, the decision of such a community can be taken by absentee voting. The decision of the general meeting of shareholders of a joint-stock investment fund by absentee voting can be taken, unlike other joint-stock companies, on any issues that fall within the competence of the general meeting of shareholders of a joint-stock investment fund (Article 7 of the Law on Investment Funds). However, not all of the above acts regulate in detail the procedure for holding meetings in absentia. This was not done in the updated version of the Civil Code.
With the entry into force of 9.1 of the Civil Code, a meeting of owners of common property, heirs, other participants in civil law communities can also be held in absentia.
In some cases, the law makes holding a meeting in absentia dependent on any circumstances. So, in Art. 47 of the LCD is allowed: if during a general meeting of owners of premises in an apartment building by joint presence of owners of premises in this house to discuss agenda items and make decisions on issues put to a vote, such a general meeting did not have a quorum, then the decision of the general meeting of owners premises in an apartment building with the same agenda can be adopted by absentee voting.
Let us note that in the commented article, the legislator limited himself only to allowing absentee voting, in fact, without establishing special requirements either for the procedure for such voting (except for paragraph 5 of the commented article), or for the range of issues that can be resolved in this way.
At the same time, according to paragraph 2 of Art. 50 of the Law on Joint Stock Companies, a general meeting of shareholders, the agenda of which includes issues on the election of the board of directors, the audit commission, the approval of the auditor of the company, as well as some other issues (subclause 11, clause 1, article 48 of the Law), cannot be held in absentia voting.
A general meeting of members of a cooperative cannot be held in the form of absentee voting, the agenda of which includes issues on the reorganization or liquidation of the cooperative, on the election of the board of the cooperative, the audit commission, on the approval of the annual report of the cooperative and the annual financial statements of the cooperative (Article 36 of the Law on Housing Savings cooperatives). Similar restrictions are known to special legislation on legal entities of other organizational and legal forms (for example, Article 38 of the Law on Limited Liability Companies, Article 20 of the Law on Credit Cooperation, etc.).
The very procedure and conditions for holding voting in absentia, since the legislation does not provide otherwise, it is advisable to provide for in the charter of a legal entity. In this case, it would not be superfluous to develop internal regulations for conducting absentee voting, which should provide for the text of the ballot for absentee voting, the procedure for informing members of such an association of the proposed agenda, familiarizing themselves with the necessary information and documents, making proposals for the inclusion of additional issues in the agenda, as well as an indication of a specific deadline for the end of the absentee voting procedure.
It should be noted that sometimes such rules are contained in the law. For example, in paragraph 2 of Art. 47 of the LCD determined that those who took part in the general meeting of owners of premises in an apartment building, held in the form of absentee voting, are considered to be the owners of premises in this house, whose decisions were received before the deadline for their acceptance. However, in most cases, given that we are talking about non-legal entities from the point of view of civil law, community members will have to develop the rules for conducting absentee voting on their own.
The commented article does not address the issue of the possibility of holding a meeting in a mixed form, when some of the participants in the meeting make decisions in person, and some of those absent present their opinion in writing by absentee voting. For example, joint-stock companies with a large number of shareholders often use a mixed form of meetings, the so-called face-to-face meetings. Such an opportunity follows from the right granted by law to shareholders included in the list of persons who have the right to participate in the general meeting, to take part in the meeting directly or send completed ballots to the company (clause 3 of article 60 of the Law on Joint Stock Companies).
With regard to housing legislation, based on paragraph 2 of part 5 of Art. 45 of the LCD, the forms of holding a general meeting of owners of premises in an apartment building are a meeting (joint presence) or absentee voting. A.V. Golubev believes that the mutual complement of the declarations of will of the subjects as a result of the use of these forms regarding participation in the general meeting, as well as on the merits of the issues put to the vote, i.e. the possibility of making a decision by the general meeting by mixed voting (at the meeting and in absentia) is not provided for by law. Therefore, the author notes, in order to positively resolve the issue of holding meetings of owners of premises in an apartment building in a mixed form, it is required to make an addition to the LCD (see: Golubev A.V. The decision of the general meeting of owners of premises in an apartment building as a civil law contract // Legislation and Economics, 2010, N 7, pp. 60 - 68).
Thus, in the updated version of the Civil Code, it did not remove those practical and theoretical issues that arise before the organizers of meetings of civil law communities in a mixed form.
