1.История
государства и права.
THE CIVIL LAW
CLASSIFICATION OF THE CORPORATE CONFLICTS
Kazakhstan
The polarity of the interests of
participants of corporate conflicts, the difference in the persecuted them to,
a variety of methods for resolving them lead to the fact that they may be very
diverse in nature. It is the diversity of corporate conflicts and the need to
identify the optimal method to respond in a particular conflict situation
necessitated the classification of corporate conflicts [1, 91].
Classification is the scientific
method, which consists in the separation of the entire set of objects under
study and their subsequent merger into groups on the basis of any characteristic.
The specified attribute is called a base classification [2, 24].
According to AJ Antsupov and SV
Baklanovsky main task of classification is to identify system features that
already exist throughout the objective set conflicts [3].
Currently, in theory and practice is
not a single criteria would allow the classification of corporate conflicts. In
the scientific literature and other publications by different authors offer
diverse base classification of corporate conflicts. Domestic corporate conflicts
conflictologists classified as follows:
1. By way of resolution: antagonistskie and
compromise;
2. Depending on the nature of occurrence:
social, organizational,
emotional and personal;
3. Taking into account the impact of
orientation: vertical and horizontal;
4. severity: overt and covert;
5. Depending on the number of participants
involved: intrapersonal,
intergroup and interpersonal [4, 331].
Practitioners offer other classification
criteria. Director of the Vladivostok branch "Far registry" JSC
Kazakhstan "Center-Invest" Miroshnichenko believes that the purposes
for all corporate conflicts with a sufficient degree can be divided into three
groups:
1. Conflicts aimed at establishing control over
the company by one
or a group of participants;
2. "Tactical" conflicts associated
with the resolution of the current conflict between
members of the corporation in solving specific
problems of company management;
3. Corporate blackmail.
O. Osipenko, in turn, by the example of
joint-stock companies classifies corporate conflicts in two ways:
1. The goals pursued by the conflicting
parties;
2. The subjects of the conflict.
The first group of corporate conflicts,
classified by purpose, the author considers
corporate conflicts in which one party attempts
to acquire a controlling interest
shares to:
1. The formation of a horizontal and (or) a
vertically integrated holding company;
2. speculative purposes;
3. control over financial flows trademarks or
organization -
Object corporate conflict;
4. The tool of competition aimed at temporary
or less
to eliminate a competitor;
5. The enforcement of obligations to the lender
the lender.
The second group of corporate conflicts,
classified by purpose, the author include cases of conflict significant
acquisition "before-and-control" stake in the company for the
following purposes:
1. Direct corporate blackmail
("greenmail");
2. Inclusion of a representative to the board
of directors of the company;
3. Counterattack owner of the company under
attack corporate
blackmailer.
The third group is represented by
corporate conflicts legal and illegal corporate actions focused on the
suppression of acts or compulsion to perform certain actions by management of
the corporation. The fourth and final group of conflicts of this classification,
are widely spread in recent years, so-called "corporate war", whose
ultimate goal is "capture business" or eliminating a competitor
organization. On subject criterion of the most common, according to O. Osipenko
are corporate conflicts between significant minority shareholder (s) and the
majority shareholder. The second group of the classification of conflicts
author refers conflicts, involving shareholders and management. The third group
conflicts author calls "all against all." We are talking about situations
where the minority shareholders are in conflict with each other. The fourth
group of corporate disputes the author defines as opposing the administration
and labor collective, when the latter is collectively holds a significant stake
and uses the rights of a shareholder to address social and labor issues.
Separation of corporate conflicts, depending on the purpose pursued by the
parties to the conflict, is the principle which formed the basis of the
classification proposed AD Osinovskaya. The author divides corporate conflicts
in the two groups and indicates that the first group are conflicts caused by
the desire to third parties, with substantial financial and administrative
capacity, to gain control of the company and its assets. The second group
consists conflicts generated not financial expansion of the initiator of the
conflict, and the other, often personal reasons [5, 43].
