Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
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Vol. 39, Nº 69 (Julio - Diciembre) 2021, 237-260
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Gaps and analogies in the formation of
registered capital of limited liability and
joint-stock companies
DOI: https://doi.org/10.46398/cuestpol.3969.14
Viktor Mikryukov *
Abstract
The aim of the research is to analyses and, using analogy,
to examine exhaustively the areas of legal uncertainty in the
mechanism of social capital formation of commercial entities,
while at the same time checking the coherence of the statutory
analogy and the analogy in law as a universal means of protecting
and combating gaps in the business sphere. A combination of
general logical methods of analysis and synthesis, induction and
deduction, comparison and generalization, characteristic of works
dealing with civil law, were applied. At the same time, the analogy
method was used as a research tool and as a research tool. The conclusions
of the work include the identication of specic gaps in the legal regulation
of the procedure, methods, and terms of payment of share capital, the
identication of ways to overcome these gaps casually and the formulation
of proposals for the legislative updating of the regulatory structure of the
share capital of commercial companies.
Keywords: analogy in law; gaps in legislation; joint-stock company;
limited liability company; registered capital.
* Kutan Moscow State Law University, 9 Sadovaya-Kudrinskaya St., Moscow, 125993, Russia. ORCID
ID: https://orcid.org/0000-0002-6856-1627. Email: mikryukov.viktor@yandex.ru
238
Viktor Mikryukov
Gaps and analogies in the formation of registered capital of limited liability and joint-stock
companies
Brechas y analogías en la formación de capital
registrado de responsabilidad limitada y sociedades
anónimas
Resumen
El objetivo de la investigación es analizar y, utilizando la analogía,
examinar exhaustivamente las áreas de incertidumbre jurídica en el
mecanismo de formación del capital social de las entidades comerciales, al
tiempo que se comprueba la coherencia de la analogía estatutaria y la analogía
en el derecho como un medio universal de protección y lucha contra las
lagunas en la esfera empresarial. Se aplicaron una combinación de métodos
lógicos generales de análisis y síntesis, inducción y deducción, comparación
y generalización, característicos de las obras que tratan del derecho civil.
Al mismo tiempo, el método de la analogía se utilizó como instrumento de
investigación y como objeto de investigación. Entre las conclusiones de la
labor guran la determinación de lagunas concretas en la reglamentación
jurídica del procedimiento, los métodos y las condiciones de pago del capital
social, la identicación de formas de superar casualmente esas lagunas y la
formulación de propuestas para la actualización legislativa de la estructura
reglamentaria del capital social de las sociedades comerciales.
Palabras clave: analogía en el derecho; lagunas en la legislación;
sociedad anónima; sociedad de responsabilidad
limitada; capital social.
Introduction
Establishing the need and the procedure for the formation of the
registered capital when creating such business entities as a limited liability
company (LLC) and a joint-stock company (JSC) is considered one of the
bottlenecks of corporate law (Filippova, 2012). In the Russian and foreign
doctrine, there are continued disputes about possible ways in civil law
to protect the interests of investors and creditors which are associated
with the use of the structure of a corporate legal entity (Galkova, 2015).
Mechanisms are being discussed to upgrade the eciency of investment
schemes in corporate capital and to ensure corporate control adequate to
the investments made (Hansmann and Kraakman, 2004). In most of the
relevant discussions, the researchers focus on the structure of the registered
capital anyway.
The lack of unity in the doctrinal assessments of this structure
predetermines the imperfection of the current legislation in this area,
which, in turn, entails a signicant number of disputes related to the
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Vol. 39 Nº 69 (Julio - Diciembre 2021): 237-260
performance, non-performance, or improper performance of such a key
corporate obligation as the payment of the registered capital of LLC and
JSC. The aforesaid indicates the need for a particular study to establish and,
using analogy, overcome, and then wholly eliminate gaps in the mechanism
of formation of registered capital of business entities.
The research helps achieve greater corporate legal certainty and
simultaneously contributes to the additional development of the analogy
method potential in the legal regulation of economic activity.
1. Literature Review
The registered capital for such organizational and legal forms of
commercial business corporations as LLC and JSC is rightly dened in
the literature as a systemically important structure (Glushetskiy, 2020).
The particular signicance of the complete and consistent regulatory
consolidation of this legal structure is not only that the legal concepts of
LLC and JSC are based on such a key feature as the division of the registered
capital into shares (Cl. 1, Art. 87 of the Civil Code of the Russian Federation)
and a certain number of equities (Cl. 1, Article 96 of the Civil Code of the
Russian Federation), but also in the fact that the registered capital of these
business entities provides a broad functionality (guarantees the interests
of creditors (Povarov, 2010), ensures the formation and replenishment of
the property base of the organization (Rubeko, 2016), identies the size
of participation in prots and losses (Dolinskaya, 2006), determines the
volume of corporate and managerial capabilities of participants, indicates
the degree of deepness of the corporation’s commercial aspirations
(Sukhanov, 2012), and therefore is reected in almost all spheres of life of
LLC and JSC.
