In article the analysis of standardly legal acts regulating creation and functioning of agricultural serving cooperatives now is given.
LEGAL REGULATION of CREATION AND ACTIVITY of AGRICULTURAL SERVING COOPERATIVES: We CONSIDER CHANGES
One of the most widespread forms of association of agricultural producers are agricultural serving cooperatives. Recently process of creation of new agricultural serving cooperatives became more active. To it promotes as the public policy directed on support of cooperative movement, and objective need of association of agricultural producers in the conditions of the becoming tougher competition in the market.
Questions of legal regulation of creation and activity of agricultural serving cooperatives repeatedly were printed on pages of our newspaper. Return to this question is connected with changes in the legislation which occurred recently. These changes are caused by coming into effect of new Civil and Economic codes of Ukraine and the Law of Ukraine About cooperation.
One of distinctive features of the legislation on agricultural cooperation is the maximum simplification of an order of creation of agricultural cooperatives. So, according to article 5 of the Law of Ukraine About agricultural cooperation, the decision on creation of cooperative is accepted by its constituent assembly. This norm is directed on that at creation of agricultural serving cooperative there was no need to conclude the promotional contract. The similar norm is available and in the Law of Ukraine About cooperation.
Till July 1, 2004 according to the Provision on the state registration of subjects of the entrepreneurial activity, approved by the Resolution of Cabinet council of Ukraine No. 740 from May 25, 1998, for the state registration of the subject of an entrepreneurial activity – the legal entity, the owner (owners) authorized by it (them) body or a face (applicant) personally or by mail (registered mail) submitted to body of the state registration the decision of the owner (owners) of property or authorized by it (them) body about creation of the legal entity (except private enterprise). If owners or the bodies authorized by them two and more, such decision was the foundation agreemtn, and also the protocol of the constituent assembly (conference) in the cases provided by the law; the charter if according to the legislation it is necessary for a created organizational and legal form of the subject of an entrepreneurial activity. This point of situation, as a rule, wasn’t applied to agricultural cooperatives as the Law of Ukraine About agricultural cooperation requires only the charter and the protocol of the constituent assembly.
At the same time new Civil and Economic codes made considerable changes to the list of constituent documents which are required for different organizational and legal forms of legal entities. According to Art. 57 of the Economic code of Ukraine, constituent documents of the subject of managing are the decision on its education or the foundation agreemtn, and in the cases provided by the law, the charter (position) of the subject of managing. From this article it is possible to draw a conclusion that the current legislation doesn’t demand in all cases from the subject of managing of existence of two constituent documents: charter and foundation agreemtn; as before, it will be possible to register agricultural cooperative without signing of the foundation agreemtn.
The law of Ukraine About the state registration of legal entities and individuals – businessmen which came into force since July 1, 2004, unlike the Provision on the state registration of subjects of an entrepreneurial activity, also doesn’t contain the obligatory requirement concerning existence not only the charter, but also constituent or contracts.
The law of Ukraine About cooperation, No. 1087 which has come into force on July 27, 2003, according to Final provisions, has prevailing force before the Law About agricultural cooperation, as:
1) cooperatives and the cooperative associations created before coming into effect of this Law, are obliged within a year from the date of coming into effect of the present Law to bring the charters into accord with the present Law.
2) before reduction of charters in compliance with the present Law cooperatives and cooperative associations are guided by provisions of existing charters in a part which is not contradicting the present Law.
3) It is entrusted to cabinet council of Ukraine within a year from the date of coming into effect of the present Law to prepare and submit the Verkhovna Rada of Ukraine of the offer on reduction of acts in compliance with this Law.
The law of Ukraine About cooperation contains a set of the norms similar or very close to standards of the Law of Ukraine About agricultural cooperation, but there are also certain differences.
In the Law of Ukraine About cooperation the list of provisions which should be reflected in the cooperative charter, except provisions which were required earlier is expanded.
In this regard it is recommended to existing and being created cooperatives, using approximate charters, to check existence in the charter of provisions which are added or pereformulirovany in the Law of Ukraine About cooperation:
– exhaustive list of kinds of activity of cooperative;
– responsibility for violation of obligations concerning payment of contributions and shares;
– order of convocation of general meeting;
– a formation order, structure and competence of governing bodies and cooperative control authorities, and also an order of acceptance by them decisions, including on the questions which decision is accepted unanimously or the qualified majority of votes of members of the cooperative which is taking part in general meeting;
– order of formation, use and order cooperative property;
– order of a covering of losses;
– order of modification of the cooperative charter;
– an account and reporting order in cooperative;
– conditions and order of return of a share.
