The Future of the Legal Entity Special Rights When it is Reorganized

Abstract

The article concludes that te civil right that by virtue of law can be assigned to a legal entity of a certain organizational and legal form terminates when a legal entity changes its organizational and legal form. The author analyzes the conflict between Para. 5 of Art. 58 of the Civil Code of the Russian Federation, according to which the rights and obligations of the legal entity when it is reorganized do not change, and Para. 1 of Art. 296 of the RF Civil Code, according to which the right of operational management can belong only to an entity and state enterprise. It is proved that Para. 5 of Art. 58 of the Civil Code of the Russian Federation is subject to restrictive interpretation and applies exclusively to the obligations of the legal entity in question. Consequently, the conflict between Para. 5 of Art. 58 and Para. 1 of Art. 296 of the RF Civil Code is resolved in favor of the latter rule. Due to the principle of free exercise of rights, a legal entity bears all risks of adverse consequences caused by reorganization, including consequences associated with the termination of specific legal rights. Termination of the right of operational control when a legal entity is replaced by an organizational and legal form correlates with the general legal tendency aimed at reducing the number of cases of using the institute of operational management to govern economic transactions. The main arguments of supporters and opponents of this point of view are analyzed on the example of a specific dispute in case No. A60-18402/2015.