Анастасия Мазова
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Законопроект «О внесении изменений в статью 181.2 части первой Гражданского кодекса Российской Федерации» 1(далее – Законопроект) внесен вчера на рассмотрение Госдумы.
Изменения направлены на совершенствование норм ГК РФ в части порядка принятия решений собраний дистанционным способом и их документального фиксирования соответствующими гражданско-правовыми сообществами.
Действующие нормы статьи содержат положения, согласно которым коллектив может принимать решение при встрече его членов (когда голосуют по ним «присутствующие») и без проведения встречи посредством заочного голосования (когда голосуют «отсутствующие»).
Инициаторами поправок (депутаты Павел Крашенинников, Андрей Макаров) уточняется, что несмотря на то, что текущие нормы (абз. 2 п. 1 ст. 181.2 ГК РФ) содержат указание на возможность использования электронных и технических средств при голосовании, такой подход вносит недопонимание в порядок действий участников собраний, в связи с чем задача законопроекта – закрепить законодательно более точное словесное воплощение в положениях указанной статьи.
В частности, поправки уточняют понятие «собрание» и унифицируют его использование в отношении гражданско-правового сообщества, решение которого имеет юридическое значение в силу закона (п. 1 ст. 181.2 ГК РФ в новой редакции). Ранее понятие «собрание» использовалось, как для указания на форму документа, так и для разновидности коллегиального органа юридического лица.
Законопроектом предлагается уточнить, что участвовать в заседании возможно дистанционно с помощью электронных или технических средств, если такие средства позволяют достоверно идентифицировать лицо, принимающее участие в заседании, и позволяют ему участвовать в обсуждении вопросов повестки дня и голосовать (абз. 2 п. 1 ст. 181.2 ГК РФ в новой редакции).
Статью предлагается дополнить двумя новыми пунктами, которые закрепляют порядок заочного голосования (п. 1.1 ст. 181.2 ГК РФ в новой редакции) и возможность использования смешанного формата собрания (п. 1.1 ст. 181.2 ГК РФ в новой редакции). Изменения предполагают, что соответствующие способы могут быть установлены законом, уставом или самим решением собрания.
Ввиду указанных выше изменений, порядок оформления протокола собрания также дополнен. Так, принятие решения собрания может быть подтверждено протоколом в письменной форме или протоколом, который составлен с использованием электронных или технических средств (п. 3 ст. 181.2 ГК РФ в новой редакции).
Изменениями планируется убрать проблему с определением места проведения собрания при условии использования технических средств участия. Так, протокол общего собрания дополнительно должен будет содержать информацию о способе дистанционного участия. При использовании смешанного формата голосования в протоколе нужно будет указать и место (физическое присутствие части участников), и способ дистанционного участия остальных (п. 4 ст. 181.2 ГК РФ в новой редакции).
В случае принятия законопроекта обновленная редакции ст. 181.2 ГК РФ вступит в силу с 1 июня и будет распространяться на порядок принятия решений собраниями в АО и ООО, а также на участников иных гражданско-правовых сообществ, в которых необходимо принятие коллективных решений.
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1 С текстом законопроекта № 1158774-7 «О внесении изменений в статью 181-2 части первой Гражданского кодекса Российской Федерации» и материалами к нему можно ознакомиться на официальном сайте Госдумы.
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