What is the essence of corporate governance. Essence and structure of corporate management. Specific Features of Corporate Governance in Russia

Most large domestic companies in recent years have begun to actively penetrate the international markets for goods and services. Such stable dynamics is due to the fact that today corporate governance has become widespread in Russia, manifested in the involvement of independent directors, non-financial reporting, increasing the role of corporate spirit in the organization, as well as continuous staff training.

At the same time, many who are not connected with the activities of large enterprises believe that management in an organization is an unpromising link in the entire system. To prove the fallacy of this judgment, it is necessary to consider what corporate governance is, what goals and objectives it faces, to trace the vector of evolutionary development of domestic governance, and also to identify the characteristic features inherent in Russian practice.

General characteristics of corporate governance

Corporate governance is a rather complex phenomenon that affects various relationships within a corporation. It is a way of managing an organization regulated by the norms of legislation, which ensures a fair and equitable distribution of the results of economic activity between shareholders and other interested parties. In other words, the essence of corporate governance is manifested in providing the company's shareholders with the opportunity to effectively control and monitor the activities of managers, which ultimately should contribute to an increase in capitalization.

However, this is not the only definition. Corporate governance can also be considered in the following aspects:

as a system of management and control over the functioning of the organization)
as a complex structure, involving the division of rights, duties and responsibilities)
as a set of rules and procedures for making managerial decisions.

Hence the key goal of corporate governance is to ensure the functioning of the corporation in the interests of the owners.

Corporate governance, being an independent field of activity, has its own object of study - the relationship between the company's management (managers) and shareholders. At the same time, such relationships are carried out through the use of a certain set of tools, which are the charter of the organization, internal regulations, the Code of Corporate Governance and Conduct.

Important in organizing effective management in a corporation is the observance of the principles - the fundamental principles. So, back in 1999, the OECD published a document called "Principles of Corporate Governance", designed to provide methodological support for improving the normative, institutional and regulatory component of the corporate governance process. These include the following:

priority nature of the rights and interests of shareholders)
equality of stakeholders)
a significant role of participants in the management of the company)
transparency)
publicity)
performance of the duties assigned to them by the members of the board.

Historical background on the emergence and development of corporate governance in Russia

Despite the fact that corporate governance has existed in international practice for about 200 years, it became widespread in Russia only in the 1990s.

The actualization of this direction was influenced by the privatization that took place, which revealed the primary signs of corporate ownership in domestic enterprises. However, due to the fact that at that time chaos reigned in all spheres of management, the norms for conducting the activities of companies and partnerships were not legally regulated, disputes and conflict situations between shareholders and directors began to arise everywhere. All this led to anti-legal problem solving.

At the same time, these events led to the realization of the urgent need to adopt legislative acts that would allow a civilized approach to the procedure for managing organizations. One of these documents was the 1996 Law on Joint Stock Companies. And although he somewhat smoothed out sharp corners, a number of problems remained unresolved.

The situation was aggravated by the crisis that began in 1998, which increased the urgency of improving corporate governance. It was during this period that the majority of shareholders became interested in the basic provisions related to the effectiveness of the management of organizations, the profitability of companies, corporate transparency, as well as the protection of the rights and interests of shareholders.

Corporate governance in Russia began to develop rapidly in the 2000s, as evidenced by the adoption of internal Corporate Governance Codes in many companies.

In 2003, the National Council for Corporate Governance was formed. His responsibilities include organizing and holding thematic seminars, symposiums and conferences, as well as publishing scientific and periodical literature covering the current state of Russian corporate governance and its development trends.

All the measures taken had a positive impact on the formation of management in Russia and retained a positive effect until the onset of the global financial crisis in 2008, when the tendency of some owners to move away from operational management and reorient themselves to the positions of chairmen of boards of directors became apparent. However, due to the fact that the actual power remained in the hands of the owners and the formed councils were not distinguished by strong management decisions, they were not given the appropriate powers. In addition, the composition and structure of the boards were formed taking into account the personal wishes of the main shareholder, regardless of the real needs of organizations.

The crisis clearly showed how formal the activities and role of many boards of directors were. Most companies were forced to rethink their strategies and shorten their planning horizons from medium-term to one-year. If the company had not adopted a strategy, now managers began to play a leading role.

However, a number of problems remain to this day that require immediate solutions. These include:

combination of management and ownership functions)
poor elaboration of the mechanism of control over the activities of managers)
unfair distribution of profits)
lack of transparency of financial and non-financial information.

All this is exacerbated by non-legal methods of management and the corruption component.

Subjects of corporate governance

It is possible to increase the efficiency of corporate governance by improving the activities of its subjects, which can be grouped into two blocks:

subjects of internal management)
subjects of external infrastructure that have a direct impact on the state and further development of the organization.

The first group should include the highest management bodies and individual officials involved in the life and activities of the company (corporation, founders of the company, participants, board of directors, general meeting of shareholders).

The second group consists of the state represented by its authorized bodies, associations of individuals that influence the activities of the organization or are dependent on it (banks, customers, suppliers, competitive companies).

At the same time, both groups play a very important role in the successful functioning of the corporation: a change in the position of one participant or in the external or internal environment entails a change in the position of the entire company. However, it is much easier to influence the internal structure, because the governing bodies have powerful levers and incentives with which they restrain or, conversely, encourage this or that form of behavior.

Specific Features of Corporate Governance in Russia

The most important feature of the domestic corporate governance system is that our country embarked on a sustainable path of development much later than the others. This predetermined its specificity, namely:

ownership concentration)
weak separation of ownership and control functions)
lack of transparency in the activities of Russian companies.

The last point is largely due to the fact that at the end of the 90s there was an almost one hundred percent probability of raider seizures. Today, government agencies are exerting quite tangible pressure. This is especially true for small and medium-sized businesses: administrative barriers are so high that many companies simply cannot survive in such circumstances.

In addition, the corporate governance model in Russia is close to the insider model, which is characterized by the following advantages:

long-term development of the organization)
stability of internal and external factors)
low risk of bankruptcy)
presence of strategic alliances)
a fairly effective system of control over the company's managers.

At the same time, corporate governance in Russia is characterized by such a drawback as a weak elaboration of the mechanism for introducing innovative projects. However, the Government of Russia is currently actively developing this area, encouraging companies engaged in innovation and investing impressive amounts of financial resources in the development of this area.

On the state of the current corporate governance mechanism in Russian Federation the isolation of the methods and technologies used from cultural and historical features and national mentality has a negative impact. This fact hinders the successful development of management.

Another characteristic feature that is predominantly characteristic of Russia is the priority of the norms and provisions of the current legislation over following the advisory standards. That is why it is important to improve the legal acts, eliminate the gaps existing in them in order to protect the interests of shareholders. At the same time, the use of methodological literature in the practical activities of corporations would also have a positive impact.

The need to develop and improve corporate governance

Necessity further development corporate governance is due to the fact that it can be used to achieve positive effects:

increase the investment attractiveness of the company)
attract investors who are ready to invest financial resources for the long term)
improve performance)
reduce the cost of obtaining bank loans)
increase the market value of the company
facilitate access to capital markets)
improve the image and reputation of the company.

Most reliable and stable investors, paying attention to the organization of corporate governance in Russia, pursue the following goals:

In addition, the introduction and active use basic principles corporate governance in the practical activities of the organization can have a direct economic effect. Improving existing system corporate governance, domestic business structures can expect to receive an additional premium to the price of their own shares, the amount of which will vary from 20 to 50%.

Key directions for the development of domestic corporate governance

Currently, the main tasks in improving the practice of corporate governance of Russian companies are:

dissemination of international practices)
active participation in the regulatory and legal regulation of the protection of the rights and interests of owners)
investment attraction.

To this end, it is advisable to carry out a number of activities in the following areas:

formation of an effective mechanism to prevent illegal write-off of book-entry securities)
dissemination of the principle of publicity and transparency)
development of strict rules and procedures for corporate acquisitions by forming and clarifying the procedure for acquiring more than 30% of ordinary shares)
modernization of the existing procedure for the establishment and liquidation of legal entities)
clarification of the process of forming the board of directors)
implementation of the principle of variability in relation to models of distribution of control functions and strategic management by a collegial or sole body)
improvement of the mechanism for resolving conflicts arising within the corporation.

To date, it can be argued that gradual work is underway to implement these measures. In particular, the adoption of a new Corporate Governance Code in 2012 should be noted. According to the country's leadership, it will increase investor confidence in the domestic stock market and make organizations more efficient.

Most of the changes contained in the approved Code are focused on companies with state participation and are related to:

prevention of artificial redistribution of control functions in corporations)
except for the situation where the owners of shares, in addition to dividends or salvage value receive other income at the expense of the organization)
transfer of the function of electing or terminating the functioning of the executive bodies to the board of directors)
attracting independent persons to participate in the board of directors in a ratio of 1:3.

