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
Maracaibo, Venezuela
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Vol.40 N° 73
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Vol. 40, Nº 73 (2022), 633-654
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Specic characteristics of corporate
rights under Ukrainian legislation
DOI: https://doi.org/10.46398/cuestpol.4073.36
Volodymyr Tsikalo *
Abstract
The article is devoted to the study of the peculiarities of the
exercise of corporate rights under the civil law of Ukraine in order
to identify their specic characteristics. Through a documentary
methodology, close to legal hermeneutics, it was concluded
that the participant of a legal entity (company) may have not
only corporate rights but also other rights over this legal entity
(company). Therefore, it is not enough to say that the rights of
a person whose participation is dened in the authorized capital
are corporate. It is important that the content of these rights
is due to the ownership share (share, number of shares) in the
authorized capital of the legal person (company). It was also
found that intangible corporate rights must be distinguished from the
personal intangible rights of the individual. The concepts of “non-economic
rights” and “non-economic personal rights” are not identical. In relation to
a person, intangible rights should be divided into two types: non-economic
rights that are not closely related to a person (e.g., non-economic corporate
rights); intangible rights that are closely related to a person and are
inseparable from a person (personal intangible rights).
Keywords: corporate rights; economic rights; non-economic rights;
public limited company; limited liability company.
* Associate Professor of the Civil and Civil Procedural Department of the Ivan Franko National University
of Lviv, PhD in law, Associate Professor, Lviv, Ukraine. ORCID ID: https://orcid.org/0000-0002-
6174-6928
634
Volodymyr Tsikalo
Specic characteristics of corporate rights under Ukrainian legislation
Características especícas de los derechos corporativos
bajo la legislación ucraniana
Resumen
El artículo está dedicado al estudio de las peculiaridades del ejercicio
de los derechos corporativos bajo la legislación civil de Ucrania para
identicar sus características especícas. Mediante una metodología
documental, próxima a la hermenéutica jurídica, se llegó a la conclusión
de que el participante de una entidad legal (empresa) puede tener no solo
derechos corporativos sino también otros derechos sobre esta entidad legal
(empresa). Por lo tanto, no basta con decir que los derechos de una persona
cuya participación se dene en el capital autorizado son corporativos. Es
importante que el contenido de estos derechos se deba a la participación
de la propiedad (acción, número de acciones) en el capital autorizado
de la persona jurídica (empresa). También se encontró que los derechos
corporativos intangibles deben distinguirse de los derechos intangibles
personales del individuo. Los conceptos de “derechos no patrimoniales” y
“derechos personales no patrimoniales” no son idénticos. En relación con
una persona, los derechos intangibles deben dividirse en dos tipos: derechos
no patrimoniales que no están estrechamente relacionados con una
persona (por ejemplo, derechos corporativos no patrimoniales); derechos
intangibles que están estrechamente relacionados con una persona y son
inseparables de una persona (derechos intangibles personales).
Palabras clave: derechos corporativos; derechos patrimoniales;
derechos no patrimoniales; sociedad anónima; sociedad
de responsabilidad limitada.
Introduction
Subjective corporate rights are characterized by certain features of
implementation, which give grounds to distinguish them from other civil
rights. These features of the exercise of corporate rights should be called
essential because they reect their legal nature. The essential features of
the exercise of corporate rights, at present, include legal denitions of this
concept, as well as legal norms that determine the status of their subjects.
However, the signs of the exercise of corporate rights are not suciently
studied in modern theory of civil law. Judicial practice raises a number
of questions to which there is no unambiguous answer either in law or
scientic literature. A unied approach to the signs of exercising corporate
rights has not yet been developed.
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CUESTIONES POLÍTICAS
Vol. 40 Nº 73 (2022): 633-654
Acts of the legislation of Ukraine contain dierent denitions of corporate
rights, which complicates the study of the signs of their implementation.
These shortcomings can be eliminated by identifying and clarifying the
essence of the principles of exercising the subjective rights of members of
companies.
Thus, domestic special legal acts regulating the exercise of corporate
rights in various organizational and legal forms of companies, separately
provide for rights that do not belong to each (any) participant (shareholder),
but only to those who have the necessary, the size of the share (number
of shares) in the authorized capital established by law, for example: 5, 10,
95, etc. percent. These corporate rights have a number of features of their
implementation compared to the rights granted to all other participants
(shareholders).
From the analysis of the provisions of the acts of civil legislation of
Ukraine, which contain the concept of subjective “corporate rights”, as well
as establish the features of the legal status of their subjects, we can identify
a number of signs of such rights. These features reveal the essence of
corporate rights; in this sense, they are constitutive because they reect the
content of corporate rights. Based on the analysis of legal provisions and
own scientic position, we can identify the following signs of the exercise of
subjective corporate rights:
1) Conditionality of the exercise of corporate rights by property
participation in the authorized capital of a legal entity.
