The concept, legal nature and features of the founding agreement
DOI:
https://doi.org/10.15330/apiclu.61.2.62-2.77Keywords:
agreement, founding agreement, joint activity agreement, simple partnership agreement, contractual relations, corporate relations.Abstract
The doctrinal understanding of the concept of «founding agreement» was studied. The author supports the position that the founding agreement is not a contract of a simple partnership, but is a subtype of a contract on joint activity. An analysis of the legal characteristics of the founding agreement was carried out and it was determined that it is consensual, named, multilateral, fiduciary, aleatory, free of charge, concluded for the benefit of third parties.
The article provides a comparative legal analysis of the founding agreement with related legal structures, in particular with the joint activity agreement, the simple partnership agreement, the reorganization (merger) agreement and the corporate agreement.
The author’s definition of the founding agreement is proposed. It is emphasized that the concept of the founding agreement should contain only defining characteristics, be based on a more general concept of the agreement and not contain unnecessary features. The author’s definition of the studied concept is follow: а founding agreement is an agreement between two or more natural and/or legal entities (founders) about their joint organizational and property activities aimed at establishing a certain legal entity.
It is claimed that there are no corporate relations when concluding the founding agreement. The author believes that the relevant relations are contractual, because the founding agreement is a civil law one.
The author argues for the necessary definition of a single «founding agreement» to regulate the stage of creation of any corporate-type legal entity. It is also appropriate to define the charter as the only founding document of corporate legal entities. It is emphasized that with this separation of the functions of the founding agreement and the statute, the issues of inconsistency in terminology, the dispute regarding the understanding of the place of the founding agreement in the system of treaties, and many others will disappear.