Since LLC and JSC, created mainly as capital pooling, as business
partnerships (Filippova, 2018), the key function (not highlighted and even
ignored by the legislator (Sayapina, 2005), but at the same time actually
working) is the property (starting, material and securing) function of the
registered capital, and the property itself, transferred by the founders
(participants) as contributions (installments) to the registered capital,
occupies a special place in the system of legal entity’s property relations
(Dolinskaya, 2017) and becomes an element of corporate property (Laptev,
2017), in so far the detailed and gapless regulation of the procedure for the
formation of the registered capital of LLC and JSC is seen as fundamental
(as it is correctly highlighted in science, a vague law in most cases does
not cope well with the task of guiding human behavior (Asgeirsson, 2015).
Indeed, the further functioning of the company largely depends on the
degree of eectiveness of actions carried out when paying in the registered
240
Viktor Mikryukov
Gaps and analogies in the formation of registered capital of limited liability and joint-stock
companies
capital (Tarasenko, 2005).
However, it can be said that today there are some areas of regulatory
uncertainty, generally considered in the doctrine as a negative factor,
a defect of the legal system that undermines the ability of the law to
achieve the necessary results (Davis, 2011) and complicates the private
legal process of actual paying in the registered capital of LLC and JSC. In
particular, the literature draws attention to the ambiguity of the legal nature
(personal or impersonal) of the participants’ (shareholders’) obligation to
pay the corporation’s registered capital (Kozlova and Filippova, 2012),
the uncertainty of the consequences of failure to perform or delay this
obligation fulllment (Dmitrieva, 2013). Based on these observations,
it seems necessary to analyze the existing regulatory parameters of the
mechanism more thoroughly and comprehensively for the formation of the
LLC and JSC registered capital to identify and legalize legal gaps.
When faced with gaps, the question inevitably arises about the possibility
and necessity of resorting to the statutory analogy (the application of
legal norms to situations that do not directly fall under the classication
of this norm) (Macagno and Walton, 2009) or to the analogy in law (the
identication of the rights and obligations of the parties of the disputed
relationship is not according to specic norms, but according to the so-
called “general legal principles”) (Damele, 2014). Therefore, using the
example of how the analogy method manifests itself when it is used in the
gap elements of the mechanism for forming the LLC and JSC registered
capital, it seems necessary to check (conrm or clarify) the idea of the
“central role” of analogy in any legal reasoning (Hunter, 2008), as well as
theses expressed in science about the relevance and eectiveness of legal
analogy as a “bridge between fact and rule” (Weinreb, 2005), a convenient
mechanism for prompt overcoming regulatory gaps in law enforcement
practice (Petrovsky, 2009), the usual means of legal argumentation and
explanation of legal phenomena (Juthe, 2005).
2. Materials and Methods
The theoretical basis for the undertaken research was formed by scientic
works of Russian and foreign civil scientists, specialists in corporate law
and economic analysis of law.
The empirical material used was based on clarifying judicial acts of the
supreme courts in Russia, as well as a signicant number of decisions of
lower courts on specic disputes related to the application of the rules on
the procedure for forming the registered capital of business entities (LLC
and JSC).
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The methodological base of this work includes the logical methods
of analysis and synthesis, induction and deduction, comparison and
generalization, typology, and analogy, traditional for civil studies. A special
place in the system of methods applied was performed by analogy, which
was both a means and an object of study.
3. Results
As a result of the study, real gaps in the legal regulation of the procedure,
methods, and timing forming the registered capital of business entities (LLC
and JSC) have been found and legally qualied. The cited real practical
incidents made it possible to visually illustrate and additionally conrm the
“live” nature of analogy as an element of modern corporate legal technology,
an actual means of exercising and protecting corporate rights, the stage of
application of law and a factor in the legislation development.
It is argued that in a state of such legal uncertainty, when, from a formal
point of view, there is no gap in the law, but the existing norms are not able
to adequately respond to specic socio-economic realities and ensure the
implementation of the key principles of corporate law, the most eective
instrument of law enforcement is the analogy in law (Cl. 6 of the Civil Code
of the Russian Federation), applying which the direct participants in the
relevant corporate relations bring their behavior under the direct inuence
of the basic principles of civil legislation, and the courts receive an eective
legal means of balancing the private interests of the corporation, its
participants and counterparties.