2) Exercise of corporate rights in relation to joint-stock companies,
limited and additional liability companies.
3) Exercise of non-property and property corporate rights.
1. Methodological Framework
The normative and legal basis of this article was the provisions of the
Civil Code of Ukraine and special legislative acts governing the exercise of
corporate rights. The empirical basis of the study is the materials of the
practice of litigation on the protection of corporate rights by the courts
of Ukraine. The dialectical method of cognition accompanied the whole
process of scientic research and allowed us to consider trends in the
development of legislation on the exercise of corporate rights in the context
of European integration.
The formal-legal method was used in the analysis of legal norms
governing certain features of the exercise of corporate rights and the
practice of their application. Sociological methods of cognition were used
636
Volodymyr Tsikalo
Specic characteristics of corporate rights under Ukrainian legislation
in the analysis of regulations, court decisions and other documents. The
hermeneutic-legal method was used in the process of interpreting the rules
that determine the characteristics of the exercise of corporate rights.
Techniques of legal analysis was used in the study of the signs of the
exercise of corporate rights with the help of legal techniques. Some methods
of comparative law were used for comparative analysis of signs of corporate
rights with other civil rights that may have participants (shareholders) of
companies in relation to these legal entities.
2. Results and discussion
2.1. Conditionality of the exercise of corporate rights by
property participation in the authorized capital of a legal entity
(close connection with the size of the share (number of shares)
Only entities whose share is dened in the authorized (composed)
capital of a legal entity have corporate rights. Moreover, a person who is the
sole member of the company owns one share in the authorized capital, the
amount of which is one hundred percent. The authorized capital of a legal
entity does not have to have several shares.
The certainty of the share in the authorized capital means that corporate
rights can be exercised only in relation to legal entities that: 1) have
authorized capital; 2) there are shares of participants (participants) in their
authorized capital (Zikalo, 2013).
These features of corporate rights U. Yarymovych consider to be
characteristics of “corporate legal entities”: the presence of authorized
(composed) capital; determination in the authorized (composed) capital
(property) of the participant’s share, which gives him or her corporate
rights (Yarymovych, 2012: 31). As points out I. Lukach a participant’s share
in the authorized capital makes it possible to distinguish corporations from
other legal entities where there is no authorized capital divided into shares
(Lukach, 2016).
Some scholars question this legislative provision. Thus, according to
the authors of the textbook “Economic Law of Ukraine”, such an approach
is impractical, because regardless of the type of enterprise (unitary or
corporate) the essence of the relationship between the founder (participant)
and the enterprise is the same and corporate enterprises are the same.
The only dierence is the presence of not one, but two or more owners
of corporate rights in corporate enterprises, but this limit is actually erased
with the introduction of the possibility of creating sole proprietorships
(Gaivoronsky and Zhushman, 2005). A similar position is supported by O.
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Kibenko on the example of the legal conclusions of the Grand Chamber of
the Supreme Court: corporate law is a right that arises from participation
in the capital of a legal entity. It does not matter whether such capital is
divided into shares or not, the legal entity has one or more participants
(Kibenko, 2019).
It is dicult to agree with this interpretation of corporate rights in
relation to the relevant legal entities. The dierence between corporate and
unitary legal entities is not in the number of their founders (participants),
but in the nature of the legal relationship between them and the legal entity.
As rightly points out Yu. Beck, the creation of an enterprise by one founder
is not the only criterion for determining the unitary type of enterprise, other
criteria must be taken into account, including the distribution of authorized
capital, enterprise management, income distribution, etc. (Beck, 2013).
Legal entities are divided into unitary and corporate, including depending
on the method of establishment and formation of authorized capital (fund)
(Tsikalo, 2008).
A unitary legal entity is not the owner of the property assigned to it, but
acts on other legal regimes of property, for example, on the right of trust
property and the right to manage someone else’s property (duciary fund),
etc. The owner of the property of a unitary legal entity is its founder, who
should be held civilly liable for the obligations of the legal entity created
by him. A corporate legal entity always acts on the right of ownership, and
its founder (founders) acquires (acquire) corporate rights over it (Tsikalo,
2010). As a general rule, a corporate legal entity and its founder (s) cannot
be held civilly liable for each other’s obligations.
