Governing bodies in corporations. Corporate Governance

Currently, there is no single definition of "corporate governance". In theoretical terms, corporate governance can be discussed in various aspects, so there are many definitions of this concept.

Corporate Governance- a set of economic and administrative mechanisms through which the rights of joint-stock property are exercised and the structure of corporate control is formed; a system of interactions between the company's management, its board of directors, shareholders and other stakeholders to implement their interests.

In the Soviet encyclopedic dictionary management is considered as "an element, a function of organized systems of various nature (biological, social, technical), ensuring the preservation of their specific structure, maintaining the mode of activity, the implementation of their programs and goals." Social management - the impact on society in order to streamline it, maintain quality specifics, improve and develop. Distinguish between spontaneous management, the impact of which on the system is the result of the interaction of various forces, a mass of random individual acts, and conscious management, carried out by public institutions and organizations (the state, etc.).

Corporate governance is a kind of social governance. A corporation is a certain organized system, an element of which is management. Its essence is the impact on the corporation as a system of social relations (an organized system) in order to streamline them and preserve their specificity.

Corporate management is a conscious management, which is carried out by bodies specially formed in the corporation. Moreover, the bodies of the corporation are formed in the manner prescribed by law, and the law determines the delimitation of competence between these bodies. Therefore, corporate management is, first of all, management carried out on the basis of the law and internal documents of the corporation adopted in accordance with the law.

Thus, in a narrow sense, corporate governance (corporation management) is an impact on a corporation as an organized system, carried out by specially formed bodies acting within their competence.

In accordance with Art. 53 of the Civil Code of the Russian Federation, a legal entity acquires civil rights and assumes obligations through its bodies acting in accordance with the law and other legal acts, as well as founding documents. The bodies of a legal entity form and express its will, manage its activities.

Bodies of a legal entity - management bodies. Thus, the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies" provides that the charter of the company must contain the structure and competence of the management bodies joint stock company the way they make decisions.

In a broad sense, corporate governance is the relationship within the corporation and its relationship with the outside world, i.e. system of relations between management bodies and owners valuable papers corporation (shareholders, owners of bonds and other securities), between the corporation and state bodies, as well as other interested parties, one way or another involved in the management of the issuer (company) as a legal entity.

The essence of corporate governance in a broad sense is the process of finding a balance between the interests of various participants in a corporation: shareholders and management, individual groups of persons and the corporation as a whole by implementing certain standards of conduct (ethical, procedural) adopted by the business community by the participants in the corporation.

The corporate governance model is a classic triangle: shareholders (general meeting) - board of directors (supervisory board) - sole (collegial) executive body of the company.

In the literature, participants in the system of corporate relations are divided into two large groups: the joint-stock company itself and the shareholders of this company. These groups include:

- management of the corporation (issuer);
- large shareholders (majority);
- minority shareholders (owning a small number of shares);
- holders of other securities of the issuer;
- creditors and partners who are not owners of the issuer's securities;
- federal executive authorities, executive authorities of the constituent entities of the Russian Federation, as well as local governments.

The interaction of these groups generates the main conflicts in the field of corporate governance, which lead to the violation of the rights and interests of each of them. In addition, it must be taken into account that shareholders can be both individuals and legal entities, which complicates the system of corporate relations, makes it quite complex, with many different connections between the elements of this system.

Different members of the corporation have their own different interests. The difference in the interests of participants within the same economic society is not yet a conflict. But, as soon as the carriers of different interests take certain actions aimed at realizing their interests, at achieving goals that are different from the goals of other participants in corporate relations, a conflict arises, i.e. clash, disagreement, confrontation of the parties.

The conflict of interest in a corporation is primarily related to the separation of ownership from management. Managers in corporations are not always their owners. The interests of managers are to maintain the strength of their position, and their efforts are concentrated on the operational activities of the corporation. The discrepancy between the interests of managers and owners of shares, large and small shareholders, managers and state bodies is the main problem in corporate relations.

Corporate Governance is a set of measures carried out by both foreign and Russian companies to protect the interests of owners and, ultimately, to increase the value of the company and attract investment.

If in the West corporate conflicts are mainly expressed in the contradiction between the interests of managers and shareholders, then in Russia there is often an infringement of the rights minority shareholders from the majority side.

In the management of corporate relations, a certain balance of interests of the majority and minority shareholders, the society itself and the state must be found. Such an impact on corporate relations, which ensures a balance of interests of various participants in these relations, minimizes conflicts of their interests, ensures the sustainable existence of corporate relations, and their progressive development is corporate governance. Therefore, in the broadest sense, corporate governance includes in general all relations that in one way or another affect the position of shareholders and the behavior of the joint-stock company itself. In such a broad sense, corporate governance is identical to corporate behavior, i.e. interaction of participants in corporate relations between themselves and the outside world - the business community, the local population, government agencies.

Let's pay attention to the principles of corporate governance. The principles of corporate governance are the initial principles underlying the formation, functioning and improvement of the company's corporate governance system.

The main principles of corporate governance were set out in the OECD Corporate Governance Principles, signed by ministers at the OECD Council Ministerial meeting on 26-27 May 1999.

The OECD Corporate Governance Principles are advisory in nature and can be used by governments as a starting point for assessing and improving existing legislation, as well as by corporations themselves to develop corporate governance systems and best practice.

In accordance with the Principles, the corporate governance structure of a company should ensure:

- protecting the rights of shareholders;
- equal treatment of shareholders;
- recognition of the rights of interested parties provided for by law;
- timely and accurate disclosure of information on all material issues relating to the corporation;
- effective control of the administration by the board (supervisory board), as well as the accountability of the board to shareholders.

Economic factors are decisive in the formation of legislation, including legislation in the field of corporate governance.

It is known that "the legislature does not create the law - it only discovers and formulates it"; public relations emerge from the socio-economic relations that they fix and shape. Socio-economic relations are formed objectively, but as they are known ("discovered"), one can approach the conscious management of them. In other words, society (including the economy) can only be influenced indirectly, creating conditions for its development in the required direction. With regard to the economy, this is the creation of a competitive environment in which entrepreneurial activity is carried out, the establishment of uniform market "rules of the game", stable public requirements.

In order to improve corporate governance, the Ministry of Economic Development of Russia at the end of 2003 came up with an initiative to create an Expert Council on Corporate Governance. The most authoritative experts in the field of corporate governance, leading representatives of schools of corporate and financial law in Russia are included as members of the Council. The functions of the Chairman of the Council are assigned to the Deputy Minister. The tasks of the Council are to conduct an independent expert assessment of the Russian Federation normative legal acts and development of recommendations in the field of corporate governance.

Concept, models, participants and tendencies of legal regulation.

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At the same time, the legal framework continues to evolve. Experts note some of the most notable trends:

Mandatory (unilaterally authoritative, directive) regulation is on the rise in public companies and expands optionality in non-public ones. After the reform of the Civil Code, two new types of corporations appeared: public and non-public. Legislative acts quite clearly make it clear that public corporations will be regulated as imperatively as possible and they will be subject to maximum requirements (including in corporate governance), which cannot be legislatively changed by internal documents, provisions of the charter. The rigidity of this regulation is noticeable when convening a general meeting, in the requirements for the structure of general management, for those who are part of this structure, in the disclosure of information.

In non-public corporations, the state provides participants with the right to independently regulate internal issues. If a corporation does not attract funds from a mass investor, if it conducts a business distributed among a small number of participants, it receives significant discretion. Its participants can determine the structure of governing bodies, the requirements for officials, adhere to the procedure for the distribution of profits established in the agreement, the procedure for participation in the general meeting.

Judicial practice and judicial lawmaking play big role. The consequence of this is the regulation of a number of relations at the level of the Decrees of the Supreme Arbitration Court of the Russian Federation and the Supreme Court of the Russian Federation. This is a feature of the Russian legal system, in which there is the concept of judicial precedent and its role for corporate governance is great. For example, the responsibility of members of governing bodies is regulated at the level of the decision of the Supreme Arbitration Court.

The responsibility of members of governing bodies is increasing for decisions made (Resolution No. 62). In addition to the legislation on regulating the work of JSCs and LLCs, there are separate acts (resolutions of the Supreme Arbitration Court) on the responsibility of management bodies. They establish requirements for decisions made by directors.

The importance of “soft law” is growing(including the Corporate Governance Code) and local lawmaking. Corporate governance - not required condition for every corporation. If the corporation is small, then it does not make sense for the state / legislators to impose strict requirements on its management. And the company itself chooses the structure of bodies, distributes powers between them. In this case, internal, local legal acts and "soft law" - advisory documents containing the best corporate governance practices play an important role. And the corporation decides whether it will apply them.

Corporate Governance Code

The corporate governance structure includes:

General Meeting of Shareholders/Participants.

Board of Directors (mandatory for public JSCs, where it is created by the will of the company's shareholders).

Collegial executive body: board/management. It is formed at the discretion of the society. Usually created in large corporations where collective leadership is needed. In accordance with paragraph 1 of Art. 69 of the JSC Law, its powers must be determined by the charter.

Sole executive body (SEO). He is needed to sign documents, conduct external activities- represent the corporation before third parties. The CEO can be not only an individual, but also a legal entity. By decision of shareholders or members, a company may attract another corporation, commercial organization or even an individual entrepreneur (manager), conclude an agreement and make it the sole executive body:

director/CEO/president

managing organization/manager.

The principle of residual competence

The principle of residual competence applies to the entire structure of governing bodies - a key principle corporate law: the competence of a lower body does not include issues that a higher one decides.

The maximum competence is at the general meeting of shareholders (this is indicated in the legislation on joint-stock companies). The board of directors carries out general management of the corporation's work, and the competence of the sole executive body includes everything that is not within the powers of higher bodies.

Thus, the laws on joint-stock companies and LLCs say that the general director simply manages the activities, and other issues can be prescribed in the position on the work of the general director, in his employment contract or documents regulating his work.

Subscribe to the telegram channel of the Russian School of Management @rusuprav Text: Svetlana Shcherbak

The corporation is managed in accordance with its

constituent documents and legislation. At the same time, corpo-

the radio itself determines both the management structure and the costs of

him. The owner manages the corporation independently or through

special governing bodies provided for by the charter.

Between people filling the organizational structure

corporations interacting with each other and dependent on each other

from each other, a wide network of horizontal and vertical

connections. It requires clear coordination and regulation, which

deals with the management system, through which are accepted and

decisions are made to achieve

goals set by the corporation.

In small corporations, the owner (owners) is independent

performs its functions: entrepreneurial, production

management, and, finally, the appropriation function (semi-

chenie, distribution and use) profits. However, with the growth

the scale of production to do so becomes more difficult.

When the number of employees in a corporation exceeds ten,

the owner cannot afford to simultaneously work on

his main specialty and manage the business. Therefore he

focuses on the latter as the most critical area

work and refuses to production functions.

