The legal nature of preferential rights in corporate relations.

Morozov Andrei Aleksandrovich PhD in Law Associate Professor, Department of Civil Law, North-Western Branch of the Russian State University of Justice 197198, Russia, g. Saint Petersburg, ul. Strel'ninskaya, 5-7, kv. 16 9126543@mail.ru Other publications by this author

One of the main tasks of civil legislation is to ensure respect for the rights and legitimate interests of participants in civil relations. The prevailing dispositive method of regulating relations between subjects is not fully capable of protecting and protecting some of them. 

The current provisions of the Civil Code of the Russian Federation provide for several additional mechanisms aimed at respecting the rights of participants. 

One of them is the pre–emptive right - the opportunity for participants in certain relationships, in accordance with the provisions of legislation, to realize their aspirations in the first place, compared with others. 

The most obvious example of the exercise of a pre-emptive right, of course, is the purchase of a share in the right of common ownership. Despite the well-known and widespread use that the institution of pre-emption law has found in our days, it is not mentioned in classical Roman law. It was only during the reign of Emperor Diocletian that the owner of a land plot could have the right of pre-emptive purchase of an emphyteusis. 

Later, thanks to the works of German pandectists, the institute of preferential purchase underwent significant processing and was subsequently included in the German Civil Code. 

In Ancient Russia, pre-revolutionary Russia and Soviet civil law, preferential purchase, as a measure to protect the rights of participants in civil relations, was also regulated by normative legal acts. However, some Soviet scientists considered the very fact of securing the right of pre-emptive purchase in the legislation unjustified. 

Thus, M. A. Zmileva believed that the right of pre-emptive purchase contradicts the spirit and principles of socialist civil law, complicates property turnover and makes it difficult to alienate shares in common property^[1].

As we can see, despite the widespread use, the attitude towards the right of pre-emptive purchase was not unambiguous. To understand this legal structure, we need to determine the essence of the pre–emptive right of purchase - the legal nature of this phenomenon.

The main feature characterizing the pre-emptive right of purchase in the field of corporate relations is the protection of the rights of subjects established by current legislation from the actions of third parties. 

But this does not allow us to unambiguously answer the question of whether we can relate a preemptive right to property rights, binding rights or second rights. 

According to D.V. Lomakin, in order to understand the nature of preferential rights, they should be considered not as a right to protection in general, but as one of the many ways to protect the subjective rights of participants in civil relations^[2].  

The pre-emptive right in corporate relations necessarily corresponds to the obligation corresponding to this right, expressed in concluding an agreement exclusively with an authorized person, and not with someone else. This scheme pushes us to the idea that there is a violation of the fundamental principle of civil law – freedom of contract, since the counterparty is actually deprived of the opportunity to independently choose with whom to enter into a legal relationship. 

However, this is certainly not the case. Since in this case, the presence of restrictions on the free choice of the counterparty at the conclusion of the contract mediates the observance of the rights of other copyright holders and allows optimizing civil turnover.  

The well-known pre-revolutionary legal theorist I.A. Pokrovsky identified the category of pre-emptive rights with real rights to other people's things, with the so-called rights to acquire a certain thing^[3]. L.Y. Leonova believes that the pre-emptive right has the signs of a real right. The opinion is given that the pre-emptive right follows the thing, and not the person who has this right. The right to another person's thing is terminated in the same way as other property rights. For example, with the death of a thing, the real right to it ceases and, accordingly, the pre-emptive right ceases^[4]. At the same time, it should be noted that L.Y. Leonova does not take into account the fact that property rights can be absolute in nature, unlike pre-emptive rights, which are relative in nature, since such rights arise between participants in a particular corporate legal relationship. 

According to V.P. Gribanov, a researcher of the law of the Soviet period, preferential rights are situations when the law provides for the granting of additional rights to a certain group of subjects.

In another way, S.E. Nikolsky and O.E. Blinkov look at the problem of determining the legal nature of preferential rights, according to whom the preferential right has an obligatory nature, since it is implemented in a legal relationship that meets all the signs of an obligation arising on the basis of the law^[5]. This point of view is also not indisputable, since pre-emptive rights cannot have a binding nature, since they do not have a counter obligation. 

Based on the provisions of Article 307 of the Civil Code of the Russian Federation, it is impossible to determine that the preemptive right carries signs of obligations, even those that could arise on the basis of the law. For example, let's pay attention to such an important circumstance as notifying other participants if they wish to alienate their share. 

When a person notifies the other participants of the intention to sell their share, such participants have a pre-emptive right, but it is limited to a period after which the person who is obliged to comply with this right ceases to be bound by the pre-emptive right with those participants and has the full right to alienate his share to another person. However, such a rule also has certain limitations, expressed in a specific time interval provided by the legislation for its implementation. It should be noted that this right may arise anew each time when a participant in a legal relationship decides to withdraw from this legal relationship by selling a share to a third party.

It is important to understand that the opportunity for a corporate entity to exercise a pre-emptive right can only be realized in a certain period of time. The establishment of such a restriction is intended to protect the rights of other, third parties from the arbitrariness of subjects with the right of pre-emptive purchase. 

 In contrast to the rights of obligation, the preemptive right does not compel one person to fulfill another person's requirement to comply with his preemptive right, which could be the main criterion for attributing the preemptive right to the characteristic of an obligation, in the presence of which one party can always force the other party to fulfill any obligation.  