Representatives of legal science emphasize the dierent legal regimes
of property of unitary and corporate legal entities in the context of
possible corporatization of state and municipal unitary enterprises. Thus,
O. Belyanevich and O. Podtserkovny drew attention to the fact that the
transformation of unitary state and municipal enterprises and organizations
into companies will change the legal regime of property of these legal
entities to property rights, as corporate enterprises are given ownership of
their assigned property (Belyanevych and Podtserkovny, 2019).
The Commercial Code of Ukraine emphasizes that a corporate is a legal
entity formed, as a rule, by two or more founders. The caveat “usually” means
that it may have one founder; not always two or more founders take part in
the creation of a society. Therefore, the basis for the division of legal entities
into corporate and unitary should be taken not the quantitative criterion of
the founders (participants), but the nature of the legal relationship between
them and the legal entity.
Determining the share of the founder (participant) in the authorized
capital of a legal entity means that the content of its rights is in connection
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Volodymyr Tsikalo
Specic characteristics of corporate rights under Ukrainian legislation
with the property participation in the authorized capital, i.e., due to the
size of the share. In the absence of division of the authorized capital of
the enterprise into shares, its founders (participants) have no corporate
rights. As a result, there can be no corporate rights in unitary enterprises
(Kravchenko, 2009).
Even those authors who see the similarity of relations in unitary legal
entities with corporate legal entities, do not call these relations actually
corporate. According to A. Smityukh, the relationship between a unitary
enterprise and the same person who already acts as the sole participant
of the enterprise in relation to the activities of the unitary enterprise are
dierent from property relations, the rights of this person to the enterprise
are not real, they are inherent with the corporate rights of the participant
of a corporate enterprise in relation to such an enterprise are not exclusive
rights to property, but exclusive rights to a person (Smityukh, 2018).
It is worth agreeing with those scholars who propose to establish a closed
list of organizational and legal forms of legal entities in the Civil Code of
Ukraine, including corporate ones. It will be useful to dene an exhaustive
list of organizational and legal forms of legal entities. It should take into
account world experience and practice, such as: EU law, English law and
US law, which are world leaders and landmarks for many countries and
strategic partners for Ukraine in particular (Ilchenko, 2021).
It should also be borne in mind that a person whose share is determined
in the authorized capital of a legal entity may have not only corporate
but also other rights to this legal entity, which are not related to property
participation in its activities.
Other rights of a participant of a legal entity include, for example, labor
rights, the content of which does not depend on property participation in
the authorized capital. Labor rights are exercised outside the corporate
relationship. This is expressly provided in paragraph 3 Part 1 of Art. 20
of the Commercial Procedural Code of Ukraine, according to which, the
jurisdiction of commercial courts includes cases in disputes arising from
corporate relations, except for labor disputes. The dierence between
corporate and labor relations is also noted in the scientic literature: that
is, labor participation in the LLC is not part of the rights of its members
(Spasybo-Fateeva, 2012).
Thus, a member of a legal entity (company) may have not only corporate
but also other rights to this legal entity (company). Therefore, it is not
enough to say that the rights of a person whose share is dened in the
authorized capital are corporate. It is important that the content of these
rights is due to property participation (share, number of shares) in the
authorized capital of the legal entity (company). In the Law of Ukraine “On
Joint Stock Companies” this feature is highlighted by the phrase: “rights
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arising from the right of ownership of shares” paragraph 8 Part 1 of Art. 2 of
the law (Verkhovna Rada, 2008).
Given such a feature of the exercise of corporate rights as the
conditionality of their content by property participation in the authorized
capital, the provisions of Part 1 of Art. 14 of the Law of Ukraine “On Limited
and Additional Liability Companies” can be estimated critically (Verkhovna
Rada, 2018). According to this legislative provision, the members of the
company have the right to make their contributions to its authorized
capital not in full immediately, but within six months from the date of state
registration of the company.
Hence, at least six months after the establishment of a limited liability
company (additional) liability, its members may not participate in the
activities of the company, having, at the same time, certain shares in the
share capital.
The existence of the said legislative provision could be justied only in
combination with another requirement of the law, namely the minimum
size of the authorized capital of a limited or additional liability company.
As the current Law “On Limited and Additional Liability Companies” does
not set requirements for the minimum amount of authorized capital of the
company, it is impractical to postpone its payment in full. As noted by I.
Spasybo-Fateeva, the authorized capital of the LLC no longer performs the
guarantee function, but is only intended to certify the scope of corporate
rights of its members and determine the amount of those claims that they
(or their heirs or creditors) may make to the company (Spasybo-Fateeva,
2012).
Ukrainian legislator has abandoned the “pro-creditor concept” of
authorized capital, the main purpose of which is to protect the interests
of creditors; for which norms are set regarding the minimum amount of
authorized capital (Hort, 2009). The main function of the authorized capital
should be to protect the interests of creditors (Kibenko, 2006).