Further increasing the scale and complexity of production in

corporation leads to the fact that the owner is not able to

alize directly the managerial function. Therefore he

transfers it into the hands of hired managers-managers, and he himself

focuses on making decisions, monitoring their implementation and

appropriation of profits.

Finally, in large corporations functioning as

stock companies, the owner appears as an amorphous and

a very diverse team, which is often

so large that in full force he cannot even physically

act as an effective entrepreneur. Therefore, at that time

how a minority of owners carry out entrepreneurial

activities as members of the board of directors, most

quite satisfied with the appropriation of the results of production.

Management activity is one of the most difficult.

It consists of a series of independent managerial

planning, i.e. development of the program, procedures for its implementation

implementation, schedules, analysis of situations, definition

methods for achieving goals, etc.;

organization, i.e. elaboration of the structure of the enterprise, carried out

the development of coordination between structural divisions, etc.;

motivation, i.e. stimulating the efforts of all employees to

fulfillment of assigned tasks;

coordination;

the control.

innovative, associated with the development and implementation of new

our achievements in the field of engineering and technology, methods of organizing

zation and management of people;

marketing, expressed not only in the sale of

introduced goods, but also in research and development,

affecting the sale of goods, the purchase of raw materials, production,

sales, after-sales service.

The corporate management system is based on a number of general

principles. Among them, one can single out the most important

following.

1. The principle of centralization of control, i.e.

concentration of strategic and most important decisions in one

Benefits of centralization include: decision making

those who represent well the work of the corporation as a whole, find

is in senior positions and has extensive knowledge and experience;

elimination of duplication of work and the associated reduction

general administrative expenses; ensuring a unified scientific and technical

chesky, industrial, marketing, personnel, etc. politicians.

The disadvantages of centralization are that

are accepted by persons who do not know the specific circumstances;

a lot of time is spent on the transfer of information, and she herself

is lost; lower-level managers practically eliminate

refrain from making those decisions that must be carried out. So

centralization should be reasonably limited.

2. The principle of decentralization, i.e. delegation

powers, freedom of action, rights granted by the subordinate

to the corporate management body, structural subdivision,

official to make decisions within certain limits or

issue orders on behalf of the entire firm or division.

The need for this is associated with an increase in the scale of production and

its complication, when not only one person, but the whole group

individuals are not able to determine and control all decisions, and therefore

more fulfill them.

Decentralization has many advantages, the main ones being

are reduced to the possibility of quick decision-making, attracting

to this managers of middle and lower levels; the uselessness of

working out detailed plans; weakening bureaucracy.

At the same time, decentralization has a disadvantage

information, which inevitably affects the quality of received

decisions; narrowing the range of interests and scope of thinking of management

a ditch in which feelings can take precedence over reason; labor

the unification of rules and decision-making procedures is being

Decreases the time required for approvals and "shaking".

The greater the decentralization of powers, the greater

independence, autonomy of grass-roots units, which

can develop into disintegration and separatism. That's why and

decentralization can be tolerated to a certain extent.

Large corporations are more likely to

be decentralized, because the number of decisions that comes

be accepted in the center, and the number of their approvals is growing in the geo-

metric progression, eventually exceed the technical

opportunities management system and get out of control.

Decentralization should be higher and territorially different.

abandoned firms, as well as in an unstable and rapidly changing

environment, because often there is simply not enough time to agree

with the center of the necessary actions that must be carried out

sizzle immediately.

Finally, the degree of decentralization depends on experience and qualifications.

fication of managers and employees of the relevant subdivisions

ny. The higher they are, the more rights and responsibilities people have on

places can be trusted, instructed to independently take complex

and responsible decisions.

3. The principle of coordinating the activities of structural

divisions and employees of the corporation. Depending on the circumstances

In some cases, coordination may be entrusted to the units themselves,

who jointly develop the necessary measures; maybe

be entrusted to the head of one of them, who, by virtue of this

becomes first among equals; Finally, most often

the lot of a special leader who has the apparatus

employees and consultants.

4. The principle of using human

cal potential. It includes:

making the bulk of decisions that are not made

entrepreneur or general manager unilaterally

ke, but by employees of those levels of management where decisions should

be fulfilled;

orientation of performers, aimed primarily not at

direct indications from above, but to clearly defined areas of action,

powers and responsibilities;

decision by higher authorities only of those issues and

problems that downlines are unable or not entitled to

take over.

5. The principle of effective use

denial (and by no means neglect) of satellite services and

t about in business. "

Business includes in its sphere of influence a whole complex

related activities. Specialists, I perform them

ing, are called business satellites, i.e. his accomplices, satellite

nicknames, assistants. They contribute to the relations of corporations with foreign

with the world - contractors, the state represented by its numerous

ny bodies and institutions.

Consideration of the galaxy of satellites should begin with accounting

ditch that plot the financial course of a corporation in such a way that-

to avoid paying taxes, but at the same time to avoid

looked like a clear evasion of their payment.

Another business satellite (and a very important one) is legal

you. They help build legal relationships with other businesses.

yatami and with the state represented by its bodies. Their services are extremely

are needed during the creation, reorganization and liquidation of enterprises, with

conclusion of agreements and government contracts, when excited

denial of a case on violation of antimonopoly law, etc.

Lawyers have specializations. Yes, tax lawyers

law make the most complex calculations for the depreciation of the main

capital for tax purposes or when granting tax

govy discounts as a result of, say, charity. Them

there are many clever ways to mitigate the effect of the law.

There are situations that can only be resolved

a whole "general staff" of lawyers and financiers, specializing in

looking for ways out of difficult situations. That's why good

accountants, lawyers, financiers have a high status in the enterprise.

In large enterprises, in corporations,

economists-analysts, statisticians, compilers of economic

and other kinds of reviews. A large corporation may reside in

state of stability only if it is visible

business perspective, if the market conditions for raw materials are known,

marketing and work force if the political situation is clear. That's why

the head of the corporation must either develop broad

prospects, or receive qualified advice

relevant specialists, experts, or rely on that and

One of the business tools are stock exchanges: investment

nye, stock, commodity. In our country, they are, in fact, only

are born. A law has been adopted to regulate their activities*. Till

the number of exchanges is small. Entrepreneurs prefer direct con-

tacts with contractors, use old industrial relations.

With proper debugging of the exchange mechanism, the efficiency

finding the right partner, product, promising promotions, etc.

will be much higher.

One of the important aspects of business is the art of marketing.

goods. As the market is saturated with goods, the need for special

socialist marketers will steadily increase. Their work is

no central activity in the business, in relation to

to which production technology and financing will play

supporting role. Indeed, if the product does not find

sales, why the activity of an engineer, financier, economist! Experience

Western countries shows that often the presidents of corporations

these posts are due to their previous work as a leader

sales drivers. The art of sales agents consists of

right way supply of goods, selection of packaging, systems

sale of goods by installments or on credit, etc. Special meaning

have personal qualities employees of the sales department, their communication

cable, the ability to win over people.

But this direct mode of selling commodities gradually

will give way to impersonal sales with the help of advertising in the media

wah mass media. Arises new industry- branch of rivers -

lame agents.

Public Relations Specialists - Another

satellite of big business - and it reflects the claims

See the Law of the Russian Federation "On Commodity Exchanges and Exchange Trade" of February 20

ral 1992 // Gazette of the Congress of People's Deputies of the Russian Federation and the Supreme

Council of the Russian Federation. 1992. No. 18. Art. 961.

business to power. The theoretical substantiation of relations with the public

The thesis that a corporation is judged not only by its

what products, but also general impression, which she pro-

leads to public opinion. In this case, insight is needed

minds endowed with the richest imagination. They are capable

mitigate the impact of bad news on the public. Special

public relations sheets help prepare ruidi speeches;

drivers large corporations, try to in the means of mass-e.

owl information, only the "necessary" materials appeared and no

no unwanted information leaked out.

These principles are the basis for corporate norms

creativity.

At the same time, it should be noted that there are a number of principles that apply

for every day, in the daily activities of managing cor-

portion and implemented in the actual actions of the managerial

personnel. By the way, they were used in pre-revolutionary Russia

and were formulated in the form of commandments addressed to the enterprise

nimatelyam (1912):

"1. Respect power. Power - necessary condition effective

nogo doing business. Everything must be in order. Concerning

show respect for the guardians of order on the legal echelons

nah power.

2. Be honest and truthful. Honesty and truthfulness - funda-

entrepreneurship ment, the premise of healthy profit and guarantee

monichnyh relations in business. Russian entrepreneur should

to be an impeccable bearer of the virtues of honesty and truthfulness

Send your good work in the knowledge base is simple. Use the form below

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5. CEO

Bibliography

1. General principles of the corporation

The principles of corporate governance are the initial principles underlying the formation, functioning and improvement of the corporate governance system of the company.

The main principles of corporate governance were set out in the Organization for Economic Co-operation and Development (OECD) Corporate Governance Principles, signed by ministers at the OECD Council Ministerial meeting on May 26-27, 1999. The OECD Corporate Governance Principles are advisory in nature and can be used by governments in as a starting point for assessing and improving existing legislation, as well as by corporations themselves to develop corporate governance systems and best practices. In accordance with the principles, the corporate governance structure of a company should ensure:

Protection of shareholders' rights;

Equal treatment of shareholders;

Recognition of the rights of interested parties provided for by law;

Timely and accurate disclosure of information on all material matters relating to the corporation;

Effective control over the administration by the board (supervisory board), as well as the accountability of the board to shareholders.

The OECD Corporate Governance Principles served as the basis for the creation Russian Code corporate behavior, which consolidated the following principles of corporate behavior.

First, shareholders must have a real opportunity to exercise their rights related to participation in the company, and be able to receive effective protection in case of violation of their rights. In other words, the corporate governance system should protect the rights of shareholders. corporation management director managing director

Secondly, the management system of a JSC should be such that the board of directors of a JSC, on the one hand, can carry out strategic management of the activities of the JSC and effectively control the activities of the executive bodies, and on the other hand, be accountable to the shareholders of the company.

Thirdly, the executive bodies should reasonably, conscientiously, exclusively in the interests of the company, effectively manage the current activities of the company, being accountable to the board of directors and shareholders of the company.

Fourth, when managing a company, timely disclosure of complete and reliable information about the company, available to the company's shareholders and investors, should be ensured.

2. Planning the work of the corporation

An analysis of the existing models of corporate governance, as well as the changes that are taking place in them, indicates that today it cannot be said that any of these models is perfect. Therefore, the Russian model of corporate governance, which is in the process of formation, "absorbs" the features of the models described above: both European and American.

Russian joint stock legislation establishes a three-level structure for managing a joint stock company.