Bearing in mind that the exact rules still more consistently regulate
ordinary phenomena (to which all the issues discussed above can
be attributed) than general principles (Braithwaite, 2002), and also
considering that the mechanism of applying the analogy in law, although
aims to achieve absolute legal certainty (and ensures its achievement) is
itself associated with the chicanery-intensive discretion both on the part
of the participants in the relevant legal relations and on the part of law
ocials, it is proposed to eliminate the detected gaps in a regulatory way.
4. Discussion
4.1. Paying in a contribution to the registered capital by a third
party
There is no direct legislative decision and an unambiguous doctrinal
answer to the question of whether it is permissible to make contributions
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Viktor Mikryukov
Gaps and analogies in the formation of registered capital of limited liability and joint-stock
companies
to the payment of the registered capital of a company not by a participant
(shareholder) personally, but by a third party (by the legal entity, another
participant or generally an outside entity that is not part of the corporate
network of the organization) and, accordingly, should the formation of the
registered capital be considered valid, and the participant (shareholder)
having fullled one of the key (essential) duties to the corporation in case of
the actual implementation of such payment.
On the one hand, the approach has gained considerable popularity
in judicial practice, according to which the obligation of a participant
(shareholder) to pay in a share in the registered capital of LLC (issued
shares when establishing a JSC) can be performed for him by other persons.
Thus, the courts specify that the Federal Law of February 8, 1998 No. 14-
FZ “On Limited Liability Companies” (Federal Law “On LLC”) does not
require the obligation to pay in the registered capital of the company by
its participants, depending on whether the participant personally paid in
his share or payment was made by other persons for him (Resolution of
the Arbitration Court of the East Siberian District of February 14, 2019,
Case No. A78-17696/2017). The current legislation does not provide for
a prohibition on making a contribution to the registered capital of a legal
entity for a particular founder by another member of this organization or a
third party (Resolution of the Arbitration Court of the Far Eastern Federal
District of March 15, 2017, Case No. A59-1172/2016).
In the courts’ opinion, the fact of the full formation of the corporation’s
registered capital or the payment of the share of the relevant person
(participant, shareholder) is of legal signicance, and in assessing this
circumstance, the way (at whose expense), the registered capital was
provided, or the share of the person concerned was paid in, does not
play an independent legal role (Resolution of the Arbitration Court of the
Volga District of May 20, 2020, Case No. A12-26686/2019). Concerning
JSC, the courts proceed from the assumption that when nding the fact
of full payment for all shares placed while establishing the organization,
the shares that could pass to the company according to para. 4, Cl. 1, Art.
34 of the Federal Law of December 26, 1995, No. 208-FZ “On Joint-Stock
Companies” (Federal Law “On JSC”) are missing, therefore there are no
grounds for depriving a shareholder who has personally failed to fulll the
relevant duty of the right to participate in the meeting and vote on agenda
items (Resolution of the Federal Arbitration Court of the East Siberian
District of July 15, 2008, Case No. A19-4509/05-53-6-4).
According to courts, it is also possible that the issuer himself will pay
for the placed shares using borrowed funds (Resolution of the Federal
Arbitration Court of the North Caucasian District of January 27, 2009, Case
No. А32-11917/2007-55/274-2008-16/37). In science, the regulatory basis
for this judicial position is seen in applying the provisions of Art. 313 of the
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Civil Code of the Russian Federation established under a statutory analogy
from para. 1, Art. 6 of the Civil Code of the Russian Federation (Dmitrieva,
2013).
Special instruction in Cl. 1 of Art. 15 of the Federal Law “On LLC” on
the obligation of “each founder” of the LLC to pay in full its share in the
company’s registered capital, as well as the standard rules in Cl. 2 of Art.
90 and Cl. 2 of Art. 99 of the Civil Code of the Russian Federation on the
inadmissibility of releasing an LLC participant (JSC shareholder) from the
obligation to pay for a share in the registered capital (shares) of a company,
lead to the conclusion that the obligation to pay the registered capital is
strictly of personal nature, which excludes the possibility of imposing the
performance of the duty on a third party according to Art. 313 of the Civil
Code of the Russian Federation (Kozlova and Filippova, 2012). Relying on
this conclusion, some courts consider the terms of the Agreement for the
Establishment of an LLC on payment of a share in the registered capital
of the company by one participant for another to be contrary to the law
requirements (Resolution of the Federal Arbitration Court of the Central
District of April 21, 2009, Case No. А54-1591/2008С9) and deny that the
participant has the full scope of corporate rights if, although the information
on the completion of the registered capital establishment is reected in
the corporation’s balance sheet, there is an unresolved conict about who
exactly paid in this participant’s contribution (Resolution of the Federal
Arbitration Court of the West Siberian District of June 19, 2008, Case No.
А03-3150/07-37).
