INFORMATION LETTER OF PRESIDIUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of February 5, 2008 No. 124

About some questions of practice of application by Arbitration Courts of separate provisions of articles 40 and 40.1 of the Federal law "About Privatization of the State-owned and Municipal Property"

Due to the questions arising in court practice concerning application of separate provisions of articles 40 and 40.1 of the Federal Law of 21.12.2001 N 178-FZ "About privatization of the state-owned and municipal property" (further - the Law on privatization), the Presidium of the Supreme Arbitration Court of the Russian Federation according to article 16 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation" informs Arbitration Courts on the developed recommendations.

1. Articles 40 and 40.1 of the Law on privatization establish the guarantees directed to preserving share of the state or municipality in the authorized capital of the open joint stock companies created in the course of privatization, and also the open joint stock companies entering the list strategic in cases of increase in the authorized capital of these societies by additional share issue.

By hearing of cases, the concerning open joint stock companies created in the course of privatization, courts are recommended to consider that containing in articles 40 and 40.1 of the Law on privatization of condition of increase in the authorized capital are effective only in cases when the corresponding number of shares arrived in property of public legal entity in the course of creation of open joint stock company based on the legislation on privatization.

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