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CIVIL LAW
Ye.D. Tyagai*
ON THE ISSUE OF ORGANIZATIONAL
AND LEGAL FORMS OF OFFSHORE COMPANIES:
CIVIL LAW VIEW
Abstract. The paper examines the main legal forms of legal entities, the use of which is characteristic of the commercial activities in «offshore» zones and jurisdictions which enable the creation of preferential tax, financial, informational and legal conditions for entrepreneurs. The article gives a critical assessment of utilitarian and applied approaches to the study of commercial structures involved in the «offshore» business organization schemes. Attention is drawn to the lack of the necessary conceptual and terminological uniformity and system-acy in the area in question. A particular emphasis is made on civil law nature of the legal form of a legal entity. The author studies various classifications of «offshore» organizations from these positions, analyzes key legal models of collective entrepreneurship in common law countries and civil law countries of Europe, highlights the differences between the types of organizational and legal forms of legal entities and variants of «offshore» businesses of one form. The interrelation between classical legal forms of commercial legal entities and similar legal structures applied in «offshore» activities are considered in the vein of civil law. The author also compares them with the new models of entrepreneurship, functioning on the basis of the governing mechanisms of «private law».
Key words: jurisprudence, offshore, company, business organization, corporation, partnership, cooperation, foreign, commercial, taxation.
The modern level of development of market relations has created conditions for dynamic growth of entrepreneurship and, as a consequence, the complication of the financial and economic ties between participants of a business turnover.
An urge of the subjects of civil relations to minimize their own costs through commercial activities in the areas of the most favorable legal and tax regime has led to the emergence of a significant number of the so-called «offshore companies».
Expansion of the activities of these companies formed a basis for the emergence of a whole range of complex issues related to the legal principles and procedures of operation of such organizations.
The Russian Federation at the highest political level proclaimed priority of struggle against unscrupulous market participants who use offshore
schemes for the formation of business and concealment of income received by placing it abroad1. However, the achievement of this goal is largely impeded to a large extent by the fact that up to now various mechanisms of «offshore companies» activity have not been properly studied. In this connection, there appears an objective need to research the legal nature of these organizations, as well as to classify such legal entities in order to determine their specific legal forms and models.
The classical approach to the analysis of «offshore companies» activities has a substantially ap-
1 V.V. Putin's speech at the meeting of the Government Com-
mission on development of electric energy at Sayano-Shushen-
skaya hydroelectric power station (the Republic of Khakasiya)
Dec. 19, 2011 q.v. URL: http://government.ru/docs/17435 (latest visit — 15 Oct. 2012).
© Tyagai Ye.D., 2014
* Tyagai Yekaterina Davidovna — Candidate of legal sciences (Master of Law), teacher, deputy head
of department of civil law and family law, Kutafin Moscow State Law University, head of research and
education centre «Institute of foreign and comparative law».
[Ekaterina_tyagai@mail.ru]
123995, 9 Sadovaya-Kudrinskaya, Moscow.
** The article is prepared within the framework of research «Legal regulation of off shores and trusts in International Private Law» in Kutafin Moscow State Law University
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plied character since it largely aims at the introduction of potential subjects of such enterprise with its conditions and opportunities rather than the fundamental research of the organizations in question from the point of view of its legal status peculiarities as participants of civil matters2.
Meanwhile treatment of organizational and legal characteristics of 'offshore companies' from civil law standpoint makes it possible to most objectively evaluate the legal contents and meaning of different forms of entrepreneurial activity carried out by organizations in preferential tax, information and finally, legal regime.
Above all it is necessary to make a reservation that the immediate subject of research of this article is organizations of commercial type. Private enterprise is also involved in activity aimed at receiving systematic profits (in offshore zones including3) which is worth mentioning but for the purpose of this paper the research of such a form of commercial activity is not a first priority.
It is also worth mentioning that the term 'offshore company' widely applied to different types of organizations is far from being irreproachable from the point of view of civil law. This linguistic construction being oriented on universal use does not only duplicate the name of one of the types of a legal person widely spread in common law countries (see further for detail) but it does not have any clear definition which would make it possible to determine its content and area of use with desired accuracy4.