Thus, corporate governance in modern conditions is of particular importance. Every self-respecting company must methodically, based on scientific approach and innovative technologies, to form an effective management system. This will allow not only to achieve positive results within the corporation itself, but also to enter the international level, increasing the efficiency of production and management.

Corporate culture

1 -1

If the interests of the stakeholders are partly at odds with the interests of the firm, then the effective functioning of private property within the corporation requires the creation of a system of incentives and controls that would reconcile the interests of the participants and balance the benefits and costs associated with the opportunistic behavior of management. The solution to this problem takes place within the framework of the corporate governance system, which differs in each national economy depending on the existing institutional system.

Corporate governance system represents the integrity of organizational elements, designed to regulate not only the relationship between managers and owners and minimize agency costs, but also to coordinate the goals of all stakeholders, ensuring the effective functioning of the company. That is, the corporate governance system should encourage participants to develop such strategies for the development of the company, the implementation of which would lead to an increase in the value of the business.

These interrelations are established in accordance with legislative and internal corporate standards, they are distinguished by a high level of dynamism and adaptation to possible changes in the internal and external environment of the functioning of the corporation.

The elements of the corporate governance system include:

· Participants (subjects) of corporate governance (at micro and macro levels).

· Objects of corporate management.

· Mechanisms of corporate governance.

· Information support of corporate governance.

Fig.2.3.1. Elements of the corporate governance system

Participants or subjects corporate relations are financially interested parties both at the micro-level - inside the organization, and at the macro-level - outside it. Among the participants in corporate relations, financial (banks, creditors, etc.) and non-financial entities (suppliers, personnel, regional and local authorities) are distinguished.

Table 2.3.1.

Participants in corporate relations at the micro and macro levels.

Participants in corporate relations at the micro level	Participants of corporate relations at the macro level
Shareholders Majority (major shareholders) Minority (small shareholders) Holders of a controlling, blocking stake Fractional share holders Preferred Shareholders	Federal Commission for the Securities Market (FCSM of Russia), Expert Council on Corporate Governance under the Federal Service for financial markets(FFMS) of Russia
General Meeting of Shareholders	The World Bank
Board of Directors (Supervisory Board) (supervisory function) Executive directors Non-executive directors (outside) Independent directors	Stock exchanges (Russian Trading System - RTS, Moscow Interbank Currency Exchange MICEX, etc.)
Executive body (management function) Sole CEO Collegiate (board) Ø Top managers Ø Chairman (CEO)	National Association of Stock Market Participants (NAUFOR), uniting brokers, dealers, securities managers and depositories (PARTAD)
Bond holders	Non-profit partnership "National Council for Corporate Governance"
Affiliates	Corporate Governance Committee under the Russian Union of Industrialists and Entrepreneurs (RSPP)
Lenders	Russian Institute of Stock Market and Management
Strategic investors	Institute of Professional Directors
Suppliers	Guild of Investment and Financial Analysts
Staff	Institute of Internal Auditors
Intermediaries	Russian Institute of Directors
Financial intermediaries	Russian Union of Stock Exchanges
Consultants	Institute of Corporate Law and Management
Independent appraisers	Insurance organizations (provide liability insurance services for directors and managers)
Auditors	Managers Association
Control and revision service	Association of Russian Banks
Analysts	Association of Independent Directors
Audit committee	Russian Association for the Protection of Investors' Rights
Specialized registrar	International rating agencies (Standard & Poor's, etc.)
Corporate Secretary	Global Corporate Governance Forum
Regional, local authorities	Arbitration court
	Federal Antimonopoly Service of Russia
	Institute of Professional Auditors
	Organization for Economic Cooperation and Development (OECD)

To objects of corporate governance can be attributed:

Ø Ownership structure and influence (transparency of the ownership structure, ownership concentration and shareholder influence).

Ø The rights of shareholders (the procedure for holding a meeting of shareholders and coordination, property rights, measures to protect against takeovers).

Ø Transparency of information disclosure and audit (content of disclosed information, timeliness and availability of disclosed information, audit process).

Ø Distribution of responsibilities and powers in terms of decision-making, including a hierarchical decision-making structure.

Ø The structure and effectiveness of the work of the board of directors (independence of the board of directors, the role of the board of directors).

Ø Corporate values, codes of conduct and other standards of good conduct.

Ø Strategies to evaluate the success of the entire enterprise as a whole and the contribution of an individual employee.

Ø Mechanisms of business relations with investors, major shareholders, representatives of senior management or other responsible persons who make important strategic decisions in the corporation.

Ø Mechanisms of interaction and cooperation between members of the board of directors, management and employees of the corporation.

Ø Risk management, as well as special risk control in cases where the conflict of interests of participants in corporate relations may be particularly significant.

Ø Financial and managerial incentives in the form of cash rewards, promotions and other forms of motivation that encourage senior executives, middle managers and employees of the corporation to take a responsible and conscientious attitude to their duties and increase interest in work.

To minimize agency costs, reliable corporate governance mechanisms are needed - internal and external .

internal mechanisms board of directors and competition for powers of attorney from shareholders.

The board of directors is elected by the shareholders. He, in turn, appoints the executive management of the corporation accountable to him, acting as an intermediary between management and shareholders, regulating their relations.

Competition for powers of attorney from shareholders .

The supreme authority in a joint-stock company is the general meeting of shareholders, or owners of the company. Decisions at general meetings of shareholders are made by majority vote. The higher the concentration of votes among a certain number of shareholders, the greater their influence on the decisions of the meeting.

All decisions of the meeting can be divided into three groups:

Decisions on the charter of the company,

on the choice of the composition of the board of directors and executive managers,

· decisions related to current corporate governance.

To control the activities of the company, it is necessary, first of all, to control the general meeting of shareholders.

A shareholder may participate in the general meeting both in person and through his representative. The representative of the shareholder participates in the general meeting on the basis of a power of attorney, which confirms this right and is certified by a notary. The shareholder has the right to appoint any person as his representative. Issues related to the procedure for issuing a power of attorney are regulated by special legislation (the Civil Code of the Russian Federation).

In countries with a developed stock market, often when convening a general meeting of shareholders, management asks them for a power of attorney for the right to vote their shares and, as a rule, with effective management of the company, receives one from the majority of shareholders. But in the event of poor management of the company, a group of shareholders may also try to obtain from a large number (or most) of other shareholders the power of attorney to participate in voting on their behalf and vote against the current composition of the senior management.

A necessary condition for the operation of this mechanism is a high degree of dispersion of shares in the market. Otherwise, the company's management can block the dissatisfied part of the shareholders by reaching certain agreements with the owners of large blocks of shares.

Due to the high concentration of ownership and the small volume of shares freely traded on the market, the use of this mechanism in Russian conditions is rather limited. However, domestic corporate practice has examples of how obtaining powers of attorney from a significant group of shareholders was used to intercept control over the company by one group of shareholders from another, with the replacement of the board of directors and executive management.

In Russian conditions, managers - owners use the following methods to ensure control over votes at a general meeting of shareholders:

· redemption of the company's shares at the expense of the company's funds with the subsequent sale of shares on the condition of voting on the instructions of managers;

· introduction of material and administrative sanctions against employees - owners of shares who are going to sell their shares, or those who can vote against the company's managers at a general meeting;

· Involvement of local authorities to introduce administrative restrictions on the activities of intermediaries who buy shares of employees;

· the introduction of restrictions in the charter of the company on the ownership of a certain number of shares by one person (legal or natural).

To external mechanisms controls include government regulation, the corporate securities market, the corporate control market, and bankruptcy.

State regulation related to the legislative aspects of the functioning of corporations and bankruptcy procedures. The state sets standards for corporate activities: a system accounting and audit principles.

The corporate securities market is a space that organizes investment processes and provides mechanisms for the creation and exchange of financial assets. It is here that the market price of the share capital of companies is formed, which has a significant disciplining effect on management.

In the corporate control market, there is a process of transfer of ownership and control over firms from one group of shareholders and management to another. The fact is that the stock market reflects only the transfer of property rights. With a certain concentration of ownership, it becomes possible to gain control over the corporation. In this case, the owner can change management and restructure the company in order to increase its value. Such an operation

makes sense if the company's capital is undervalued by the stock market, which is most often associated with inefficient management.

The bankruptcy tool is used by creditors in the event that the company is unable to meet its obligations and creditors do not approve the plan for overcoming the crisis, proposed by the company's management. The decisions made are oriented towards the interests of creditors, and the requirements of shareholders in relation to the company's assets are satisfied last.

