International trade and economic unions. What economic unions exist? List of international economic unions
MINISTRY OF EDUCATION AND SCIENCE OF THE RF
Branch of a state educational institution
higher professional education
Baikal State University
economics and law in Bratsk
Department of Jurisprudence
COURSE WORK
In the discipline "Business Law"
LEGAL STATUS OF FINANCIAL AND INDUSTRIAL GROUPS
Completed:
Student
Groups Yuruv-09PO _____________________ M.O. Illarionova
Checked:
Teacher
Ph.D., Associate Professor _________________________ T.I. Afanasyeva
Bratsk 2011
INTRODUCTION………………………………………………………………………..3
1 CONCEPT AND SIGNS OF FINANCIAL AND INDUSTRIAL GROUPS……7
2 LEGAL STATUS OF FINANCIAL AND INDUSTRIAL GROUPS.. ...9
3 CLASSIFICATION AND TYPES
FINANCIAL AND INDUSTRIAL GROUPS…………………………………………………….16
4 PROCEDURE FOR REGISTRATION AND ORGANIZATION OF FIG ACTIVITIES…..21
CONCLUSION…………………………………………………. …………………..27
LIST OF REFERENCES….……….…………………….30
INTRODUCTION
The emergence of financial and industrial groups (hereinafter referred to as FIGs) in Russia is associated with the emergence of Decree President of the Russian Federation dated December 5, 1993 N 2096 “On the creation of financial and industrial groups in the Russian Federation” and approved by him Provisions about financial and industrial groups and the procedure for their creation. In the same year, the first financial and industrial group "Ural Plants" was registered.
In accordance with Regulations Groups of enterprises, organizations, financial and credit institutions and investment institutions, whose capitals are united in the organizational and legal forms and sizes determined by this regulatory act, were considered as financial and industrial groups.
Integration processes solve very important issues: from the survival of individual organizations in industry structures to the formation of inter-industry economic complexes.
A financial-industrial group is one of the forms of organization of production and economic complexes.
A financial-industrial group (FIG) is a form of coexistence of business entities. This legal and economic “symbiosis” is due to a number of reasons, primarily the need to expand and maintain cooperation between enterprises and the development of economic ties. At the same time, a financial-industrial group (FIG) is not just a production and technological complex, but first of all an investment and financial institution or an association of technological and economically related production, trading and financial enterprises.
In 1997, there were already 47 financial and industrial groups operating, which included 500 enterprises and organizations with more than 3 million employees. These financial industrial groups provided more than 10% of Russia's GNP. Statistics show a steady degree of development of financial and industrial groups: as of November 1, 2001, 86 financial and industrial groups were registered, including 15 transnational ones (among them 10 interstate ones), while their total number in 2003 increased by an average of 104 associations.
In history, modern “financial-industrial groups” are represented by their prototypes - associations of large trade and financial companies. Therefore, at the initial stage of development, financial and industrial groups were defined as a “synthesis” of material resources with production and consumer instruments. In many ways, the “echoes” of history show the modern understanding of such forms of associations of legal entities.
In the post-Soviet economic space, the term “financial-industrial group” is used in several interrelated, but not entirely coinciding, meanings. Most often it denotes any form of relatively stable interpenetration of industrial and financial capital.
Against the background of the existing concept of financial and industrial groups, there is some “blurring” of their definition in comparison with other corporate associations. General signs, embedded in the concept of corporate structures, are easily “discovered” in existing forms of associations, which sometimes does not allow us to clearly establish the essence of a particular legal formation.
According to a number of authors, such an ambiguous understanding of the status of financial industrial groups is the result of industry division Russian law, which arose back in Soviet period development of our state. Currently, for example, O.A. Belyaeva characterizes financial and industrial groups using the terminology of antimonopoly legislation as a “group of persons” and an “economic entity.”
Currently, the issue related to the legal analysis of associations of commercial organizations in the form of financial and industrial groups is becoming relevant from theoretical and practical points of view. The vagueness of legislative formulations leads to a fairly broad interpretation of the concept of “financial-industrial group” in legal science.
Purpose of this work is to analyze the concept and legislative regulation of the activities of financial industrial groups, ways to implement in practice the norms and principles of Russian law enshrined in the Civil Code of the Russian Federation, which greatly facilitates the study of special sectoral legal disciplines.
The above goal is realized through the following main research tasks:
- studying the theory of the issue taking into account the latest achievements of scientific progress;
- analysis of the development of individual rules of law relating to the creation and activities individual species FPG;
- analysis of existing problems in this area of law at the present stage.
Among the dominant research methods used by the author in the process of studying the subject, the method of historical and legal analysis, systematic structural analysis, as well as the method of interpretation of legal norms were used.
The object of study of this course work is the very concept of a financial-industrial group, distinctive features existing types and methods of their creation. The subject is the rules of law governing the creation of financial industrial groups.
This topic has found fairly wide coverage in the works of leading theorists and practitioners in the field of business law. Among the most famous scientific works of Russian scientists, it seems necessary to the author of this study to highlight scientific works the doctors legal sciences, Professor Sergeev A.P., Doctor of Law, Professor, Tolstoy Yu.K., Doctor of Law, Professor Sadikov O.N., Doctor of Economics Baranenkov V.V. and others, on whose work the author relies in his work.
1 CONCEPT AND SIGNS OF FINANCIAL AND INDUSTRIAL GROUPS
Analysis modern trends in the economic sphere shows that the integration of banking and industrial capital - characteristic feature and the objective pattern of the emergence and development of powerful financial and industrial associations. In industrial developed countries this integration is almost complete, a few (compared to other business structures) transnational companies (TNCs), financial-industrial groups (FIGs), as well as other financial-industrial associations have been created and are successfully operating in the domestic and foreign markets. Thus, as a result of the union of US banking and industrial capital, large financial associations were created in the form family groups(Morgans, Rockefellers, Mellons, etc.). The practice of merging the largest concerns and banks in Germany is interesting (for example, financial groups"Deutsche Bank", "Dresdner Bank", "Commerz Bank"). Large financial associations operate in France and other European countries. In France, these are the powerful oil group "Company Française de Petroleum", the oil company "Elf-Akiten", in the automotive industry - the private "Peugeot" and the state-owned "Renault".