The above-mentioned problems result primarily from the lack of consolidated legislation on «off-shores» on the international and/or national level and, consequently, jurisprudence and law enforcement practice are devoid of standard instruments
for determining the concept of an «offshore» organization as well as for making a consistent and comprehensive classification of legal entities of this type5.
Given the objective restrictions due to format and the context of this research and to avoid deviation from the immediate subject of this paper in favor of the general theory and discussion on concepts and terms, now and hereafter we understand «offshore organizations» as commercial organizations carrying out entrepreneurial activity in the regime of preferential taxation by virtue of general rules operating in «offshore jurisdictions» on the territorial principle or special rules governing the activity of legal entities meeting certain requirements the compliance of which are necessary for the establishment of appropriate privileges6.
In practice one of the relatively common criteria for dividing the commercial organizations in question into separate groups is the law and order according to which relevant entities are formed, registered and carry out their activity.
Hence the starting point in differentiating between possible «offshore organizations» is their belonging to the systems of legal entities of common (Anglo-American) law and civil (continental) law7.
Depending on which of the said law and order determines the principles of the activity of commercial organizations, the latter can be classified at greater length — with consideration to the specific rules on legal entities whose participation in civil (and/or trade)8 legal relations is admitted by the sources of law of the relevant state.
2 Q.v. e.g., Offshore and non-offshore jurisdictions of Europe, America, Asia, Africa and Oceania. Practical guidance on foundation and taxation of foreign ventures. M. НПК ВЕСТА. 2008: Offshore companies: Operating Manual. Material prepared by Roche & Duffay URL: http://w.w.w.rocht-duffay.ru/articles/inst-ex2hlm (latest visit — Oct. 15, 2012).
3 This term is widely used in legal literature, nevertheless it is not the only means for marking the territories with preferential tax treatment and other forms of attracting capital of foreign investors as a rule. Q.v. e.g Zimelev A. Tax haven or just harbor. Registration of boats in Bahamas //Offshore Express URL: http:// www.nalogi.net/1998/199804_7.htm (latest visit — Oct. 15, 2012) Luxemburg «Favorable' Jurisdiction» // Offshore Review: Information Bulletin. 1998. № 5. URL: http://ds-offshore.com/content/ view/78/70/lang.russian/№ 5 (latest visit — Oct. 15, 2012).
4 Besides, the widespread usage of the term «enterprise» with regard to «offshore» commercial organizations seems incorrect. Q.v., e.g. John Pepper. Practical encyclopedia of international tax and financial planning. M.: INFRA M. 1998. P. 10; Offshore and non-offshore jurisdictions of Europe, America, Asia, Africa and Oceania. Practical guidance on foundation and taxation of foreign ventures. M., 2008. P. 9-10. From the point of view of classical civil law such an approach is quite wrong as in the theory of civil law enterprise is considered to be an object (property complex) but no a legal subject.
5 q.v. also: Anufriev L.N. International Private Law: in 3 volumes. Vol. 2. Special part: textbook. 2nd ed. Revised and updated. M.: BEK, 2002. P. 57-69.
6 For detail see Shambost E. Encyclopedia of Offshore zones. Translated from French. M.: VIKRA, 2000. P. 23-108: Peschan-skikh G.V. On the issue of governing the activity of territories with preferential taxation. 2003. № 2. P. 8-38; Gorbunov A.R. Offshore business and formation of companies abroad. 2nd ed. Revised and updated. M.: Ankhil: INFRA-M, 1995. On the criteria of identifying the «nationality» of a legal person. Q.v. Goncharov A.A. Offshore legal models and their application. M.: Data Skver. 2012. P. 35-36. Offshore and non-offshore jurisdictions of Europe, America, Asia, Africa and Oceania. Practical guidance on foundation and taxation of foreign ventures. M.: NPK VESTA. 2008. P. 7-8.
