Protecting Subjective Rights and Legal Interests of a Corporation by Heirs of its Participant
Abstract
The article is devoted to the features of the protection of the rights and interests of the corporation by the persons to whom participating interests and shares are transferred in the order of universal succession upon the inheritance. The purpose of the paper is to study the ability of the heir to take actions to maintain the rights and interests of the corporation. The author applied both general scholar methods (systemic, formal logical methods: induction and deduction, synthesis and analysis) and special legal methods (formal legal, legal modelling method, comparative legal method). It was justified the right to manage is a “non-personal” non-property right of a participant may be transferred by the procedure of universal succession during the inheritance, hence, the norm of Article 1112 of the Civil Code establishing prohibition on inheritance of personal non-property rights does not apply. It has been identified the heir becomes a participant in the corporation from the moment of acceptance of the inheritance, however, taking into account the universal nature of succession in case of the inheritance, that implies the immediate replacement of the testator by his heir in a corporate legal relation. It is concluded it is incorrect to distinguish between the moment the heir acquires the right to a share in the authorized capital and the right to manage the corporation. Based on the results of a study of law enforcement practice, as well as the provisions of Russian law, it is noted in relation to the inheritance of the right to manage a corporation, it is necessary to distinguish between the moment from which such a right passes to the heir of a participant (at the time of opening of the inheritance), and the moment from according that the heir has the right to exercise certain powers property and nonproperty nature included in the content of the right to manage a corporation (with the opening of the inheritance, but if the exercise of powers requires the consent of the remaining participants — from the moment the heir receives such consent). Until the consent of the remaining participants to exercise the powers that belonged to the testator is obtained, a fiction of participating arises, which disappears with such consent and the emergence of a corporate legal relationship between the corporation and the heir, or, in case of refusal to provide consent, after the exercise of the right to pay the actual value of the share in the charter capital. The study showed until the circle of heirs is determined, as well as the composition of the inherited property, a trustee acts on behalf and in the interests of the corporation and the heirs.
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