In the literature, a controversial opinion has been expressed that financial industrial groups as a form of entrepreneurial association is a product of domestic economic and legal thought 1 . Economists, on the contrary, give examples from the world experience of creating financial industrial groups. 2
In Japan, there are two levels of grouping: kige shudan (shudan) and kige guruppu (or keiretsu). Their main difference lies primarily in the nature of the activities of financial and industrial associations and the system of connections. Sudans are universal inter-industry complexes united around the corresponding bank and trading company. The connections between the participants of the hereon are strengthened by a system of cross-shareholding, cross-directorate, etc. Among the first level, it is necessary first of all to name such financial and industrial associations of Japan as Mitsui, Mitsubishi, Sumitomo, Fue (Yasuda).
Kige guruppu (keiretsu) are associations of a predominantly vertical type. In the keiretsu structure, there are various types of connections between the parent company and the enterprises included in the association, the basis of which is the production profile of the parent company.
IN modern Russia The process of forming financial and industrial associations, including financial industrial groups, is in its infancy. We can talk about the creation of the largest holdings, financial industrial groups and alliances of commercial banks in the Russian Federation. For example, the oil and gas conglomerate includes the National Reserve Bank, Gazprombank, CB Imperial, RAO Gazprom, oil company"LUKOIL", foreign trade association "Gazexport", etc.
According to the estimates of the President of the Association of Financial and Industrial Groups of Russia O.N. Soskovets, currently more than 80 groups have received official FIG status. They included: on a voluntary basis 1000 industrial enterprises and organizations, more than 80 financial and credit institutions. The total number of employed is approaching 4 million people. The groups ensured an increase in product output by 3.5%, volume products sold- by 5%, exports - by 10%, investments - by 6%. These are the statistics, but behind them lies the positive dynamics of the development of financial and industrial groups in Russia. 3
In the banking market there is also a concentration and centralization of banking capital. Fast growth groups of banks occupying strong positions, observed in Moscow. This situation will continue. So, historically London is the most important financial center.
The growth of capital of Moscow banks led to the expansion of their sphere of interests both within Russia and abroad. For example, CB "Russian Credit" has subsidiary banks in Kyrgyzstan, Turkmenistan, Georgia, and Azerbaijan. In the foreseeable future, the formation of financial associations in Russia may end in the form of family groups. The opportune moment has not yet arrived for this completion.
The literature (mainly economic) notes the positive experience of the formation and development of financial and industrial groups in South Korea. In particular, at the stage of formation market economy South Korea has severely closed its market, creating large structures, with the help of which it won a place in the foreign market. As for Russia, here, on the contrary, there is an unjustified openness of the domestic economy to foreign suppliers (manufacturers).
In addition, the authoritarian style of leadership, state patronage, and system of state benefits used in South Korea are close and understandable to the Russian economy and political establishment. The characteristic features of the Eastern management model are more consistent not only with the nature of our society, but also with the Russian mentality. 4
Description of work
The purpose of this work is to analyze the concept and legislative regulation of the activities of financial industrial groups, ways to implement in practice the norms and principles of Russian law enshrined in the Civil Code of the Russian Federation, which greatly facilitates the study of special sectoral legal disciplines.
The above goal is realized through the following main research tasks:
studying the theory of the issue taking into account the latest achievements of scientific progress;
analysis of the development of certain rules of law relating to the creation and activities of certain types of financial industrial groups;
analysis of existing problems in this area of law at the present stage.
Content
INTRODUCTION………………………………………………………………………………..3
1 CONCEPT AND SIGNS OF FINANCIAL AND INDUSTRIAL GROUPS……7
2 LEGAL STATUS OF FINANCIAL AND INDUSTRIAL GROUPS.....9
3 CLASSIFICATION AND TYPES
FINANCIAL AND INDUSTRIAL GROUPS…………………………………………………….16
4 PROCEDURE FOR REGISTRATION AND ORGANIZATION OF FIG ACTIVITIES…..21
CONCLUSION…………………………………………………………….…………………..27
LIST OF REFERENCES….……….…………………….30
Legal status of these entities is determined by the Federal Law of November 30, 1995 “On Financial and Industrial Groups”. Financial-industrial group (FIG) is a collection legal entities operating as main and subsidiary companies or who have fully or partially combined their tangible and intangible assets (participation system) on the basis of an agreement on the creation of a financial industrial group.
Participants of a financial-industrial group are legal entities that have signed an agreement on the creation of a financial-industrial group, and the central company of the financial-industrial group established by them or the main and subsidiaries that form a financial-industrial group. By virtue of law or agreement, the conduct of affairs of a financial-industrial group is carried out by a central company, which is a legal entity established by all participants in the agreement on the creation of a financial-industrial group or which is the main company in relation to them. For the obligations of the central company of the financial-industrial group, arising as a result of participation in its activities, the participants bear joint liability in the manner established by the agreement. The highest governing body of the financial industrial group is the board of governors, which includes representatives of all its participants.
The financial and industrial group may include commercial and non-profit organizations, including foreign ones, with the exception of public and religious organizations (associations). Participation in more than one financial and industrial group is not permitted. Based on the essence of a financial and industrial group, it is necessary to include among its participants organizations working in the production of goods and services, as well as banks and other credit organizations.