The authorized capital of limited and additional liability companies
consists of contributions from its founders (participants). As it (authorized
capital) does not have to be paid during the rst six months, the members
of the company are not obliged to make their contributions until this period
expires. Until the expiration of the six-month period from the date of state
registration of limited and additional liability companies, its members may
not make contributions to the authorized capital (Gabov, 2019).
As a result, the participant’s share during this period may not correspond
to the actual contribution specied in the state register. This may lead to a
lack of property participation of the person in the authorized capital of the
company of which he is a member.
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Specic characteristics of corporate rights under Ukrainian legislation
From the above legislative provision, it is concluded that the exercise of
corporate rights by members of limited and additional liability companies
during the rst six months of its existence depends not on property
participation in the authorized capital of the company, but on the size of
the share specied in the state register.
In accordance with Part 2 of Art. 15 of the Law of Ukraine “On Limited
and Additional Liability Companies” if the participants have not made (not
fully made) their contributions to repay the debt, the general meeting of
participants may take one of the following decisions:
1) On the exclusion of a member of the company who has arrears of
contributions.
2) On the reduction of the authorized capital of the company by the
amount of the unpaid part of the share of the participant of the
company.
3) On the redistribution of the unpaid share (part of the share) among
other participants of the company without changing the amount of
the authorized capital of the company and the payment of such debt
by the relevant participants.
4) On the liquidation of the company.
At the same time, the Law of Ukraine “On Limited and Additional
Liability Companies” does not establish the legal consequences of non-
adoption of such decisions by the general meeting of the company. In
essence, making such a decision is a right of the company, not its duty. In
this regard, there may be a situation when a limited liability company, the
authorized capital of which is not fully paid, will continue to operate after
the expiration of six months from the date of its establishment.
Even with the adoption of the Law of Ukraine “On Limited and
Additional Liability Companies”, the question of the impact of the value of
the participant’s share in the authorized capital of a limited and additional
liability company on the exercise of its corporate rights after the deadline
for full contribution remains unsolved.
Analysis of other provisions of the Law of Ukraine “On Limited and
Additional Liability Companies” makes it possible to question the position
on possible non-consideration of property participation (payment of
shares) in the authorized capital of the company in determining the voting
results at the general meeting.
Thus, according to Art. 2 of the Law of Ukraine “On Limited and
Additional Liability Companies” members of the company who have not
fully contributed, are jointly and severally liable for its obligations within
the value of the unpaid part of the contribution of each of the participants.
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This means that the amount of liability of the company’s members for its
obligations is determined by the real monetary value of the share, and not
just in percentage terms. In accordance with Part 1 of Art. 12 of this law, the
size of the authorized capital of the company consists of the nominal value
of shares of its members, expressed in the national currency of Ukraine.
Thus, the authorized capital of a limited and additional liability company
expresses the amount of actually made contributions of participants.
The share of a participant of a limited (additional) liability company may
be alienated until its full payment only in the part in which it is paid (Part
3 of Article 21 of the Law of Ukraine “On Limited and Additional Liability
Companies”). Therefore, the unpaid part of the share in the authorized
capital cannot be the object of civil turnover.
According to Part 10 of Art. 24 of the law, the company pays to the
participant who left the company, the value of his share or transfers the
property only in proportion to the amount of the paid part of the share
of such participant. Hence, certain provisions of the Law of Ukraine “On
Limited and Additional Liability Companies” directly indicate the legal
(practical) importance of property participation in the formation of the
authorized capital of limited and additional liability companies, i.e. the
actual payment of shares.
Such position is supported in the scientic literature. Thus, O. Yankova
proved economic conditionality of the participant’s right to lead and
receive dividends by fullling the obligation to pay for purchased shares
or corporate rights (Yankova, 2000). According to I. Spasybo-Fateeva, a
person cannot have corporate rights if he or she has not made a property
share in the company (Spasybo-Fateeva, 2012). N. Slipenchuk considers
that the acquisition of subjective corporate rights should be associated with
property participation in the formation of authorized capital (Slipenchuk,
2014).
In order to regulate relations regarding the exercise of corporate
rights of members of limited and additional liability companies, as well
as to eliminate contradictions between certain provisions of civil law, it is
necessary to exclude from the Law of Ukraine “On Limited and Additional
Liability Companies” additional liability until the end of six months from
the date of state registration of the company. The founders of the company
must be obliged to make their full contributions by the day of state
registration. Such a change will result in the formation of the authorized
capital of a limited and additional liability company in full at the time of its
establishment, as provided for in the establishment of joint stock companies
(paragraph 7 of Part 5 of Article 9 of the Law of Ukraine “On Joint Stock
Companies”).