The governing bodies of the company are:

Board of Directors (Supervisory Board);

Executive body: sole executive body and (or) collegial executive body;

General Meeting of Shareholders.

Authority internal control the financial and economic activities of the company is the audit commission (auditor).

At the core Russian system management of a joint-stock company are based on the principle of separation of supervisory and administrative functions (dualistic principle), as well as the principle of freedom of formation of the executive body of the company. The dualistic principle means the following:

Issues related to the competence of the general meeting of shareholders cannot be transferred for decision to the executive body;

Issues related to the competence of the board of directors of the company cannot be transferred for decision to the executive body of the company;

Issues related to the competence of the general meeting of shareholders cannot be transferred to the decision of the board of directors, with the exception of issues provided for by the JSC Law.

The principle of freedom of formation of the executive body means the following:

The formation of the executive body, as well as the early termination of its powers, are within the competence of the general meeting of shareholders;

According to the charter of the company, the formation of the executive body, as well as the early termination of its powers, may be referred to the competence of the board of directors;

The formation of the executive body can take place different ways: by election, appointment and approval either by the general meeting of shareholders or by the board of directors.

Thus, the law, having determined the maximum allowable set of governing bodies, left the shareholders the opportunity to choose different options for their “layout”.

Among them, one can single out the option of “strong executive power”. In this case, the sole executive body (general director, director) is elected by the general meeting of shareholders. At the same time, the general director (director) is a member of the board of directors. Along with the sole executive body, a collegial body is formed, which is appointed by the board of directors at the suggestion of the general director. With this scheme, the main functions of current management the affairs of the company are taken over by the executive bodies while strengthening the role of the general director. The board of directors in this situation becomes more like a supervisory board.

The option of a "strong" general director will also take place in the case when there is no collegial executive body. Such a management system is typical for many joint-stock companies created in the process of privatization, in which the controlling stake is in the hands of administration officials, in other words, the largest shareholders are executive directors.

A variant of a "strong" board of directors is possible. In this case, the general meeting elects the board of directors, and the board of directors appoints a sole and, if necessary, a collegial executive body. The place of the "strong" general director is occupied by the board of directors and its chairman. The CEO is essentially a hired manager appointed by the board of directors.

3. General meeting as the supreme governing body of the corporation

The General Meeting of Shareholders is the supreme governing body of the company. Holding a general meeting of shareholders is of great importance, since at the meeting the company is given the opportunity to inform shareholders about its activities, achievements and plans, to involve shareholders in making decisions on the most important issues of the company's activities. Also, the general meeting is important for shareholders, since it is at the meeting that they have a real opportunity to receive information about the activities of the company and exercise their right to participate in the management of the company.

The company is obliged to hold an annual general meeting of shareholders annually. It is carried out within the time limits established by the charter of the JSC, but not earlier than two and not later than six months after the end of the financial year.

Annual general meeting of shareholders

At the annual general meeting, the following issues are resolved, which constitute the exclusive competence of the annual meeting:

Election of the board of directors (supervisory board);

Approval of annual reports, annual financial statements, including profit and loss statements, as well as the distribution of profits, including the payment (declaration) of dividends, with the exception of profits distributed as dividends based on the results of the first quarter, six months, nine months of the financial year , and losses of the company based on the results of the financial year;

Approval of the company's auditor;

Election of the audit commission (auditor) of the company.

The last two issues - the approval of the auditor and the election of the audit commission (auditor) - may not be decided by every annual meeting, since the contract with the auditor can be concluded for a period of more than one year, in the same way, the audit commission (auditor) can be elected for any term more than one of the year.

The annual general meeting of shareholders may also decide any other issue related to the competence of the general meeting.

Extraordinary meeting of shareholders

Meetings of shareholders held in addition to the annual meeting are extraordinary. An extraordinary meeting of shareholders is held by decision of the board of directors of the company on the basis of the own initiative of the board of directors, at the request of the audit commission (auditor), the auditor of the company, as well as at the request of a shareholder (shareholders) who owns at least 10% of the voting shares of the company as of the date of presentation of the request .

Based on the request to convene an extraordinary general meeting from the above persons, the board of directors decides to convene or refuse to convene an extraordinary general meeting of shareholders. The list of grounds for refusing to convene an extraordinary general meeting is exhaustive and is defined in paragraph 6 of Art. 55 of the JSC Law. The decision of the board of directors to refuse to convene an extraordinary general meeting may be appealed to the court.

Forms of holding general meetings

There are general meetings in the form of joint presence of shareholders to discuss agenda items and make decisions on issues put to a vote, and a general meeting in the form of absentee voting. At the general meeting of shareholders, which is held by absentee voting, decisions cannot be made on issues that fall within the exclusive competence of the annual general meeting of shareholders. A repeated general meeting of shareholders cannot be held by absentee voting (by poll) to replace the failed general meeting, which should have been held by joint attendance.

The procedure for holding a general meeting should provide a reasonable equal opportunity for all persons present at the meeting to express their opinion and ask questions of interest to them.

The General Meeting of Shareholders has a quorum if it is attended by shareholders holding in aggregate more than half of the votes of the outstanding voting shares of the company. Shareholders who have registered to participate in the meeting and shareholders whose ballots are received no later than two days before the date of the general meeting are considered to have taken part. It is recommended that the procedure for registering participants in the general meeting be set out in the regulation on the general meeting of shareholders.

In the absence of a quorum, the date of a new meeting of shareholders is announced. At the same time, the agenda of the new meeting of shareholders should not be changed.

An adjourned general meeting of shareholders is valid if it is attended by shareholders holding in aggregate at least 30% of the votes of the outstanding voting shares. The charters of companies in which the number of shareholders is more than 500,000 may provide for a smaller quorum (for example, at least 20% of the votes of the placed voting shares of the company).

4. Board of directors, board - collegial bodies of the corporation

The board of directors carries out general management of the company's activities, has broad powers and is responsible for the improper performance of its duties.

The competence of the Board of Directors is defined by Art. 65 of the JSC Law. At the same time, the law determines the minimum list of issues related to the competence of the board of directors. Such a list is open: the competence of the board of directors also includes "other issues provided for by this Federal Law and the charter of the company." Therefore, the charter of a joint-stock company may provide that the board of directors has additional powers.

The competence of the board of directors of the company includes resolving issues of general management of the company's activities, with the exception of issues referred by law to the competence of the general meeting. In other words, the same issue may be included in the competence of the general meeting or the board of directors, if there is an indication of this in the charter of the JSC.

Issues related to the competence of the board of directors cannot be transferred for decision to the executive body of the company.

The board of directors plays an important role in the overall management of the company's activities and in the internal organization of the company. In this area, the board of directors has competence in the following areas:

Definition priority areas activities of the company and the implementation of strategic management;

Determination of the financial and economic policy of the company.

In exercising competence in this area, the board of directors must:

Determine the strategy for the development of society;

Annually approve the financial and economic plan;

Approve internal control procedures.

The board of directors has the right to form the executive bodies of the company, if the charter places the decision on this issue within the competence of the board of directors. The powers to form executive bodies are accompanied by the powers to early terminate their powers. If the formation of executive bodies is referred to the competence of the general meeting, then the board of directors is not entitled to prematurely terminate the powers of the executive bodies.

If the issue of formation and early termination of the powers of the executive bodies falls within the competence of the general meeting of shareholders, then the charter may give the board of directors the right to suspend the powers of the sole executive body and the manager. At the same time, the board of directors is not entitled to suspend the powers of the collegial executive body.

The charter may give the board of directors the right to decide on the formation of temporary executive bodies. If the issue of the formation of executive bodies falls within the competence of the general meeting, then the board of directors must decide to hold an extraordinary general meeting to elect a new composition of the executive bodies.

The chairman of the board of directors has the right to sign agreements between the company and members of the executive bodies. The Code of Corporate Conduct recommends that boards of directors determine the terms of contracts with managers, including the amount of remuneration paid to them.

The executive bodies of the company are accountable to the board of directors and the general meeting of shareholders. Therefore, the board of directors exercises control over the activities of the executive bodies. In order for the board of directors to be able to perform the functions of control, it is necessary to empower it with the authority to approve procedures for internal control over the financial and economic activities of the company, as recommended by the Code of Corporate Conduct.

The JSC Law provides for the right of the board of directors to request the minutes of the meeting of the collegial executive body (clause 2, article 70). The board of directors may allow the general director or a member of the collegiate executive body to hold a position in the management bodies of another legal entity (clause 3, article 69 of the JSC Law).

The charter of the company may provide that the board of directors appoints the corporate secretary of the company and concludes an agreement with him, including determining the amount of his remuneration.

The competence of the board of directors includes the approval of internal documents of the company, with the exception of internal documents, the approval of which is assigned by law to the competence of the general meeting, as well as other internal documents, the approval of which, according to the charter, is referred to the competence of the executive bodies of the company.

dividend policy;

Information policy;

ethical standards;

Control and Auditing Service;

risk management;

Checking the financial and economic activities of the company;

Corporate Secretary.

The competence of the board of directors includes the creation of branches and the opening of representative offices of the company, as well as their closure.

The Board of Directors ensures the implementation and protection of the rights of shareholders, and also contributes to the resolution of corporate conflicts. To implement this function, the competence of the Board of Directors includes issues related to the preparation and holding of the General Meeting of Shareholders.

In order to resolve corporate conflicts, the board of directors may form a committee for the settlement of corporate conflicts.

The competence of the board of directors includes issues related to asset management and authorized capital companies, namely: questions about the placement of bonds and other issue-grade securities by the company; determining the price of property, the price of placement and redemption of emissive securities; use of reserve and other funds.

Issues related to the competence of the board of directors are determined both by the JSC Law and the company's charter. In particular, the Code of Corporate Conduct recommends that the following issues be referred by the charter to the competence of the board of directors:

Approval of procedures for internal control over the financial and economic activities of the company;

Approval of the company's procedures for risk management, ensuring their compliance, analysis of effectiveness;

Appointment of the corporate secretary of the company;

Issue of suspension of powers of the General Director (managing organization), terms and grounds for suspension of powers;

Approval of the terms of contracts with the General Director ( managing organization) and board members, including the remuneration clause.

The Board of Directors is accountable in its activities to the General Meeting of Shareholders, therefore, along with the annual report, it is recommended to submit to the shareholders the report of the Board of Directors.

Election of members of the board of directors

Members of the board of directors are elected by the general meeting of shareholders in the manner prescribed by law and the charter of the company for a period until the next annual general meeting of shareholders (clause 1, article 66 of the JSC Law).

Members of the board of directors can only be individuals, both shareholders and persons who are not shareholders of the company.

Cannot be members of the board of directors:

Entity;

Members of the audit commission of the company;

Members of the counting commission approved by the general meeting of shareholders.