4. If there are several issues on the agenda of the meeting, an independent decision is made on each of them, unless otherwise established unanimously by the meeting participants.
This rule contains an indication of the agenda of the meeting. Meanwhile, the content of this legal phenomenon is not disclosed either in the norm itself or in the main provisions on the decisions of the assembly. Features of the formation of the agenda, the competence in making certain decisions are not defined and are actually left to the discretion of special legislation or the civil law community. Thus, this norm cannot help to solve the tasks that the Civil Code faces - to create legal certainty for the decisions of meetings and ensure their legal impeccability.
At the same time, the issues of determining the competence of the assembly are of decisive importance for the recognition of the decision as valid. So, according to paragraph 4 of Art. 15 of the Bankruptcy Law, if the decision of the meeting of creditors is made in violation of the limits of the competence of the meeting of creditors established by law, such a decision may be declared invalid by the arbitration court considering the bankruptcy case, at the request of the persons participating in the bankruptcy case, the persons participating in the arbitration bankruptcy proceedings, or third parties, which is drawn up in writing.
5. The decision of the meeting is expressed in a legal act - the minutes of the meeting, which is drawn up in writing. The nature of this act has not yet been fully determined. In judicial practice, the minutes of the meeting are considered as an external expression of the will of the participants in the meeting, proof of the holding of the meeting and the content of the range of issues on which the decision was made.
For example, in one of the court decisions, the court stated the following: "Based on the court request of the Twentieth Arbitration Court of Appeal, the Inspectorate of the Federal Tax Service for the Moscow District reported that it was unable to provide a certified copy of the protocol dated October 8, 2010 of the general meeting of participants of OOO" UK " Movement" and a certified copy of the application, the annex to which is the specified protocol, since the registration file of LLC "MC" Movement "is missing the specified protocol. As a result of the consideration of the dispute, the court concluded that there was no genuine disputed protocol dated October 8, 2010 in nature. Taking into account the lack of evidence of the convening of the contested meeting and the absence of a genuine protocol, including in the tax authority, a copy of the protocol cannot be regarded as evidence of the contested meeting "(Resolution of the Twentieth Arbitration Court of Appeal dated June 22, 2012 in case N A23-3482 / 2011 ).
In another case, when considering the requirement to invalidate the decision of the general meeting of the founders of the cooperative, drawn up by the protocol, the act of the tax authority on the state registration of changes in the constituent documents, on the obligation of the tax authority to take actions to return the changes to their original position in accordance with the charter of the cooperative, the court indicated that "the use by the plaintiff to substantiate the claim of the wording of the norms of the legislation on agricultural cooperation governing the procedure for appealing against decisions of general meetings (on declaring the decision invalid), by analogy with challenging the minutes of the meeting (as the plaintiff formulates the claims - on declaring the protocol invalid), does not affects the difference in the legal nature and legal consequences of the minutes of the meeting and the decisions taken during the meeting, since the minutes themselves only serve as a means of recording what is happening at the meeting and reflects in writing, among other things, the results of the meeting" (Resolution DV of the Tenth Arbitration Court of Appeal dated May 11, 2013 in case N A09-10675/2012).
The opinion of the courts is widespread that in case of disagreement with the decision made, the interested person files a claim for the recognition of the decision as invalid, and the protocol is only a confirmation of the decision. Therefore, the claim for recognition of the protocol as invalid seems to be incorrect. This, of course, should be about the decision of the meeting on a specific issue, since the "internal document of the organization" (in the terminology of the courts) - the protocol is a form of fixing the decisions taken at the meeting. At the same time, the courts also pay attention to whether the protocol entails legal consequences for the applicants, i.e. whether it establishes rights or obligations for them (see, for example, the Resolution of the Seventh Arbitration Court of Appeal dated March 5, 2013 in case N A27-16089 / 2012).
Thus, the significance of the protocol should not be limited to its evaluation as a way of fixing and proving the meeting's decision. The protocol, as a legal act, can also have legal significance for the participants in the meeting and the community as a whole. But it is not worth identifying the protocol and the decision of the meeting recorded in it. In one of the court decisions, the court expressed its position on this matter in the following way: "The court of first instance rightfully found no grounds for accepting the assertion that this act irrefutably confirms the invalidity of the decision of the extraordinary general meeting of members of the Rusichi SPCC, drawn up by the protocol" (Resolution of the Sixteenth Arbitration Appeal court dated October 19, 2012 in case N A63-10232 / 2012).