7 In publications one can also find the division of organizational and legal forms used in «offshore zones» into «classical offshore companies of the insular or Anglo-American type» and «companies on the continent that enjoy special tax status». q.v. Goncharov A.A. Ibid. P. 25-26.
8 For details about the grounds and consequences of the division
of private law into «civil» and «trade» and about the issue of dual-
ism ofprivate law see: Kulagin M.I. Selected works on company law and trade law/ edited by VS. Em. 2nd ed. Revised. M.: Statut, 2004. P. 206-220. See also Trade Code of Germany. Law on limited liabil-
ity companies. Law on manufacturing cooperatives = Deutcshes Handelsgeset/buch. Aktiengeset./GmbH-Gesetz. Genossenschafts-
gesetz. Translated from German/compiled by V Bergmann: translated from German by E.A. Dubovitskaya; edited by T.F. Yakovleva,
2nd ed. Updated. M.: Wolters Kluwer. 2009. P. VIII.
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It is important to note that the differentiation between organizational and legal forms of «offshore companies» being complex due to the peculiarities of national system should be made scrupulously and consistently subject to the strict logical principles. In this context the key significance belongs to the concept of organizational and legal forms of a legal entity which is regarded as a bundle of specific characteristics that objectively stand out in the system of common characteristics of a legal entity and are substantially different from those of other groups9. In case the said characteristics do not have the necessary peculiarities it is more correct to regard them as features which make it possible to differentiate between organization similar by their nature and pick out different models of a legal entity of the same organizational and legal form.
The use of such organizational and legal forms of commercial activity as companies (corporations)10 and partnerships is characteristic of most subjects of entrepreneurship in the Anglo-American system. Besides companies can be divided into11:
— limited liability companies12;
— unlimited companies.
In its turn the classification of limited liability companies is based on the possibility of forming public and non-public13 organizations. It also relies on the criteria of the limitation of the scope of liability of participants (shareholders) of such an organization. Depending on that limited liability companies are divided into:
— companies in which the liability of shareholders is limited to shareholder contributions;
— companies in which the liability of shareholders is limited to the scope of guaranties given by them beforehand.
In some cases they also single out companies with mixed or additional liability that combine the characteristics of the two previous types14.
Apart from organizational and legal forms of companies (corporations) in the pure meaning of civil law it is also important to single out such specific subjects as:
— international business companies15;
— «exempted» companies16;
— «non-resident» companies17;
— qualified companies18;
— limited duration companies19 and others.
9 q.v. Civil Law: in 2 vol. textbook 5th ed. Revised and updated / edited by A.N. Sergeev, Yu. Tolstoi. M.: PBOYUL L.V. Rozh-nikov, 2001. T. I. P. 173-174.
10 In the Russian system of legal entities joint stock companies are closest to companies (corporations) from the point of view of organizational and legal forms. Difference in terminology is typical of the description of quite similar organizational and legal forms of commercial organizations in Great Britain and the USA. Historically the English law recognized companies as one of the key participants of commercial relations. Later on given the «reception» of the English law by the USA corporations have become more common for the American system. The most characteristic abbreviations for such types of legal entities are Corp. (Corporation), Ltd. (Limited), Inc. (Incorporated). For detail see John Pepper. Ibid. P. 19-20.
11 q.v. e.g.: art. 3 of Great Britain's Companies Act 2006 URL: http://www.legislation.gov.uk.ukpga/2006/46 (latest visit — Oct. 15, 2012).
12 The most common and well-known abbreviation for this type of company is LLC (limited liability company).
13 In legal sources they are often referred to as «open» and «closed» (q.v. Offshore and non-offshore jurisdictions of Europe, America, Asia, Africa and Oceania. Practical guidance on foundation and taxation of foreign ventures. M.: NPK VESTA. 2008. P. 72-73), as well as «public» and »private» (q.v. e.g. Gon-charov A.A. Ibid. P. 60-61). In Great Britain such classification is provided for by Companies Act 2006, art. 4.
14 q.v. Goncharov A.A. Ibid. P. 80-81.