In order to effectively manage the activities of the company, members of the board of directors must have the knowledge, experience and skills necessary to correct acceptance solutions. Therefore, the charter of the company may contain specific requirements for members of the board of directors.

Members of the board of directors act in the interests of the company, so they should not have a conflict of interest. Therefore, the Code of Corporate Conduct does not recommend electing to the board of directors a person who is a member, general director (manager), member of the management body or employee of a legal entity that competes with the company.

Number of members of the board of directors

There is a direct relationship between the effectiveness of cumulative voting and the number of board members: the larger the number of such members to be elected, the greater the opportunity for minority shareholders to elect their representative to the board of directors. The board of directors should have a quantitative composition that is optimal for making quick and balanced decisions and for the normal organization of the activities of the board of directors itself. Therefore, the JSC Law only provides that the number of members of the board of directors of the company is determined by the charter of the company or the decision of the general meeting of shareholders, but cannot be less than five members (clause 3 of article 66).

In accordance with the JSC Law, for companies with more than a thousand shareholders owning voting shares, the quantitative composition of the board of directors cannot be less than seven members, and for companies with more than 10 thousand shareholders owning voting shares - less than nine members.

The quantitative composition of the board of directors should be determined taking into account the requirements of the law, as well as the specific needs of the company itself and shareholders. In most joint-stock companies, the quantitative composition of the board of directors is from six to ten members.

Organization of the activities of the Board of Directors

The regulation on the board of directors should determine the organization of the activities of the board of directors, namely: the procedure for holding meetings, their regularity, the forms of meetings (in person and in absentia), the form of notification of a meeting, the decision-making procedure. At the same time, members of the board of directors should be able to receive all the necessary information for making decisions on agenda items. The provision of information is carried out by the executive bodies in accordance with the procedures established in the company, in particular, if the position of a corporate secretary has been introduced in the company, then through the secretary of the company.

Usually meetings of the board of directors are convened by its chairman on his own initiative. The chairman is obliged to convene a meeting of the board of directors at the request of:

Members of the Board of Directors;

Audit Commission (Auditor);

The company's auditor;

Executive body of the company;

As well as other persons determined by the charter of the company.

The Code of Corporate Conduct recommends that the charters provide for the right of shareholders to demand the convening of the board of directors. At the same time, the board of directors is an independent body, which should not be subject to unjustified influence from other bodies of the company and shareholders. Therefore, it is recommended that the charter provide for the right to demand a meeting of the board of directors only for shareholders owning two or more percent of voting shares, and only for consideration of issues, the list of which should be specified in the charter.

Quorum - the minimum number of members of the board of directors who must participate in a meeting of the board in order for such a meeting to make decisions that have force. The quorum for holding a meeting of the board of directors is determined by the charter, but should not be less than half of the number of elected members of the board of directors.

In the event that the number of members of the board of directors becomes less than the number constituting the specified quorum, the board of directors is obliged to decide on holding an extraordinary meeting of shareholders to elect a new composition of the board of directors. The remaining members of the board of directors are only entitled to decide on the convening of such an extraordinary meeting of shareholders.

Formation of a collegial executive body

The collegial executive body may be formed at the discretion of the economic society itself. In a joint-stock company, the formation of this body is carried out by a general meeting of shareholders or the board of directors, depending on what is provided for by the charter (clause 8, clause 1, article 48, clause 9, clause 1, article 65 of the JSC Law), in a company with limited liability the election of a collegial executive body falls within the competence of the general meeting of participants (clause 1, article 41 of the LLC Law).

The number of members of the board, their term of office, the competence of the collegial executive body are determined by the charter of the company. The terms, procedure for convening and holding meetings of the collegiate executive body, as well as the procedure for making decisions by it, are established by the charter and internal documents.

The competence of the collegial executive body should not duplicate the powers of the sole executive body. So, for example, if the competence of the sole and collegiate bodies includes the authority to approve the internal documents of the company, then the adoption of specific documents should be differentiated (for example, the director approves the provisions on attestation of employees, internal labor regulations, and the board - provisions on material incentives for personnel, on providing employees with additional benefits, etc.).

If a business company has a collegial executive body, it often serves as a mechanism for limiting the powers of the sole executive body. Thus, the powers to approve the most important transactions are transferred to the competence of the collegial body - by subject (for example, with real estate, fixed assets and other valuable assets) or by amount - in the amount of a certain value of the company's assets, lower than is required for recognition large but significant transaction in order to enable its conclusion directly to the sole executive body of the company. Typically, the price of such transactions varies from 5 to 10% of the book value of the company's assets.

The competence of the board very often includes the approval of operational financial and economic plans of the company and reports on their implementation, the development of methodological documents for the implementation of business processes.

A member of the collegial executive body is an individual who may not be a shareholder or member of a business company. Traditionally, members of the collegial executive body perform some kind of labor function in society, are in leadership positions.

5. CEO

The sole executive body of a joint-stock company can be called differently: general director, simply director, manager, president, chairman of the board, etc. He can head the board. If such a joint-stock company is not created, then it becomes its sole executive body.

The General Director manages the current work of the company, while he is guided by the current legislation, the charter of the company and the Regulations on the General Director. The general director must align his activities with the goal set for him: to ensure the profitability and competitiveness of the company, to contribute to its financial and economic stability, to ensure the rights of shareholders and social guarantees for its employees.

Appointment of the CEO. Appointment to the position of the General Director and dismissal from this position is carried out by decision of the General Meeting of Shareholders. However, often the general meeting delegates this authority to the board of directors. Both the board of directors and the general meeting can nominate a candidate for the position of general director. Self-promotion is also possible. The decision on the appointment of the General Director is taken by a simple majority of votes (shares). The term of appointment is set by the joint-stock company independently and is reflected in the Regulations on the General Director. Usually it is equal to the term for which the board of directors is elected.

After the decision of the general meeting (board of directors) has been made, the company represented by the chairman of the board of directors (or a member of the board authorized by him) signs an agreement (contract) with the general director, which defines his rights and obligations, as well as the limits of liability for damage caused society through his fault. In addition, there are limits economic management property of the company, conditions of remuneration and bonuses for the results of economic activity.

Powers of the General Director of the Corporation

General Director of the Corporation:

1) acts on behalf of the Corporation and represents its interests without a power of attorney in relations with federal state authorities, state authorities of the constituent entities of the Russian Federation, local governments municipalities, Russian and foreign organizations, international organizations;

2) heads the Board of the Corporation and organizes the implementation of decisions of the Supervisory Board of the Corporation and the Board of the Corporation;

3) issues orders, regulations, instructions and directions on the activities of the Corporation;

4) submit for approval by the Supervisory Board of the Corporation financial plan activities of the Corporation;

5) approve directives to the Corporation's representatives on the boards of directors (supervisory boards) of the Corporation's joint-stock companies;

6) appoints and dismisses his deputies who work in the Corporation on a permanent basis and may be members of the Board of the Corporation;

7) distribute duties among his deputies;

8) approve the organizational structure of the Corporation;

9) submit proposals to the Supervisory Board of the Corporation on the appointment and dismissal of members of the Board of the Corporation;

10) hires and dismisses employees of the Corporation, enters into, amends and terminates employment contracts with them in accordance with labor law and other normative legal acts containing labor law norms;

11) is empowered to classify information as a state secret and approves the list of information subject to classification in accordance with the legislation of the Russian Federation;

12) issues powers of attorney, opens current accounts, personal accounts in the authorities federal treasury and other accounts in banks and other credit organizations in the manner established by law Russian Federation;

13) approves the regulation on the scientific and technical council of the Corporation;

14) approves the amount and forms of remuneration of employees of the Corporation in accordance with the legislation of the Russian Federation;

15) makes decisions on the establishment of branches, on the opening of representative offices and on the establishment of institutions of the Corporation and approves the regulations on them or their charters;

16) submit to the Supervisory Board of the Corporation the annual report of the Corporation for approval;

17) makes decisions on other issues of the Corporation's activities, with the exception of issues related to the powers of the Supervisory Board and the Board of the Corporation.

6. Structural divisions of the corporation

The creation of departments by grouping similar production functions and, in accordance with this, workers and employees, allows for more efficient management, the necessary flexibility of the corporation.

The methods for assigning responsibilities to departments depend on the underlying principles. The structure of a corporation can be based on various principles.

The simplest is the quantitative principle, or the principle of dividing into groups of equal size. It is applied where labor operations are simple, homogeneous, and their success depends more on the number of people than on their specialization. The most common structure in this case is the brigade.

Another organizational principle- temporary. In a number of industries, it is important to ensure the continuity of technological processes. Because of this, several groups are created - shifts or shifts, which, after working for a certain period, rest, giving way to others.

The structure of a corporation can be determined by the spatial distribution of activities, when those of them that are located on the same territory are combined into a single whole, subject to the general management (branches).

The production principle can also be applied, and then the structure of the corporation is determined by the release of a specific product focused on a specific customer, the use of certain technologies (for example, a workshop for the production of consumer goods).

Sometimes the structure of the corporation is subject to innovative tasks. In this case, some units are engaged in current production, giving high profits, and others - the development new products, bringing losses at first, as, for example, this usually takes place in research and production associations.

Although in practice organizational structure corporations is determined by several principles at once, most often the functional one dominates, according to which the structure of a corporation is determined by its activities, such as production, marketing, finance, legal services, etc. This is how divisions are formed, which are a group of people whose activities are related to the achievement of specific goals.

Units that perform certain types of activities at the same level are called horizontal. But they must be coordinated with each other. This coordination can only be carried out by a governing body neutral in relation to them, and in order to obey it, it must also be higher. Thus, a vertical division of labor arises and, along with a horizontal one, a vertical organizational structure is formed, which has many floors.

Within the framework of the functional structure, the divisions are divided into main, auxiliary and service.

The main divisions focus on activities related to the direct implementation of the goal of this corporation, the release of core products or the provision of services.

The activity concentrated in service subdivisions has the following infrastructure: industrial transport, communications, energy, heat, water, electricity.

Finally, support structures cover activities that could, in principle, be carried out within other departments, but are combined into specialized ones in order to increase efficiency and control.

The organizational structure of a corporation is considered optimal if its size, features of the technology used, market requirements, goals are adequately taken into account, types of activities, information flows are correctly grouped, and conditions for minimizing production costs are provided.

Each structural unit is created in a corporation to perform certain tasks, it is assigned specific functions. True, they can be understood in different ways. In order to avoid inconsistencies in this regard, there is no competition between departments or, conversely, duplication in their work, it is necessary to fix in writing the tasks, functions of a particular department, devoting a corresponding normative act to each of them. These are corporate regulations with a typical name: Regulations on the department (workshop, team, branch, etc.).

Regulations on departments are corporate regulations that set goals for a structural unit, distribute tasks between them, determine their functions, relationships with each other, the competence of the head of the structural unit and the responsibility of employees.