Besides, while solving the issue mentioned above, the provisions of
Art. 313 of the Civil Code of the Russian Federation on the conditions and
consequences of the fulllment of an obligation by a third party (including
those obliging the creditor to accept the performance oered by a third
party for the debtor, even if the debtor did not impose the fulllment of
the overdue obligation on the latter) are applied, it is possible to see a
contradiction to the peremptory norms (para. 3, Art. 16 of the Federal
Law on LLC and para. 4 Cl. 1 of Art. 34 of the Federal Law “On JSC”),
establishing a notable consequence of non-payment of shares (stocks)
upon the organization of LLC and JSC – such (unpaid) shares (stocks) upon
the expiry of the established period for their payment are transferred to
the company (the basis for the transition is the very fact of expiration of
the period for payment (Resolution of the Arbitration Court of the Volga
District of March 6, 2017, Case No. A06-4712/2016).
This particular consequence is perceived in court practice in such a way
that a corporation has no right to compel its participants (shareholders)
to fulll the obligation to pay for shares (stocks) in kind (Denition of the
Supreme Arbitration Court of the Russian Federation of January 16, 2014,
Case No. A76-8250/2009-64-159; Denition of the Supreme Arbitration
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Viktor Mikryukov
Gaps and analogies in the formation of registered capital of limited liability and joint-stock
companies
Court of the Russian Federation of April 19, 2011, Case No. A46-2352/2010;
Resolution of the Arbitration Court of the Far Eastern District of February
15, 2017, Case No. A04-3521/2016). Insofar as the participant (shareholder)
avoids this obligation, it is regarded as a refusal of corporate participation.
Its implementation by a third party or the corporation, which is not agreed
with it, violates the principle of exclusively voluntary involvement of
investors in the formation of the registered capital of companies, recognized
in science and constitutional practice (Kuznetsov, 2011).
It appears that if we resort to the clarication of the proper legislative
intentions that predetermined the adoption of this or that regulation,
which is recognized as necessary for any law enforcer (Kyritsis, 2018), then
it should be concluded that the legislator’s intention to demand personal
fulllment of the obligation to make contributions to the registered capital
does not arise. Such a requirement does not appear due to the essence of
the non-personal property obligation under consideration. Simultaneously,
the highlighted normative reference to the responsibility of “each” founder
to pay their share can be characterized as one of the many terminological
errors that, for some excused reasons, accompany any legislative area
(Golubtsov, 2018). Therefore, taking into account the idea that both the
participants (shareholders) and the corporation have the obligation to
form the registered capital, since the registered capital is included in the
organization’s property characteristic (Dolinskaya and Kuznetsov, 2012),
it is hardly correct to limit the imposing this obligation on third parties at
the debtor’s initiative. On this basis, the judicial practice conrming this
possibility should be supported.
Another matter is that the aforementioned doctrinal doubts about the
impersonal nature of the obligation to replenish the registered capital, the
encountered judicial acts with the contrary position, and fears that the
broad and unconditional application of the provisions of Art. 313 of the
Civil Code of the Russian Federation for payment of contributions to the
registered capital for participants (shareholders) by third parties may lead
to bypassing the mandatory norms of Cl. 3 of Art. 16 of the Federal Law
“On LLC” and par. 4, Cl. 1 of Art. 34 Federal Law “On JSC” and compulsory
corporate investment. Taking into consideration that legal certainty, which
is a hallmark of the rule of law, plays a fundamental role in law due to its
economic optimality for market participants (Portuese et al., 2013), it
seems appropriate to ll the existing legal gap in a regulatory way and make
legislative adjustments in para. 2 of Art. 90 and in para. 2 of Art. 99 of the
Civil Code of the Russian Federation, namely: rstly, to establish that the
participant’s obligation to pay for its share in the registered capital of LLC
(the duty of a shareholder to pay for the shares placed by the JSC and acquired
by the shareholder) may be imposed by the participant (shareholder) on
the organization, other participants (shareholders) of this company or
other third party; secondly, to clarify that LLC and JSC are not entitled to
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fulll the corresponding obligation for the participant (shareholder) if the
participant (shareholder) did not entrust the performance to the company;
thirdly, the company is not entitled to accept the performance oered for
the participant (shareholder) by other participants (shareholders) of this
company or other third parties, if the participant (shareholder) did not
entrust the performance to the persons concerned.
4.2. Late payment of contributions to the registered capital
Another gap in the legal regulation of the procedure for the formation
of the registered capital of business entities (LLC and JSC) is that the
consequences of violation of the term for payment by participants
(shareholders) of shares (stocks) established by the Agreement for the
Establishment of the Company following the limit regulatory values are not
clearly and completely determined (para. 1, Cl. 1 of Article 16 of the Federal
Law “On LLC”, para. 1.2, Cl. 1 of Article 34 of the Federal Law “On JSC”).