15 In practice the abbreviation IBC (international business companies) is traditionally used for such companies. The difference between international business companies and regular joint stock companies (corporations) does not lie in a specific organizational and legal form but in the characteristics of their activity. Companies of this type acquire an «offshore» status and corresponding benefits owing to the fact that they comply with the rules of carrying on business under which the business activity of a company can be conducted only outside the country where the company is registered and only with the contractors who have the status of a foreign person in the relation to the country of registration. (See for detail: Encyclopedia of offshore business/ compiled by A. Trotsenko, N. Diakov. M.: NPK VESTA. 2000. P. 645. It is noteworthy that such companies can have Ltd (limited) for its abbreviation which does affect the peculiarity of their organizational and legal form. See for detail: John Pepper. Ibid. P. 19-20.
16 The countries adopting this type of companies include the Isle of Man, the Cayman Islands, Ireland, Gibraltar, Jersey, as well as the Turks and Caicos Islands where this legal entity is referred to as an «exempted company». The company is recognized as «exempted» from taxes by virtue of acquiring this or that organizational and legal form (because such companies exist as a rule in the form of traditional corporations) but due to the fact that agree to refuse to carry on business in the country of registration and/or with its residents. In support of this the company is given an exemption certificate or a certificate of exemption. (q.v. John Pepper. Ibid. P. 17).
17 The company acquires the status of a «non-resident company» from the moment of its formation and it happens by virtue of its meeting certain requirements which belong rather to its character and activity procedure than the organizational and legal form. Such requirements vary from jurisdiction to jurisdiction but in the whole they come down to the following: the company must be formed by persons without the status of a resident of the country of registration; the management of the company must be carried out from abroad; the commercial activity of the company must be limited to a foreign (in relation to the country of registration) country.
18 The qualified company differs from a company ordinary by its status not by its organizational and legal form but by its qualifying characteristics or criteria. The peculiarity of this type of company is that they are not just exempt from tax burden; they are also entitled to independently choose the tax rate in the country of registration or commercial activity. It is noteworthy that these companies are referred to as international in the Isle of Man. For detail see: John Pepper. Ibid. P. 18.
19 This type of a company is notable not for its organizational and legal form but as the name says by the peculiarities of its formation — when the term expires the company must be liquidated or re-registered. In «offshore» jurisdictions this type of a legal entity is widely spread in the Cayman Islands where they are marked by the abbreviation LDC (Limited Duration Company) q.v. John Pepper. Ibid. P. 20.
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From the point of view of civil law these legal entities as a rule have the organizational and legal form of a company,
but in the context of the «offshore» character of their activity they have a specific legal status by virtue of special rules on legal, information and tax benefits.
The second most common organizational and legal form of commercial «offshore» activity in common law countries is partnerships which can be classified into:
— full (ordinary, general) partnerships20;
— limited partnerships21;
— limited liability partnerships22.
It is necessary to note that some foreign specialists reasonably point out that by their legal nature a partnership is not an independent organizational and that the legal form of a legal entity but is rather something similar to a special partnership existing in the RF legal system23. This position relies on the legal definition of partnership contained in Partnership Act 1890, Great Britain: «A partnership is a relation between persons carrying on business together for the purpose of making a profit»24. Meanwhile the same law points out directly that in some jurisdictions a partnership is recognized as a firm under the name of which partners carry on their activity together25.
Moreover if while determining the legal nature of a general partnership certain difficulties can arise by virtue of controversial provisions of the above-
20 In the English speaking countries they are traditionally referred to as partnerships.
21 As a rule in the language of origin they are named «limited partnerships». Q.v. Limited partnership Act 1907. URL: http://leg-islation.gov.uk/ukpgu/Edw7/7/24 (latest visit — Oct. 15, 2012). In alternative translations this type of organization is defined as mixed (q.v. John Pepper. Ibid. P. 15). This type oflegal entities largely coincides with Russian limited or special partnerships. General partners in such partnerships differ from limited partners in the amount of liability (the liability of the former is not limited while the liability of the latter is limited to shareholder contributions), as well as entitlement to manage the affairs of the partnership (these rights are vested only in general partners).