The purpose of the bankruptcy procedure is to recover losses to creditors and transfer inefficiently managed property into the hands of efficient new owners.

Bankruptcy proceedings may result in:

· Liquidation of company;

· change of the owner of the company;

sale of the company as a property complex;

settlement agreement with creditors;

· financial "recovery" of the company.

In bankruptcy proceedings, management and the board of directors lose control over the company, which passes to a court-appointed liquidator or bankruptcy trustee.

Russian companies use the bankruptcy procedure as an effective tool of blackmail, which can lead to a takeover or sale of part of the company's assets. In advance, accounts payable are created, sufficient to apply to the judicial authorities. A new arbitration manager is appointed, in collusion with the group. He addresses the owner with a proposal to conclude a "settlement agreement" on certain conditions. Otherwise, the bankruptcy procedure is brought to an end, the property of the JSC is sold to new owners, and the money goes to creditors involved in extortion. The use of this mechanism for the implementation of the bankruptcy procedure is possible due to the high degree of corruption in Russia.

Information support of the corporate governance system consists of internal and external support .

External information support represented by the following regulatory documents: the Civil Code of the Russian Federation, the Law on Joint Stock Companies, the Law on the Securities Market, the regulations of the Federal Securities Commission of Russia, additional legal acts (on taxes, bankruptcy, etc.), stock exchange listing rules.

The creation of a corporate governance system in the company is carried out taking into account the provisions of the Federal Law of December 26, 1995 No. 208-FZ "On Joint-Stock Companies" (as amended on December 1, 2007, January 1, 2008) and the Code of the Federal Securities Commission of Russia, bearing advisory character. Although, his recommendations have a certain force. If, for example, the presence of certain committees and services is not regulated by Law No. 208-FZ, then the Code may be recommended. This applies, for example, to the position of corporate secretary or control and audit service.

Internal information support.

The company's management has broad powers to create a corporate governance system based on a thorough study of the charter and other internal documents, as well as on the basis of the development of the company's own Code. The charters and other internal documents of a company with the status of an OJSC are binding and are considered by the courts as a source of law governing the company's activities along with Law No. 208-FZ and securities legislation. But the charters and internal documents of the company should not conflict with the current legislation.

The company's internal documents include the charter, corporate governance code, regulation on the board of directors, regulation on the audit committee, regulation on the corporate governance committee, regulation on the human resources and remuneration committee, regulation on the strategic planning and finance committee, regulation on executive bodies, regulation on the corporate secretary, regulation on the general meeting of shareholders, regulation on dividend policy, regulation on information policy, regulation on the audit commission, regulation on risk management, regulation on internal control. And also, agreements with members of the board of directors, an agreement with the general director, an agreement with the corporate secretary, minutes of the meeting of the board of directors, schedules for preparing an extraordinary general meeting of shareholders.

Additional documents make it possible to regulate in more detail the procedure for the activities of governing bodies and reduce the volume of the charter, taking into account the complexity of the procedure for making changes and additions to it. In a number of articles of Law No. 208-FZ, the phrase “... unless otherwise provided by the charter of the company” is quite common. This clause represents a wide field of activity for the board of directors in the field of corporate governance

The table provides an aggregated list of issues on which the governing bodies of an industrial organization can establish their own standards.

Table 2.3.2.

List of corporate governance issues subject to independent detailing in the charter and other internal documents companies

Parameter	Issues of corporate governance subject to independent detailing in the charter and other internal documents of the company
Timing	The period of accumulation and payment of dividends on preferred shares of a certain type (if they are cumulative). The time period during which the organization must provide the requested information to shareholders in preparation for the general meeting. The deadline for a shareholder or a group of shareholders owning at least 2% of the voting shares of the company to submit proposals for candidates to the board of directors, if the agenda of the extraordinary meeting of shareholders includes the issue of his election by cumulative voting (later than 30 days). The term for holding a mandatory extraordinary meeting of shareholders for the election of the board of directors by cumulative voting is less than 70 days from the date of the decision to hold it.
Order / method (regulations)	5. Procedure for payment of dividends. 6. The procedure for the adoption by the general meeting of decisions on the order of its conduct. 7. Procedure for convening and holding meetings of the board of directors. 8. Procedure for the work of committees of the board of directors. 9. The procedure for electing the audit commission. 10. The procedure and grounds for electing new members of the board of directors in the event of early termination of the powers of the previous one. 11. The procedure for appointing employees of the control and audit service. Other cases in which transactions are subject to the approval procedure big deals(transactions related to property, the value of which is from 25 to 50% of the book value of the organization's assets).
Quantitative indicators
Number of votes	13. Quorum for holding a meeting of the collegial executive body. 14. Quorum for holding a repeated general meeting of shareholders in large joint-stock companies (the number of shareholders is more than 500 thousand), for example, at least 20% of the outstanding voting shares. 15. The number of votes required for the issue and placement of bonds and other securities convertible into shares, if the latter can be converted into 25% or more in previously placed ordinary shares of the organization. The percentage of voting shares in the hands of a minority shareholder, giving the right to demand a meeting of the board of directors on a defined range of issues (for example, 2% of voting shares).
Restrictions	17. Restrictions on the number of shares held by one shareholder and their total nominal value and restrictions on the maximum number of votes granted to one shareholder. 18. Limitation of the number of organizations in which members of the board of directors can simultaneously be included in its composition (no more than 5). Limiting the number of committees of the board of directors, which include its members (no more than 3).
Organizational structure of management	20. Number of members of the board of directors, including independent directors (at least 3 or at least 1/4 of its members). Number and structure of committees of the board of directors.
Cost indicators	22. Remuneration of executive and non-executive directors. The amount of remuneration for an intermediary participating in the placement of additional securities of the organization by subscription (according to the law, it should not exceed 10% of the placement price of these securities).
Qualitative indicators
Scope of authority / competence	24. Competence of committees of the board of directors. 25. Powers of the Board of Directors to take a decision on reducing the amount of remuneration of the General Director and members of the Management Board in case of payment of dividends in an incomplete amount or at an unspecified date. 26. Assignment to the competence of the board of directors of approval of transactions in the amount of 10% or more of the book value of the organization's assets. Definition of the term "independent director". Possibility to develop criteria for determining related-party transactions in addition to the criteria provided by law
Information Requirements	29. List of additional information about candidates for the organization's bodies who are elected at the general meeting of shareholders. 30. List of information additionally included in the organization's annual report. 31. Notifying non-controlling shareholders of their right to sell their shares to a shareholder (or group of shareholders) holding at least 30% of ordinary shares. Release of persons acquiring a controlling stake from the obligation to submit an offer to shareholders for the sale of their shares in the course of a transaction to acquire control.
Other options	33. Formation of the employees' corporatization fund from the net profit (funds are spent on the acquisition of the organization's shares sold by its shareholders for subsequent placement among employees). 34. Other pre-emptive rights granted by preferred shares (other than the pre-emptive right to receive dividends in comparison with the holders of ordinary shares). 35. The possibility of a non-monetary form of payment for the shares of the organization upon their acquisition. 36. Cases when dividends are paid by the property of the organization.

Issues for discussion:

1. What is the essence of the agency theory and agency costs?

2. What is the essence of the theory of accomplices? What economic entities can be classified as stakeholders?

3. What relations are included in the system of corporate relations?

4. What are the main subjects of corporate relations and their corporate interests?

5. What is the difference between the managerial approach to the essence of corporate governance and the approach from the point of view of economic theory?