The status of a financial and industrial group is acquired as a result of its state registration. Regulation of the creation (including state registration), activities and liquidation of financial and industrial groups is carried out by the Ministry of Economic Development and Trade of the Russian Federation. To register a financial industrial group, in particular, the following must be submitted: an application; agreement on the creation of a financial industrial group; copies of registration certificates, constituent documents; consent of the owner of the property of state or municipal enterprises; conclusion of the federal antimonopoly authority; organizational project (package of documents containing necessary information about goals and objectives, investment and other projects and programs, expected results of activities, etc.). The current legislation provides for a permitting procedure for registering financial industrial groups. Projects for creating financial industrial groups are being examined from the point of view of feasibility and efficiency. In the case of a positive expert opinion, the financial and industrial group is subject to registration and inclusion in the State Register of Financial and Industrial Groups of the Russian Federation.
State support for the activities of financial industrial groups is carried out through the provision of state guarantees to attract various types of investments, the transfer of shares of participants temporarily assigned to the state to the trust management of a central company, etc.
13. Legal status of commodity and stock exchanges
Law of the Russian Federation " About commodity exchanges and exchange trading» dated 02/20/1992 No. 2383-1 (as amended on 04/15/2006 No. 47-FZ);
Federal Law " About the securities market in the Russian Federation» dated April 22, 1996 No. 39-FZ (as amended on July 27, 2006 No. 138-FZ).
Commodity and stock exchanges – organizers of trade in the commodity market and securities markets (provide services that directly facilitate the conclusion of transactions in exchange-traded goods and securities between participants in exchange trading).
Exchanges – a tool for identifying market prices and developing competition (the main task is organizing and conducting open and public auctions).
Commodity exchange- an organization with legal rights, forming a wholesale market by organizing and regulating exchange trading, carried out in the form of open, public trading, held in a predetermined place and in certain time according to the rules established by it (a special subject whose exclusive legal capacity is the organization and regulation wholesale trade exchange commodities).
Exchange commodity– goods of a certain type and quality that have not been withdrawn from circulation, including a standard contract and bill of lading for the specified goods, admitted in the prescribed manner by the exchange to exchange trading; NOT real estate and intellectual property.
Exchange transaction– an exchange agreement for a commodity, concluded during exchange trading.
Types of exchange transactions – transactions related to:
mutual transfer of rights and obligations in relation to real goods;
mutual transfer of rights and obligations in relation to real goods with a deferred delivery date ( forward transactions);
mutual transfer of rights and obligations in relation to standard contracts for the supply of exchange goods ( futures transactions);
assignment of rights to future transmission rights and obligations in relation to a commodity or a contract for the supply of a commodity ( options transactions);
as well as other transactions in relation to exchange goods, contracts or rights established in the rules of exchange trading.
A commodity exchange has no right to engage in activities not directly related to the organization of exchange trading. (trading, trading and intermediary, making deposits, acquiring shares (shares), shares of organizations that do not have the purpose of conducting exchange activities).
Cannot participate in the establishment of the exchange organs state power and management, credit organizations, insurance and investment companies and foundations, public, religious and charitable associations (organizations) and funds, f/l, which are not individual entrepreneurs (the share of each founder or member of the exchange in its authorized capital cannot exceed 10%; a commodity exchange cannot be formed in the form of a unitary enterprise) .
Commodity exchanges can create associations to represent and protect common interests.
The governing bodies of a commodity exchange are organized depending on the organizational and legal form of the exchange (the structure of management bodies is determined by the exchange in the Rules of Exchange Trading and other local regulations).
Exchange activity is a licensed type of activity.
Exchange trading participants – members of the exchange and visitors to exchange trading.
Exchange members – persons participating in the formation of the authorized capital of the exchange or who have made membership or other targeted contributions to its property (they are given the right to participate in exchange trading, make decisions on general meetings, participate in the work of other management bodies, receive dividends and other rights):
1) Full(entitled to participate in exchange trading in all sections and for a certain number of votes at the general meeting of members of the exchange and at general meetings of members of sections of the exchange).
2) Incomplete(has the right to participate in exchange trading in the relevant section of the exchange and for a certain number of votes at the general meeting of exchange members and at the general meeting of members of the exchange section).
In addition to exchange members, visitors (regular and one-time) have the right to participate in exchange trading. (they acquire this right for a certain period and for an appropriate fee; their total number cannot exceed 30% of the total number of exchange members).
Exchange intermediaries have the right to conclude all types of exchange transactions – members of the exchange who are brokerage firms and independent brokers (their activities in making futures (transactions with the possibility of resale of contracts) and options (with the assignment of rights to the future transfer of rights and obligations in relation to an exchange commodity or contract) are subject to licensing).
Other members of the exchange and visitors participate in exchange trading only in real goods and at their own expense , as well as through brokerage houses organized by them or on a contractual basis with brokerage firms or independent brokers.
State regulation of the creation and activities of commodity exchanges is carried out by the Commodity Markets Commission (subordinate to the Federal Financial Markets Service; issues licenses to organize exchange trading; carries out or controls the licensing of exchange intermediaries, exchange brokers; monitors compliance with legislation on exchanges; has the right to send orders to exchange intermediaries to cease activities that contradict the law, and apply appropriate sanctions to the exchange and intermediaries).
Stock Exchange– organizer of trade on the securities market (can be organized either in the form of a joint-stock company or a non-profit partnership).
Federal Law "On the Republican Securities Market" provides for the possibility of carrying out legal activities of a stock exchange in the organizational and legal form of a joint-stock company (the activities of the stock exchange are subject to the Federal Law “On Joint-Stock Companies”) or a non-profit partnership (Federal Law “On Non-Profit Organizations”).
One stock exchange shareholder cannot own 20% or more of shares of each category (and one member of the stock exchange of a non-profit partnership - 20% or more of the votes at the general meeting of members of such an exchange).
Members of the stock exchange of a non-commercial partnership can only be professional participants of the securities market (such stock exchanges can be transformed into joint-stock companies when a decision is made by a 3/4 majority vote of all members of this stock exchange).