22 In the English law such organization is referred to as limited liability partnership (LLP). Such partnerships are similar to limited partnerships but they have certain peculiarities which makes it possible to refer them to a separate group of organizations. In contrast to limited partnerships, the participants of which on the analogy with partners and contributors in special partnerships in Russia have different rights and obligations and have different liability depending on their status while the burden of liability in limited liability partnerships is limited to sums determined and agreed upon by the partners beforehand. For detail see: Offshore and non-offshore jurisdictions of Europe, America, Asia, Africa and Oceania. Practical guidance on foundation and taxation of foreign ventures. M.: NPK VESTA. 2008. P. 74-76.
23 For detail see: John Pepper. Ibid. P. 11-13.
24 q.v. article 1 of Partnership Act 1890. URL: http://legislation. gov.uk/ukpgu/Vict/53-54/39 (latest visit — Oct. 15, 2012).
25 Ibid. Article 4.
mentioned act, in understanding limited liability partnerships the English legislation is quite unambiguous. By virtue of a direct statutory reference limited liability partnerships are recognized as a new form of a legal entity26.
Research on the issues of tax planning notes that the peculiarity of the organizational and legal form of commercial activity in question from the point of view of functioning of «offshore» mechanisms reveals itself in the fact that profit tax is imposed not on the partnership itself but on its participants (especially in case of general partnerships) and it favorably affects the legal position of persons who enjoy relevant tax benefits by virtue of their having a non-resident or some other special status27.
In the light of the above it is necessary to note that historically companies and corporations ousted partnerships in the Anglo-American system of the organizational and legal forms of commercial legal entities as by virtue of the peculiarities of their legal nature they allowed their participants to reduce their own financial and property risks by separating themselves from the liabilities of the company obligations with the help of a corporate veil. At that they retained the possibility to effectively distribute and accumulate the assets received by the organization as profits28.
At the same time up to now partnerships have retained certain advantages over «offshore companies» for in the international context of their activity they cause less suspicion on the part of transaction partners as well as the governmental bodies and official authorities in those countries where law and order is oriented to the struggle against underground «offshore» schemes and structures29.
The continental law is characteristic of the system of commercial organizations whose legal forms are used for carrying out «offshore» entrepreneurial activity which at first glance is more logical and habitual for a Russian researcher. As the legal system of the Russian Federation adopts most of the classic principles of the continental law the classification of organizational and legal forms of commercial legal entities in the continental law is largely similar but not analogous to that in Russia.
26 q.v..: art. 1 of Great Britain's Limited Liability Act 2000. URL: http://www.legislation.gov.uk.ukpga/2000/12 (latest visit — Oct. 15, 2012).
27 q.v. e.g.: John Pepper. Ibid. P. 14-15.
28 For detail on merits and demerits of the system of English partnerships in the historic and legal context see: Geoffrey Morse. Partnership Law. Seventh Edition. Oxford University Press. 2010. P. 1-44. See also: English law. The sources of law. Judicial system. Legal procedure. Criminal Law. Civil Law. Translated from English / E. Jenks.: Preface by M.I. Isaev, L.A. Lunts (translated). M.: Law Publishing House of the USSR Ministry of Justice, 1947. P. 121-136.
29 For detail also see: Goncharov A.A. Ibid. P. 79-80; Apel A., Gunko V., Sokolov I. Monetization and Offshore Business in schemes. SPb.: Piter. 2002. P. 77.
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Thus, one of the key peculiarities of the law and order in question is the differentiation between subjects of public law and private law in the system of legal entities30.
The specific character of the present research presupposes focusing on the forms of legal entities the use of which is characteristic just of «offshore» activity and in this connection legal entities of private law deserve a more serious research.
It has been mentioned above that traditionally in the continental law they differentiate between civil private law and trade private law. The dual conception of private law substantially affected the approach to the regulation of the entrepreneurial relations. The dissemination of this doctrine in the continental law resulted in the division of legal entities of private law into «civil» and «trade»31. In this context the latter is of more interest for the study of organizational and legal forms of «offshore» activity as the purpose of the formation and functioning of trade organizations is making a profit.