6. Explain the contribution of A. Burley and J. Minza to the formation of the theory of corporate governance.

7. Explain the approach of the contract theory of the firm to corporate governance.

8. Explain the contribution of Rafael La Porta to the formation of the theory of corporate governance.

9. What is the essence of an integrated approach to the study of corporate governance problems?

10. What is the essence of the corporate governance system? What is its purpose?

11. What elements form the corporate governance system?

12. What is the difference between financial and non-financial participants in corporate relations?

13. What is the difference between internal and external corporate governance mechanisms?

14. How does the corporate governance mechanism “competition for powers of attorney from shareholders” work?

15. Why can the bankruptcy mechanism be classified as an external corporate governance mechanism?

16. What is the difference between internal and external information support of corporate governance?

17. On what basis can a company establish its own organization procedure?

Test:

	The amount of losses for investors, which is associated with the division of ownership and control rights, with the mismatch of interests of the owners of capital and agents managing this capital, are called: a) transaction costs; b) transaction costs; c) agency costs.
	The conflict of interest "agent-principal" is due to the fact that: a) the actions of the agent are directed in the interests of the principal; b) the actions of the agent are directed in the interests of the agent-owner; c) the actions of the agent are directed in the interests of the manager.
	As a means of feedback, confirming the proper fulfillment of agency obligations, are: a) annual reports of managers; b) financial statements and external audit report; c) annual reports of the board of directors.
	The theory of discrepancy between the interests of a corporation and the interests of society is called: a) the theory of accomplices; b) the theory of agency costs; c) the theory of the Coase firm.
	The shareholder has the right to appoint as its representative: a) any person; b) only a member of the board of directors; c) a person who is a shareholder; d) company manager.
	Corporate governance studies the relationship: a) between major and minority shareholders; b) between the corporation (shareholders, managers) and external stakeholders (suppliers, consumers, creditors, government); c) between the shareholders and managers of the company, on the one hand, and the employees of the company, on the other; d) all of the above.
	The internal problem of agency relations is the conflict: a) between directors and shareholders, b) between managers; c) between major and minority shareholders.
	The structure of the company and its governing bodies - the board of directors, regulations for external and internal managerial interactions, selection and placement of managerial personnel reflect: a) the regulatory and legal aspect of corporate governance; b) organizational aspect of corporate governance; c) information aspect corporate governance; d) cultural and ethical aspect of corporate governance.
	The rules reflected in the documents of the company create a) the institutional superstructure of the company; b) the institutional framework of the company; c) the institutional environment of the company.
	The institutional environment of the company is: a) the rules reflected in the documents of the company and the institutional superstructure; b) institutional base and institutional superstructure; c) institutions that are external to the company in question - centralized norms, rules and norms of national and business culture, rules of the business community, etc.
	In the process of forming the conditions for interaction, the following are involved: a) all participants in corporate relations; b) shareholders, members of the board of directors, senior managers; c) persons covered by the system of power relations.
	As an economic discipline broader on the issues under consideration is: a) "management"; b) "corporate governance"; c) It is impossible to answer unambiguously.
	The problem of separation of control from ownership is considered for the first time in the work: a) A. Burley and J. Minza "The Modern Corporation and Private Property" in 1932; b) M. Jensen and W. Meckling "The Theory of the Firm..." in 1976 c) R. Coase "The Nature of the Firm" in 1937
	The revolution of Rafael La Porta is connected with the fact that leading role in the external mechanisms of corporate governance, he assigns: a) the stock market, which assesses the capitalization of the company; b) the board of directors; c) legal instruments.
	Criticism of Rafael La Porta is connected with the neglect in his theory of: a) the economic aspects of corporate governance, in particular, the aspects of competition; b) legal aspects; c) ethical aspects, norms of morality and social responsibility of business.
	An integrated and rating approach in corporate governance is typical for: a) the period of corporate governance inception; b) 1980s period. c) modern stage development of corporate governance.
	Financial participants in corporate relations include: a) banks, creditors; b) suppliers, personnel; c) regional and local authorities.
	Participants of corporate relations at the macro level are: a) board of directors; b) World Bank; stock exchanges, Corporate Governance Committee under the Russian Union of Industrialists and Entrepreneurs; c) shareholders: majority and minority.
	Concentration of ownership and influence on the part of shareholders refers to the object of corporate governance as: a) ownership structure; b) shareholder rights; c) disclosure transparency and auditing; d) the structure and performance of the board of directors.
	Internal control mechanisms include: a) corporate securities market; b) board of directors; c) the corporate control market.
	The process of transfer of ownership and control over firms from one group of shareholders and management to another is carried out: a) in the stock market; b) through the intervention of public authorities; c) in the corporate control market.
	The organizational structure of the corporation management is understood as: a) The holistic unity of the following elements: corporate control mechanisms, decision-making procedures, the degree of influence of the capital market on the internal management of the company, which are closely interconnected with the financial system operating in the economy, economic legislation, norms of economic behavior of the population, formed by the previous economic development b) Resistant to crisis situations and other negative manifestations, an integral set of internal and separate structural units located in a hierarchical sequence, determined by the mission and strategic goals of the corporation with the presence of vertical and horizontal relationships.

Tasks for independent work:

Essay topics.

1. The essence of corporate governance: truth is born in disputes.

2. Correlation between the subject of management and the subject of corporate governance.

3. The contribution of Rafael La Porta to the formation of the theory of corporate governance.

4. The role of economic factors and competition in the studies of Roe M.

5. Features of modern approaches to the study of corporate governance.

7. Insider and outsider information.

8. Regulatory requirements for information disclosure in Russia.

9. Corporate governance standards.

10. Relationship between disclosure and company value.

IN scientific literature I met different interpretations of corporate governance. I will cite some of them.

Corporate governance is a system of relationships between company managers and their owners (shareholders), as well as other interested parties, on issues related to ensuring the efficiency of the company's activities and ensuring the interests of owners and other interested parties.

Corporate governance is a process in accordance with which a balance is established between economic and social goals, between individual and public interests.

Corporate governance is a type of economic management of corporate

associations. Its main functions are strategic planning of development of the business units included in the corporation, and the corporation as a whole by types of products, works and services. Also by them in terms of production volumes, its renewal and development of types of production and technology, the use and reconstruction of equipment, the achievement of competitive advantages in the markets of new products and traditional markets, ensuring sustainable growth in labor productivity, improving the organizational structure of the corporation and communication relations between its elements and bringing them in line with changes in production and market conditions.

But don't think that corporate governance is just corporate governance. In a broad sense, under the concept of "corporate governance", related to the concept of "corporation", we mean management, characterized by a high level of organization, with its inherent special principles. The main corporate governance standards adopted by many corporations in developed countries are enshrined in the Fundamental Provisions of Corporate Governance of the OECD (Organization for Economic Cooperation and Development). Basically, these principles boil down to the following:

Maintaining a balance of interests of certain categories of shareholders;

Shareholders' control over the activities of the executive bodies and the board of directors of joint-stock companies;

Clear delineation of competencies between the management bodies of joint-stock companies (general meeting of shareholders, board of directors and executive body);

Ensuring transparency of activities and decision-making by all management bodies of joint-stock companies;

Independence of control bodies of joint-stock companies.

Corporate governance in the narrow sense is a system of rules and incentives that encourage company managers to act in the interests of shareholders.

In economic theory, there is no evidence that the "correct" corporate governance necessarily ensures the high competitiveness of the company. For example, many large "family" companies that do not meet corporate governance standards are quite competitive. It is believed that corporate governance insures against abuse, but makes companies less flexible.

At the same time, companies that comply with corporate governance standards have an undoubted advantage in attracting investments (for example, through an IPO). According to investors, good corporate governance ensures the honesty of management and transparency of the company's activities, so the risk of losing funds is significantly reduced.

For companies from developing countries, corporate governance is especially important, as international investors are especially concerned about the integrity and businesslike qualities of their management. Studies show that the capitalization of companies with good corporate governance is significantly higher than the market average. This difference is especially great for the Arab countries, Latin American countries (except Chile), Turkey, Russia, Malaysia, and Indonesia.

In turn, the subjects of corporate governance are understood as: managers, shareholders and other interested parties (creditors, employees of the company, partners of the company, local authorities).

All participants in corporate relations have common goals, including:

1. the creation of a viable profitable company that provides the production of high-quality goods and jobs, as well as having high prestige and an impeccable reputation;

2. increase in the value of the company's tangible and intangible assets, the growth of its share prices and ensuring the payment of dividends;

3. gaining access to external financing (capital markets);

4. gaining access to labor resources (cadres of managers and other employees);

5. increase in jobs and overall economic growth.

At the same time, each participant in corporate relations has its own interests, and the difference between them can lead to the development of corporate conflicts. In turn, good corporate governance contributes to the prevention of conflicts, and if they arise, their resolution through the processes and structures provided. Such processes and structures are the formation and functioning of various management bodies, regulation of relationships between them, ensuring equal treatment of all parties, disclosure of appropriate information, accounting and financial reporting in accordance with proper standards, etc. (Appendix 1)

What is the difference between the interests of subjects of corporate governance?

Managers receive the bulk of their remuneration, usually in the form of guaranteed wages, while other forms of remuneration play a much smaller role. They are interested, first of all, in the strength of their position, the stability of the company and reducing the risk of exposure to unforeseen circumstances (for example, financing the company's activities mainly through retained earnings, and not external debt). In the process of developing and implementing a development strategy, companies, as a rule, tend to establish a strong long-term balance between risk and profit. Managers are dependent on shareholders, represented by the board of directors, and are interested in renewing their contracts with the company. They also directly interact with a large number of groups that show interest in the company's activities (company personnel, creditors, customers, suppliers, regional and local authorities, etc.) and are forced to take into account, to one degree or another, their interests. Managers are under the influence of a number of factors that are not related to the tasks of increasing the efficiency and value of the company or even contradict them (the desire to increase the size of the company, expand its charitable activities as a means of increasing personal status, corporate prestige, etc.).