Activities related to organizing trade may only be carried out by legal entities that have a license a professional participant of the Securities Market to carry out activities related to organizing trade and (or) a license to carry out stock exchange activities (licensing is carried out by the Federal Financial Markets Service).
The stock exchange has no right to combine this activity with other types of activity. (exception - activities of a currency exchange, a commodity exchange, clearing activities related to the implementation of clearing for transactions with securities investment units of mutual funds, information dissemination activities, publishing activities, activities for leasing property).
Participants in trading on the stock exchange can only be brokers, dealers and managers (other persons can carry out transactions exclusively through the intermediary of brokers).
Participants in trading on the stock exchange of a non-commercial partnership can be only members of such an exchange.
A stock exchange JSC must have a board of directors , an executive management body must be created, ad hoc committee on auditing (evaluation of auditor candidates, consideration of the stock exchange auditor's report).
The stock exchange must have a stock exchange council (if there are several sections, it is possible to create a council for each section; the council carries out preliminary discussion of projects of the most important local NAs; is formed from among officials of the exchange, trading participants, issuers, management companies of investment funds, independent experts; A representative of the Federal Financial Markets Service has the right to attend meetings).
Separate structural unit - listing department (monitors the compliance of securities and their issuers with established requirements).
14. Legal status of credit institutions
Federal Law “On Banks and Banking Activities” dated December 2, 1990 No. 395-1 (as amended on July 25, 2007).
Credit organisation- a legal entity that to make profit as the main goal of its activities on the basis of a special permit (license) of the Central Bank of the Russian Federation (Bank of Russia) has the right to carry out banking operations provided for by this Federal Law. A credit organization is formed on the basis of any form of ownership as a business company.
Credit organizations (primarily banks) provide accumulation and redistribution financial resources, are key links in the non-cash payment system.
Three main functions of a bank: collecting other people's funds, providing credit, facilitating payment transactions.
Main functions of credit institutions: carrying out transactions on the foreign exchange market and the securities market, with precious metals and precious stones; performing a number of public legal functions, being tax agents and currency control agents.
Credit organisation(since the goal is to make a profit) - commercial organization(clause 1 of article 50 of the Civil Code of the Russian Federation) .
Credit organizations can be created in the form of JSC(closed or open), LLC, ODO(clause 3 of Article 66 of the Civil Code of the Russian Federation).
Since the owner of the property of a business company is the company itself (clause 1 of Article 66 of the Civil Code of the Russian Federation), this means that credit institutions have the opportunity to contribute both state-owned municipal and private property to the authorized capital.
Types of credit institutions:
Banks– a credit institution that has the exclusive right to carry out the following in total: Bank operations: attracting funds from individuals and legal entities into deposits, placing these funds on one’s own behalf and at one’s own expense on the terms of repayment, payment, urgency, opening and maintaining bank accounts of individuals and legal entities. Foreign bank– a bank recognized as such under the laws of the foreign state in whose territory it is registered.
Non-bank credit organizations (NPOs)– a credit institution that has the right to carry out certain banking operations provided for by this Federal Law. Acceptable combinations of banking operations for non-bank credit institutions are established by the Bank of Russia. Types of NPOs:
Non-profit organizations carrying out deposit and credit operations;
Settlement non-profit organizations;
Collection organizations;
In accordance with the license of the Bank of Russia to carry out banking operations the bank has the right carry out the issue, purchase, sale, accounting, storage and other operations with securities performing the functions of a payment document, with securities, confirming the attraction of funds into deposits and bank accounts, with other securities, the implementation of transactions with which does not require obtaining a special license in accordance with the Federal Law, and also has the right to carry out trust management of these securities under an agreement with individuals and legal entities.
A credit institution has the right to carry out professional activities in the securities market in accordance with the Federal Law.
The credit institution is not liable for the obligations of the state or the Bank of Russia. The state and the Bank of Russia are not liable for the obligations of a credit organization, except in cases where the state and the Bank of Russia themselves assumed such obligations.
Legislative and executive authorities and local self-government bodies do not have the right to interfere in the activities of credit institutions, except in cases provided for by the Federal Law.
A credit organization, on the basis of a state or municipal contract for the provision of services for state or municipal needs, can carry out individual instructions of the Government of the Russian Federation, executive authorities of constituent entities of the Russian Federation and local self-government bodies, carry out operations with funds from the federal budget, budgets of constituent entities of the Russian Federation and local budgets and settlements with them, ensure the targeted use of budget funds allocated for the implementation of federal and regional programs. Such a contract must contain the mutual obligations of the parties and provide for their responsibilities, conditions and forms of control over the use of budget funds.
A credit organization cannot be obliged to carry out activities not provided for by its constituent documents, except in cases where the credit organization has assumed the corresponding obligations, or in cases provided for by the Federal Law.
The authorized capital of a credit organization is made up of the amount of deposits of its participants and determines minimum size property guaranteeing the interests of its creditors.
newly registered jar on the day of filing an application for state registration and issuance of a license to carry out banking operations, it is established in the ruble equivalent of 5 million euros. Minimum size authorized capital newly registered non-banking credit organization on the day of filing an application for state registration and issuance of a license to carry out banking operations is established in the ruble equivalent of 500 thousand euros(Article 11).
Credit organizations have exclusively economic legal capacity. It consists of a ban on engaging in production, trade and insurance activities (Part 6 of Article 5). This prohibition applies only to credit organizations, so these types of activities can be carried out, for example, by a subsidiary or dependent legal entity of the bank.
Legislation established additional requirements for the corporate name of a credit institution– must contain an indication of the nature of its activities through the use of the words “bank” or “NPO”, as well as an indication of the OPF.