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Volodymyr Tsikalo
Specic characteristics of corporate rights under Ukrainian legislation
In this regard, it is necessary to set out Part 1 of Art. 14 of the Law of
Ukraine “On Limited and Additional Liability Companies” as follows: “Each
founder of the company must fully contribute to the authorized (composed)
capital before the date of state registration of the company”.
As a result, Article 15 of this law should be deleted from it. In addition,
the rst part of Article 17 of the Law of Ukraine “On State Registration of
Legal Entities, Individual Entrepreneurs and Public Associations” should
be supplemented with a new paragraph “5-1” as follows: “a document
conrming the contribution to the share capital”. In the absence of such a
document, the state registrar will have the right to refuse state registration
of a limited liability company (additional) liability (paragraph 7 of Part 1 of
Art. 28 of the Law).
In modern conditions, the founders of the company at the time of its
state registration can form the authorized capital in any amount that will
meet their economic capabilities. After the establishment of the company,
the size of its authorized capital is subject to increase an unlimited number
of times. Such changes will result in exclusion from Art. 21 of the Law of
Ukraine “On Limited and Additional Liability Companies” of the third part
on incomplete alienation of shares.
Given the content of corporate rights, such a feature as the denition of
share, includes the connection with the property share in the authorized
capital of the legal entity. In other words, the rights of a person, the share
of which is determined in the authorized capital of a legal entity (company),
are corporate not only because they belong to such a person, but because
their content is related to property participation in the authorized capital;
due to it.
This feature of corporate rights indicates that there is no need to indicate
an exhaustive list of specic subjective corporate rights in the denition of
this concept. It is impossible to specify all corporate rights in the denition,
at least because they can be established not only by law but also by local
legal acts of the company. The incompleteness of the list of corporate rights,
which contains the denition set out in the law, indicate I. Spasybo-Fateeva
and T. Dudenko, who believe that it is obvious the need to supplement non-
property rights with the right to information, and property rights – with the
right to demand payment when leaving the company or, in certain cases,
the payment of the value of shares (Spasybo-Fateeva and Dudenko, 2005).
Thus, the nature of the legal relationship between a unitary or corporate
legal entity and its founder (participant) is not identical and depends on
whether the share of the founder (participant) in its authorized capital is
determined and whether the size of this share aects eective rights of the
founder (participant). A corporate entity is a legal entity with the authorized
capital divided into shares (share) of its participants (participants), the
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amount of which determines the exercise of subjective rights of participants
(participants).
2.2. Exercise of corporate rights in relation to joint-stock
companies, limited and additional liability companies
The conclusion that corporate rights exist only in business companies
can be drawn from the list of rights that are dened as corporate. In
particular, the mandatory corporate rights established by law (Civil Code
of Ukraine, Laws of Ukraine “On Joint Stock Companies” and “On Limited
and Additional Liability Companies”) include the right to dividends.
This right is the corporate right for the exercise of which, the participants
in civil relations participate in the activities of the company. It is for the
purpose of receiving dividends that a person acquires corporate rights. The
main feature of corporate rights is that their implementation is aimed at
satisfying property interests and obtaining property benets by participants
in corporate relations (Shevchuk and Beaver, 2018).
Fundamental to the characterization of corporate rights is their property
nature (Kravchenko, 2010). Therefore, the rights of a participant of a legal
entity that do not provide for the possibility of receiving income, in particular,
dividends, do not belong to the corporate. All, without exception, corporate
rights entities should have the right to receive dividends (Ovchinnikov et
al., 2019).
In turn, a person (participant, shareholder) can receive income from
participation in the activities of only a business entity. According to I.
Spasybo-Fateeva, the meaning of shares is the benets they provide:
income, participation in management. The second seems to be a means to
achieve the rst, but for large investors. Small and medium-sized investors
cannot count on the return on participation in management.
They do not set this goal. They have one goal left - earnings from shares.
Their sources are dividends, exchange rate dierences (Spasybo-Fateeva,
2005). Corporations will be those companies in which the authorized
capital is divided into shares, the participants have the right to a part of
the company’s prot and to participate in its management. If some of these
rights are absent from the members of the companies, such companies
cannot be recognized as corporations. Thus, members of non-prot
companies do not have property rights to participate in the distribution of
prots (dividends), because they are non-prot. And even if they make a
prot from a certain activity, it is not distributed among the participants
(Spasybo-Fateeva, 2014).
As noted by M. Sokolovsky, subjective corporate law is a separate type
of subjective civil rights of a person as a member of a business partnership
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(Sokolovsky, 2017). According to the authors of educational sources on
corporate law, the basis for the distinction between business and non-
business organizations is the category of subjective corporate law, which is
owned only by members of business organizations (Luts, 2007).