1. when holding meetings of shareholders, through the election of one or another composition of the board of directors and approval or disapproval of the activities of the company's management;

2. by selling their shares, thus influencing the share price, as well as creating the possibility of the company being taken over by shareholders who are unfriendly to the current management. Shareholders do not directly interact with the company's management and other interested groups.

There is another group of participants in corporate relations, called other interested groups (“accomplices”), including:

1. Lenders:

They receive profit, the level of which is fixed in the contract between them and the company. Accordingly, they are primarily interested in the stability of the company and guarantees for the return of the funds provided. Not inclined to support solutions that provide high profits, but are associated with high risks;

Diversify their investments among a large number of companies.

2. Employees of the company:

First of all, they are interested in the sustainability of the company and the preservation of their jobs, which are their main source of income;

Directly interact with management, depend on it and, as a rule, have a very limited opportunities impact on him.

3. Partners of the company (regular buyers of its products, suppliers, etc.):

Interested in the stability of the company, its solvency and continuation of activities in a certain area of business;

Directly interact with management.

4. Local authorities:

First of all, they are interested in the stability of the company, its ability to pay taxes, create jobs, implement social programs;

Directly interact with management;

They have the ability to influence the activities of the company mainly through local taxes.

As you can see, the participants in corporate relations interact with each other in different ways, and the sphere of discrepancy between their interests is very significant. A properly built corporate governance system should minimize the possible negative impact of these differences on the process of the company's activities. The corporate governance system formulates and coordinates the interests of shareholders, formalizes them in the form of the company's strategic goals and controls the process of achieving these goals by corporate management.

The basis of the corporate governance system is the process of building and effectively exercising internal control over the activities of the company's managers on behalf of its owners (investors), because it was thanks to the funds provided by the latter that the company was able to start its activities and created a field for the activities of other interested groups.

The foregoing allows us to conclude that corporate governance has two aspects: external and internal. The external aspect focuses on the company's relationship with the socio-economic environment: government, regulators, creditors, securities market participants, local communities and other stakeholders. The internal aspect is focused on relationships within the company: between shareholders, members of the supervisory, executive and auditing bodies.

The corporate governance system is created to solve three main tasks facing the corporation: ensuring its maximum efficiency; attraction of investments; fulfillment of legal and social obligations.

A proper corporate governance system is needed, first of all, by open joint-stock companies with a large number of shareholders, doing business in industries with high growth rates and interested in mobilizing external financial resources in the capital market. However, its usefulness is undeniable for JSCs with a small number of shareholders, CJSCs and LLCs, as well as for companies operating in industries with medium and low growth rates. The introduction of such a system makes it possible to optimize internal business processes and prevent conflicts by properly organizing the relations of companies with owners, creditors, potential investors, suppliers, consumers, employees, representatives of state bodies and public organizations.

In addition, many firms sooner or later face limited domestic financial resources and the impossibility of a long-term increase in debt burden. Therefore, it is better to start implementing the principles of good corporate governance in advance: this will provide a future competitive advantage for the company and thereby give it the opportunity to get ahead of rivals.

Effective corporate governance provides joint stock companies with the following benefits:

First, facilitating access to the capital market. The practice of corporate governance is one of the most important factors determining the ability of companies to enter domestic and foreign capital markets. The implementation of the principles of good corporate governance provides the necessary level of protection for the rights of investors, so they perceive well-managed companies as friendly and capable of providing an acceptable level of return on investment.

Second, lowering the cost of capital. Joint-stock companies that adhere to high standards of corporate governance can achieve a decrease in the cost of external financial resources used by them in their activities and, consequently, a decrease in the cost of capital in general. The cost of capital depends on the level of risk assigned to the company by investors: the higher the risk, the greater the cost of capital. One type of risk is the risk of violation of the rights of investors. When investor rights are well protected, the cost of equity and debt decreases. It should be noted that there has been a clear recent trend among leveraged investors (ie lenders) to include corporate governance practices among the key criteria used in investment decision-making. Therefore, the implementation of effective corporate governance can reduce the interest rate on loans and borrowings.

Corporate governance plays a special role in emerging markets, which do not yet have the same strong system of protection of shareholder rights as in countries with developed market economies. The level of risk and the cost of capital depend not only on the state of the country's economy as a whole, but also on the quality of corporate governance in a particular company. Joint-stock companies that have managed to achieve even small improvements in corporate governance can receive very significant advantages in the eyes of investors compared to other JSCs operating in the same industries.

Third, promote efficiency gains. As a result of improving the quality of corporate governance, the accountability system is being improved, thereby minimizing the risk of fraud by company officials and their transactions in their own interests. In addition, control over the work of managers is improving and the connection between the remuneration system of managers and the results of the company's activities is being strengthened, favorable conditions are being created for planning the succession of managers and sustainable long-term development of the company.

Thus, compliance with corporate governance standards helps to improve the decision-making process that can have a significant impact on the efficiency of the company's financial and economic activities at all levels. High-quality corporate governance streamlines all business processes occurring in the company, which contributes to the growth of turnover and profit while reducing the amount of required capital investments.

Management methods should take into account the specifics of the subject of management and can be divided into:

administrative;

economic;

Legislative and regulatory legal;

organizational.

At the same time, these management methods can be divided into levels of application by management subjects:

· corporate;

the level of business areas of the corporation;

individual companies and departments.

The process of managing all these types of corporate entities will be built within the framework of the general management cycle, however, in accordance with the specifics of the management objects, this cycle can be transformed to improve the efficiency of the functioning of a particular corporate property object.

A.P. Shikhverdiev

The work focuses on many definitions of the concept of "corporate governance" and identifies three main areas of corporate governance: property management of a joint-stock company, management of the company's production and economic activities, and management of financial flows.

The establishment of market relations in Russia and the increasing role of joint-stock companies in the development of the state economy and the well-being of citizens have necessitated awareness of the importance of the problem of corporate governance, the emergence of which is inevitably associated with the transition to market economic conditions. In the modern Russian economy, corporate governance is one of the most important factors determining not only the level of the country's economic development, but also the social and investment climate.

What is corporate governance? This problem is quite complex, relatively new and continues to develop. There are many definitions of this concept.

Organization for Economic Co-operation and Development (OECD) gives the following wording: “Corporate governance refers to the internal means of ensuring the activities of corporations and control over them ... Corporate governance also determines the mechanisms by which the company's goals are formulated, the means of achieving them and controlling them are determined her activities." In a broad sense, corporate governance is seen as a process of exercising power by economic entities, making decisions within the framework of property relations based on the existing industrial, human and social capital ... is determined by the nature of the target settings for the activities of the enterprise and its management, types of control, interests and property;

corporate governance is also assessed as an organizational model, which is designed, on the one hand, to regulate the relationship between company managers and their owners (shareholders), on the other hand, to harmonize the goals of various stakeholders, thereby ensuring the effective functioning of companies;

The system by which the management and control over the activities of business organizations is carried out. The corporate governance framework defines the rights and responsibilities of the individuals who make up the corporation, such as members of the board of directors, managers, shareholders, and other stakeholders, and establishes the rules and procedures for making decisions on the affairs of the corporation. Corporate governance also provides a structure on the basis of which the goals and objectives of the company's activities are set, the ways and means of achieving them are determined and the company's activities are controlled;

The system or process by which the activities of corporations accountable to shareholders are managed and controlled;

· corporate governance system is an organizational model by which the company represents and protects the interests of its investors. This system can include everything from a board of directors to executive pay schemes and bankruptcy filing mechanisms;

In the narrow sense, there is the management of joint-stock companies or various organizational structures that unite them, where the shareholder acts as the subject of management, and the share is the bearer of the right to make decisions, and corporate law in the broad sense is a mechanism for the optimal combination of the various interests of shareholders and accomplices in order to maximize the effectiveness corporation development;

corporate capital management of a joint-stock company is the management of its shares by their owners, which is opposed to “direct” capital management;

· Corporate governance is based on taking into account the interests of shareholders and their role in the development of the corporation. This is management based on the right of ownership, corporate communications, corporate development strategy and culture, taking into account the traditions and principles of collective behavior. It is distinguished by wide participation in joint stock ownership, the formation of complex variants of the interweaving of capitals on the basis of joint stock capital and the changing composition of interested participants ... corporate governance solves the problems of organizational and legal business management, optimization of organizational structures, intra- and inter-company relations in accordance with the postulated goals of activity;

· in the broadest sense, corporate governance includes generally all relations that in one way or another affect the position of shareholders and the behavior of a joint-stock company. According to this approach, the subjects of corporate governance are persons who have rights in the field of corporate governance of a joint-stock company - shareholders, directors - members of the board of directors, director - the executive body and members of the executive bodies of the joint-stock company;

· the activities of the bodies of economic companies in the development (preparation and adoption) of a specific management decision, its execution (implementation) and verification of its implementation.

