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The content, concept and procedural aspects of the
institution of reorganization as a legal category
Otabek RAKHMONOV
1
Tashkent State University of Law
ARTICLE INFO
ABSTRACT
Article history:
Received June 2022
Received in revised form
20 June 2022
Accepted 25 July 2022
Available online
15 August 2022
This article analyzes the methods of reorganization and the
improvement of legislation governing the relationship with
their application, the substantive problems in the application
and implementation of the principles, methods and forms of
reorganization. As well as the fact that the judicial (compulsory)
liquidation of legal entities is carried out on the grounds
directly provided by law, the peculiarity of the compulsory
liquidation of legal entities, which is not the will of the legal
entity, but in accordance with or in accordance with the
legislation non
–
compliance is analyzed. It also takes into
account the compliance of the activities of the legal entity with
the principles of honesty, reasonableness and fairness.
2181-
1415/©
2022 in Science LLC.
https://doi.org/10.47689/2181-1415-vol3-iss7/S-pp24
8-253
This is an open access article under the Attribution 4.0 International
(CC BY 4.0) license (https://creativecommons.org/licenses/by/4.0/deed.ru)
Keywords:
reorganization,
institution of reorganization,
legal entities,
concept of reorganization,
liquidation of legal entities.
Yuridik kategoriya sifatida qayta tashkil etish institutining
mazmuni, tushunchasi va protsessual jihatlari
ANNOTATSIYA
Kalit so‘zlar
:
qayta tashkil etish,
qayta tashkil etish instituti,
yuridik shaxslar,
qayta tashkil etish
tushunchasi,
yuridik shaxslarni tugatish.
Ushbu maqolada qayta tashkil etish usullari va ularni
qo
‘
llash bilan bog
‘
liq munosabatlarni tartibga soluvchi
qonunchilikni takomillashtirish, qayta tashkil etish tamoyillari
va shakllarini qo
‘
llash va amalga oshirishdagi dolzarb
muammolar tahlil qilinadi. Shuningdek, yuridik shaxslarni sud
tartibida (majburiy) tugatishning qonun hujjatlarida to‘g‘ridan
to‘g‘ri nazarda tutilgan asoslar bo‘yicha amalga oshirilishi,
yuridik shaxslarni majburiy tugatishning o‘ziga xos
xususiyatlari, ularning qonun hujjatlarida belgilangan tartibda
amalga oshirilishi ham tahlil qilinadi.
1
Lecturer at Tashkent State University of Law. E-mail: otabekrakhmon@tsul.uz.
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Содержание, понятие и процессуальные аспекты
института реорганизации как правовой категории
АННОТАЦИЯ
Ключевые слова:
реорганизация,
институт реорганизации,
юридические лица,
понятие реорганизации,
ликвидация юридических
лиц.
В данной статье анализируются способы реорганизации
и совершенствования законодательства, регулирующего
отношения с их применением, также проанализированы
существенные проблемы применения и реализации
принципов,
способов
и
форм
реорганизации.
Проанализировано то, что судебная (принудительная)
ликвидация
юридических
лиц
осуществляется
по
основаниям, прямо предусмотренным законом, что
особенность принудительной ликвидации юридических
лиц, которая является не волеизъявлением юридического
лица, а в соответствии с законодательством. Также
учитывается соответствие деятельности юридического
лица принципам честности, разумности и справедливости.
The transition to a market economy and the adoption of new laws in this regard
have significantly expanded the scope of the rights of legal entities. The wide range of
opportunities provided to legal entities (participation in domestic and foreign trade of
the country) has been developed and strengthened in accordance with the transition
period. These measures have created real opportunities for legal entities of the Republic
of Uzbekistan to engage in foreign economic activity. At the same time, foreign entities,
especially foreign investors, have the opportunity to mutually beneficial cooperation with
domestic businesses.
Indeed, the liberalization of economic activity and its legal provision is of
particular national importance today. At the same time, in the current situation, it is
necessary to improve the position of legal entities in foreign economic relations (law in
the regulation of this or that area), the legal framework for their participation.
The creation of a new legislative system in the country has led to a radically new
look at the institution of reorganization of corporate law and their abolition, one of the
most important institutions for civil law.
Citizens, legal entities and the state, which are the subjects of civil law, have their own
characteristics as subjects of law. Such specificity was manifested, firstly, in the differences in
the civil rights and legal capacity of citizens, the state and legal entities, and secondly, in the
status of recognition of individuals as legal entities and their abolition as subjects.
It should be noted that while citizens and the state are created directly and
indirectly as subjects of civil law, legal entities are created as subjects of law on the basis
of the will of these two subjects. This is because legal entities are participants in various
legal relations in different areas of law, established in the prescribed manner, operating
on the basis of the charter or charter, having their own account, formalized in accordance
with the established requirements [1].