And in the case of non-prot organizations, the legal relationship of its
members with the established legal entity is fully covered by the category
of membership. V. Sazonov singles out one of the signs of corporate
relations as their emergence between subjects endowed with corporate
legal personality as an element of civil legal personality; on the one hand,
a business legal entity of private law (business organization), and on the
other - its members (Sazonov, 2020).
However, this position does not have unequivocal support in the legal
literature. Thus, S. Rabovska draws a dierent conclusion. According to her,
since the ownership of corporate rights is not considered entrepreneurship,
the denition of corporate law should not be about the right to receive a
certain share of prots, but - the income of the organization.
The author explains this by the fact that the goal - to make a prot is a
necessary feature of entrepreneurial activity (Rabovska, 2005). Since the
ownership of corporate rights is not considered business, the legal entity
in which the corporate rights arise, does not aim to make a prot. This,
in turn, according to the scientist, may mean that corporate rights are not
always related to the company.
The fact that a person who is a subject of corporate rights has the
purpose of making a prot does not mean that this person (directly) engages
in entrepreneurial activity. In addition to the special purpose - to make a
prot, business activity is also characterized by other features, in particular,
the presence of state registration as a business entity (Syvyy, 2017).
As for the persons who have a share in the authorized capital of the
company, they are not required to state registration as business entities.
Only the presence of all signs of entrepreneurship in the aggregate, indicates
the relevant type of activity. The goal is to make a prot, just one of the
signs of entrepreneurial activity, which is not enough to recognize a certain
activity as entrepreneurship. In addition, the entrepreneurial goal cannot
be reduced to prot.
A necessary feature of the business goal is the statutory ability to
distribute (withdraw) this prot among the members of the company
(Chechovskaya, 2016). If the law does not provide for the distribution of
prots between the participants of the legal entity, the fact of its receipt
may not be a sucient sign of entrepreneurial activity. In other words, the
entrepreneurial goal has two elements:
1) The fact of receipt of prot (income) by the company.
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2) The possibility of its distribution (withdrawal) between the members
of the company.
Although a person’s corporate rights are not a business for which a
corporate legal entity arises, it is always a business entity, as only a business
entity can pay a dividend. A corporate partnership can only act as a business
partnership, i.e., one that aims to make a prot and then distribute it among
the participants (Tsikalo, 2007).
In Art. 84 of the Civil Code of Ukraine, legal entities that have the purpose
of making a prot and its subsequent distribution among the participants
were called business associations. Business associations, in turn, include
business associations or production cooperatives. In their capital (statutory,
compound, share) the founders determine their shares. However, the size of
the share aects the exercise of the rights of participants, determines them
only in a joint stock company, as well as in limited and additional liability
companies. In the legal literature, they are called associations of property
(Kharytonov and Saniahmetova, 2003), or capital (Yurkevych, 2016).
And although the names used are conditional, as such companies can be
created by one person who becomes their sole participant (Part 2 of Article
114 of the Civil Code of Ukraine), they reect the legal relationship of the
rights of participants (shareholders) with the size of the share (number of
shares) in the authorized capital.
For example, the number of votes of the members of these companies
during the decision-making of the general meeting, the amount of dividends,
the value of assets in case of liquidation, etc., determines the size of the
share (number of shares) in the share capital. Members of associations of
property (capital) exercise the right to vote, dividends, to participate in the
distribution of assets in liquidation, etc., respectively (in proportion) to the
size of their share (number of shares).
The exercise of the rights of members of general and limited partnerships,
as well as members of production cooperatives, does not depend on the size
of the share in their capital (composed or share). Thus, corporate rights
belong only to shareholders, as well as members of limited and additional
liability companies.
This position is supported in the science of civil law, but it is based
on other arguments. Thus, taking into account the legal nature of the
memorandum of association, V. Kossak does not include the corporate
rights of participants in general and limited partnerships Asin the absence
of a status that denes the relationship between the company and its
members, the relationship between the parties (the founding agreement
on the establishment of general and limited partnerships) is not corporate.
This is a relationship of a civil nature, to the regulation of which can also be
applied the general provisions of contract law.
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Specic characteristics of corporate rights under Ukrainian legislation
Accordingly, the conclusion of a memorandum of association for
activities within a general or limited partnership is the emergence of civil
rights and obligations between the parties to the agreement. The latter
is the main document designed to regulate the relationship between the
parties. Therefore, there is no need to grant full and limited partnerships
the status of a legal entity (Kossak, 2016).