The above definitions make it possible to reduce corporate governance to three main areas: managing the property of a joint-stock company, managing the production and economic activities of the company, and managing financial flows. Therefore, corporate governance is a system of interaction between the company's management bodies, shareholders and stakeholders, which reflects the balance of their interests and is aimed at obtaining maximum profit from the company's activities in accordance with applicable law and taking into account international standards.

Corporate governance in the narrow sense is a system of rules and incentives that encourage company managers to act in the interests of shareholders. In a broad sense, corporate governance is a system of organizational, economic, legal and managerial relations between subjects of economic relations whose interest is related to the activities of the company. In turn, the subjects of corporate governance are understood as: managers, shareholders and other interested parties (creditors, employees of the company, partners of the company, local authorities). All participants in corporate relations have common goals, including:

Creation of a viable profitable company that provides the production of high-quality goods and jobs, as well as having high prestige and an impeccable reputation;

· increase in the value of the company's tangible and intangible assets, the growth of its share prices and ensuring the payment of dividends;

· obtaining access to external financing (capital markets);

Gaining access to labor resources (cadres of managers and other employees);

increase in jobs and general economic growth.

At the same time, each participant in corporate relations has its own interests, and the difference between them can lead to the development of corporate conflicts. In turn, good corporate governance contributes to the prevention of conflicts, and when they occur, their resolution through the provided processes and structures. Such processes and structures are the formation and functioning of various management bodies, regulation of relationships between them, ensuring equal treatment of all parties, disclosure of appropriate information, accounting and financial reporting in accordance with proper standards, etc.

Rice. 1 Corporate governance system

What is the difference between the interests of subjects of corporate governance? Managers receive the bulk of their remuneration, usually in the form of guaranteed wages, while other forms of remuneration play a much smaller role. They are interested, first of all, in the strength of their position, the stability of the company and reducing the risk of exposure to unforeseen circumstances (for example, financing the company's activities mainly through retained earnings, and not external debt). In the process of developing and implementing a development strategy, companies, as a rule, tend to establish a strong long-term balance between risk and profit. Managers depend on the shareholders represented by the board of directors and are interested in renewing their contracts to work in the company. They also directly interact with a large number of groups that show interest in the company's activities (company personnel, creditors, customers, suppliers, regional and local authorities, etc.) and are forced to take into account, to one degree or another, their interests. Managers are under the influence of a number of factors that are not related to the tasks of increasing the efficiency and value of the company or even contradict them (the desire to increase the size of the company, expand its charitable activities as a means of increasing personal status, corporate prestige, etc.).

In turn, shareholders can receive income from the company's activities only in the form of dividends (that part of the company's profit that remains after the company pays off its obligations), as well as through the sale of shares in the event of a high level of their quotations. Accordingly, they are interested in the high profits of the company and the high price of its shares. At the same time, shareholders bear the highest risks: non-receipt of income if the company's activities, for one reason or another, do not make a profit; in the event of bankruptcy, companies receive compensation only after the requirements of all other groups are satisfied. Shareholders tend to support decisions that lead to high profits for the company, but also associated with high risk. As a rule, they diversify their investments among several companies, so investments in one particular company are not the only (or even the main) source of income, and they also have the opportunity to influence the company's management in only two ways: 1) when holding shareholders' meetings, through the election of one or other composition of the board of directors and approval or disapproval of the activities of the company's management; 2) by selling their shares, thereby affecting the share price, as well as creating the possibility of the company being taken over by shareholders who are unfriendly to the current management. Shareholders do not directly interact with the company's management and other interested groups.

There is another group of participants in corporate relations, called other interested groups (“accomplices” / stakeholders), among which:

1) Lenders:

Diversify their investments among a large number of companies.

2) Employees of the company:

First of all, they are interested in the sustainability of the company and the preservation of their jobs, which are their main source of income;

They directly interact with management, depend on it and, as a rule, have very limited opportunities to influence it.

3) Partners of the company (regular buyers of its products, suppliers, etc.):

Interested in the stability of the company, its solvency and continuation of activities in a certain area of business;

Directly interact with management.

4) Local authorities:

First of all, they are interested in the stability of the company, its ability to pay taxes, create jobs, and implement social programs;

Directly interact with management;

They have the ability to influence the activities of the company mainly through local taxes.

The basis of the corporate governance system is the process of building and effectively implementing internal control over the activities of the company's managers on behalf of its owners (investors), because it was thanks to the funds provided by the latter that the company was able to start its activities and created a field for the activities of other interested groups.

The corporate governance system is being created to solve three main tasks facing the corporation: ensuring its maximum efficiency; attracting investments; fulfillment of legal and social obligations.

The organization of an effective corporate governance system is associated with certain costs, including the costs of attracting specialists, such as corporate secretaries and other professionals. However, the benefits of such a system far outweigh the costs. This becomes obvious if, when calculating economic efficiency, we take into account the losses that may be faced: investors - as a result of the loss of invested capital, employees of firms due to job cuts and loss of pension contributions, the local population - in the event of a collapse of companies.

A proper corporate governance system is needed primarily by open joint-stock companies with a large number of shareholders, doing business in industries with high growth rates and interested in mobilizing external financial resources in the capital market. However, its usefulness is undeniable for JSCs with a small number of shareholders, CJSCs and LLCs, as well as for companies operating in industries with medium and low growth rates. The introduction of such a system makes it possible to optimize internal business processes and prevent conflicts by properly organizing the relations of companies with owners, creditors, potential investors, suppliers, consumers, employees, representatives of state bodies and public organizations.

Now it is necessary to consider the elements that make up the system of effective corporate governance. These elements are:

1. Shareholder rights: The corporate governance system should protect the rights of shareholders and ensure equal treatment of all shareholders, including small and foreign shareholders.

2. Operations of the board of directors: the board of directors is required to provide strategic direction to the business, exercise effective control over the work of managers, and be accountable to shareholders and the company as a whole.

3. Information disclosure and transparency: the corporate governance system should provide timely disclosure of reliable information about all significant aspects of the functioning of the corporation, including information about the financial position, results and prospects of activities, the composition of owners and the management structure.

I would especially like to note that the term "corporate governance", which is used in modern Russian, is an approximate translation of the English term "Corporate governance". This term itself in modern usage is relatively new and therefore, from our point of view, it is necessary to draw a line between the terms "corporate governance" and "corporate management".

Corporate management is the activity of professional specialists in the process of conducting business operations; it focuses on the mechanics of doing business.

Corporate governance is at a higher level of company management. It focuses on corporate structures and processes that ensure the implementation of the principles of fairness, responsibility, transparency and accountability in the company's activities.

The intersection of the functions of corporate governance and corporate management takes place mainly in the development and monitoring of the company's strategy and internal control system.

Relationship between corporate governance and corporate management

Corporate governance as a system creates, first of all, a mechanism for protecting the interests of all economic agents, including creditors. If the company's corporate governance is ineffective, then this gives rise to a struggle for control between various stakeholders: current and potential shareholders, managers, and personnel. Often, one of the instruments of this struggle is the bankruptcy procedure of an enterprise, since the current legislation allows initiating bankruptcy proceedings even against a relatively stable enterprise by Russian standards. Since the bankruptcy procedure (in the form of bankruptcy proceedings or external management) actually means a default on all obligations of the enterprise, it is external creditors who become the injured party in the corporate struggle. Moreover, the struggle for control over the enterprise distracts management and shareholders from operating and investment activities. In anticipation of the outcome of the struggle, as a rule, large investments, even the most necessary ones, are slowed down. All this has the most negative consequences for the financial condition of the enterprise. In turn, effective corporate governance provides joint-stock companies with the following advantages:

Secondly, a decrease in the cost of capital. Joint-stock companies that adhere to high standards of corporate governance can achieve a decrease in the cost of external financial resources used by them in their activities and, consequently, a decrease in the cost of capital as a whole. The cost of capital depends on the level of risk assigned to the company by investors: the higher the risk, the greater the cost of capital. One type of risk is the risk of violation of the rights of investors. When investor rights are well protected, the cost of equity and debt decreases. It should be noted that there has been a clear recent trend among leveraged investors (i.e. lenders) to include corporate governance practices as a key criteria used in investment decision-making. Therefore, the implementation of effective corporate governance can reduce the interest rate on loans and borrowings.