The decision on state registration of a credit organization is made by the Bank of Russia. He also maintains the Book of State Registration of Credit Institutions (KGRKO):
The Bank of Russia sends the documents + decision to the Federal Tax Service;
The Federal Tax Service, within no more than five working days, makes a corresponding entry in the Unified State Register of Legal Entities and sends it to the Bank of Russia with the date and state registration number;
based on this information, the Bank of Russia issues a Certificate of State Registration of the credit organization;
the founders must pay 100% of the declared authorized capital of the credit organization within one month from the date of receipt of the notification of state registration;
confirmation of timely and lawful payment of 100% of the authorized capital is the basis for issuing a license to carry out banking operations.
Credit institutions are subject to extensive public legal requirements. They are subject to regulation and supervision by the Bank of Russia:
are obliged to comply with economic standards and mandatory reserve requirements in order to ensure their financial stability;
classify assets, distinguishing doubtful and bad debts;
organize internal control, ensuring an appropriate level of reliability corresponding to the nature and scale of the operations being carried out;
exercise control over the transactions of its clients in order to combat the legalization (laundering) of proceeds from crime and the financing of terrorism.
Credit institutions are subject to mandatory annual audits, are required to publish an annual report in the public press annually and quarterly a balance sheet, profit and loss statement, information on the level of capital adequacy, the amount of reserves for doubtful loans and other assets.
Revocation of a banking license entails forced liquidation of the credit organization (grounds : establishing the unreliability of the information on the basis of which the license was issued; delay in the commencement of banking operations provided for by the license for more than one year from the date of its issue; establishing facts of significant unreliability of reporting data; delay of more than 15 days in submitting monthly reports (reporting documentation); carrying out, including one-time, banking operations not provided for by the specified license).
An analysis of modern trends in the economic sphere shows that the integration of banking and industrial capital is a characteristic feature and an objective pattern of the emergence and development of powerful financial and industrial associations. In industrialized countries, this integration is almost complete; a few (compared to other business structures) transnational companies (TNCs), financial-industrial groups (FIGs), as well as other financial-industrial associations have been created and are successfully operating in the domestic and foreign markets. Thus, as a result of the union of US banking and industrial capital, large financial associations were created in the form of family groups (Morgans, Rockefellers, Mellons, etc.). The practice of merging of the largest concerns and banks in Germany is interesting (for example, the financial groups Deutsche Bank, Dresdner Bank, Commerce Bank). Large financial associations operate in France and other European countries. In France, these are the powerful oil group "Company Française de Petroleum", the oil company "Elf-Akiten", in the automotive industry - the private "Peugeot" and the state-owned "Renault".
In Japan, there are two levels of grouping: kige shudan (shudan) and kige guruppu (or keiretsu). Their main difference lies primarily in the nature of the activities of financial and industrial associations and the system of connections. Sudans are universal inter-industry complexes united around the corresponding bank and trading company. The connections between the participants of the shudan are strengthened by a system of cross-shareholding, cross-directorate, etc. Among the first level, it is necessary to first of all mention such financial and industrial associations of Japan as Mitsui, Mitsubishi, Sumitomo, Fue. ("Yasuda").
Kige guruppu (keiretsu) are associations of a predominantly vertical type. In the keiretsu structure, there are various types of connections between the parent company and the enterprises included in the association, the basis of which is the production profile of the parent company.
In modern Russia, the process of forming financial and industrial associations, including financial and industrial groups, is in its infancy. We can talk about the creation of the largest holdings, financial industrial groups and alliances of commercial banks in the Russian Federation. For example, the oil and gas conglomerate includes the National Reserve Bank, Gazprombank, CB Imperial, RAO Gazprom, the oil company LUKOIL, the foreign trade association Gazexport, etc.
According to the estimates of the President of the Association of Financial and Industrial Groups of Russia O.N. Soskovets, currently more than 80 groups have received official FIG status. They included 1000 people on a voluntary basis industrial enterprises and organizations, more than 80 financial and credit institutions. The total number of employed is approaching 4 million people. The groups ensured an increase in product output by 3.5%, the volume of products sold - by 5%, exports - by 10%, investments - by 6%. These are the statistics, but behind them lies the positive dynamics of the development of financial and industrial groups in Russia.
In the banking market there is also a concentration and centralization of banking capital. The rapid growth of a group of banks occupying strong positions is observed in Moscow. This situation will continue. Thus, historically London is the most important financial center.
The growth of capital of Moscow banks led to the expansion of their sphere of interests both within Russia and abroad. For example, CB "Russian Credit" has subsidiary banks in Kyrgyzstan, Turkmenistan, Georgia, and Azerbaijan. In the foreseeable future, the formation of financial associations in Russia may end in the form of family groups. The opportune moment has not yet arrived for this completion.
The literature (mostly economic) notes the positive experience of the formation and development of financial industrial groups in South Korea. In particular, at the stage of the formation of a market economy, South Korea strictly closed its market, creating large structures with the help of which it gained a place in the foreign market. As for Russia, here, on the contrary, there is an unjustified openness of the domestic economy to foreign suppliers (manufacturers).
In addition, the authoritarian style of leadership, state patronage, and system of state benefits used in South Korea are close and understandable to the Russian economy and political establishment. The characteristic features of the Eastern management model are more consistent not only with the nature of our society, but also with the Russian mentality. A very interesting and productive idea!
Legislation on financial industrial groups. At the same time, the problem of the formation and development of financial and industrial associations in the Russian Federation is connected not only with political, socio-economic, but also legal issues. Relatively recently (November 30, 1995), the Federal Law “On Financial and Industrial Groups” was adopted in Russia, which establishes legal basis creation, activities and liquidation of financial industrial groups. With his adoption I lost legal force Decree of the President of the Russian Federation of December 5, 1993 N 2096 “On the creation of financial and industrial groups in the Russian Federation.” Currently, other by-laws are in force in this area. Decree of the Government of the Russian Federation dated January 16, 1995 N 48 approved a special program to promote the formation of financial and industrial groups, and Decree of the President of the Russian Federation dated April 1, 1996 N 443 “On measures to stimulate the creation and activities of financial and industrial groups” was signed.<3>. A number of important resolutions of the Government of the Russian Federation were adopted on various issues of the creation and organization of financial industrial groups. These include: Resolution No. 508 of May 23, 1994 “On the procedure for conducting examination of projects for the creation of financial and industrial groups submitted for consideration by the Government of the Russian Federation”<4>, dated May 22, 1996 N 621 “On the procedure for maintaining the state register of financial and industrial groups of the Russian Federation”<5>, dated January 9, 1997 N 24 “On the procedure for maintaining consolidated accounting, reporting and balance sheets of financial and industrial groups”<6>. This list is limited.
