Abstract
The article highlights the issues of division and spin-off as legal forms of disaggregation of economic organisations, provides legal regulation of these forms in Ukraine, the EU, foreign countries (Germany, Poland) and the relevant analysis of court practice. The author identifies the general (common) features of division and spin-off of economic organisations according to the following criteria: subject composition, purpose, legal form of disaggregation, basis for legal relations; documentation of property transfer, rights and obligations; universal legal succession; and subsidiary liability. The author distinguishes special (distinctive) features of division and spin-off of economic entities according to the following criteria: legal result; legal consequences; and the moment of procedure completion. It is substantiated that it is advisable to regulate the basic concepts and essential characteristics of disaggregation of economic organisations by means of division and spin-off in the Commercial Code of Ukraine or, in the future, in the Economic Code of Ukraine. In this regard, the author provides the wording of the relevant definitions of division and spin-off, which is proposed to be enshrined in parts 4 and 5 of Article 59¹ ‘Termination of an Economic Organization by Reorganisation’. It is found that the analysis of court practice regarding the essence of reorganisation in the form of spin-off shows a difference in approaches, which are fundamentally opposite in nature, when: (1) spin-off is not recognised as a type of termination or reorganisation of a legal entity; (2) spin-off is defined as a form of reorganisation of a legal entity. The author proves that such ambiguity of court practice affects the consideration of a case on the merits, in particular, when changing the subject composition in land lease agreements in the event of a lessee's reorganisation by way of spin-off. The author proposes, taking into account the legislation of foreign countries (Germany and Poland) and EU law, to introduce the following legal forms and constructions into the current legislation of Ukraine: (1) ‘division by acquisition’ (simultaneous use of the forms of division and accession), (2) ‘spin-off by acquisition’ (simultaneous use of the forms of spin-off and accession); (3) ‘separation’ (for JSC, LLC, ALC) - by the formation of a new company and by acquisition.
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