Third, promote the growth of efficiency . As a result of improving the quality of corporate governance, the accountability system is being improved, thereby minimizing the risk of fraud by company officials and their transactions in their own interests. In addition, control over the work of managers is being improved and the connection between the remuneration system of managers and the results and activities of the company is being strengthened, favorable conditions are being created for planning the succession of managers and sustainable long-term development of the company.

Proper corporate governance is based on the principles of transparency, accessibility, efficiency, regularity, completeness and reliability of information at all levels. If the transparency of a joint-stock company increases, investors will be able to gain insight into the business operations. Even if the information coming from a company that has increased its transparency turns out to be negative, shareholders benefit from a reduction in the risk of uncertainty. Thus, incentives are formed for the board of directors to conduct a systematic analysis and risk assessment.

Compliance with corporate governance standards helps to improve the decision-making process that can have a significant impact on the efficiency of the financial and economic activities of the company at all levels. High-quality corporate governance streamlines all business processes occurring in the company, which contributes to the growth of turnover and profit while reducing the amount of required capital investments.

It is also important to note the international aspects of the implementation of corporate governance. A corporation that implements effective corporate governance contributes to taking into account the interests of a wide range of stakeholders, as well as the accountability of its management bodies, both to the company itself and to its shareholders. In turn, an efficiently operating corporation helps to attract investments, both foreign , and domestic and focused on longer-term ownership.

In connection with the growing role of corporate governance in the field of attracting investments and the efficiency of companies, in 1999 the principles of corporate governance of the Organization for Economic Cooperation and Development (OECD) were published, which are a set of standards and guidelines that underlie the formation, functioning and improvement of corporate governance systems. These principles have become the basis for the implementation of corporate governance in both OECD and non-OECD countries. Subsequently, the OECD principles were adopted as one of the standards for the sustainability of financial systems by the Financial Stability Forum.

The OECD Corporate Governance Principles are not legally binding and do not aim to provide detailed provisions that should be reflected in the laws of individual countries. Their task is to determine the goals of achieving effective corporate governance and propose means to achieve them. The implementation of the principles will serve both the interests of the corporations themselves and the interests of the state, as investors are interested in implementing more acceptable corporate governance practices. This is a reality that neither companies nor the state can ignore.

As OECD Secretary-General Donald Johnston noted, “The OECD principles have formed the basis of a broad program of cooperation between the OECD and non-OECD countries, they are the basis of the corporate governance section of the World Bank/IMF Reports on Compliance with Standards and Codes (ROSC)”.

On April 22, 2004, a revised version of the OECD Corporate Governance Principles was published, which took into account the changes in corporate governance practices that have taken place since 1999 and introduced some important amendments and additions.

The updated principles were presented at the international scientific-practical conference "Corporate Governance and Economic Growth in Russia" (June 2004, Moscow).

Based on a comparative analysis of two versions of the principles of corporate governance, the following additions were made: the original version of the principles covered five main areas of corporate governance:

Shareholders' rights;

Equal treatment of shareholders;

The role of stakeholders;

Disclosure and transparency;

Responsibilities of the board.

In turn, the updated version of the principles includes a new section - "Creating the basis of an effective corporate governance system", the essence of which is that the corporate governance system should contribute to the development of transparent and efficient markets, not contradict the principle of legality and clearly define the division of responsibilities between various supervisory, regulatory and law enforcement agencies.

A number of additions have also been made to other sections. For example, in the area of exercising the rights of shareholders and the basic functions of owners, the following was added: it is recommended that the corporation promote the real participation of shareholders in making key decisions related to the corporate governance of the company, in particular, when nominating and electing members of the board of directors. In addition, shareholders should be able to express their opinion on the remuneration policy for board members and key management members. Compensation of members of the board of directors and employees of the company, allowing participation in the share capital of the company, must also be approved by the shareholders. In addition to the foregoing, shareholders are encouraged to consult among themselves on matters relating to their fundamental rights, subject to exceptions to prevent abuse.

Another important aspect, which was reflected in the new version of the principles of corporate governance, is the equality of conditions for shareholders, which implies the protection of minority shareholders from abuse by or in the interests of holders of large blocks of shares.

In addition, the principles address the role of stakeholders in corporate governance: stakeholders, including employees of the company and their representative bodies, should be able to freely express their views to the board of directors regarding illegal or unethical actions.

Also new in the principles is the emphasis on the role of corporate governance in avoiding bankruptcy and the proper enforcement of creditors' rights through effective enforcement of the law.

In turn, in the field of transparency of the company, the following was added: information about the members of the board of directors (qualification, election process, independence) should be disclosed; the corporate governance system should be complemented by an effective approach that allows and facilitates the analytical and consulting work of analysts, brokers, rating agencies, which, in turn, will contribute to an objective and balanced decision-making by investors.

New in the principles is also the adjustment of the duties of members of the board of directors: the need for the relationship of remuneration of key managers and members of the board of directors from the long-term interests of the company and its shareholders, the objectivity of compliance with established requirements and a transparent process for nominating and electing members of the board of directors are formulated.

Basically, additions to the principles of corporate governance are aimed at protecting the rights of shareholders, including minority and foreign ones, and at increasing the transparency of the company's activities.

Corporate compliance with the basic principles of good corporate governance is becoming an increasingly important factor in investment decisions. Those companies seeking to take full advantage of the opportunities offered by global capital markets and raise long-term capital need to have corporate governance arrangements that are credible, understandable and consistent with international principles. Even if foreign sources of capital are not the main sources of capital for corporations, adhering to good corporate governance practices will help increase domestic investor confidence, lower the cost of raising capital, and ensure the smooth functioning of financial markets.

Taking into account foreign experience and international principles of corporate governance, the government of the Russian Federation developed and approved in November 2001. code of corporate conduct of the Russian Federation. The provisions of the code apply to business companies of all types (JSC, LLC, etc.), but to a greater extent they are important for joint-stock companies. This is due to the fact that it is in joint-stock companies, where there is often a separation of ownership from management, that conflicts occur between the shareholders of the company and its leaders.

The principles of corporate conduct provided for by the code are formulated on the basis of the principles of corporate governance of the OECD. The Code is a set of recommendations, the application of which by an enterprise should be voluntary, based on the desire to increase its attractiveness in the eyes of both existing and potential investors.

Most of the principles of corporate behavior have already been reflected in Russian legislation, but the practice of their implementation, including judicial practice, and the traditions of corporate behavior are still being formed. The provisions of the law are insufficient to ensure an appropriate level of corporate conduct, and the implementation of the necessary changes in the law is late. Legislation does not regulate and cannot regulate all issues arising in connection with the management of a joint-stock company. And here there are a number of objective reasons: corporate legislation establishes and should establish only general mandatory rules; many issues related to corporate relations lie outside the legislative sphere - in the sphere of morality, where the norms of behavior are ethical, not legal. It is for this reason that legal provisions alone are never sufficient to achieve good corporate conduct. In addition, the legislation is not able to respond in a timely manner to changes in the practice of corporate behavior.

In order to improve corporate governance, along with the improvement of legislation, it is also necessary to introduce the principles of the Code of Corporate Conduct in joint-stock companies.

The role of effective corporate governance in attracting investments was also noted at the International Conference "Corporate Governance and Economic Growth in Russia" (May 2004). The conference analyzed corporate governance trends in Russia, considered both the theoretical provisions for the implementation of corporate governance in Russia and the practical experience gained by companies over the years of applying international and Russian standards of corporate conduct. The conference once again emphasized the importance of effective implementation of corporate governance for both operating companies that are ready to attract investments, and companies that plan to attract additional capital only in the future. In his speech at the conference, Prime Minister of Russia M. Fradkov noted that "without a radical improvement in the work of Russian companies, the introduction of international standards of corporate governance and mechanisms for developing the resolution of corporate conflicts, and improving the quality of management, it is impossible to solve the large-scale economic tasks facing Russia" .

Despite the successes achieved in the implementation of corporate governance in Russia, one cannot but admit that there are some problems in its application in individual companies. This is due both to the inefficiency of internal control mechanisms and the insufficiency of external control over the activities of joint-stock companies. In this regard, any corporation has a conflict of interests: on the one hand, the owners, whose goal is to maximize the return on invested capital, on the other hand, managers who pursue many local goals, among which the maximization of the profits of the corporation they manage is by no means in the first place. Therefore, one of the key tasks for the development and improvement of corporate governance in Russia is the formation of independent and responsible boards of directors, which are, in many respects, an effective method of controlling the activities of companies. As President of Russia V.V. Putin: “Russia sets itself a strategic goal – to become a country producing competitive goods and providing competitive services. All our efforts are aimed at achieving this goal. We understand that in order to integrate into the global capital markets, it is necessary to resolve issues related to protecting the rights of owners and improving the quality of corporate governance and financial transparency of business.”