The authors of the book
"Corporate conflicts. Their causes and methods overcome "edited by AS
Semenov and YS Sizov, analyzing the nature, content and hidden objectives of
corporate conflicts in recent years, offering them classified into the
following types:
1. Violation of the legislation. Conflicts
related to unintentional violation of the norms and procedures of corporate
law, corporate parties perceived as an attack on their interests.
2. Acquisitions. Conflicts that arise in the
process of trying to group participants corporation (the foreign investor) to
establish control over the enterprise.
3. Conflicts over dividends. Conflicts between
large and small corporations participants about the use of business profits,
arising
the specifics of Russian reality, when a large
party corporation receives income from the enterprise than through dividends
and through participation in the financial flows.
4. Conflicts with managers. Conflicts between
participants corporations and corporate managers about the effectiveness of the
company's management and integrity management actions.
5. Competition. Conflict aimed at undermining
the financial health and competitiveness of corporations, most often expressed
in an attempt to absorb or corporation filed against her bankruptcy
proceedings.
6. Corporate blackmail. Conflicts involving
minority participants corporation aimed at encouraging large corporation or its
members to buy out minority shareholders of their shares (shares) at a price
above their market value, or to pay a compensation for the termination of the
conflict [6, 11].
As previously stated, the above
classification of corporate conflicts, proposed by different authors show the
diversity of approaches to this issue and the lack of uniform criteria for the
classification of corporate conflicts. Also it should be noted that a number of
proposed classifications It is based on a more economic categories and
criteria, rather than legal. Author partly shares offered above classification
of corporate conflicts. In particular, we should agree with the proposed
separate classification criteria, for example, on the objectives pursued parties
to the conflict. At the same time, according to the author suggested above
classification does not reflect contemporary realities prevailing in the field
of legal relations. Analysis of judicial and administrative practices for this
category of disputes suggests that the criteria for the classification of
corporate conflicts can be identified on several grounds. The author proposes
to include the main criteria for classification
corporate conflicts are as follows:
a) the composition of participants in the conflict
(the corporate conflict);
b) the objectives pursued parties to the
conflict;
c) on the methods used in conflicts, in order
to achieve
goals;
g) on the way to drop the
corporate conflict;
d) on the consequences of the conflict for its
members and corporations.
The first criterion for
classification, according to the author, is a list of participants corporate
conflict (subjective criterion). Parties to the corporate conflict in most
cases by participants of the corporation. The most common are the conflicts
that arise between significant minority participants and the majority party of
the corporation. In this case, the motive of the conflict by a desire to
acquire absolute control over the corporation. The second group of the
classification of conflicts author refers conflicts are parties Corporation on
the one hand, and its members or participants on the other hand. This group of
interconnected conflicts with the group conflicts entities that are parties to
corporate and executive bodies (management) as a corporation in such conflicts
as one of the parties to the conflict, represented by its authorities, and in
particular managers. As practice shows, such conflicts are typical for
companies with a strong diffusion of the capital - the lack of a majority
party, and sometimes lack of significant minority of participants. Just
subjects corporate conflict can act Corporation, through its agencies on the
one hand and the other persons on the other. Or the parties to the conflict are
the participants of the corporation or other entity. Under other persons in
this case refers to foreign investors, the registrar, the depositary and
others. Examples of such conflicts may be cases of establishing corporate
control by the foreign investor; disputes relating to the existence of parallel
existing register of shareholders in corporations established in the form of
joint stock companies; the creation of parallel government corporation;
disputes involving public authorities (for example, in connection with the
prohibition of joint-stock company Federal Financial Markets Service to carry
out transactions in the register of shareholders of the company) and others. On
the basis of the objectives pursued by the parties to the conflict, the author
proposes to divide the corporate conflicts into three groups. The first group
consists conflicts, resolving the current controversy corporations in solving
specific problems of management of the company. At the core of this group
conflicts often is the use of corporate profits, payment of dividends.