6. According to the general rule of the commented article, the minutes are signed by the chairman of the meeting and the secretary of the meeting.
If the requirements for holding a meeting are formalized in a special law, the question of the chairman of the meeting and the secretary, although not in full, is removed at the level of normative acts. In civil law communities, whose activities are not regulated by special legislation, the question will inevitably arise how to correctly apply this provision of the Civil Code. As a rule, the chairman of the meeting is elected to perform his functions for a certain period of time. But situations are possible when the chairman of the meeting is absent for one reason or another (is on vacation, on a business trip, is ill, etc.). The community needs to consider who is assigned to serve as chairman or secretary during their absence. If the meeting is already in progress, a chairman can be elected during the meeting. The chairman may also be faced with the need to convene a new meeting to resolve other issues of an organizational nature.
The law may also establish another rule regarding the required signatures on the protocol. Thus, in connection with numerous complaints and scandals in the field of housing stock management in Russia in relation to the established HOA, the executive authorities of the constituent entities of the Russian Federation had to check the legitimacy of the decisions of homeowners on their creation before March 1, 2013. The amendments made to the LCD (Federal Law of June 4, 2011 N 123-FZ "On Amending the Housing Code of the Russian Federation and Certain Legislative Acts of the Russian Federation" // SZ RF. 2011. N 23. Art. 3263) suggest that the protocol of the general meeting of homeowners on the creation of an HOA is signed by everyone who voted for the creation of an HOA, when registering an HOA, they are submitted to the registering authority, including the protocol on the creation of an HOA, the charter, information about the persons who voted for the creation of an HOA, and about shares in the common property of an apartment building , which belong to these persons (parts 1.1, 5 of article 136 of the LC as amended by the said Law). That is, the registration of the HOA may be denied if the minutes of the meeting with the signatures of all the participants in the meeting who voted for the creation of the HOA are not submitted.
For all issues on the agenda, a single protocol is drawn up. In the commented article, obviously, we are talking about the decisions made, and not about decisions in general. Since there may be several issues on the agenda of the meeting, on each of which a decision is made, a corresponding entry is made about this in a single document - the minutes.
7. The Civil Code also provides for general requirements for drawing up the minutes of the meeting. At the same time, the details that are required to be reflected in the minutes differ for meetings held in person and in absentia. However, the only difference is that the protocol on the results of in-person voting must indicate the date, time and place of the meeting, and in the protocol on the results of absentee voting - the date until which the documents containing information on the voting of members of the civil law community were accepted. Also, in the protocol of the in-person meeting, it is required to indicate information about the persons who voted against the decision of the meeting, and in the protocol of absentee voting - only information about the persons who signed the protocol. The rest of the data that must be reflected in the minutes are identical for the minutes of in-person and absentee meetings: information about the persons who took part in the voting; information on the results of voting on each item on the agenda; information about the persons who conducted the counting of votes.
It is noteworthy that information about the persons who voted against the decision of the meeting is entered into the minutes only at the request of these persons. That is, this information is not mandatory for the protocol. However, when considering in court disputes on the recognition of the decision of the meeting as invalid, it will be necessary to provide evidence of a vote against.
8. In general, it can be concluded that the introduction of numerous incomplete rules on holding an assembly has complicated the procedure for holding assemblies, which was not previously regulated by law, and did not provide sufficient tools for the legal registration of their decisions. Before the entry into force of 9.1 of the Civil Code, lawyers were guided, by analogy, by the rules on holding meetings provided for in the Laws on JSC or LLC for corporate meetings, as well as the rules of the LCD for resolving issues at meetings of owners. The introduction of novelties of the Civil Code on the decisions of assemblies not only did not facilitate, but even complicated the procedure for making decisions and their subsequent defense in courts for such communities.
(introduced by Federal Law No. 100-FZ of May 7, 2013)
Article 181.1. Key points
1. The rules provided for by this Chapter shall apply, unless otherwise provided by law or in the manner prescribed by it.
