Limited liability companies will transfered to the new model of statute by default, but not without problems

Tetiana Borysenko, lawyer of Skliarenko, Sydorenko and Partners, specifically for Liga: Law. Business"

In the past ten months, those limited liability companies that would like to start operating on the basis of a model statute have encountered a problem. They were denied state registration due to the inconsistency of the Resolution of the Cabinet of Ministers of November 16, 2001 No. 1182 (which approved the statute) to the provisions of the new Law “On Limited and Additional Liability Companies”.

Leaving aside the question of the legality of these failures, we can say that from April 28 this year the problem was finally solved: the new edition of a model statute Ltd., approved by the Cabinet of Ministers of 27.03.2019 number 367 "Some issues of deregulation of economic activities," came into force. However, hoping for a painless "constituent upgrade", given the Ukrainian traditions of rule-making, is not worth it.

Companies operating on the basis of the old edition of the model statute will be able to use it before switching to their own statute that corresponds to the new law, or the new - model. The final date of transition - June 17, 2019. As early as June 18, those who did not have time to register “in a new way” will be considered by the state as choosing the “default” option of the new model statute.

By the way, an opportunity for the participants (founders) of companies to choose from several options statute provisions regarding deadlines, the required number of votes, the requirements for certification of signatures, etc. is a useful feature of the new model constituent instrument. However, this option is provided only to those companies that submit documents in electronic form. Other applicants actually have to agree with the editors of the provisions of the model statute "by default". However, as long as the possibility of filing documents Ltd. registration in electronic form is not implemented. The Government has instructed the Ministry of Justice to provide this opportunity through the portal of e-services.

It is worth noting that the draft resolution provided for the possibility of using electronic digital signature when submitting documents in electronic form. However, at some stage of finalizing the document these provisions disappeared. Therefore, the algorithm for future submission of documents is not entirely clear.

It is also possible to predict legal problems in the implementation in practice of certain provisions of the new model charter. As an example, paragraph 37 of the statute, which provides for the imposition of the powers of the head on other employees of LLC. For example, in the case of death of a person, acted as the sole executive body (the chairman of the collegial executive body) of the company, acting until the election in the prescribed manner of another person under certain conditions, can become his deputy, chief accountant, an employee with the highest salary, or by the oldest employee regardless of the availability of relevant qualifications. But this rule directly contradicts art. 31 of the Labor Code, which prohibits requiring an employee to perform work that is not subject to an employment contract!

If a forced imposition of duties of the head of the company on the employee qualifies as a combination, it is actually a substantial change in working conditions (it is hardly possible to associate with the death of the head). In addition, according to Art. 32 of the Labor Code it can only be combined in connection with changes in the organization of production and labor, and only if the employee is notified no later than two months. It seems that in this case it would be more expedient to entrust the duties of the head of the company to its participant, for example, who has the largest share.

Also unresolved is the question of the management of the company in the event of the death of a person who is at the same time the sole participant and leader of the company. With high probability, before the moment of entering into the rights of the heirs, the company will incur tax debt due to late payment and payment of taxes, and reporting. And the Tax Code, unfortunately, does not provide for deferment exceptions, even in such obvious cases.