To the same cooperatives which develop the charters now, it is recommended to be guided by requirements to the charter, stated in the Law of Ukraine About cooperation. This law increased number of funds which should be created in cooperative. By the law of Ukraine About agricultural cooperation it is provided that the cooperative property, according to its charter, shares on share and indivisible funds. The law of Ukraine About cooperation demands creation in cooperative already four funds: share, indivisible, reserve and special.
The reserve fund is created at the expense of assignments from the income of cooperative, redistribution of indivisible fund, donations, the irrevocable financial help and at the expense of other receipts not forbidden by the law for a covering of possible losses (losses).
The special fund is created at the expense of target contributions of members of cooperative and others, provided by the law, receipts for ensuring its authorized activity and is used according to the decision of governing bodies of cooperative. For creation of special fund the new type of contributions is provided: target contributions – monetary, other property and non-property values of members of cooperative organization which are brought over a share for ensuring authorized activity of this organization.
At the same time it is possible to expect that innovations concerning funds of cooperative won’t have special influence on creation and cooperative activity. As a rule, in small subjects of managing the accounting of indicators of own capital testifies to a real financial condition of such subject a little and distribution on funds has formal character. The ratio of the size of funds is important for determination of the size of a share which stands out to the member of cooperative at its exit from cooperative. At the same time at unprofitable activity of cooperative there can be a situation when at an exit from cooperative or cooperative elimination the member of cooperative receives nothing.
In the Law About cooperation competence of governing bodies of cooperative is partially changed. General meetings received new additional functions which treat:
– determination of the size of introductory and member contributions and shares;
– determination of the amount of payment of work of the chairman of the board, the head of audit commission (auditor), and also the estimate on the maintenance of the office of governing bodies and control authorities behind cooperative activity;
– making decisions on possession, using and order property;
– formation of the special commissions on attraction as advisers of hired workers.
Especially attentive founders and members of cooperative should be when scoping powers of general meeting concerning possession, using and the order property. It is thus recommended to define the list of agreements and their cost which conclusion demands the solution of general meeting. Other power of general meeting on decision-making under all agreements with property can become a barrier in cooperative activity.
The law of Ukraine About cooperation gave opportunity instead of general meeting to collect meeting of representatives of cooperative in case for the organizational reason (because of territorial placement or considerable number of members of cooperative) carrying out general meetings of members of cooperative is impossible and it is provided by the cooperative charter. Number of members of the cooperative, having the right to delegate representatives, and an order of delegation authorized for participation in meetings of representatives are defined by the cooperative charter.
The law of Ukraine About cooperation established an order of decision-making by general meeting:
– the decision on acceptance, modification of the charter, the introduction in cooperative association or an exit from it and about reorganization or elimination of cooperative is deemed accepted, if for it voted not less than 75 % of members of cooperative which are present at general meeting of cooperative;
– decisions on other questions are accepted prostymbolshinstvomgolosovchlenov (representatives) of cooperative who are present at meeting.
Certain changes are also brought relatively about formation and competence of other governing bodies of agricultural cooperative. So, board and the chairman of cooperative can be chosen for the term which is not exceeding five years, instead of three years.
At the same time, the structure of management of agricultural cooperative settled by the law remained same – not absolutely accurate, as before. It is provided that in cooperatives, with number to 10 members, the chairman of cooperative is elected. In cooperative from 10 and more members, the board which, in case of need, can employ the executive director is elected.
The law of Ukraine About cooperation established powers of audit commission, which:
– carries out checks of results of financial and economic activity of cooperative on own initiative, according to the solution of general meeting or on request of not less than 10 % of members of cooperative;
– makes a conclusion according to annual reports on results of activity of cooperative. The audit commission received powers to demand any materials concerning activity of cooperative, including, accounting and other documents, and also explanations of public officials of cooperative.
The law of Ukraine About cooperation didn’t bring changes of vnalogooblozheniyeselskokhozyaystvenny serving cooperatives as and in this law it is written down that the serving cooperative renders services mainly to members of cooperative, and also other persons for the purpose of conducting their economic activity unlike production cooperative which purpose – receiving profit. Such formulation of the Law is an obstacle to serving cooperative to receive in bodies of national tax service the status of the non-profitable.
Izsravneniyadvukhzakonov and About cooperation it is possible to draw a conclusion On agricultural cooperation that changes in legal regulirovaniisozdaniyaideyatelnost of agricultural serving cooperatives are not so essential to demand basic changes in activity of already existing cooperatives, but these changes should be surely considered at creation new and at modification of charters of already existing cooperatives.
. Radish, leading expert of KGA UKTs.