In this context special attention should be paid to the terminological peculiarity characteristic of the sources of trade (commercial) law in the countries of continental Europe. In the legislative acts of European continental law countries most organizational and legal forms of commercial activity are jointly covered by the phrase «trade partnership» or «commercial partnership». It is only within this form that commercial organizations are classified into different forms of partnerships and companies32.
Strictly speaking, this lexical peculiarity to a certain extent makes it difficult for Russian researchers to perceive the categories in question. It can be leveled by a proper legal translation but today the legal sources use the above mentioned term which in fact makes trade partnerships identical to the generic term «commercial organization»33.
Despite these peculiarities of the fundamental and theoretical approach to the classification of legal entities, in practice the key structures used within the continental European model of conduct-
ing activities (including «Offshore») are economic (or commercial) companies and partnerships.
The central place in the system of legal entities belongs to:
— joint stock companies34 whose authorized capital is divided into shares35;
— limited liability companies36 whose authorized fund is divided into shares37.
— Partnerships typical of the continental European Law are divided into:
— general partnerships;
— and limited partnerships (special partnerships). Obviously, these types of business organizations
have a certain resemblance to the Anglo-American partnerships38 we have already discussed, but some features of the legal regime governing activities of associations differ from the procedure of functioning of partnerships.
The most contentious issue in the characterization of partnerships in Civil law countries is the problem of the definition of the legal nature of the organizational and legal form of commercial activity. The complexity is that legislators of Civil law European countries have taken different approaches to the assessment of legal personality of partnerships.
If the French Commercial Code (Code de commerce) 200039 directly secures recognition of the status of legal entities of commercial partnerships (including general and limited partnerships) from the date of registration in the Register of traders
30 For detail on differentiation between subjects of public law and private law see: Gordeeva Zh.A. Legal entities of public law and private law: comparative analysis // Uchyonye zupiski: collection of papers. 2010. № 10. P. 255-262; Chirkin V.E. On the concept and classification of legal entities of public law // Zhur-nal rossiyskogo prava. 2010. № 6. P. 87-101; Yastrebov O.A. Criteria for distinguishing between legal entities of public law and private law // Rossiyskiy sudia. 2010. № 4. P. 33-36.
31 For detail see: The main institutions of civil law of foreign countries / Edited by V.I. Zalesskiy. M.: NORMA, 2000. P. 33-35; 44-47.
32 q.v. e.g.: Commercial code of France/ preface, translated from French, enlarged edition, glossary and commentary by V.I. Zakhvataev. M.: Wolters Kluwer. 2008. P. 146-167.
33 q.v. e.g.: Civil and trade law of foreign countries: textbook/ edited by E.A. Vassiliev, A.S. Komarov. 4th ed. revised and updated, in 2 vol. Vol. 1. M.: Mezhdunarodnye otnosheniya, 2008. P. 193-194.
34 In the civil law countries names of joint stock companies traditionally contain abbreviations indicating the corresponding organizational and legal form. Such abbreviations include in particular: SA (Société Anonyme — in French transcription); NV (Naamlove vennootschap — in Holland and Netherlands Antilles); AG (Aktiengesellschaft in Germany and Austria).
35 The continental law admits the formation of open and closed companies.
36 The most common abbreviation used for designating organizational and legal forms are SARI ((Société è respnsibilité limitée — Fr.); SRL (Societa Responsibilita Limitata — It.); BV/ BVBA (Besloten Vennootschap/ Besloten Vennootschap met Beperkte Aansprakelijkheid in Holland and Netherlands Antilles); GmbH (Gesellschaft mitbeschrankter Haftung — in Germany and Austria); AVV (Aruba Vrijgestelde Vennootschap — on the island of Aruba) and so on.
37 For detail see: Goncharov A.A. Ibid. P. 86-97. See also «Joint Stock Company and Limited Liability Partnership». A collection of foreign legislation / edited by V.A. Tumanov. M.: BEK, 1995.
38 The issue in question is not the generic designation of commercial (trade) organizations but partnerships as one of organizational and legal forms of such organizations.
