Agreement as a regulator of corporate relations

Abstract

The article examines the general civil principles of the regulation of corporate relations on the basis of the agreement, taking into account the scientific views and ideas expressed in the works of the famous Ukrainian civilist academician Volodymyr Luts.
According to the Scientist’s approach, the founding agreement is a type of agreement on joint activity, which has legal significance until the creation of the entrepreneurial company. However, corporate relations are only relations that arise between participants and a legal entity after the creation of the latter as an independent legal entity. In this regard, it has been proven that the construction of a civil law agreement after the registration of a business legal entity, which would directly or indirectly affect the regulation of corporate relations, was absent until recently or changed into a different legal form - a founding document. Currently, the regulator of corporate relations is the corporate agreement, which is specified in the Law of Ukraine «On Limited and Additional Liability Companies» and in the new Law of Ukraine «On Joint-Stock Companies».
In most cases, a corporate agreement is of a mixed nature, which is due to the combination of elements of various agreements in the terms of a corporate agreement and, for example, an agreement of sale, gift, pledge of corporate rights, etc. Moreover, in the modern conditions of legal reality, with the help of the construction of a corporate agreement, the issues of business startups that require the fixation of individual agreements are solved precisely within the framework of the agreement, and not the founding document. Therefore, the use of contractual and corporate instruments, namely founding and corporate agreements, as regulators of corporate relations, are used in the following combinations: 1) a mixed agreement containing elements of a founding (partnership) and corporate agreement; 2) the founding agreement with the condition of further conclusion of the corporate agreement; 3) the founding agreement before the establishment of the company and the corporate agreement after the establishment of the company, which are not connected by any conditions.
Based on the analysis of the influence of civil principles on the legal essence of a corporate agreement as a deed, it is argued that a corporate agreement is concluded by the participants of an entrepreneurial partner with the appropriate amount of civil capacity, according to a free expression of will that corresponds to their internal will, and is directed to legal consequences in the form of an outline of implementation methods corporate rights. Based on the analysis of the terms of the conclusion of the agreement, it has been proven that the regulatory function of the corporate agreement is manifested in the possibility of concluding this agreement by reaching an agreement on the essential terms of the agreement, taking into account the requirements of acts of civil legislation and acts of local law-making, customs of business turnover, requirements of reasonableness, fairness and requirements arising from the essence of the relationship between the parties to the contract. The essential conditions under which a corporate agreement can be considered concluded are the conditions on the subject of the agreement and all those conditions on which an agreement was reached at the request of at least one of the parties.