On the one hand, based on a literal reading of the provisions of para. 3
of Art. 16 of the Federal Law “On LLC” and para. 4, Cl. 1 of Art. 34 of the
Federal Law “On LLC”, in the event of non-payment or incomplete payment
of the share (stocks) within the time limits established in accordance
with the law, the unpaid part of the share (stocks, the placement price of
which corresponds to the unpaid amount) is transferred to the company.
Such a transfer and, accordingly, the loss of the status of a participant
(shareholder) by the violator of the obligation to replenish the registered
capital of the corporation occurs automatically. Sharing this letter of the
law interpretation, scientists emphasize the automatism of the transition
of unpaid shares (stocks) (Dmitrieva, 2013) and focus on the preclusive
nature of the term for payment of contributions to the registered capital
(Klinova, 2007).
The courts, when establishing the expiration of such a period, deny the
corporate possibility of a faulty (not making a timely contribution to the
registered capital) participant (shareholder) to participate in decision-
making at general meetings (Resolution of the Federal Arbitration Court
of the Central District of July 14, 2008, Case No. A68-5851/07-168/16)
and challenge the decisions of the company’s bodies (Denition of the
Supreme Arbitration Court of the Russian Federation of December 09,
2009, Case No. A07-20700/2008). Besides, the Constitutional Court of
the Russian Federation did not nd a contradiction with the Constitution
of the Russian Federation in the fact that these provisions do not require
additional expressions of the will of the faulty participant to transfer unpaid
shares (stocks) to the company (Denition of the Constitutional Court of
the Russian Federation dated October 25, 2018, No. 2615-О).
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Viktor Mikryukov
Gaps and analogies in the formation of registered capital of limited liability and joint-stock
companies
Therefore, it is generally accepted in notarial practice that if at the time
of the opening of the inheritance, the share in the registered capital of the
LLC was not paid in full by the testator, and the deadline for full payment
has not expired, the inheritance will include the total share in the registered
capital of the company that belonged to the testator at the time of his death,
while the obligation to pay the share in full passes to the heirs, and if the
period established for the full payment of the share by the time of opening
the inheritance has expired, only the paid part of the share in the registered
capital is included in the mass of the succession, and the amount of the share
not paid by the testator passes to the corporation (Cl. 2.5. Methodological
recommendations on Inheritance of Shares in the Registered Capital of
Limited Liability Companies (approved at a meeting of the Coordination
and Methodological Council of notarial chambers of the Southern Federal
District, North Caucasian Federal District, Central Federal District of the
Russian Federation 28-29.05.2010).
Besides, it is the idea of automating the transfer of unpaid shares (stocks)
that forms the basis for the conclusion worded by the courts (para.10 of the
Information Letter of the Presidium of the Supreme Arbitration Court of
the Russian Federation dated May 24, 2012 No. 151 Review of the Practice
of Consideration by Arbitration Courts of Disputes Related to the Exclusion
of a Participant from a Limited Liability Company) and approved in science
(Gutnikov, 2015), that it is inadmissible to exclude a participant from the
corporation membership for violation of the obligation to contribute to the
registered capital.
In other words, there are reasonable grounds to believe that participants
(shareholders) or their successors, in the event of a delay in fullling the
obligation to pay shares in the registered capital of LLC (shares placed
by JSC), are automatically deprived of corporate ties with the company.
The payment made beyond the established period is an unjust enrichment
of the company and must be returned. In practice, there are examples of
assessing the overdue payment of a contribution to the registered capital
as improper, having no corporate signicance (Resolution of the Federal
Arbitration Court of the Volga-Vyatka Region of February 19, 2008, Case
No. A39-245/2007-9/14).
On the other hand, in some cases, the courts emphasize that only unpaid
shares can be transferred to JSC (Resolution of the Federal Arbitration
Court of the Ural District of July 21, 2009, Case No. A50-14459/2008-G14),
and indicate (apparently, having in mind the analogy with the regulation
of Art. 29 FZ of April 22, 1996 No. 39-FZ “On the Securities Market”), that
until the unpaid shares are written o from the faulty owner’s account and,
accordingly, until they are returned to the issuer’s account, formally being
a shareholder, the person continues to have the corporate status of the
company’s shareholder (Resolution of the Federal Arbitration Court of the
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North Caucasian District of January 27, 2009, Case No. A32-11917/2007-
55/274-2008-16/37). Based on these judgments, the courts reject attempts
to consider the payment for the placed shares, carried out beyond the
established deadlines, being invalid (Resolution of the Arbitration Court of
the Volga District of September 01, 2016, Case No. A57-27205/2015).