Among the departmental acts, it is necessary to mention the letter of the State Property Committee of the Russian Federation dated October 17, 1994 N PM-35/8814 “On some norms regulating the creation of financial and industrial groups and holding companies.” It defines the status of financial industrial groups, the relationship of groups and holdings, concerns, unions, associations and other associations.
The law on financial industrial groups, despite its “youth,” has already become the subject of criticism from not only lawyers, but also economists. So, V.D. Rudashevsky, the author of a remarkable article on the problem under consideration, rightly notes that the said Law should be an act direct action, however, half of its 22 articles contain references to administrative acts, decisions of constituent entities of the Russian Federation and international agreements on almost all issues of fundamental importance. There are also specific gaps and shortcomings of the Law, and this serves as the basis for continuing work on improving both the Law itself and the individual legal acts adopted in pursuance.
We agree with the opinion that in the conditions of the transition period such a Law on Financial Industrial Groups is necessary. The Russian economy is not yet ready to use only market regulators. Thus, in industrialized countries, the legislator does not seek to “regulate” the status of business associations and, in order to maintain freedom of market relations, tries to give flexibility and elasticity to legal structures. In our opinion, it is necessary to continue working on improving the Law on Financial Industrial Groups and determining its place in the system of Russian legislation. So far, the Law on Financial Industrial Groups (as well as the legislation on financial and industrial groups) stands isolated in the current legislation. Neither the Civil Code of the Russian Federation nor the laws on business companies name financial and industrial groups as subjects of law.
Concept and types of financial industrial groups. The Law (Article 2) provides a definition of the concept of financial-industrial group, which differs significantly from the definition contained earlier in Decree of the President of the Russian Federation of December 5, 1993 N 2096. Financial-industrial group is defined as a set of legal entities operating as main and subsidiary companies, either in whole or in part who have combined their tangible and intangible assets (participation system) on the basis of an agreement on the creation of a financial industrial group for the purpose of technological or economic integration to realize the corresponding intentions.
The idea of creating a financial industrial group is not new. A financial industrial group is formed in order to combine the material and financial resources of its participants to increase competitiveness and production efficiency, create rational technological and cooperative ties, increase export potential, etc. In other words, within the framework of financial industrial groups there is a unification of financial (banking) capital and the industrial potential of the region, industry, and country. A financial-industrial group is a financial-industrial oligarchy, which was once criticized by famous classics.
From the legal definition of FIG it follows that groups are organized either in the form of a holding (main company and subsidiaries) or through a participation system in which FIG participants, on the basis of an agreement, combine their tangible and intangible assets in whole and in part. This conclusion deserves attention in the context of comparing financial industrial groups with a holding company. FIG can be modeled as a holding company.
FIG is not a legal entity and cannot be considered as an association of legal entities. Legal entities are the participants of the FIG, as well as the central company of the FIG, formed by all its participants (Article 11 of the Law on FIG).
In our opinion, the use of the phrase “collection of legal entities” in the Law on Financial Industrial Groups cannot be considered as some kind of mistake by the legislator. The Civil Code of the Russian Federation does not contain any provisions regulating the status of financial industrial groups. Contrary to the opinion of A.G. Movsesyan, the form of associations and unions permitted by the Civil Code of the Russian Federation does not provide an opportunity for the integration of banking and industrial capital. From the point of view of the Civil Code of the Russian Federation (Article 121), commercial and non-profit organizations can voluntarily unite into associations (unions) of these organizations. Moreover, associations (unions) are non-profit organizations with the status of a legal entity. For this reason, a number of legal scholars rightly believe that financial industrial groups do not fit into the current system of legal entities.
The status of financial industrial groups is very indicative: it is unacceptable to reduce everything collective entities to the civil legal category "legal entity". Subjects of law, including civil law, can be entities that do not have the characteristics of a legal entity. A breakthrough in this direction has been made. By virtue of paragraph 2 of Art. 27 of the Arbitration Procedure Code of the Russian Federation to the arbitration court (in cases provided for federal laws) jurisdiction over cases of economic disputes and other cases involving entities that are not legal entities. In particular, government bodies, organs local government and other bodies that contacted arbitration court, have procedural rights and obligations of persons participating in the case (Articles 40, 41 of the Arbitration Procedure Code of the Russian Federation).
The Civil Code does not recognize financial industrial groups as a legal entity, i.e. subject civil law. A similar situation is observed in the scope of the norms of other branches of law. The Law on FIGs (Article 13) provides for the possibility of consolidated accounting, reporting and balance sheets for FIG participants in the cases and in the manner established by the legislation of the Russian Federation. The procedure for maintaining consolidated accounting, reporting and balance of financial industrial groups is determined by the Government of the Russian Federation. As noted earlier, Resolution of the Government of the Russian Federation dated January 9, 1997 No. 24 was adopted on this issue. In addition, the Law does not exclude the recognition in the future of tax legal personality of financial and industrial groups. However, the Tax Code of the Russian Federation does not consider financial industrial groups as a consolidated taxpayer, although the groups have the necessary organizational and property isolation. The reasons are different.
One of the main reasons is the receipt of tax payments at the place of registration of the taxpayer, i.e. the head enterprise of the financial industrial group. This will entail inequality in the shares of tax revenues in local budgets and the budgets of the constituent entities of the Russian Federation in which other members of the financial industrial group are located. In order to prevent inter-territorial strife over the appropriation of tax revenues paid by financial industrial groups, the Government of the Russian Federation must either limit the list of consolidated tax contributions only to federal contributions, or resort to redistribution of tax revenues.