In science, there are points of view, according to which the pre-emptive right is usually attributed to the second rights. So, in the case when the seller has expressed his opinion about the sale of any product, he is in some way a related, but not obligated entity.^[6] An entity with a pre-emptive right of acquisition can use it, or this right will be transferred to other, third parties. The very fact of the fact of sale must be qualified as an offer, which determines the position of the seller as a whole using the category of second rights"^[7].

In our opinion, the point of view is still more consistent, according to which the pre-emptive right tends more towards the second law, rather than the law of obligations. Thus, the offer in corporate relations clearly illustrates such a statement, since it does not oblige any further actions of another participant. 

Considering the opinions of various researchers on the nature of pre-emptive rights in the activities of a legal entity, one can agree with them only in part of their judgments, since it is impossible to find signs in the construction of a pre-emptive right implemented in corporate relations that unambiguously allow this right to be attributed neither to property, nor to obligation, nor to second law^[8].

O.A. Krasavchikov referred to the offer as a part of the legal structure that is unable to bring to life legal consequences, most clearly manifested at the stage of the emergence of contractual relations, and not the legal relationship itself, for the existence of which one or another contractual structure is directly concluded.^[9]

D.V. Lomakin adheres to a similar point of view, believing that the legal relations of participation that we can observe in corporate relations of legal entities cannot inherently be attributed to obligations as such. Based on this, their identification with the legal relations of obligations is not consistent^[10]. If we decide to combine the concepts of property and preferential legal relations, this point of view will also not be objective, since there are no prerequisites for such conclusions^[11].

The very fact of the need for the existence of preferential rights is due to the presence of interests among the participants, the protection of which is determined by the legislator as the most important component.

When exercising the pre-emptive right to purchase within the framework of corporate relations, we need to take into account that there is a certain relationship between the subjects, but this relationship is determined only by legal relations within which it is possible for a person to exercise the pre-emptive right to purchase. 

It is worth agreeing with D.V. Lomakin and attributing preferential rights to the elements that are part of the content of corporate relations. For all participants in corporate legal relations, it is mandatory to observe the pre-emptive right^[12].

As a special feature, it can be indicated that if the legal relationship does not change, then all participants have the pre-emptive right. But when one of the participants in these legal relations decides to change something, he undertakes to respect the preferential right of other participants. A person violating the right of pre-emptive purchase may have adverse consequences related to the invalidation of the transaction^[13].

In our opinion, the pre-emptive right in the narrow sense is the right of a participant in a legal relationship to receive information about the intentions of another participant in a legal relationship, in the context of which the pre-emptive right to purchase is realized. 

In a broad sense, the pre-emptive right of purchase is an opportunity to expand the scope of one's rights, applying, among other things, liability measures in the form of a requirement to transfer contractual rights and obligations under the contract to the entity possessing these rights.

In our opinion, the institution of pre-emptive law is characterized by independence and not dependence on other rights, the legislator determines its content, depending on the type of legal relations within which the exercise of pre-emptive right is provided at the legislative level.  The content of the pre-emptive right varies and may depend on the relationship in which it is implemented.

In corporate relations, the pre-emptive right consists of the pre-emptive right to purchase or purchase shares, shares at a price offered to a third party, or at a price that or the procedure for determining which is established by the company's charter and determined by the characteristics inherent in the organizational and legal form in which the legal entity carries out its activities. 

The procedure and conditions of the pre-emptive right of purchase may also be related to the organizational and legal form of a legal entity. In corporate relations, the existence of a pre-emptive right is based on the fact that these relations relate to those persons who jointly participate in the activities of a legal entity, as well as perform managerial functions in it.

For participants of limited liability companies, the pre-emptive right is provided for when transferring a share in the authorized capital of the company to a third party. In accordance with the provisions of the Civil Code of the Russian Federation, Article 21 of the Federal Law "On Limited Liability Companies", the company's participants enjoy the preferential right to purchase a share or part of a share of a company participant.

For entities participating in the activities of public joint-stock companies through the ownership of the company's securities convertible into its shares, there is a pre-emptive right to purchase additional shares issued by the company or convertible securities into shares in the cases and in accordance with the procedure provided for in Article 100 of the Civil Code of the Russian Federation.

For non-public joint-stock companies, the pre-emptive right of its shareholders to purchase shares alienated by other shareholders in return transactions at the offer price to a third party or at a price that or the procedure for determining which is established by the company's charter is fixed by the Federal Law "On Joint-Stock Companies"^[14].

In conclusion, we note that the pre-emptive right in corporate relations allows participants and shareholders to take measures aimed at protecting their interests from the actions of third parties to acquire shares and shares in the authorized capital. This, in turn, will allow them not to lose control of the legal entity and preserve all corporate rights from the acquisition by third parties of shares, shares in the authorized capital of the legal entity and to protect that control over the corporation is not lost and corporate rights are not lost. Thus, the obligation of participants wishing to sell their share or share to another person includes notifying other participants^[15]. In the absence of a will from the participants of the company, the sale of these objects of civil rights can be carried out to third parties^[16].

The construction of pre-emptive rights is a precautionary way of protecting rights. Such measures are provided by law to prevent violations of corporate rights. 

In the literature, such measures are called state-compulsory, which do not have signs of civil liability, which can be divided into preventive measures and regulatory measures^[17]. A pre-emptive right can be determined on the basis of the idea of it as a legal structure having a heterogeneous nature, which provides its owner with the opportunity to perform actions that are legal facts in a priority order compared to other entities to protect their interests.

Having carried out work on determining the legal nature of pre-emptive rights, it should be pointed out that it includes elements of property, obligation and second law^[18]. The nature of the pre-emptive right is uniform^[19], but its content is not uniform^[20], depending on the specifics of specific legal relations.