Concerning cases of late payment of a share in the LLC registered
capital and interpreting the rules of Cl. 3 of Art. 16 of the Federal Law “On
LLC,” the courts come to the same conclusion that if the LLC is running
smoothly and have not disposed of the share unpaid by the participant
within the timeframe established by Art. 24 of the Federal Law “On LLC,”
implicative actions of the violator (participation in corporate governance),
other participants (long-term non-contestation of the violator’s right
to the unpaid share) and the company (interaction with the violator as a
proper participant in the company) may be the basis for recognizing the
status of a corporation participant for the person who did not pay the
share (Resolution of the Presidium of the Supreme Arbitration Court of
the Russian Federation of February 26, 2013, Case No. А42-6169/2011;
Resolution of the Arbitration Court of the Volga-Vyatka Region of March
17, 2016, Case No. А29-4606/2015; Resolution of the Arbitration Court of
the Volga District of December 10, 2019, Case No. A57-12783/2018).
There is an analogy here with the regular practice of recognizing a person
who, having retained the complex of corporate rights and obligations of an
LLC participant, applied to leave the company, but having not received from
the company the actual value of his share in the registered capital, continues
to participate in the company’s corporate life (vote at general meetings of
the company and receive dividends). The company does not undertake the
actions provided for in para. 2, Art. 24 of the Federal Law “On LLC” to
determine the fate of the share of the participant withdrawn (Resolution of
the Arbitration Court of the Volga-Vyatka District of December 30, 2014,
Case No. А43-2058/2011; Resolution of the Arbitration Court of the North-
Western District of July 4, 2017, Case No. A56 -39738/2015; Resolution of
the Federal Arbitration Court of the Volga District of August 16, 2010, Case
No. A57-22863/2009).
Since the severance of the corporate relationship of a participant
(shareholder) with LLC and JSC is always a particularly signicant event,
so goodwill aimed at maintaining such a relationship (if there is a technical
(formal) possibility of its implementation and the absence of obvious
contraindications) should have regulatory grounds.
Thus, taking into account the need to improve corporate legislation to
achieve a reasonable balance of interests of a particular (obliged and having
an overdue payment of the contribution) participant (shareholder) with the
interests of other shareholders, the corporation, and its counterparties, it
should be statutorily determined that payment of a share in the registered
248
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Gaps and analogies in the formation of registered capital of limited liability and joint-stock
companies
capital of LLC (payment for the shares placed by JSC) received by the
company in violation of the established period, excludes the transfer of
the share (stocks) to the company, and unless and until the corresponding
payment was received by the company before the company applies to the
registering authority (presentation of the transfer order to the registrar)
about the transfer of the share (stocks) to the company, and if this condition
is not met (with an even more signicant delay), such payment is subject to
refund as unjust enrichment.
4.3. Payment of the contribution to the registered capital by
osetting the founder’s counterclaims
Another gap in the mechanism for the formation of the registered
capital of business entities (LLC and JSC) appears in the lack of absolute
clarity as to the possibility or inadmissibility of fullling the obligation of a
participant (shareholder) to contribute to the registered capital by osetting
counterclaims against the company.
On the one hand, the abolition of the general prohibition on exemption
of a limited liability company participant from the obligation to make
a contribution to the registered capital by osetting claims against the
company (as it was established in Cl. 2 of Article 90 of the Civil Code of
the Russian Federation as amended by the Federal Law of December
27, 2009 No. 352-FZ), exclusion of a similar prohibition on exemption
of a shareholder from the obligation to pay for the company’s shares by
osetting claims against the company (as it was worded in Cl. 2 of Art. 99
of the Civil Code of the Russian Federation as amended before the adoption
of Federal Law of December 27, 2009 No. 352-FZ) and the simultaneous
introduction of highly specialized clauses that in the cases provided for by
the Federal Law “On LLC” and the Federal Law “On JSC,” such osets are
possible with an increase in the registered capital of LLC and when paying
for the JSC additional shares placed, can be regarded as a point approval of
osets, namely (only) in order to form a further part of the already created
registered capital with its increase (Dolinskaya, 2010).
On the other hand, considering the admissibility of payment of the
registered capital of a legal entity by promissory notes of its participants
(Denition of the Supreme Arbitration Court of the Russian Federation
of January 18, 2011, Case No. A56-59613/2009; Letter of the Ministry of
Economic Development of Russia of December 29, 2018, No. OG-D22-
12808), it becomes clear that the idea of preventing the formation of
registered capital bubbles and guaranteeing the interest of the company’s
creditors in replenishing the registered capital with real property, and not
“ephemeral rights of claims of participants” (Boyko, 2010), by prohibiting
the oset of claims during the initial formation of the registered capital,
obviously doesn’t work.
