Discussion Inheritance of Share in the Charter Capital of LLC (Comparative-Legal Analysis)

Abstract

Problem setting. The article analyzes the issues of inheritance of a share in the authorized capital of an LLC in accordance with the newly revised Law of Ukraine “On Companies with Limited and Additional Liability” No. 2275-VIII of February 06, 2018. A comparative analysis of the old and the new wording of legislation was carried out with a focus on the legal problems of acquiring a share of an LLC according to the old wording of the Law of Ukraine “On companies with limited and additional liability” No. 2275-VIII dated February 6, 2018 and the positive changes that occurred in the new wording. The features of the acquisition of shares in the authorized capital of an LLC are highlighted. The conclusion was made about positive changes in the new version of the Law of Ukraine “On Limited Liability and Supplementary Liability Companies” No. 2275-VIII 06.02.2018.
Target of research. The purpose of the article is to analyze and identify the features and gaps in the inheritance procedure of the share in the authorized capital of LLC, Law of Ukraine “On Limited Liability Companies” No. 2275-VIII of 06.02.2018.
To achieve this goal it is necessary to solve the problem: 1) to define the concept of inheritance, to find out the main features, features and requirements of inheritance of the share in the authorized capital of LLC; 2) analyze the acquisition of a share according to the old version of the law and the newly accepted.
Analysis of resent researches and publications. A large number of lawyer and economists involved in the study of legal issues of hereditary relations, including: Vasilchenko V.S, Gordon M.V, Zayika O.Yu., Koval O.V., Lavrinenko I.A., Lidovets R.V ., Sugar OO, Serebrovsky V.I Smytyukh AV, Spasibo-Fateyeva I.V, Kravchuk V.N, Fursa S.Ya., Fedorovich I.Y. and others who carried out the study of the peculiarities of legal regulation of hereditary relations, the order of acquiring or increasing such a share in inheritance. However, despite strong and systematic scientific developments, there are still many controversial and unresolved issues in this area.
Article’s main body. During the period of reforms and significant economic reforms that are taking place in Ukraine, one of the most significant changes is the changes in the national legislation, which, in our opinion, testifies to the democratic development of our state and the approximation of the normative domestic base to world standards.
The development of a modern market economy is impossible without the development of small and medium-sized businesses, which in turn causes the widespread distribution of such an organizational legal form of a legal entity as limited liability companies (“LLC”). The current legislation regulating the activities of LLC in Ukraine is imperfect and largely contradictory. Both in legal practice and in scientific doctrine, there is no single position, which in turn leads to unequal enforcement and the emergence of numerous corporate disputes on issues related to the exit and exclusion of a member from a partnership, the moment of alienation and the acquisition of a share in the authorized capital of the LLC, collection of the share, death of the participant or the liquidation of the LLC itself. The significant concentration of economic resources and the specific legal nature of the LLC leads to an increase in the importance of the emergence and termination of participation in such societies, and therefore the issue of legal regulation of relations with the transition of these rights in the order of inherit succession becomes especially acute because the status of the participant of the partnership is the basis of occurrence in physical and legal persons of certain property rights. In the higher courts, there is also no single approach to the aforementioned legal relations, inconsistencies between the approaches of the Supreme Court of Ukraine and the Supreme Economic Court of Ukraine (now liquidated), which, in turn, exacerbates the conflicts in the regulation of this sphere, as the unequal use of the rules of material and procedural law by the courts is the basis for filing an appeal.
A new stage in the legal regulation of the activities of business entities in Ukraine was the drafting and adoption of the Law of Ukraine “On Limited Liability Companies” No. 2275-VIII of February 6, 2018, the text of which provides certain positive aspects, among the main ones, the following should be called: definition the notion of “corporate agreement”, the procedure for the withdrawal of participants from the company has been changed, different thresholds have been introduced for the decision to be taken by the general meeting, depending on the issue that was put to the discussion. This legal act, according to our conviction, brought domestic legislation closer to world standards, and provided economic entities with guarantees of protection, following clear procedures and prospects for more efficient conduct of their own activities.
Conclusions and prospects for the development. Consequently, taking into account the above, one can state that the newly adopted wording of the Law of Ukraine “On Limited Liability Companies” No. 2275-VIII of February 6, 2018, without a doubt, contains a number of progressive and positive norms that can be considered as a step forward, including: 1) defined , what exactly is the object of inheritance - the share of the participant of LLC; 2) in order to receive a share of the deceased person consent of the members of the society is not required. From now on, the heir may apply to the state registration authority after acceptance of the inheritance with a statement on making changes to the membership of the LLC and indicating it as a participant; 3) the issue was resolved regarding the exclusion of the heir from the participants of the LLC, depending on the size of the heir’s share in the authorized capital of LLC. The comparative characteristics of the newly adopted legislation and the old version make it possible to emphasize that the changes in the part concerning the inheritance of the share in the charter capital of the LLC prohibit its members from impeding the successor in full enjoyment of their rights to participate or to manage.
In turn, we consider that the legislator still failed to work out a qualitative editorial board, so that it did not contain any options for divergent interpretations, and would enable the participants of the Open Company to independently decide which rules would apply to the companies they created or not.
Having analyzed the stories introduced by the new wording of the Law of Ukraine “On Limited Liability Companies” No. 2275-VIII of 06.02.2018 concerning inheritance issues, it can be concluded that they are effective and relevant, aimed at bringing the area under study to world standards and correspond to the information vector of Ukraine’s development.