The Regulations on the structural unit should contain the following sections:

1. General provisions. Here the full name of the department and the whole enterprise, of which the department is a structural unit, is recorded. The subordination of the department to one or another deputy general director is indicated. In addition, the title of the position of the head of the department (head, head, manager, etc.) is given. The regulatory framework that guides the employees of the department is determined. Usually it is the current legislation, orders and instructions of the ministries responsible for certain types of activities (for example, the Ministry of Fuel and Energy), or ministries that perform supra-departmental functions (for example, the Ministry of Labor and Social Security). All corporate acts and orders of an individual nature and relating to this department are also binding on employees.

2. Structure of the department. Most often, only the head of the department stands out in the department. However, if the department is large, then sub-departments, groups, links (in the brigade), shifts, etc. can be formed in it. In this case, in this section, all parts of the department are named, and if necessary, the relationships between parts of the department; it also indicates on what principle parts of the department are organized, as well as the principle of determining the head of the department (appointment or election) and the entity involved in this (direct or higher management body or department team). The requirements for the head of the department are specifically stipulated. They may relate to the presence of special education, work experience in the specialty, seniority in managerial work, as well as knowledge of certain problems specific to this structural unit. The same section reflects the question of the staff of the department, its division into main and auxiliary personnel.

3. Tasks of the department. A task is something that requires execution, permission. Usually, in the list of tasks, the main one is singled out and put in the first place, for example, the one for the personnel department is the selection and placement of personnel. Then follow the tasks of secondary, auxiliary, not main, but accompanying; more often, the main one is specified. In our example, regarding the personnel department, these are the study of the state of affairs with engineering and technical personnel, the development of promising and annual plans staffing the enterprise, forecasting and determining the need for personnel, ensuring the reception, placement and placement of young specialists and workers in accordance with the specialty received, control over rational use personnel, conducting internships, organizing advanced training, timely processing of transfers, dismissals, incentives for employees, issuing certificates, storage work books and other documentation, etc.

4. Functions of the department. A function is the appointment, the role of the department, the work performed by it. If this section is singled out, then it more specifically sets out the tasks assigned to the structural unit and fixed in general terms in the previous section. For the same personnel department, these will be the preparation of materials and participation in the commission for the certification of managers and engineering and technical workers, the timely and high-quality consideration of applications and complaints regarding work with personnel, the preparation of answers to them, the preparation of draft orders, the acquisition of personal files of employees and etc. Sometimes a systematization of numerous functions is carried out and, as it were, subsections are distinguished. For example, the personnel department performs certain actions in the area (sphere): a) selection and placement of personnel; b) fortifications labor discipline; c) dismissal of employees; d) execution of documents for the appointment of pensions, etc.

5. Competence of the department, i.e. set of rights and obligations that its employees have. Usually, for obvious reasons, the emphasis is on listing the rights of department employees, and their duties are listed at the end, as if in a patter, and even according to specific gravity they are much less right. For example, the personnel department has the right to submit in the prescribed manner, i.e. by proxy, a corporation in other organizations on issues within the competence of the department, to demand from other structural divisions necessary information, control the placement and use of personnel, etc. This section of the Regulations is one of the main and most voluminous.

6. Responsibility. If you strictly follow the canons legal technique, then here it would be necessary to repeat the norms of the current legislation and, moreover, list the benefits established at enterprises for employees, which they may lose if they fail to fulfill their duties. However, most often this (in the Regulations) is not done, since everyone is obliged to know and know the norms of legislation on measures of disciplinary responsibility anyway (they are the same for everyone: remark, reprimand, severe reprimand, dismissal). As for the benefits, firstly, they are very numerous and their list can take a larger place than other provisions of this corporate act, obscuring its main meaning; secondly, sometimes they change or are made dependent on the availability of certain conditions (financial resources, contracts with organizations, etc.). It may happen that there will be nothing to deprive as a penalty. That is why in this section the issues of responsibility are reflected only in general terms: the actions or situations of inaction of the employees of the department are listed, for which disciplinary responsibility comes. It should be noted that liability is applied only for violation of their duties (but not rights!). Perhaps that is why rights dominate in the previous section on competence.

7. The main relationship of the department with other departments. Usually, it reflects what information and from whom the department receives and what and to whom it is transmitted. In addition, its documentary form (estimates, cost estimates, invoices, contracts, etc.) and the deadline for transfer are indicated.

7. Managers, officials, employees

In the corporate governance system, a special place belongs to managers and other officials.

Managers include not only members of the board, but also those persons who manage structural divisions, lead certain areas of work, are responsible for a certain range of issues, dealing with people, but are not included in the number of members of the board. In short, the layer of managers in a corporation is much broader than it is commonly believed: these are employees who carry out managerial, administrative functions, endowed with the right to independently resolve issues within the limits of the powers granted to them and having a certain power over their subordinates, i.e. opportunity to influence them in the right direction.

Managers, unlike entrepreneurs, manage other people's capital. The owner determines the program - managers decide how, in what ways to implement it. The entrepreneur (owner) works in an unstructured environment where rapid change is constantly taking place. Managers, on the contrary, perform their functions within the framework of an established managerial hierarchy. This implies a purposefulness in the actions of the manager, dictated by the rigid logic of the existing organizational and economic structures.

A specific list of persons exercising managerial functions, endowed with the right to independently resolve administrative issues, is established by the corporations themselves in their corporate acts.

Task: The founder of a limited liability company (hereinafter referred to as LLC) applied to the arbitration court with an application to invalidate the decision of the Inspectorate to refuse state registration of a legal entity.

The Inspectorate did not recognize the claim, as it considers its refusal to state registration of the LLC to be lawful, since the home address of the director was indicated in the application for state registration when creating a legal entity.

What decision should the arbitral tribunal make?

According to paragraph 2 of Article 54 of the Civil Code of the Russian Federation, the location of a legal entity is determined by the place of its state registration. In accordance with paragraph 2 of Article 8 of the Federal Law of August 8, 2001 N 129-FZ "On State Registration of Legal Entities and individual entrepreneurs" state registration of a legal entity is carried out at the location of the permanent executive body indicated by the founders in the application for state registration, in the absence of such an executive body - at the location of another body or person entitled to act on behalf of the legal entity without a power of attorney. Considering the above, state registration of a legal entity is possible, the location of which is the place of residence of the founder.

The current legislation does not establish a ban on specifying the place of residence of its founder/participant as the location of a legal entity. In this regard, decisions tax inspections refusal to register a company on the above grounds are illegal and subject to cancellation.

Bibliography

1. Andronov V.V. The essence of corporate governance. M.: Russian Academy Entrepreneurship, 2003, p. 7; Rogacheva I.A., Romanov V.A., Tarasenko A.V. Decree. op. S. 171.

2. Vagin S.A. Trends in the development of corporate governance in the global economy. St. Petersburg: Publishing House of St. Petersburg, GUEF, 2005. P. 8.

3. Vinnik O.P. Characteristic features of economic organizations, - "Entrepreneurship, economy, law" No. 2, 2003, p. 7.

4. Gorfinkel V.Ya. Entrepreneurship. Textbook M.: Unity Publishing House, 2003.

5. Doinikov I.V. Business Law: Tutorial Moscow, 2004.

6. Zhilinsky S.E. Entrepreneurial Law: A textbook for universities - Moscow, 2005.

7. Kaverina T.V. Governing bodies of a joint-stock company // Actual problems civil law: Sat. articles. M., 2003. S. 104.

8. Kibenko E.R. Scientific and practical commentary on the Law "On business entities" - X .: Espada, 2002.

10. Board of Directors in the corporate governance system of the company / Ed. I.V. Kostikova. M.: Flinta; Nauka, 2002, p. 64.

11. Shitkina I.S. Corporate Law: Nauka Publishing House, 2008.

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The lack of a unified understanding of the corporate governance model in the world emphasizes the fact that a deep reform is underway in this area right now. The growing role of the private sector, globalization and changing conditions of competition make the problem of corporate governance the most relevant in today's business world. The practice of corporate governance directly affects the inflow of foreign investments into the economies of countries, without the formation of an effective corporate governance system it is impossible to ensure the inflow of investments. That is why the problem of corporate governance for countries with economies in transition is extremely important.

aim training course is to study the basics of corporate governance, the system for protecting the rights and interests of shareholders and investors in order to improve efficiency and increase investment attractiveness companies.

The objectives of the course are to master the system for ensuring the effective operation of the company, taking into account the protection of the interests of its shareholders, including the mechanism for regulating internal and external risks; consider forms of corporate control, one of the internal mechanisms of which is the board of directors; determine the role of independent directors in the management of a joint-stock company, the signs and factors of the formation of corporate governance in Russia.

In the introductory topic "Corporate Governance: Essence, Elements, Key Issues" Let's consider the essence of corporate governance, define the elements and highlight its key problems.

Corporate governance (in the narrow sense) is the process by which a corporation represents and serves the interests of investors.

Corporate governance (in a broad sense) is a process in accordance with which a balance is established between economic and social goals, between individual and public interests.

In a joint-stock company, such management should be based on the priorities of the interests of shareholders, take into account the implementation of property rights and generate a corporate culture with a set of common traditions, attitudes and principles of behavior.

under corporate governance in joint-stock companies is understood the system of relations between the management bodies and officials of the issuer, owners of securities (shareholders, owners of bonds and other securities), as well as other interested parties, one way or another involved in the management of the issuer as a legal entity.

Summarizing these definitions, we can say that the corporate governance system is an organizational model by which a joint-stock company must represent and protect the interests of its shareholders.

Thus, the area of corporate governance includes all issues related to ensuring the efficiency of the company, building intra- and inter-firm relations of the company in accordance with the adopted goals, protecting the interests of its owners, including the regulation of internal and external risks.

There are the following elements of corporate governance:

The ethical foundations of the company's activities, which consist in observing the interests of shareholders;

Achieving the long-term strategic goals of its owners - for example, high profitability in the long term, higher profitability than market leaders, or profitability above the industry average;

Compliance with all legal and regulatory requirements for the company.

Other than a company's compliance with legal and regulatory requirements, it is the market that controls corporate governance to a greater extent than the authorities. If the rules of good corporate governance are not followed, the company is threatened not with fines, but with damage to its reputation in the capital market. This damage will lead to a decrease in investor interest and a fall in stock prices. In addition, it will limit the opportunities for further operations and investments in the company by outside investors, as well as harm the company's prospects for issuing new securities. Therefore, in order to maintain investment attractiveness Western companies attach great importance to compliance with the norms and rules of corporate governance.

Among key issues corporate governance, we highlight the following:

Agency problem - mismatch of interests, misuse of authority;

Shareholders' rights - violation of the rights of minority (small) shareholders, concentrated control and the dilemma of insider control;

Balance of power - the structure and principles of the board of directors, transparency, composition of committees, independent directors;

Investment community - institutions and self-organization;

The professionalism of directors is a strategically oriented corporate governance system, the quality of decisions and professional knowledge directors.