This problem is not only economic, but also largely political in nature. Usually the head office (central company) is located in the center, i.e. in Moscow. Hence another aspect of the contrast between the center and regions of the country.
The Law on Financial Industrial Groups outlined, to a certain extent, the economic and formal-legal characteristics of a financial-industrial group. This is a special procedure for registering and liquidating a financial-industrial group, the range of its participants, the goals of its creation and the subject of its activities, state support for the formation of a financial-industrial group. These signs will be discussed in more detail below.
Financial and industrial groups are divided into transnational, national (federal) and regional. The Law on Financial Industrial Groups (Article 4) distinguishes transnational financial industrial groups, among whose participants there are legal entities under the jurisdiction of the CIS member states. If a transnational financial and industrial group creates an intergovernmental agreement, it (the group) is assigned interstate (international) status. The specifics of the creation, activities and liquidation of such a group are established by the specified agreements. It has been correctly noted in the literature that the FIG Law introduces confusion into the established concept of “transnationality”. It is not clear why financial industrial groups consisting of legal entities under the jurisdiction of the CIS member states are classified as transnational groups? On the contrary, for financial industrial groups with participants from far abroad the graph of interstate groups is allocated, and only to those that are formed on the basis of intergovernmental agreements.
As for national and regional financial and industrial groups, they are not directly named in the Law (although, of course, they are the subject of regulation). There is only one reason for this situation - the Law on Financial Industrial Groups is focused primarily on the creation of transnational and interstate groups. Gigantomania in the economy still haunts Russia.
It is necessary to develop legislation in the field of national and regional financial and industrial groups. In this area, it is necessary to make serious decisions of an organizational, financial and legal nature. Need Government program development of financial industrial groups, transnational corporations, and other large financial and industrial associations, taking into account existing global and domestic experience.
Along with this (main) classification, FIGs can be divided into other types. Using various criteria, the following groups are distinguished: a) banking financial industrial groups and groups formed by one company, which may be headed by industrial organization, research institute, trading company; b) vertical financial industrial groups, in which the enterprises included in their composition participate in the production of the same products, but at different stages of production; horizontal financial industrial groups, in which participating enterprises carry out production at the same stages or produce the same products; c) large, medium and small financial industrial groups (depending on size and production potential). It is proposed to classify the groups into: financial industrial groups de jure and financial industrial groups de facto. The first groups are registered in accordance with the procedure established by law, the second are not registered (informal financial and industrial groups). There are also other types of FIGs<3>.
Scientifically based classification of groups is an independent problem of theory and practice legal regulation relations involving business groups. From a legal point of view, such a classification is only useful when it acquires legal significance. For example, it is hardly appropriate in the Law on Financial Industrial Groups to divide groups into large, medium and small. Moreover, financial and industrial groups are large in their economic nature, entrepreneurial education.
Another division of financial industrial groups is into banking groups and groups formed by one company. Even at first glance, it is clear that this classification is flawed: it is based on different criteria. After all, banking groups are distinguished according to such a criterion as the scope of application, and therefore in this classification series one should name, for example, industrial financial and industrial groups, construction financial and industrial groups, etc.
In Russia greatest development FIGs were obtained in the engineering industries, in which about 15% of groups operate. Regional groups predominate among officially registered financial and industrial groups.
We also believe that the classification of groups into two types is of fundamental importance for understanding the legal nature of FIGs: a) the participants of which act as main and subsidiary companies - holding-type FIGs; b) the participants of which signed an agreement on the creation of a financial industrial group, pooled their property assets and established a central company. Financial industrial groups of the first type are an entrepreneurial entity based on a “participation system,” economic subordination and corporate control. The financial industrial group of the second type is a voluntary contractual entrepreneurial entity.
The procedure for registering and organizing the activities of financial industrial groups. The FIG Law distinguishes between the registration of a financial industrial group and a central company. The procedure for registering financial and industrial groups (Chapter II of the Law) contains new rules. The Civil Code of the Russian Federation regarding the registration of legal entities does not apply to the registration of financial industrial groups. The Law provides a list of documents required for state registration of a financial and industrial group (application for the creation of a financial and industrial group, agreement on the creation of a financial and industrial group, organizational project, etc.). State registration is confirmed by the issuance of a certificate of the established form and inclusion in the State Register of Financial Industrial Groups.
From the point of view of the law, a mandatory feature of a financial industrial group is state registration of the group. At the same time, according to a number of scientists, there are informal (unregistered) groups. Let us refer to the opinion expressed in the literature that financial industrial groups can operate without registration. It is noted that de facto financial industrial groups are, as a rule, former ministries or large state associations; the majority of actual financial and industrial groups are natural monopolies; Many of the unregistered financial and industrial groups are organized as holding companies. An example is the Alfa Bank group in the cement industry, which united joint stock companies"Alfa-Cement", "Topkinsky Cement", "Sukholozhskcement", "Nizhny Tagil cement factory" and etc.
A reasonable question arises: does the Law on Financial Industrial Groups allow the possibility of creating financial and industrial groups without appropriate registration? No, it doesn't allow it. If we take the position that financial industrial groups exist de facto, then it is logical to assume the existence of legal entities without state registration. In our opinion, there can be no uncertainty here: either registration is necessary (a mandatory feature), or it is optionally present in the law.
The central company of the financial industrial group is registered in the manner established by the Civil Code for registration of legal entities (Article 11 of the Law). It (the company) is, as a rule, an investment institution. It is allowed to create it in the form of a business company, association, or union. For the obligations of the central company of the financial industrial group, its participants bear joint liability (Article 14 of the Law). Most often, a credit banking organization acts as an investment institution.