Ground for corporate conflicts of this type are
often mistakes and violations of corporate law, allowed managers. Typical
manifestations of these conflicts are blocking minority parties to take certain
decisions at general meetings; complaints to public authorities; legal action
for violations of certain corporate governance procedures.
A second group of corporate
blackmail ("greenmail"). Corporate blackmail aims to urge large
corporation or its members to buy out the minority party its stake or share at
a price above their market value, or to pay a compensation for the termination
of the conflict. The most common forms of manifestation - the requirement to
hold extraordinary general meetings with the agenda of early termination of the
powers of management and election of new ones; attempt to form a parallel
government; complaints and claims.
The third group consists conflicts,
pursuing the goal of redistribution of property. This group conflict aimed at
establishing control over the company by one or another group of participants.
At the same time can be set temporary control over the assets and financial
flows through the creation of alternative corporate boards of directors of
several parallel election of the Directors General, etc. It can also be
obtained by the corporate control of the company as a result of the so-called
hostile takeovers or bankruptcies. The following classification criteria are
the methods used in conflicts, to achieve their goals. The author proposes to
divide the participants used the corporate conflict methods for legal and
non-legal. The legal methods include techniques and methods that comply with
applicable laws and their application does not entail legal responsibility. To
unlawful methods include such techniques and methods commonly used by corporate
conflict that do not conform to current legislation, entail liability
stipulated by law, or do not violate the applicable legislation, but are
unethical and do not correspond to current business practices in the field of
legal relations. The legal methods of corporate conflicts include, in
particular, the requirement of convening the board of directors and the general
meeting of shareholders of the corporation; Filing an application in
administrative, law enforcement and (or) the judiciary; purchase of shares, the
shares or share corporations and others. unlawful methods include methods such
as the creation of parallel controls the corporation; the formation of parallel
registers of shareholders in joint stock companies; constituent documents
forgery, embezzlement of shares; deliberate bankruptcy; hostile takeovers;
defamatory PR firm and others. The fourth criterion for classification is the
way to end the corporate conflicts. By the method of termination of the author
proposes to divide the corporate conflicts two groups: antagonistskie and
compromise. By antagonistskim include corporate conflicts, to stop that, based
on the severity of the conflict, requires recourse to competent public
authorities, to resolve disputes. This treatment can be a statement in
judicial, administrative or law enforcement agencies. Compromise corporate
conflicts involve their resolution through negotiations, through mediation,
conciliation or arbitration. The final criterion for the classification of
corporate disputes the author proposes to consider the consequences of
corporate conflict for its members and corporations. Based on this criterion,
the conflicts are divided into design (creative) and destructive. Structural
consequences of corporate conflict which has arisen due to various errors and
mistakes in the management of the corporation as a result of the violations of
law on the part of management or members of the corporation and also for other
reasons, allow a result of a corporate conflict overcome these shortcomings, mistakes
and violations.
The destructive consequences of
corporate conflicts adversely affect the activities of the corporation and its
members. By the destructive effects of lead are usually protracted conflicts
aimed at redistribution of property of the corporation. Classification of
corporate conflicts, as mentioned earlier, reveals the optimal method to respond
in a particular dispute. For example, for group conflicts "2" (based
on the classification proposed by the author), whose purpose is to resolve the
current contradictions and conflicts for the group "3", compromise
the method of termination, the preferred alternative is the use of procedures
for resolving corporate conflicts. At the same time for conflict resolution
group "1", the purpose is the redistribution of property or corporate
blackmail, as well as conflict resolution group "4" antagonistskih by
the method of termination, will be the preferred application of judicial and
administrative procedures, referral to law enforcement. Thus, the corporate
conflict - a phenomenon quite objective and typical Russian corporate legal
environment and unclassifiable, and therefore systematic comprehension.
Literature