Article title Share in the Company’s Authorized Capital as an Object of Ownership: Certain Aspects
Authors

Doctor of Law, Associate Professor, Judge of the Cassation Commercial Court of the Supreme Court (Kyiv, Ukraine) okibenko@supreme.court.gov.ua

 

PhD in Law, (Kyiv, Ukraine) alyona.pelypenko@gmail.com

Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 5/2021
Сторінки [67-84]
Annotation

What is a share in the authorized capital of a limited liability company? Is it enough to enter into a share purchase agreement to affect the transfer of ownership to a share as ordinary movable property? Whether it is sufficient for the acquisition of ownership to the share to register changes in the list of company’s shareholders? The above and many other similar questions have constantly been raised in practice. Legislative uncertainty of a mechanism for the transfer of ownership to shares and, accordingly, the protection of ownership rights, including in judicial proceedings, are the reasons for such discussions.

The purpose of this article is to highlight the specifics of the legal nature of the share in the authorized capital of limited liability and additional liability companies as an object of property rights. The article discloses the proper ways to protect the ownership to a share based on the available case law.

The authors emphasize that the share as an object of civil law has been extensively studied by scientists in their works and, generally, there is a doctrinal understanding that the share in the authorized capital shall not be deemed as property in the classical sense of that term, but a set of proprietary and non-proprietary rights of a shareholder, to which (share) the legislator actually extended the regime of movable property for the convenience of civil circulation (i.e. transfer of such set of rights from one person to another).

It is established that assignment of a share and withdrawal of a shareholder from the company cannot be deemed identical. In addition, assignment of a share does not constitute a separate mechanism for alienation of a share, nor is a specific type of a contract, and it shall be carried out via existing legal mechanisms for alienation of property (sale, exchange, gift agreement). It was found that the absence of a transaction underlying the transfer of ownership to a share in the authorized capital to a third party and subsequent termination of the shareholder’s ownership to a share evidences that the transfer of ownership has not occurred.

The article raises the issue of enforcement of judgements in cases related to protection of rights to shares. The authors emphasize that in some cases, in addition to applying to the court, a person shall realize the procedure for enforcement of a judgement in case of upholding of a claim, as well as consequences of such judgement on legal rights and interests of other persons (shareholders).

 This publication is dedicated to the analyses of influence of case law on the doctrinal understanding of the share as an object of civil circulation and, accordingly, the doctrinal transformation of the legal understanding of the nature of ownership to the share compared to ownership to property in the classical sense. The article depicts proper and effective ways of judicial protection of the ownership to a share.

 

Keywords ownership; share in authorized capital; corporate rights; case law; proper ways of judicial protection; effective ways of judicial protection
References

Bibliography

Authored books

1. Popov Yu, Zakon Ukrainy “Pro tovarystva z obmezhenoiu ta dodatkovoiu vidpovidalnistiu”: naukovo-praktuchnyi komentar (K.I.S. 2019) (in Ukrainian).

Edited books

2. Spasybo-Fatieieva I (red), Korporatyvni spory: pravovi pozytsii Verkhovnoho Sudu ta komentari naukovtsiv (EKUS 2019) (in Ukrainian).

 

Websites

3. Pashynskyi A, ‘Arkhaichni vymohy do statutiv TOV skasovano’ <https://yur-gazeta. com/publications/practice/korporativne-pravo-ma/arhayichni-vimogi-do-statutiv-tovskasovano. html> (accessed: 26.02.2021) (in Ukrainian).

4. Aronovych F, ‘“Bili pliamy” u zakonodavchomu vrehuliuvanni prava vlasnosti na chastku u statutnomu kapitali’ <https://uz.ligazakon.ua/ua/magazine_article/ EA013169> (accessed: 26.02.2021) (in Ukrainian).