39 In legal sources it is also referred to as the Trade Code of France. Q.v. e.g, The main institutions of civil law of foreign
countries / edited by V.I. Zalesskiy. M.: NORMA, 2000. P. 15; I.A. Zenin Civil and trade law of foreign countries: learning aid.
2nd ed., revised and updated. M.: Yurite Publishing House; Vys-shee obrazovanie. 2010. P. 26-28; Civil and trade law of foreign
countries: textbook/ edited by E.A. Vassiliev, A.S. Komarov. 4th ed. revised and updated, in 2 volumes. Vol. 1. M.: Mezhdunarodnye otnosheniya, 2008. P. 39-46.
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and partnerships40, the German law in this respect is less unequivocal.
In the tradition of commercial and corporate law in Germany there is a division of legal forms of business activity into the association of entities (partnership) and the association of capital (limited liability companies). The latter are unconditionally recognized as legal entities and treated as separate legal entities, independent of participants (founders) of that organization both in terms of property, and in terms of liability. Within the framework of partnerships there exists a close relationship between the participants and the organization itself, by virtue of which a general and a limited partnership is often defined as «the incompetent associations», which at the same time are «legally independent»41.
Such a controversial structure is based on the fact that each partner in a general partnership and each general partner in a limited partnership shall have unlimited liability for their obligations in relation to the creditors of the company, although in relation to their contractors and third parties they are not acting independently but only as representatives of a partnership operating under its brand name, as all the rights and obligations are acquired by the partnership itself42.
Despite the obvious importance of the doctrinal positions of the dual nature of trade associations, it should be noted that all the listed features of the organizational and legal forms of doing business, as well as the absence of a universal imperative legal norm enshrining quite the opposite, allow with a high degree of caution to refer general and limited partnerships to legal entities for the purposes of classification being carried out in this research43.
40 See § 2 art. 1.210-1, § 1 art.1.210-6 of The Commercial Code Of France / Code de commcerce 2000 / Preface, translated from French, supplement, glossary and commentary by V.I. Zakhva-taev. M.: Wolters Kluwer. 2008. P. 144-145.
41 Trade code of Germany. Law on Joint Stock Companies. Law on business and cooperatives. = Deutsches Handelsgesetzbuch / Aktiengesetz, GmbH-Gesetz, Genossenschaftsgesrtz: translated from German/ compiled by V. Gergmann; translated from German by E.A. Dubovitskaya, academic editor T.F. Yakovleva. 2nd ed. revised. M.: Wolters Kluwer, 2009. P. XV-XVIII.
42 q.v.: §§ 105, 123-125, 161 of Trade Code of Germany (Handelsgesetzbuch 1897. URL: http://www.gesetze-im-inter-net.debudesrecht/hgb/gesamt.pdf (latest visit — Oct 15, 2012).
43 A similar approach to the system of the formation of legal entities was also adopted by the Russian legislation. The tendency of recognizing the status of a legal entity of trade partnerships is observed not only in the French law but also in the German law and in some research papers dedicated to this issue. Moreover German law enforcement bodies and courts also adhere to this position. For detail see: Civil and trade law of foreign countries: textbook / edited by E.A. Vassiliev, A.S. Koma-rov. 4th ed. revised and updated, in 2 volumes. Vol. 1. M.: Mezhdunarodnye otnosheniya, 2008. P. 142; The main institutions of civil law of foreign countries / edited by V.I. Zaless-kiy. M.: NORMA, 2000. P. 34-35. See also: The issues of civil and commercial law of Germany. Translated from German/P.
However, it should be noted, in states with a continental European system the practice of using such forms of entrepreneurial activity as general and limited partnership brings to businessmen applying mediating «offshore» schemes of business organization, the same benefits and risks, as the use of various partnerships in countries of Anglo-American law44.
In addition to the organizational and legal forms of business entities dealt with above, whose characteristics vary depending on the rules of law according to which relevant organizations are formed and registered for modern offshore models of en-trepreneurship it is typical to use such relatively new forms of activity sprung up or widely spread in the context of globalization, such as the new European company (Sosietas Euripaea or SE)45, as well as offshore funds and holding companies46.