Topic "Theories and models of corporate governance" pay your attention to the fundamental principle of corporate governance - the principle of separation of ownership and control. The shareholders are the owners of the capital of the corporation, but the right to control and manage this capital essentially belongs to the management. At the same time, the management is a hired agent and is accountable to the shareholders. Unlike owners, management, having the necessary professional skills, knowledge and qualities, is able to make and implement decisions aimed at the best use of capital. As a result of the delegation of corporate management functions, a problem arises, known in the economic literature as the agency problem (A. Berle, G. Mine), i.e. when the interests of the owners of capital and the managers they hire to manage this capital do not coincide.

According to the contract theory of the firm (R. Coase, 1937), in order to solve the agency problem between shareholders as suppliers of capital and managers as managers of this capital, a contract must be concluded that most fully stipulates all the rights and conditions of the relationship between the parties. The difficulty lies in the fact that it is impossible to foresee in advance in the contract all the situations that may arise in the process of doing business. Therefore, there will always be situations in which management will make decisions on its own. Therefore, the contracting parties act in accordance with the principle of residual control, i.e. when management has the right to make decisions at its own discretion in certain conditions. And if the shareholders actually agree with it, then they may incur additional costs due to a mismatch of interests. These issues were considered very carefully by Michael Jensen and William Mackling, who formulated the theory of agency costs in the 70s, according to which the corporate governance model should be built in such a way as to minimize agency costs. At the same time, agency costs are the amount of losses for investors that is associated with the division of ownership and control.

Thus, it can be said that the main economic reason for the emergence of the problem of corporate governance, as such, is the separation of ownership from the direct management of property. As a result of such a separation, the role of hired managers who directly manage the issuer's activities inevitably increases, as a result of which various groups participants in the relations that develop in connection with such management, each of which pursues its own interests.

After revealing numerous cases of discrepancy between the priorities of corporate managers and the interests of owners in Western countries, a discussion began. Many corporations prioritized growth over profitability. This was in the hands of ambitious managers and served their interests, but it was detrimental to the long-term interests of shareholders. When it comes to large corporations, the 80s. 20th century often referred to as the decade of managers. However, in the 90s. the situation has changed, and at the center of the debate are several theories of corporate governance that have been dominant in recent times:

- accomplice theories, the essence of which is the mandatory control of the company's management by all interested parties that implement the accepted model of corporate relations. It is also considered in the broadest interpretation of corporate governance as taking into account and protecting the interests of both financial and non-financial investors contributing to the activities of the corporation. At the same time, non-financial investors may include employees (specific skills for the corporation), suppliers (specific equipment), local authorities (infrastructure and taxes in the interests of the corporation);

- agency theory, which considers the mechanism of corporate relations through the toolkit of agency costs; comparative institutional analysis based on the identification of universal provisions of corporate governance systems when conducting cross-country comparison.

Many corporations (managed under the concept of shareholder value) focus on activities that can add value to the corporation (shareholder equity) and scale down operations or sell units that cannot add value to the company.

So, corporations concentrate on the key areas of their activities, in which they have accumulated the most experience. It can be added that good corporate governance as applied to Russian enterprises also implies equal treatment of all shareholders, excluding any of them from receiving benefits from the company that do not apply to all shareholders.

Let's consider the main models of corporate governance, define the main basic principles and elements, and give a brief description of the models.

In the field of corporate law, there are three main models of corporate governance that are typical for countries with developed market relations: Anglo-American, Japanese and German. Each of these models was formed over a historically long period and primarily reflects the specific national conditions of socio-economic development, traditions, and ideology.

Consider the Anglo-American model of corporate governance, typical for the US, UK, Australia.

The basic principles of the Anglo-American system are as follows.

1. Separation of the property and obligations of the corporation and the property and obligations of the owners of the corporation. This principle reduces the risk of doing business and creates more flexible conditions for attracting additional capital.

2. Separation of ownership and control over the corporation.

3. The behavior of the company, focused on maximizing the wealth of shareholders, is a sufficient condition for increasing the welfare of society. This principle establishes a correspondence between the individual goals of the providers of capital and the social goals of the economic development of society.

4. Maximization market value shares of the company is a sufficient condition for maximizing the wealth of shareholders. This principle is based on the fact that the securities market is a natural mechanism that allows one to objectively establish the real value of a company and, therefore, measure the welfare of shareholders.

5. All shareholders have equal rights. The size of the share held by various shareholders can influence decision making. Generally speaking, it can be assumed that those who have a large stake in a corporation have more power and influence. At the same time, having great power, one can act to the detriment of the interests of small shareholders. A contradiction naturally arises between the equality of shareholders' rights and the much greater risk of those who invest large amounts of capital. In this sense, the rights of shareholders must be protected by law. Such shareholder rights include, for example, the right to vote in solving key issues such as mergers, liquidation, etc.

The main mechanisms for implementing these principles in the Anglo-American model are the board of directors, the securities market and the corporate control market.

The German corporate governance model is typical of the countries of Central Europe. It is based on the principle social interaction- all parties (shareholders, management, labor collective, key suppliers and consumers of products, banks and various public organizations) interested in the activities of the corporation have the right to participate in the decision-making process.

Metaphorically speaking, they are all on the same ship and are ready to cooperate and interact with each other, paving the course of this ship in a sea of market competition.

It is characterized by the following main elements:

Two-tier structure of the board of directors;

Stakeholder representation;

Universal banks;

Cross ownership of shares.

Unlike the Anglo-American model, the board of directors consists of two bodies - the management board and the supervisory board. The functions of the supervisory board include smoothing the positions of groups of participants in the enterprise (the supervisory board gives an opinion to the board of directors), while the board of governors (executive board) develops and implements a strategy aimed at harmonizing the interests of all participants in the company. The division of functions allows the board of governors to focus on the affairs of the enterprise.

Thus, in the German model of corporate governance, the main management body is collective. For comparison: in the Anglo-American model, the board of directors elects the general director, who independently forms the entire top-level management team and has the ability to change its composition. In the German model, the entire management team is elected by the supervisory board.

The Supervisory Board is formed in such a way as to reflect all the key business ties of the corporation. Therefore, bankers, representatives of suppliers or consumers of products are often present on supervisory boards. The same principles are adhered to by the labor collective when electing members of the Supervisory Board. This is not about the fact that half of the supervisory board - the workers and employees of the corporation. Labor collective elects such members of the supervisory board who can provide the greatest benefit to the corporation from the point of view of the workforce.

At the same time, German trade unions do not have the right to interfere in the internal affairs of corporations. They solve their problems not at the level of companies, but at the level of administrative territories - lands. If the unions seek to raise the minimum wages, then all enterprises of this land are obliged to fulfill this condition.

It should be noted that German commercial banks are universal and simultaneously provide a wide range of services (crediting, brokerage and consulting services), i.e. at the same time they can play the role of an investment bank, carrying out all the work related to the issue of shares.

The Japanese corporate governance model is characterized by social cohesion and interdependence rooted in Japanese culture and traditions. The modern model of corporate governance was formed, on the one hand, under the influence of these traditions, on the other hand, under the influence of external forces in the post-war period.

The Japanese corporate governance model is characterized by the following:

System of major banks;

Network organization of external interactions of companies;

Lifetime recruitment system.

The Bank plays an important role and performs a variety of functions (creditor, financial and investment analyst, financial advisor, etc.), so each company seeks to establish close relationships with it.

Each horizontal company has one main bank, vertical groups can have two.

At the same time, various informal associations - unions, clubs, professional associations - play an important role. For example, for FIGs, this is the Presidential Council of the group, whose members are elected from among the presidents of the main companies of the group with the formal goal of maintaining friendly relations between the heads of the companies. In an informal setting, there is an exchange of important information and a soft agreement on key decisions regarding the activities of the group. Key decisions are developed and agreed upon by this body.

The network organization of external interactions of companies includes:

Presence of network elements - councils, associations, clubs;

Practice of intragroup movement of management;

Electoral intervention;

Intra-group trading.

The practice of intra-group movement of management is also widespread. For example, an assembly plant manager may be seconded for a long period to a component supplier to solve a problem together.

The practice of selective intervention in the management process is often carried out by the main bank of the company, correcting it financial position. Joint measures of several companies are practiced to bring out of the crisis state of any enterprise of the group. Bankruptcy of companies belonging to financial and industrial groups is a very rare phenomenon.

I would like to note the role of intra-group trading as a very important element of network interaction within the group, where the main role of trading companies is to coordinate the activities of the group to all aspects of trade. Since the groups are widely diversified conglomerates, many materials and components are bought and sold within the group. Trade transactions external to the group are also carried out through the central trading company Therefore, the turnover of such companies is usually very large. At the same time, transaction costs are also very low. Therefore, the trade markup is small.

The model's lifelong employment system can be described as follows: "Once you appear in a working family, you remain a member forever."

Topic "Principles of Corporate Governance" the basic principles* developed by the Organization for Economic Cooperation and Development (OECD) are formulated. The nature and features of the corporate governance system are generally determined by a number of general economic factors, macroeconomic policy, and the level of competition in the markets for goods and factors of production. The structure of corporate governance also depends on the legal and economic institutional environment, business ethics awareness of environmental and public interests by the corporation.

There is no single corporate governance model. At the same time, work carried out at the Organization for Economic Co-operation and Development (OECD) has revealed some common elements underlying corporate governance. The OECD Guidance Document "Principles of Corporate Governance" defines the fundamental positions of the mission of corporations based on these common elements. They are formulated to cover various existing models. These "Principles" focus on the management problems that have arisen as a result of the separation of ownership from management. Some other aspects related to company decision-making processes, such as environmental and ethical issues, are also taken into account, but they are covered in more detail in other OECD documents (including the “Guideline” for transnational enterprises, the “Convention” and the “Recommendation on the fight against bribery”), as well as in the documents of other international organizations.

The extent to which corporations adhere to the basic principles of good corporate governance is becoming an increasingly important factor in investment decisions. Of particular importance is the relationship between corporate governance practices and the ability of companies to source funding from a much wider range of investors. If countries are to take full advantage of the global capital market and raise long-term capital, corporate governance practices must be convincing and understandable. Even if corporations do not rely primarily on foreign sources of funding, adherence to good corporate governance practices can bolster domestic investor confidence, lower the cost of capital, and ultimately encourage more stable sources of funding.