2. The decision of the meeting, to which the law associates civil law consequences, gives rise to legal consequences, to which the decision of the meeting is directed, for all persons who had the right to participate in this meeting (participants of a legal entity, co-owners, creditors in bankruptcy and others - participants in civil legal community), as well as for other persons, if it is established by law or follows from the essence of the relationship.
Article 181.2. Adoption of the decision of the meeting
1. The decision of the meeting is considered adopted if the majority of the meeting participants voted for it and at the same time at least fifty percent of the total number of participants in the relevant civil law community participated in the meeting.
The decision of the meeting may be taken by absentee voting.
2. If there are several issues on the agenda of the meeting, an independent decision is made on each of them, unless otherwise established unanimously by the meeting participants.
3. On the adoption of the decision of the meeting, a protocol is drawn up in writing. The minutes are signed by the chairman of the meeting and the secretary of the meeting.
4. In the protocol the results of in-person voting must indicate:
1) date, time and place of the meeting;
2) information about the persons who took part in the meeting;
5) information about the persons who voted against the decision of the meeting and demanded to make an entry about this in the minutes.
5. The protocol on the results of absentee voting must indicate:
1) the date until which the documents containing information on the voting of members of the civil law community were accepted;
2) information about the persons who took part in the voting;
3) results of voting on each agenda item;
4) information about the persons who conducted the counting of votes;
5) information about the persons who signed the protocol.
Article 181.3. Invalidity of the decision of the meeting
1. The decision of the meeting is invalid on the grounds established by this Code or other laws, by virtue of its recognition as such by the court (disputable decision) or regardless of such recognition (void decision).
An invalid decision of a meeting is voidable, unless it follows from the law that the decision is null and void.
2. If the decision of the meeting is published, the notice on the recognition by the court of the decision of the meeting as invalid must be published on the basis of the decision of the court in the same publication at the expense of the person who, in accordance with the procedural legislation, is charged with court costs. If information about the decision of the meeting is entered in the register, information about the judicial act by which the decision of the meeting is declared invalid must also be entered in the appropriate register.
Article 181.4. Contestability of the meeting's decision
1. The decision of the meeting may be recognized by the court as invalid if the requirements of the law are violated, including if:
1) there has been a significant violation of the procedure for convening, preparing and holding a meeting, which affects the will of the participants in the meeting;
2) the person speaking on behalf of the meeting participant did not have the authority;
3) there has been a violation of the equality of rights of participants in the meeting during its conduct;
4) there has been a significant violation of the rules for drawing up the protocol, including the rule on the written form of the protocol (paragraph 3 of Article 181.2).
2. The decision of the meeting cannot be recognized by the court as invalid on the grounds related to the violation of the decision-making procedure, if it is confirmed by the decision of the subsequent meeting, taken in the prescribed manner before the decision of the court.
3. A decision of a meeting may be challenged in court by a member of the relevant civil law community who did not take part in the meeting or voted against the adoption of the challenged decision.
A meeting participant who voted for the adoption of a decision or abstained from voting has the right to challenge the decision of the meeting in court in cases where his expression of will during voting was violated.
4. The decision of the meeting may not be recognized by the court as invalid if the vote of the person whose rights are affected by the disputed decision could not affect its adoption and the decision of the meeting does not entail significant adverse consequences for this person.
5. The decision of the meeting may be challenged in court within six months from the day when the person whose rights were violated by the adoption of the decision found out or should have known about it, but not later than within two years from the day when information about the adopted decision became publicly available to members of the relevant civil law community.
6. The person contesting the decision of the meeting must notify in advance in writing the participants of the relevant civil law community of the intention to file such a claim with the court and provide them with other information relevant to the case. Participants of the relevant civil law community who have not joined such a claim in the manner prescribed by the procedural legislation, including those having other grounds for challenging this decision, subsequently have no right to apply to the court with claims to challenge this decision, unless the court recognizes the reasons for this appeal are valid.
7. A contestable decision of a meeting, declared invalid by a court, is invalid from the moment of its adoption.
Article 181.5. The nullity of the meeting's decision
Unless otherwise provided by law, the decision of the meeting is void if it:
1) adopted on an issue not included in the agenda, except for the case when all participants of the relevant civil law community took part in the meeting;
2) adopted in the absence of the required quorum;
3) adopted on an issue not related to the competence of the meeting;
4) contradicts the foundations of law and order or morality.