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It seems that fears of abuse, when individual participants, having the
opportunity to inuence the company’s activities, begin to unfairly build up
the company’s debts to themselves to subsequently pay o the obligation
by osetting the registered capital payment, should not lead to a literal
and rigid understanding of the prohibition under consideration (para. 2,
Cl. 90, Art. 99 of the Civil Code of the Russian Federation) and prevent
the provision of a convenient way for JSC and their participants to convert
debts into corporate capital, because it is known that abusus non tollit
usum (misuse of something is no argument against its proper use).
Given a legally permitted long period of existence of companies with an
incompletely paid registered capital, a real (not bubble) debt of the company
to a participant, whose share in the registered capital has not yet been
paid, may arise, and, accordingly, a reasonable interest of the organization
in good faith termination of counterclaims by oset, relieving both the
corporation and its participant from the need to seek for current nancial
resources, may appear. It seems that corporate law, having as one of its
most important tasks the promotion of the organization of investment in
corporate capital and the provision of corporate control associated with the
investment (Hansmann and Kraakman, 2004), should ensure the proper
achievement of this interest. Accordingly, excessive rigidity of the rules
on registered (authorized) capital increases transaction costs and hinders
investment (Wei, 2014).
Therefore, taking into account the generally apparent negative eect of
the lack of exibility in the rule on the inadmissibility of payment of the
registered capital by osetting claims against the company (Telyukina,
2001), and considering that, strictly speaking, the termination of an
obligation by oset is by no means debt forgiveness (as it is formulated in
Art. 415 of the Civil Code of the Russian Federation) and the release of the
debtor from the fulllment of this obligation, it is advisable to move more
actively towards further liberalization of the considered section of corporate
legal regulation, excluding the general implied prohibition on payment of
the registered capital of LLC and JSC (at its initial formation) by osetting
the founder’s counterclaims (of course, subject to the rule of Cl. 2 of Art.
66.2 of the Civil Code of the Russian Federation on the required payment of
the registered capital of LLC and JSC “alive” funds in an amount not lower
than the minimum amount of the registered capital determined by special
laws).
Signicantly, that the corresponding change will be in line with the
general trend noted in science and regularities in other jurisdictions
(transition from a strict legal regime of capital to a more liberal and exible
control of registered capital) (Chen, 2015). Moreover, even before the
relevant legislative amendments are made, it seems possible, without fear of
reproaches in veiled imperfect judicial lawmaking (Schauer and Spellman,
250
Viktor Mikryukov
Gaps and analogies in the formation of registered capital of limited liability and joint-stock
companies
2017), using the analogy in law (Cl. 2, Art. 6 of the Civil Code of the Russian
Federation) “extra legem” (placed outside the law), but “intra ius” (within
the law) to recognize the payment of the LLC and JSC registered capital
under formation as valid through an oset, carried out reasonably and in
good faith, taking into account the actual balanced interests of the business
corporation and its participants (shareholders).
4.4. Payment of a contribution to the registered capital by the
right relating to leasing property
Surprisingly, the current legislation does not answer unambiguously to
the question that is very relevant for many commercial business corporations
and their founders (shareholders): is it possible to pay the registered capital
of LLC and JSC by making (assigning) to the company the right to lease any
property? The increasing demand for a lease agreement in the economic
turnover, due to the widely observed trend towards the recognition of
the advantages of the “sharing economy” concept and the corresponding
benets from the temporary use of necessary facilities instead of acquiring
things for individual ownership (Botsman and Rogers, 2010) makes this
particular issue even more relevant.
Following the current edition of Cl. 1 of Art. 15 of the Federal Law “On
LLC,” payment of shares in the LLC registered capital may be carried out by
participants in money, securities, other things or property rights or other
rights that have a monetary value. Similar wording is enshrined in the
current version of Cl. 2 of Art. 34 of the Federal Law “On JSC,” according to
which payment for shares distributed among the founders of a JSC upon its
establishment, as well as pay for additional shares placed by subscription,
can be carried out in money, securities, other things or property rights or
other rights that have a monetary value. A similar wording is enshrined
in the current version of Cl. 2 of Art. 34 of the Federal Law “On JSC”,
according to which payment for shares distributed among the founders of
JSC upon its establishment, as well as payment for additional shares placed
by subscription, can be carried out in money, securities, other things, or
property rights or other rights that have a monetary value. These provisions
allow us to conclude that there are no corporate legal obstacles to transfer
ring rental ownership to the LLC and JSC registered capital. Currently, there
is the norm of para. 2 of Art. 615 of the Civil Code of the Russian Federation
on the existing right of the lessee (by default in the law otherwise), with
the consent of the lessor, to give lease rights as a pledge and make them as
a contribution to the registered capital of business partnerships, LLC and
JSC, which conrms the legality of the considered method of payment for
the contribution to the registered capital according to the civil-law nature
of the lease.