It should be noted that corporate governance is also affected by the relationship between the participants in the governance system. Controlling shareholders, which may be individuals, families, alliances or other corporations acting through a holding company or through mutual ownership of shares, can significantly influence corporate conduct. As equity holders, institutional investors are increasingly demanding voting rights in corporate governance in some markets. Individual shareholders are generally reluctant to exercise their management rights and cannot help but worry about whether they are treated fairly by majority shareholders and management. Lenders play an important role in some systems of government and have the potential to exercise external control over the activities of corporations. Employees and other stakeholders make an important contribution to the long-term success and performance of corporations, while governments create the overall institutional and legal structures for corporate governance. The role of each of these actors and their interactions vary widely across countries. In part, these relations are regulated by laws and by-laws, and in part - by voluntary adaptation to changing conditions and market mechanisms.

According to the principles of corporate governance of the OECD, the corporate governance structure should protect the rights of shareholders. The main ones include: reliable methods of registration of property rights; alienation or transfer of shares; obtaining the necessary information about the corporation on a timely and regular basis; participation and voting at general meetings of shareholders; participation in board elections; share in corporate profits.

So, the structure of corporate governance should ensure equal treatment of shareholders, including small and foreign shareholders, for all should be provided with effective protection in case of violation of their rights.

The corporate governance framework should recognize the statutory rights of stakeholders and encourage active collaboration between corporations and stakeholders to create wealth and jobs and ensure the sustainability of the financial health of enterprises.

The financial crises of recent years confirm that the principles of transparency and accountability are the most important in the system of effective corporate management. The corporate governance structure should provide timely and accurate disclosure of information on all material matters relating to the corporation, including the financial position, performance, ownership and management of the company.

In most OECD countries, extensive information is collected both on a mandatory and voluntary basis on publicly traded and unlisted large enterprises and subsequently disseminated to a wide range of users. Public disclosure is usually required at least once a year, although in some countries such information must be provided semi-annually, quarterly, or even more frequently in the event of significant changes in the company. Not content with minimum disclosure requirements, companies often voluntarily provide information about themselves in response to market demands.

Thus, it becomes clear that a strict disclosure regime is the main pillar of market monitoring of companies and is of key importance for shareholders to exercise their right to vote. The experience of countries with large and active stock markets shows that disclosure can also be a powerful tool to influence company behavior and protect investors. A strict disclosure regime can help raise capital and maintain confidence in the stock markets. Shareholders and potential investors need access to regular, reliable and comparable information that is detailed enough to enable them to assess the quality of administration's management and make informed decisions about the valuation, ownership and voting of shares. Insufficient or unclear information can impair the functioning of the market, increase the cost of capital and lead to an abnormal allocation of resources.

Disclosure also helps to improve public understanding of the structure and operation of enterprises, corporate policies and performance in relation to environmental and ethical standards, and the relationship of companies with the communities in which they operate.

Disclosure requirements should not place undue administrative burdens or unjustified costs on businesses. Nor is it necessary for companies to disclose information about themselves that could jeopardize their competitive position, unless disclosure of such information is required to make a well-informed investment decision and not to mislead the investor. In order to determine the minimum information that must be disclosed, many countries apply the "concept of materiality". Material information is defined as information whose omission or misrepresentation could influence the economic decisions taken by users of the information.

Audited financial statements showing financial results A company's operations and financial position (typically the balance sheet, income statement, cash flow statement, and notes to the financial statements) are the most common source of information about companies. Two main goals financial statements in their current form are to provide proper controls and a basis for valuing securities. The minutes of the discussions are most useful when they are read in conjunction with the accompanying financial statements. Investors are particularly interested in information that can shed light on the prospects for a business.

In addition to information about their business objectives, companies are encouraged to also provide information about their business ethics policies, environment and other public policy commitments. Such information can be useful to investors and other users of information in order to best assess the relationship between companies and the communities in which they operate, as well as the steps that companies have taken to achieve their goals.

One of the fundamental rights of investors is the right to receive information about the ownership structure in relation to the enterprise and the relationship of their rights with the rights of other owners. Often different countries require the disclosure of ownership data after reaching a certain level of ownership. Such data may include information about significant shareholders and other persons who control or may control the company, including information about special voting rights, agreements between shareholders to own controlling or large blocks of shares, significant cross-shareholdings and mutual guarantees. Companies are also expected to report related party transactions.

Investors require information about individual board members and principal officers so that they can evaluate their experience and qualifications, as well as the potential for conflicts of interest that could affect their judgment.

It should be noted that shareholders are also not indifferent to how the work of members of the board and chief executives is remunerated. Companies are generally expected to provide sufficient information about remuneration paid to board members and chief executive officers (individually or collectively) to enable investors to properly assess the costs and benefits of remuneration policies and the impact of vested interest schemes, such as the possibility acquisition of shares, on performance.

Users of financial information and market participants need information about significant risks that are reasonably predictable. Such risks may include risks associated with a particular industry or geographic area; dependence on certain types of raw materials; risks in the financial market, including risks associated with interest rates or exchange rates; risks associated with derivative financial instruments and off-balance sheet transactions, as well as risks associated with environmental liability.

Disclosure of information about risks is most effective if it takes into account the characteristics of the sector of the economy in question. It is also useful to report whether companies use risk monitoring systems.

Companies are encouraged to provide information on key matters relating to employees and other stakeholders that may have a material impact on the company's results of operations.

Topic "Corporate Control: Foundations, Motivation, Forms" the grounds and forms of control and the behavior of subjects (shareholders, financial institutions and organizations, etc.) in the relevant forms of control are considered.

Corporate control in the broad sense of the word, it is a set of opportunities to benefit from the activities of a corporation, which is closely related to such a concept as “corporate interest”.

Corporate governance is a permanent, successive provision of corporate interests and is expressed in corporate control.

The grounds for establishing corporate control may be:

Formation of an extensive and connected technological, industrial, marketing and financial chain;

Resource concentration;

Consolidation of markets or the formation of new markets, expansion of the share of corporations in the existing market;

Consolidation / formation of new markets or expansion of the corporation's share in the existing market;

Protecting the interests of the owner of capital, strengthening the position of managers, i.e. redistribution of rights and powers of subjects of corporate control;

Removal of competing corporations;

Increasing the size of the property, etc.

These most widespread bases operate throughout the history of joint-stock companies. The influence and role of each of them varies with time and economic conditions. However, the existence of grounds for establishing corporate control does not yet mean its actual implementation. In order for the existing structure of control to be changed, there must be accumulated objective factors providing such a change.

Control is associated with the right to manage the equity capital of joint-stock companies, technological process, cash flows. In this sense, participation in the capital of a corporation, as well as the possession of licenses, technologies, scientific and technical developments, increase the possibilities of control. Access to financial resources and external financing plays an important role. For large joint-stock companies, there is a great dependence on sources of money capital, and therefore the institutions that ensure its concentration play a crucial role in strengthening corporate control.

At the same time, the interaction of a joint-stock company with other corporations is expressed in competition and rivalry of “corporate interests”. Different corporate interests, colliding, lead to the modification of corporate control and corporate governance objectives.

In turn, such a category as the motivation of corporate control is associated with the accumulation and concentration of opportunities that ensure corporate governance, through which the satisfaction of corporate interests is achieved. However, the motivation for control does not always come from the interests of some given corporation; this motivation can feed on the interests of other, competing corporations. It is also true that in the desire for control, interests external to the corporation can be traced, but at the same time they are quite close and “friendly”.

Consider the forms of corporate control: shareholder, managerial and financial, each of which is represented different categories legal entities and individuals.

Shareholder control represents an opportunity to accept or reject certain decisions by shareholders having the required number of votes. It is the primary form of control and reflects the interests of the shareholders of the company.

The implementation of corporate control, primarily shareholder control, allows without participation credit institutions make the investment process as straightforward as possible. However, the development of direct forms of investment complicates the individual investment choice, forcing a potential investor to seek qualified consultants and additional information. That is why the history of the corporation is constantly connected, on the one hand, with the maximum democratization of investment forms, and on the other hand, with an increase in the number of financial intermediaries represented by financial institutions.

Management control represents the ability of individuals and / or legal entities to ensure the management of the economic activity of the enterprise, the succession management decisions and structures. It is a derivative form of corporate control from shareholder control.

Financial control is an opportunity to influence the decisions of the joint-stock company through the use of financial instruments and special funds.

The role of credit financial institutions consists in providing the corporation with financial resources, a mechanism for the circulation of funds. They either represent the ultimate owners of capital, acquiring shareholding control rights, shares, or lend to the enterprise from funds borrowed from the owners of cash savings. In both cases, there is an expansion of the direct sources of financing of society.

Thus, the primary function of credit and financial institutions is to lend to society. Financial control is formed on the basis of credit relations. Because of this, financial control is opposed to joint-stock control, as it is formed in the process of choosing between own and external sources of financing for a joint-stock company. The dependence of the joint-stock company on external sources funding, as well as the expansion of such sources, increases the importance financial control.

Development of credit and financial institutions and organizations and expansion of their role in financing entities entrepreneurial activity leads to the development of a relationship of control. The latter become more and more complex, being distributed over different levels. In the economy, a situation of universal dependence and responsibility is being formed:

corporations ---- before the shareholders, which may be large financial and credit organizations ---- before the owners of savings ---- before the corporation.

Especially the "democratization" of corporate control is facilitated by the development of pension and insurance savings systems in society. Private non-state pension funds, being formed on the basis of a large joint-stock company, accumulate significant long-term financial resources that can be invested in corporate equity. From an economic point of view, pension funds are owned by their members, i.e. corporation employees. These funds are able to accumulate significant amounts of money and thus contribute to the development of shareholder control. Professional asset management services for pension funds are usually provided by financial institutions.

Similar situations develop in insurance companies.

In practice, on the one hand, there is a constant desire to unite all forms of control, on the other hand, the process of concentration of certain forms of control in different entities leads to a certain democratization of corporate control as a whole.

Establishing control over a corporation through a significant increase in both shareholder and financial control requires the diversion of significant financial resources. Wanting to establish control over a certain corporation, fund (bank) managers find themselves in a situation of a “conflict of interest”: clients and corporate ones. To avoid this, the managers themselves or state institutions establish certain restrictions on the implementation of the corporate interests of those financial organizations that are responsible to the broad masses of individual owners of the funds accumulated by these organizations. The state determines the framework for the participation of financial institutions in corporate control.

Topic "Boards of Directors and Executive Bodies of Issuers» schematically presents the structure of the board of directors and the characteristics of an independent board of directors in accordance with the OECD recommendations.

One of the internal mechanisms of control over the activities of management, designed to ensure the observance of the rights and interests of shareholders, is the Board of Directors, which is elected by the shareholders. The board of directors, in turn, appoints the executive management of the corporation, which is accountable for its activities to the board of directors. Thus, the board of directors is a kind of intermediary between the management and shareholders of the corporation, regulating their relations. In the Canadian and American systems, there is a practice of insuring board members against unexpected liability.