According to I. Spasybo-Fateeva, in order to resolve the issue of what a
Ukrainian corporation is, a certain criterion should be chosen for classifying
legal entities as corporations (Spasybo-Fateeva, 2021). Obviously, this
criterion should be the presence of the division of authorized capital into
shares that determine corporate rights.
In turn, the existence of corporate rights indicates that these rights
belong to the members of the corporation (because it is logical that the
members of the corporation have corporate rights, and the founders,
members of other legal entities other than corporations do not have
corporate rights). K. Leonov came to the conclusion that corporate rights
arise only in certain business companies - limited liability companies and
joint stock companies, whose capital is divided into shares between the
participants (Leonov, 2021).
To conclude the analysis of this feature of corporate rights, it remains
to add that they arise in relation to joint stock companies, limited and
additional liability companies not only because the authorized capital of
these companies determines the size of shares of participants (shareholders),
but because these shares (number of shares) aect the exercise of corporate
rights; determines their volume.
2.3. Exercise of non-property and property corporate rights
There are two types of corporate rights: non-property and property.
This feature has repeatedly been noted in the scientic literature on civil
law. For example, I. Spasybo-Fateeva believes that corporate rights are
a combination of property (the right to receive a certain share of prots
(dividends) of a legal entity and assets in the event of its liquidation) and
non-property rights (the right to participate in its management) (Spasybo-
Fateeva, 2004).
However, not all authors see corporate rights as intangible. For example,
O. Velykoroda came to the conclusion that corporate rights, including
the right to participate in management as one of the powers of corporate
rights, do not belong to personal non-property rights (Velykoroda, 2010).
The scholar made this conclusion on two grounds: the management of the
company is carried out for prot; the right to govern may be alienated.
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However, other non-property rights of a member of the company, as
well as the right to participate in management, such as the right to audit
the company, the right to obtain information about the company, the right
to withdraw from the company are also exercised, usually for further prot.
In addition, such types of shareholders’ rights as non-property rights are
directly reected in the denition of corporate rights contained in Art.
2 of the Law of Ukraine “On Joint Stock Companies”. It seems that the
arguments presented by the author are not enough to draw a conclusion
about the purely property nature (absence of non-property features) of
corporate rights.
Non-property corporate rights should be distinguished from personal
non-property rights of a person (Book Two of the Civil Code of Ukraine).
The concepts of “non-property rights” and “personal non-property rights”
are not identical. In relation to the person, non-property rights should be
divided into two types:
• Intangible rights that are not closely related to the person
(“impersonal” intangible rights, which include corporate intangible
rights).
• Intangible rights that are closely related to the person and are
inseparable from a person (personal intangible rights).
One of the features of personal non-property rights is the impossibility
of their transfer by succession, including the transfer on the basis of the
transaction to other persons. For example, in accordance with paragraph 1
of Part 1 of Art. 1219 of the Civil Code of Ukraine personal intangible rights
are not part of the inheritance, i. e. cannot be transferred. This feature
distinguishes personal non-property rights from other non-property rights
that can be transferred by succession.
At the same time, in the eld of corporate legal relations, non-property
rights are subject to transfer from their subjects to other persons. Thus,
according to Part 1, 2 and 7 of Art. 7 of the Law of Ukraine “On Joint Stock
Companies” shares of a joint stock company may be alienated, inherited or
transferred to the successor of the legal entity.
In accordance with Part 1 of Art. 21 and part 1 of Art. 23 of the Law of
Ukraine “On Limited and Additional Liability Companies” the participant
of the company has the right to alienate his share; in case of death or
termination of a member of the company, his or her share passes to his or
her heir or successor without the consent of the members of the company.
Such features as: lack of economic content (monetary value), close
connection with the person, the impossibility of abandoning them, the
inadmissibility of their deprivation, as well as lifelong action (parts 3 and
4 of Article 269 of the Civil Code of Ukraine) are characteristic only of
personal non-property right.
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Specic characteristics of corporate rights under Ukrainian legislation
Some scholars do not consider non-property corporate rights to be
personal non-property rights of an individual. Thus, according to I. Sarakun
allocation of personal non-property rights to a separate group is debatable,
as the powers of the participants constitute the content of the right to
participate in the management of the company, and it can be exercised
through an authorized representative. Therefore, it is not inseparable from
a member of the company (Sarakun, 2007).
As for the non-property nature of corporate rights, it should be noted
that the term “non-property” is used as the antithesis of “property”
rights, i.e., non-property rights are rights that have no property content
(Kravchenko, 2010). As for the non-property component of corporate
rights, they are guided by property corporate rights. At the same time, its
intangible component can hardly be described as a personal intangible
right in its sustainable sense (Jornokuy, 2011).