While the termination of legal entities is voluntary and compulsory, voluntary
termination is carried out without trial. In this case, the liquidation case is not considered
in court, but the legal entity that made the decision to liquidate the legal entity is carried
out in agreement with the state authorities and in compliance with certain formalities at
the request of the founders or the div of the legal entity.
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Civil law refers to the legislation governing the activities of each legal entity,
although the procedure for voluntary liquidation of legal entities refers to cases of
extrajudicial (voluntary) liquidation.
In the event of a voluntary liquidation of a legal entity, the liquidation process begins, as
a rule, with a decision by the owners, founders and the div of the legal entity to reorganize or
liquidate. For example, the process of liquidation of a joint-stock company begins with the
adoption of an appropriate decision at the general meeting of the company, since the
reorganization should not have adverse consequences for creditors.
The procedure for making a decision on reorganization differs depending on the
type of legal entity. However, the decision to reorganize is taken by different persons
depending on the form of reorganization. While the general meeting is the div
authorized to reorganize according to the articles of association of the company, the
founders of the companies become members of the company after its creation and have
more votes at the general meeting. In this case, the decision of the general meeting is, in
other words, the will of the founders [2].
According to J. Yuldashev, among the subjects of civil law there is a notion of
emergence only in legal entities, because such a notion does not apply to citizens and the
state, who are the subjects of civil law. Citizens and the state exist spontaneously as
subjects. Although the state of subjectivity in citizens arises after they are born, the term
“basis of formation” of citizens has no logical basis [3].
This idea can be directly applied to the concept of
“
reorganization
”
of corporate
law. Since it is impossible to apply the concept of reorganization to citizens and the state
as a subject, it is logical to
“
reorganize
”
them as a subject, given that legal entities are
formed on the basis of the will of other subjects. It should also be noted that the simple
logical rule is that
“
creation
”
ends in
“
cancellation
”
.
According to A. Shukrullaev, reorganization is a situation that creates a
relationship of legal succession, as a result of which the legal form of the legal entity is
canceled or otherwise structural changes are made. It should be noted that the phrase
“
structural change
”
has no legal meaning. After all,
“
structural change
”
is logically
understood as the reorganization of the bodies of legal entities or the transformation of
these bodies or the legal entity as a structure, while the legal entity operates as a legal
entity. However, while the term
“
content
”
in the term
“
structural change
”
covers the
bodies of a legal entity, its activities, type of legal entity and other concepts, as a result of
“
structural change
”
a legal entity can change only the type of activity and system of
bodies without cancellation. This is not a abolition of the legal entity, but a change in its
activities as a specific legal entity. A. Shukrullaev emphasizes the need to pay special
attention to the parties involved in the reorganization of a legal entity. In his opinion, two
reorganized entities, namely
“
internal
”
(covering only the founders (founders)) of the
reorganized entity (separation or spin-off) and
“
external
”
, which determines the
relationship of the reorganized legal entity with other entities (addition, addition).
shipping and modification) there is a certain regulatory process. Such legal regulation
can also be expressed in the form of
“
compulsory legal relations of legal entities
”
, which
reflects the legal status of the subjects involved in the reorganization of legal entities [4].
Of course, legal relations between the subjects of the reorganization process of a
legal entity become
“
obligatory
”
after the decision on reorganization is made, and the
subject of reorganization has no right to refuse such relations. Only after the completion
of the reorganization, in the absence of claims against him, the relations of the
reorganized person with other participants in the reorganization cease.
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After the decision is made, the founders
’
div or legal entity takes the actions
provided by law. The procedure for voluntary termination of a legal entity differs from
both methods of termination. In this regard, first of all, we will consider the procedure for
voluntary reorganization of a legal entity [5].
The annulment of the reorganization of the subjects of corporate law is a legal fact
by its nature. It is as a result of
“
cancellation
”
that civil rights and obligations arise,
change or become invalid. When analyzing the annulment of legal entities as a specific
type of legal facts, it is necessary to pay attention to a number of cases. First, as a result of
the “liquidation” of legal en
tities, a civil legal relationship may be established or
terminated. When a legal entity is reorganized, an inheritance relationship arises, and
when a legal entity is liquidated, all rights and obligations related to the legal entity are
terminated. Second, the termination of a legal entity has a certain legal effect as a legal
action. This legal consequence is always the product of human will. Third, given that the
methods of liquidation of legal entities are different, they can be included in the types of
legal fact
“
legal action and legal document
”
,
“
administrative document and agreement
”
.
The liquidation of a legal entity as a legal act is reflected in the actions of the founders or
team of the legal entity in connection with the reorganization of the legal entity (merger,
division, etc.). The decision of the relevant state div on the liquidation of the legal entity
is a legal document.