Schematically, the structure of the board of directors of a company is as follows (for example, in Canada):

1/3 - management;

Combining the positions of CEO and Chairman of the Board of Directors;

Leadership in corporate strategy - it is necessary, together with management, to develop a system of benchmarks to assess the success of a corporation's strategic plan, to ensure a collective understanding of the quality and reliability of decisions, without reducing the level of openness of the discussion of board members;

Active control over the activities of management - the board should be engaged in monitoring, motivating and evaluating the activities of management;

Independence - the objectivity of the board's judgments on the state of corporate affairs either due to the greater participation of board members - external directors, or the appointment of a person who does not belong to the management circle to the position of chairman of the board, the appointment of an independent "leader" of the board. Creation of specialized committees consisting exclusively of external directors (in the field of audit);

Control over the implementation of the audit - the board is responsible for ensuring openness and access to financial information, which requires the analysis and approval of the annual report, periodic interim reporting, and also assumes responsibility for the corporation's compliance with laws;

Control over the appointment of members of the board of directors - participation in the discussion of management when choosing members of the board at the annual meeting of shareholders does not have a decisive influence. In some OECD countries, this task is increasingly controlled by non-management board members;

Accountability to shareholders and society - it is necessary to assess and develop the internal and external "civil" responsibility of the corporation (corporate ethics);

Regular self-evaluation - through the establishment and implementation of performance criteria for its members and the self-evaluation process.

These seven principles relating to the role of the board should serve as the basis for company-specific initiatives to improve corporate governance.

AT Russian practice, if you own 70% of the company's shares, you can add 7 members to the board of directors out of 9.

Among the criteria that apply to independent directors, the following can be distinguished:

Higher education, Doctor of Sciences;

Experience in a similar enterprise (for example, in Canada - 10 years);

Age up to 60 years (in Canada - 64-67 years);

Does not own any shares of this corporation;

Loyalty to management, i.e. independence of judgment and expression.

So, for example, in the board of directors of the Krasny Oktyabr confectionery factory, out of 19 members of the board of directors, 6 are independent.

Both in the literature and in practice, among the most common causes of crises in an enterprise, management errors are singled out. There is a relationship between the number of independent directors and crisis monitoring: the smaller the quota of independent directors on the board of directors, the greater the likelihood of a crisis in management, and vice versa.

It should be noted that many issuers do not have provisions governing the election and composition of boards of directors, establishing requirements for the competence of members of boards of directors, their independence, and for the forms of representation of small shareholders and external investors on the board of directors. Often there are situations when, in violation of the law, more than half of the board of directors consists of persons who are simultaneously members of the collegial executive body, and even meetings of these management bodies are held jointly.

Members of boards of directors, representing the interests of small shareholders or outside investors, are often excluded from objective information about the issuer, which is necessary for the effective exercise of their powers. The existing procedures for convening and holding meetings of the board of directors for most Russian issuers do not contain requirements for the procedure, timing and volume of information provided to members of the board of directors for decision-making, there are no criteria for evaluating the performance of members of the board of directors and executive bodies. As a result, neither the remuneration of the members of the board of directors and executive bodies, nor their liability in any way depend on the results of the financial and economic activity of the issuer.

At the same time, there are no specific rights of members of the board of directors, which does not allow members of the board of directors - minority representatives or independent directors - to receive the information necessary to exercise their powers.

Neither statutes nor internal documents issuers, as a rule, do not contain a clear list of duties of members of the board of directors and executive bodies, which does not allow to fully implement legislative norms establishing liability for failure to fulfill such obligations. In case of violations committed by the directors and managers of the corporation, shareholders should be able to bring a claim against the manager in bad faith, but in practice this rule is practically not applied.

Small shareholders face significant challenges in seeking protection from managerial malpractice, in particular the need to pay significant government fees.

According to federal law dated December 26, 1995 No. 208-FZ “On Joint-Stock Companies”, the board of directors of the company has the right to temporarily remove managers who, in his opinion, have made a mistake, without waiting for an extraordinary meeting of shareholders. This will, in our opinion, protect the rights of major shareholders. In addition, Art. 78 of the Law expands the list of major transactions (including loans, pledges, credits and guarantees) related to the acquisition, alienation or the possibility of alienation by the company of 25% or more of property at the book value as of the last reporting date (except for purchase and sale transactions, and also transactions with placement by means of subscription (realization) of ordinary shares of the company). The general meeting and the board of directors will now make a decision not to commit, but to approve a major transaction.

On topic: "Peculiarities of corporate governance in the transitional economy of Russia" the distinctive features of the national model of corporate governance are highlighted. Institutional and integration trends in the process of market transformations in Russia have led to the formation of a corporate sector, including large industrial and industrial and commercial joint-stock enterprises, financial and industrial groups, holding and transnational companies, which to a greater extent determine the leading role in providing economic growth countries.

The distinguishing features of the corporate governance system in Russia at present are the following:

Relatively high proportion of managers in large enterprises compared to world practice;

Rather low share of banks and other financial institutional investors;

In fact, there is no such national group of institutional investors as pension funds, which are the most important market players in developed countries with market economy;

The undeveloped securities market ensures low liquidity of the shares of most enterprises and the impossibility of attracting investments from the small business sector;

Enterprises are not interested in ensuring a decent reputation and transparency of information due to the underdevelopment of the stock market;

Relationships with creditors or shareholders are more important to business leaders than relationships with owners;

The most important feature is the "opacity" of property relations: the nature of privatization and the post-privatization period has led to the fact that it is virtually impossible to draw a clear line between the real and nominal owners.

Changing strategies of some Russian companies in the direction of ensuring the system of financial "transparency" resulted in an excessive increase in the costs of the transition to international financial reporting standards (IFRS), or "generally accepted accounting principles" (GAAP). In Russia, such companies as Gazprom, RAO UES of Russia, Yukos and others were among the first to make this transition. The reform of the accounting and financial reporting system will require significant material costs and time.

It should be noted that among the important factors that influence the formation of the national model of corporate governance, the following can be distinguished:

The structure of shareholding in a corporation;

Specificity financial system in general, as a mechanism for transforming savings into investments (types and distribution of financial contracts, the state of financial markets, types of financial institutions, the role of banking institutions);

The ratio of sources of financing of the corporation;

Macroeconomic and economic policy in the country;

Political system (there are a number of studies that draw direct parallels between the structure of the political system "voters - parliament - government" and the model of corporate governance "shareholders - board of directors - managers");

History of development and modern features legal system and culture;

Traditional (historically formed) national ideology; established business practices;

Traditions and degree of state intervention in the economy and its role in regulating the legal system.

A certain conservatism is characteristic of any model of corporate governance, and the formation of its specific mechanisms is due to the historical process in a particular country. This means, in particular, that one should not expect rapid changes in the corporate governance model following any radical legal changes.

It should be emphasized that Russia and other countries with economies in transition are currently characterized only by formative and intermediate models of corporate governance, which depend on the chosen model of privatization. They are characterized by a fierce struggle for control in a corporation, insufficient protection of shareholders (investors), insufficiently developed legal and state regulation.

Among the most important specific problems inherent in most countries with economies in transition and creating additional difficulties in the formation of corporate governance and control models, the following should be singled out:

Relatively unstable macroeconomic and political situation;

The unfavorable financial condition of a large number of newly created corporations;

Insufficiently developed and relatively inconsistent legislation in general;

Dominance in the economy of large corporations and the problem of monopoly;

In many cases, there is significant initial dispersion of share ownership;

The problem of “transparency” of issuers and markets and, as a result, the absence (underdevelopment) of external control over the managers of former state-owned enterprises;

Weak domestic and foreign investors who are afraid of many additional risks;

Absence (oblivion) of traditions of corporate ethics and culture;

Corruption and other criminal aspects of the problem.

This is one of the fundamental differences between the "classical" models that have developed in countries with developed market economies, which are relatively stable and have more than a century of history.

The direct and automatic transfer of foreign models to the “virgin” soil of transitional economies is not only pointless, but also dangerous for further reforms.

The Russian model of corporate governance is the following “Management Triangle”:

The essential point is that the board of directors (supervisory board), exercising the function of control over management, must itself remain an object of control.

For the majority of large Russian joint-stock companies, the following groups of participants in relations that make up the content of the concept of "corporate governance" can be distinguished:

Management, including the sole executive body of the issuer;

Major shareholders (owners of a controlling stake in voting shares of the company);

Shareholders owning an insignificant number of shares (“minority” (small) shareholders);

Owners of other securities of the issuer;

Creditors who are not owners of the issuer's securities;

State authorities (of the Russian Federation and constituent entities of the Russian Federation), as well as local governments.

In the process of corporate management activity, a “conflict of interest” arises, the essence of which is not always correctly understood by the managers and employees of the enterprise: it does not consist in the very fact of violating the “corporate interest” in favor of an individual or group, but in the possibility of a situation arising when the question arises of choosing between the interest of the corporation as a whole and any other interest. In order to avoid such a conflict, the task of corporate governance is to prevent the likelihood of changes in the hierarchy of interests and target functions of participants using managerial, technological, and organizational means.

QUESTIONS FOR SELF-CHECKING

1. Define the essence and elements of corporate governance.

2. Expand the content of the basic theories of corporate governance.

3. List the main characteristics of the Anglo-American, German and Japanese models of corporate governance.

4. Describe the basic principles of corporate governance and evaluate the effectiveness of their operation in the management of Russian joint-stock companies.

5. Define the main forms of corporate control.

6. What are the main characteristics of an independent board of directors? Determine, in your opinion, the most acceptable of them for the board of directors of Russian companies.

7. Expand the features of the national model of corporate governance. What are the main difficulties of its formation?

1. Bakginskas V.Yu., Gubin EM. Management and corporate control in joint-stock companies. M.: Jurist, 1999.

2. Bocharov V.V., Leontiev V.E. Corporate Finance. St. Petersburg: Peter, 2002.

3. Lvov Yu.A., Rusinov V.M., Saulin A.D., Strakhova O.A. Management of a joint stock company in Russia. M .: OAO Printing House Novosti, 2000.

4. Management of a modern company / / Ed. B. Milner, F. Liis. M.: INFRA-M, 2001.

5. Khrabrova I.A. Corporate Governance: Integration Issues "Affiliates, Organizational Design, Integration Dynamics". M.: Ed. house "Alpina", 2000.

6. Shein V.I., Zhuplev A.V., Volodin A.A. Corporate management. Experience of Russia and the USA. M .: OAO Printing House Novosti, 2000.

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Tutorial output:

Fundamentals of management: modern technologies. Teaching aid / ed. prof. M.A. Chernyshev. Moscow: ICC "MarT", Rostov n / D: Publishing Center "MarT", 2003-320 p. (Series "Economics and Management".).

Governing bodies in corporations. Corporate Governance

Corporate Governance Code

The principle of residual competence

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