In this regard, we should make a reservation that these structures by their organizational and legal form, as a rule, correspond to one of the types of commercial organizations we have already discussed or they are formed on their basis and (or) combine the principles of several of them thus creating more comfortable conditions and tools for conducting entrepreneurial activity47.
Summarizing the study of the peculiarities of different forms of commercial organizations, the use of which is typical of conducting entrepreneurial activity in «offshore» jurisdictions, or through the use of «off-shore» legal schemes, it should be noted that the lack of systematic approach to this issue in different states is made more complicated by conflicting regulatory and doctrinal sources containing all possible classifications of entities in common law and civil law countries.
Moreover, the classical «attributes» and means of individualization inherent to legal entities often lose their true meaning because of the disorderly nature of «offshore» activities of various commercial organizations48.
Berens, Venkiptern, A.A. Lizunov, F.Yu. Zekker, Kh. Kets, and others.: translated by R.I. Karimullin, A.A. Lizunov, K. Nam, E.V. Stepanova; academic adviser: V. Bergmann / edited by T.M. Yakovleva. M.: BEK, 2001. P. 256.
44 For detail see: John Pepper. Ibid. P. 14-15; Goncharov A.A. Ibid. P. 99-100.
45 q.v.: Regulations of the Council of the European Union № 2157/2001 of Oct. 8, 2001». On the Status for a European company» (Council Regulation (SE) № 2157/2001. URL: http:/www. law.edu.ru/norm/norm.asp?normII)=1294929 (latest visit — Oct.15, 2012).
46 For detail see: John Pepper. Ibid. P. 14-15; Goncharov A.A. Ibid. p. 72-74; 80-85; Shambost E. ibid. p. 475-548.
47 For detail see: Offshore and non-offshore jurisdictions of Europe, America, Asia, Africa and Oceania. Practical guidance on foundation and taxation of foreign ventures. M.: NPK VESTA, 2008. P. 378-381; 394-405; Goncharov A.A. Ibid. P. 101, 103, 106-109.
48 In this connection experts of tax law even resort to making
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And if for the participants of relevant relations such pluralism of legal mechanisms is fraught only in the difficulties of determining the optimal structure and the likelihood of economic costs in the case of an erroneous choice, this situation carries a much greater risk for the bodies and authorities whose activities are focused on protecting the interests of the state and individuals from the actions of unscrupulous entrepreneurs and their associations.
The failure to establish an exhaustive range of legal forms of organizational and legal entities used in conducting commercial activities of «offshore» character significantly hinders the timely prevention of possible violations and abuses in this area. It results in uncountable financial flows which are «withdrawn» to the zones of a special tax and legal regimes where the ability to control
the legitimacy and legality of the use of such funds is lost.
In the light of the present active reform of the civil legislation of the Russian Federation and improvement of regulatory instruments of governing public relations, further development of theoretical and practical issues of using different forms of «offshore» businesses deserves a special attention on the part of researchers of our country who specialize in civil law. The use of the experience of foreign countries will create an opportunity to avoid difficulties and errors occurring here, and will also help to optimize the existing approaches to solving problems occurring in this area of research, and in the future it will create an effective set of remedies, that combine tools for safeguarding the rights and interests of entrepreneurs and other participants of civil relations.
References:
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lists of abbreviations the use of which is characteristic of organizational and legal forms of «offshore» commercial legal entities. Q.v. e.g.: John Pepper. Ibid. P. 19-22; Offshore and non-offshore jurisdictions of Europe, America, Asia, Africa and Oceania. Practical guidance on foundation and taxation of foreign ventures. M.: NPK VESTA. 2008. P. 11.
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27. Geoffrey Morse. Partnership Law. Seventh Edition. Oxford University Press, 2010. — 400 p.
Перевод Е.А. Дегтяревой
ст. преп. кафедры английского языка № 2 Университета имени О.Е. Кутафина (МГЮА)
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