One of the types of non-property right, which is inextricably linked to its
subject, and can be transferred from one person to another not only under
the contract, but also on the basis of a unilateral transaction (e.g., will), is
the right to participate in the company. According to V. Kravchuk in case
of death of the participant the object of inheritance can include: 1) a share
in the authorized capital; 2) the right to participate in the company, if it is
expressly provided in the charter (Article 1219 of the Civil Code of Ukraine).
Thus, there may be cases where only the share is inherited, and cases
when the share is inherited alongside with the right to participate in the
company. As a result of inheritance, corporate rights may arise in full (both
in terms of share and in terms of participation) or incomplete (only in
respect of shares in the share capital) (Kravchuk, 2009).
O. Hnativ believes that the right to participate in governance is an
intangible right. It may not be alienated or transferred to another person
separately from other rights or in isolation from a share security, but it does
not belong to the personal non-property rights of an individual under Book
II of the Civil Code of Ukraine (Hnativ, 2016).
Another position is held by V. Vasilieva, who believes that corporate
law should be considered as a complex aggregate object of civil rights,
consisting of independent subjective rights, which constitute the content
of corporate law. These include non-property rights and property rights. It
is the existence of property rights that allows the introduction of corporate
law into civil circulation as an independent object (Nekit, 2021). Therefore,
corporate rights are part of the estate and can be acquired as a result of
inheritance (Vasilieva, 2007).
Some researchers of personal non-property rights of legal entities express
the opinion about the possibility of transferring these rights (personal non-
property) to successors, in particular, in the process of termination of the
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legal entity. Thus, according to S. Popova, personal non-property rights
of a legal entity are terminated with its termination or are inherited by a
successor. Regardless of the termination of a legal entity, its individual
rights (including personal non-property) continue to exist in those cases
that were initiated and not completed by it (Popova, 2018).
Personal non-property rights of an individual are a type of non-property
civil rights, which include, but are not limited to, corporate rights.
Conclusions
The exercise of corporate rights has certain features that allow to
distinguish them from other civil rights: the conditionality of the exercise
of corporate rights by property participation in the authorized capital of a
legal entity; exercise of corporate rights in relation to joint-stock companies,
limited and additional liability companies; exercise of non-property and
property corporate rights.
A member of a legal entity (company) may have not only corporate but
also other rights concerning this legal entity (company). Therefore, it is
not enough to say that the rights of a person whose share is dened in the
authorized capital are corporate.
It is important that the content of these rights is due to property
participation (share, number of shares) in the authorized capital of the
legal entity (company). In the Law of Ukraine “On Joint Stock Companies”
this feature is highlighted by the phrase: “rights arising from the right of
ownership of shares” (paragraph 8 of Part 1 of Art. 2 of the Law).
The nature of the legal relationship between a unitary or corporate
legal entity and its founder (participant) is not identical and depends on
whether the share of the founder (participant) in its authorized capital is
determined, and how the size of this share aects the implementation of the
rights of the founder (participant). A corporate entity is a legal entity with
the authorized capital divided into shares of its participants (shareholders),
the size of which proportionally determines the exercise of subjective
corporate rights.
In Art. 84 of the Civil Code of Ukraine, legal entities that have the purpose
of making a prot and its subsequent distribution among the participants
were called business associations. Business associations, in turn, include
business associations or production cooperatives. In their capital (statutory,
compound, share) the founders determine their shares. However, the size
of the share aects the exercise of the rights of participants, determines
them only in a joint stock company, as well as in limited and additional
liability companies.
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Specic characteristics of corporate rights under Ukrainian legislation
For example, the number of votes of the members of these companies
during the decision-making of the general meeting, the amount of
dividends, the value of assets in case of liquidation, etc. determines the
size of the share (number of shares) in the share capital. Participants of
property associations (capital) exercise the right to vote, to dividends, to
participate in the distribution of assets in liquidation, etc. in proportion to
the size of their share (number of shares).
Thus, corporate rights belong only to shareholders, as well as members
of limited and additional liability companies. Corporate rights arise in
relation to joint stock companies, limited and additional liability companies
not only because the authorized capital of these companies determines the
size of shares (number of shares) of participants (shareholders), but because
the size of these shares (number of shares) aects the implementation of
corporate rights; determines their volume.
Non-property corporate rights should be distinguished from personal
non-property rights of a person (Book Two of the Civil Code of Ukraine).
The concepts of “non-property rights” and “personal non-property rights”
are not identical. In relation to the person, non-property rights should be
divided into two types:
• Non-property rights that are not closely related to the person (for
example, corporate non-property rights);
• Intangible rights that are closely related to the person and are
inseparable from a person (personal intangible rights).
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