FIG participants are commercial and non-profit organizations, including foreign ones (with the exception of public and religious organizations). Among the mandatory participants of financial industrial groups, the Law names banks or other credit organizations and organizations operating in the production of goods and services. Financial industrial groups may include investment institutions, non-state pension and other funds, and insurance organizations.
Among the participants of financial industrial groups, the credit banking organization is given priority. Here is what E. Torkanovsky writes about this: “The role of a bank in the structure of a financial industrial group can hardly be overestimated. If there is a bank, there will be a financial industrial group; if there is no bank, even a large corporation cannot claim this status.” Moreover, a financial industrial group may have a so-called own bank, i.e. a credit banking organization specially created as the main link of the group. Thus, FIG "Interros" is a typical banking group, the main participants and structure-forming link of which are ONEXIM Bank and IFC. Financial industrial groups formed by Inkombank, Russian Credit Bank, Alfa Group consortium, and MENATEP Bank were formed using the same principle. However, the financial market crisis of 1998 significantly affected the positions of commercial banks and, accordingly, affected the corporate groups they formed.
Now, according to experts, there are 7 stable leading banks operating in the financial market (Sberbank of the Russian Federation, Vneshtorgbank, Gazprombank, IMB - International Moscow Bank, IPB - International Industrial Bank, Alfa Bank, ROSBANK). As for ONEXIM Bank, Inkombank, Rossiyskiy Kredit Bank, and MENATEP Bank, they continue to be part of the financial industrial group, but no longer in the role of leader. As a result, large enterprises began to take first place (for example, in the Interros financial and industrial group, the largest member is the Norilsk Nickel company). Moreover, groups formed by one company appeared (for example, OJSC Magnitogorsk Iron and Steel Works in the financial and industrial group Magnitogorsk Steel).
Regardless of the place and role of the bank within the financial industrial group, a credit institution implements the following functions: savings, credit, information, settlement and servicing, and guarantee. In any case (even when the leader in the group is a large enterprise), the bank still remains the financial center of the financial industrial group. In the financial and industrial group Magnitogorsk Steel, such a bank is Credit Ural Bank.
Article 12 of the Law defines the concept of the activities of financial industrial groups. The activities of a financial-industrial group are understood as the activities of its participants, conducted in accordance with the agreement on the creation of the financial-industrial group and/or with its organizational project when using separate assets. This definition, as rightly noted in the literature, suffers from a number of shortcomings. Firstly, it is reasonable to ask: how do the activities of financial industrial groups relate to business and other economic activities? Secondly, it is necessary to distinguish between the activities of a financial-industrial group and the activities of the central company of the financial-industrial group in the interests of the latter. Thirdly, the concept of “separate assets” needs to be deciphered in the context of the activities carried out by group members. This allows us to consider the rules of Art. 12 of the Law on Financial Industrial Groups are unsuccessful and subject to clarification.
The nature of the agreement on the creation of financial industrial groups is interesting. In our opinion, it gravitates somewhat towards the constituent agreement. However, since financial industrial groups do not fit into the structure of the Civil Code of the Russian Federation, the use of the structure of the constituent agreement (as a type of constituent documents of legal entities) is incorrect. The agreement on the creation of a financial industrial group is an agreement on joint activities(simple partnership agreement).
Organizational project (Article 8 of the Law) - a package of documents submitted by the central company of the financial-industrial group and containing the necessary information about its goals and objectives, investment and other projects and programs, the expected economic, social and other results of the financial-industrial group. The scope of requirements for an organizational project is determined by the Government of the Russian Federation. As you can see, the organizational project plays a significant role at the stage of formation of financial industrial groups.
Therefore, the question reasonably arises: what is the legal nature of an organizational project? After all this project- not only the necessary package of documents. The word "package" has no legal meaning.
Article 15 of the Law provides for measures of state support for the activities of financial industrial groups. Among them are the provision of investment loans and other financial support for the implementation of financial industrial groups projects, as well as government guarantees to attract various kinds investments. The Bank of Russia may provide banks participating in financial industrial groups with benefits that provide for a reduction in mandatory reserve requirements and changes in other standards in order to increase their investment activity. Government of the Russian Federation, executive bodies subjects of the Russian Federation may be provided with other benefits for participants of financial industrial groups. State support for the activities of financial industrial groups is the next direction for improving legislation.
IN real activities the state does not fulfill its obligations to provide state support to financial industrial groups. The situation with financial and industrial groups is reminiscent of the situation with small businesses. The current legislation on small business proclaims a number of measures for state support and stimulation of small businesses. However, there is more legislative rhetoric and pathos here.
The main reasons for this situation are the state’s lack of sufficient funds necessary to finance the activities of domestic financial-industrial groups, as well as clearly expressed priorities and principles in the state’s actions to support financial-industrial groups.
The system of benefits and state support for financial industrial groups must be transparent and known in advance to all participants of the financial industrial group. Moreover, this system should be common (universal) for all financial and industrial groups. At the same time, this does not exclude the possibility of providing individual financial and industrial groups with individual benefits and advantages.
Indeed, a combination of general and individual benefits that actually contribute to effective activities FIG can serve as a sufficient incentive for the formation of competitive groups.
So, from the point of view of civil legislation, financial and industrial groups are not legal entities, i.e. subjects of civil law. However, this does not exclude the possibility of considering them as subjects entrepreneurial activity, as well as subjects of other branches of law (mainly public law). Further, financial industrial groups cannot, strictly speaking, be called business associations, since Art. 121 of the Civil Code of the Russian Federation speaks of the unification of legal entities in the form of association and union. It is no coincidence that a number of authors use neutral phrases “entrepreneurial multi-subject entities.” Of course, in our opinion, the above does not mean that it is prohibited to use the concept of “entrepreneurial associations” to designate financial industrial groups and holdings. On the contrary, we believe that the use this concept appropriate and logical in the context of general discussions about the status of so-called corporate structures, integrated business groups, and non-legal entities.