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At the same time, the emergence of the norm of para. 1 of Art. 66.1 of
the Civil Code of the Russian Federation, introduced by the Federal Law
of May 05, 2014 No. 99-FZ, subject to its priority until the legislative and
other regulatory legal acts being in force in the Russian Federation under
the provisions of the Civil Code of the Russian Federation as amended by
this law, gave rise to serious doubts about the consistency of an armative
answer to the question of the possibility of paying for the registered capital
of a business corporation with the right to lease.
Since the specied norm established an exhaustive list of objects that
can be invested in the LLC and JSC property (including, in addition to
cash, things, shares (stocks) in the registered (joint) capitals of other
business partnerships, LLC and JSC, state and municipal bonds, some
exclusive intellectual rights and rights under license agreements subject
to monetary assessment, though other property rights (claims) that could
be of economic value were not included), insofar as the apprehension of
contributions to the registered capital as a type of contributions to property
(Melnikova, 2016) and recognition of the inadmissibility of expanding this
list by laws and constituent documents in relation to the registered capital
led to the denial of the possibility of making objects not named in the list as
contributions to the registered capital, including the right to lease (Lomakin,
2020). Herewith, the general doctrinal criticism of allowing the functioning
of legal entities that did not receive real money or corporeal objects of
ownership (things) as payment for their registered capital (Emelkina, 2017)
may further increase the corresponding doubts.
In this issue, based on a formal factor (after the adoption of the Federal
Law of May 5, 2014 No. 99-FZ, both the Federal Law “On LLC” and the
Federal Law “On JSC” that were repeatedly amended, which makes
it possible to consider these laws under the Civil Code of the Russian
Federation), it should be agreed that Art. 66.1 of the Civil Code of the
Russian Federation works only in relation to business partnerships, as
well as concerning operations for making contributions to the property of
business companies that do not increase their registered capital (Kurbatov,
2018). At the same time, realizing the insuciently robust nature of the
formal argument (preservation of the wording of Cl. 1 of Article 15 of the
Federal Law “On LLC” and Cl. 2 of Art. 34 of the Federal Law “On JSC” can
equally be perceived that in terms of regulating the procedure for paying
capital, these laws have not yet been cited following the Civil Code of the
Russian Federation), it seems necessary to add that there is nothing a
priori ephemeral in providing the opportunity to use leased property by the
founder of the company (for example, a land plot for the construction of
real estate or an oce for representational purposes).
Therefore, in the context of continuing legal uncertainty, it is necessary
to apply the general principles and meaning of civil legislation (analogy in
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Gaps and analogies in the formation of registered capital of limited liability and joint-stock
companies
law) and, taking into account the requirements of good faith, reasonableness
and fairness, support the approach implemented by some courts, according
to which the payment of contributions to the registered capital of business
companies (LLC and JSC) with rental rights is also permissible (Resolution
of the Arbitration Court of the Ural District of May 29, 2019, Case No. A60-
39078/2018; Resolution of the Arbitration Court of the North-Western
District of August 8, 2018, Case No. A66-10750/2015).
This application of the analogy in law will correspond to the currently
observed general increase in the importance of civil law principles in the
regulation of public relations (Golubtsov, 2016) and act as an adequate
response to the rightful appeals of scientists for their even more enormous
impact on the law enforcement practice (Bondarenko, 2013). Thus, based
on analogy, recognition of the admissibility of payment of the LLC and
JSC registered capital by the right to lease allows us to think of an even
more excellent (double) analogy, namely, the possibility of converting
into corporate capital the rights to use “unnamed things” belonging to
a participant (shareholder) (Suslova, 2020) and other “atypical rental
objects” (Mikryukov, 2020), when directly (and not by analogy) applying
rental rules to them may be questionable.
Conclusion
The study reveals a lot of gaps in the legal mechanism for the formation
of the LLC and JSC registered capital both in general issues of methods and
terms of payment, and in particular cases of determining the list of objects
that are allowed to be contributed to the registered capital, which requires
vigorous and scientically substantiated legislative decisions.
Since the participants of the respective legal relations and law
enforcement ocers achieve legal certainty using an analogy in each of the
obscure areas under study in the system of rules for the formation of the
LLC and JSC registered capital, the need for a generally positive assessment
of the role of statutory analogy and analogy in law in the legal regulation of
economic activity has been again conrmed.
The importance of the statutory analogy and the analogy in law is
highlighted in the context of the implementation of the harmonizing
function of civil law regulation of public relations, developing, specically,
in the corporate sphere.
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