When thinking about the concept of reorganization of corporate law, it should be
noted that neither the legislation nor the legal literature defines this concept [6]. It was
emphasized that only termination can be done through reorganization and termination.
In most cases, it is considered impractical to define the concept of reorganization of
subjects of corporate law or to give a scientific-legal interpretation of this term. However,
it is important to clarify the scientific and theoretical content of the concept of
“
reorganization
”
of the subjects of corporate law and to create a definition of this concept
and to improve the legislation in this area. In this sense, the concept of reorganization of
corporate law can be scientifically defined as follows: reorganization of subjects of
corporate law means the reorganization of a legal entity as a subject of civil law through
reorganization and liquidation, taking into account the claims of creditors and on the
basis of legal succession.
While the reorganization of the subjects of corporate law always means the
liquidation of the subject, in some cases it is important as a basis for the emergence of a new
entity. This is exactly the case in the first method of reorganization of corporate law entities.
Although the entity created in the event of liquidation of a legal entity through
reorganization is recognized as the successor of the previous legal entity, it is considered an
entirely new legal entity. There are two main methods of liquidation of legal entities: the
results of reorganization and liquidation. Termination (mention of the name in legal
relations with indication of successors),
“
at the termination of which there is a complete
”
departure
“
from the
”
scene
“
of legal relations and another
”
non-mention
“
in legal relations.
It is known that the theory of civil law specifies the following ways of formation of
legal entities:
–
the order of issue of the order (order);
–
application procedure;
–
procedure for issuing permits.
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In case of reorganization of a legal entity, depending on whether the
reorganization is carried out voluntarily or compulsorily, it is possible to determine in
what way the newly formed legal entity was formed. If a legal entity is voluntarily
reorganized, it can be considered that the newly formed legal entity was created in the
order of application. Because in this case, the expression of the founder's desire to
reorganize the legal entity means that a new legal entity has been created, and the state
registration div will have to register the new legal entity.
When a legal entity is reorganized in a mandatory court order, a new legal entity is
created in the order of obtaining a permit for the formation of legal entities. In this case,
the reorganization of a legal entity in accordance with the requirements of Article 49 of
the Civil Code requires the permission of the competent state div, such as the
procedure for obtaining a legal entity, and only then the registering authority can register
a new legal entity.
It should be noted that the reorganization of legal entities is not a way to create
legal entities. Although a new legal entity is created when a legal entity is reorganized,
this situation always leads to the liquidation of one legal entity and is considered as a
primary condition in the reorganization process. Although reorganization serves as a
specific legal fact for the formation of a new legal entity, it is not considered as a method
of formation of a legal entity, because the term formation of a legal entity applies to the
formation of new entities [7].
Concerning the essence and content of the concept of annulment of legal entities, it
can be concluded that the term
“
annulment
”
has a legal meaning, the implementation of
which has a certain legal effect, a specific type of legal fact that affects the determination
of the status of civil law. After all, as a legal fact,
“
annulment
”
is carried out by actions
permitted by law, and always leads to the annulment of civil rights and duties (in other
words, subjectivity).
In our opinion, the term
“
reorganization of corporate law
”
is both a theoretical
concept and a practical one. In this regard, it would be expedient to include in the Civil
Code and civil legislation the term
“
reorganization of corporate law
”
and an article of the
same name in the Civil Code.
The above considerations determine that the reorganization and liquidation of a
legal entity is specific to a single legal institution and that they regulate the relationship
in which they are closely related.
REFERENCES:
1.
Kutlymuratov F.K. On the question of determining the place of the institution of
liquidation and reorganization of legal entities in the legal system of Uzbekistan //
“
Private law: topical problems of civil law
”
, Chair reading of young scientists, April 2006.
Tashkent.:
–
TSIL. 2006.
–
PP. 146
–
147.
2.
Rakhmankulov X.R., Gulyamov S.S. Corporate law.
–
Tashkent: TSIL. 2004.
–
P. 394.
3.
Yuldashev J.I. Joint-stock companies
–
as a subject of civil law.
–
Tashkent: TSIL.
2004.
–
P. 84.
4.
Shukrullaev A.H. Civil law regulation of reorganization and liquidation of
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–
Tashkent: 2001.
–
P. 46.
5.
Otakhanov F.H. Entrepreneurial law. / Editional editor.
–
Tashkent: TSIL, 2003.
–
P. 112.
6.
Sotskova A.V. Some issues of reorganization of joint-stock companies // Legal
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–
Moscow. 2006.
–
№1. –
PP. 42
–
43.
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7.
Rakhmonov O. (2022, August). Peculiarities of consideration of cases in
economic courts on voluntarily reorganized limited liability companies. In Multidiscipline
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Soyipov K. (2021). Organizational and legal aspects of the reduction of state
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