The tasks of improving the quality of corporate governance should be addressed and considered on a global scale, given their importance for the global economy, said D. Johnston, Secretary General of the Organization for Economic Cooperation and Development (OECD). Everywhere in the world, these issues are in the spotlight, as they are central to the functioning of a market economy, ensuring economic growth and the stability of financial markets.

The President of the World Bank Group, James Wolfensohn, noted that “... Russia has already created a legislative framework in the field of corporate governance. Now Russia faces the task of improving it. Russia must identify and resolve issues on how to improve corporate governance legislation, while emphasizing that corporate governance issues are extremely important for investors and for attracting capital to the country's economy.

Describing the level of corporate governance, the President of the European Bank for Reconstruction and Development (EBRD), Jean Lemierre, noted that "it is necessary to create a mechanism for fulfilling the requirements of the Code of Corporate Conduct, which is still weak."

The solution to this problem involves improving the practice of boards of directors, turning boards into an effective corporate governance body capable of being responsible for decisions made, resisting the direct influence of individual major shareholders, and finding effective solutions in a conflict of interest. In this area, a number of issues need to be resolved:

Development of company information policy standards;

Increasing the volume of information disclosed;

Formation of professional standards;

Ethical standards for members of boards of directors;

Providing non-executive directors with the necessary amount of information about the company's activities.

Boards of directors should become initiators and conductors of new management principles. Large private owners and the state need to be more exacting in assessing the activities of the board of directors as a whole, as a single body, and to abandon direct voting instructions for members of the board of directors.

It should also be noted that the main function of the board of directors is to resolve contradictions caused by the separation of ownership and management functions by monitoring the activities of the executive bodies of corporations. Otherwise, the company may find itself in a state of bankruptcy or drawn into corporate conflicts, which further leads to a deterioration in the company's image and practically deprives it of the opportunity to attract investments, especially foreign ones, since for external investors, the decisive factor is not only the company's positive financial results to date. day, but also its reputation, which will contribute to its development in the future.

As a typical example, illustrating the possible consequences of such violations, we can cite the situation that has developed in OJSC Vorgashorskaya Mine. This example clearly demonstrates how the lack of effective corporate governance leads to the possibility of unhindered use of the property of shareholders, producers and the state contrary to their interests.

Another example proves the necessity of having independent directors on the board of directors of a company. This is the situation with Enron. The company used innovative trading technologies and accounting “rationalization”, demonstrated excellent financial performance, however, in reality, the money went to offshore structures to hide debts through fictitious transactions, there was a so-called “dumping” of assets, trading contracts. As a result, this led to a fall in the company's shares on the stock market, and later to the bankruptcy of the company. At the same time, the board of directors of the company was educated, successful in business people who are experts in the field of finance and accounting, the board of directors included several specially created committees, there was a corporate secretary and an external auditor who prepared regular reports. And, despite, it would seem, all the applied principles of effective corporate governance, the company, as a result, turned out to be bankrupt. What is the reason? As a more detailed analysis of the activities of the board of directors showed, it did not fulfill confidential duties, ignored the conflict of interest that arose, and did not put into practice the independence of the auditor and the audit commission. This could not have happened if there had been an independent director on the board, who would really contribute to the transparency of the company's activities. However, the company did not introduce independent directors into the board of directors, which ultimately led to the bankruptcy of a stable and promising company.

The above examples have illustrated the need for companies to have efficient boards of directors, as well as the need for independent directors on the board.

Undoubtedly, the board of directors occupies a key place in the company's management structure. He carries out the strategic development of the company, effective control over the activities of the company, the implementation and protection of the rights of shareholders, the resolution of corporate conflicts, promotes the effective operation of the executive bodies of the company, and the transparency of the company.

Efficient work of boards of directors is an important factor in increasing the investment attractiveness of companies and increasing their shareholder value. It is not surprising that the expectations of existing and potential investors are increasingly associated with the development and strengthening of the institution of independent directors in Russia.

Investor demands for transparency and openness in the activities of joint-stock companies around the world are constantly increasing. Russian enterprises are also striving to increase their competitiveness and attract capital. Independent directors play an important role in the work of the board of directors and make a significant contribution to the effective management of companies, they can perform the function of oversight and internal control, and, under favorable conditions within the company, more significant functions, including setting the company's strategy, as well as maintaining effective interaction with investors . In accordance with the corporate governance code, the following criteria for independent directors are distinguished: when determining specific requirements for an independent director, it is necessary to proceed from the fact that such a director must be able to make independent judgments. This implies the absence of any circumstances that could influence the formation of his opinion. In this regard, it is recommended to recognize members of the board of directors as independent directors:

· who have not been in the last 3 years and are not officials (manager) or employees of the company, as well as officials or employees of the managing organization of the company;

· who are not an officer of another company in which any of the company's officers is a member of the HR and remuneration committee of the board of directors;

· non-affiliated persons of the official (manager) of the company (official of the managing organization of the company);

· who are not affiliated persons of the company, as well as affiliated persons of such affiliated persons;

· those who are not parties to obligations with the company, in accordance with the terms of which they can acquire property (receive funds), the value of which is 10% or more of the total annual income of these persons, except for receiving remuneration for participation in the activities of the board of directors;

· not being a major counterparty of the company (such a counterparty, the total volume of the company's transactions with which during the year is 10% and a percent of the book value of the company's assets);

who are not representatives of the state.

An independent director, upon the expiration of a 7-year term for performing the duties of a member of the company's board of directors, cannot be considered independent.

At the same time, the company has the following requirements for an independent director: high professionalism, experience in senior positions, good business reputation, knowledge of the specifics of the business, successful work experience, rich life experience, compliance with the requirements of independence.

In order to put these recommendations into practice and meet the demand from Russian business, real people are needed - professionals with a good reputation, capable of competently performing the functions of an independent corporate director.

Of great interest to the professional community is a study on“Activity of an independent director”, conducted in 2002 by the association of independent directors (AND) at participation of the Investor Protection Association (IPA) and Ornstand Young Company.

The study was conducted on the basis of a methodology developed by experts andassociations of independent directors, associations for the protection of the rights of investors and companiesErnst & Young, in the form of a survey of heads of Russian enterprises, representativesbranches of trade, telecommunications, computer technologies, metallurgy, legal assisted by the state, the federal commission companies, as well as consultants in the field of corporate law.

Based on the results of the study, a conclusion was made about the degree of influence of independent directors on the company's activities. Three degrees of such influence were singled out: the first, when the board includes 1-2 independent directors. At this level, the transparency of the company and the interests of all groups of shareholders increase. The second degree - when a quarter or more than a quarter of the members of the board of directors are independent, influence on business decisions, corporate policy and strategy is already possible. The third degree of influence - the majority in the board of directors belongs to independents. This degree of influence also has a downside - the maximum responsibility of independent directors for the consequences of decisions made.

The process of development of the institution of independent directors actively contributes to the securities market and has developed and recommended for application a code of corporate conduct, where important attention is paid to the board of directors and independent corporate directors. According to the provisions of the Code of Corporate Conduct, an independent director is an important tool for building investor confidence in enterprises, ensuring the optimal functioning of the board of directors and increasing the value of the business. The Code spells out the requirements and criteria for the independence of an external director and gives recommendations on their number.

The role of an independent director is to strengthen shareholder confidence in the company; improving investor relations; making coordinated strategic decisions; creation of effective internal control mechanisms; conflict resolution; increasing the transparency of management; increasing the value of the company.

To put these recommendations into practice and meet the demand from Russian business, we need real people - professionals with a good reputation, capable of competently performing the functions of an independent corporate director (these are directors of the association of independent directors).

It should also be noted that in In 2003, the association, in order to support its representatives, managed to attract the votes of a number of Russian and foreign investors who had not previously cooperated with the IPA. For example, in 2003, the API for the first time began to coordinate its activities to support candidates to the boards of directors with the largest investment funds, which inUnder the new Securities Market Commission requirements, the US must vote with customer shares they hold. Thus the voices of foreign shareholders-owners of depositary receipts issued for shares of Russian issuers, for the first time this year, for the first time supported candidates nominated by the IPA. In previous years, the management of some companies often illegally used the votes of ADR holders in own interests.

Practice of nomination and election of independent directors in 2003 compared to 2000-2002. has changed. Currently in the nomination of an independentRepresentatives are interested not only in minority shareholders, but also in the companies themselves, their controlling and strategic shareholders. This is mainly due to the fact that companies really felt the return from the inclusion of independent members in the boards of directors, which manifested itself in an improvement in investment attractiveness and capitalization growth. An important factor was the tightening of requirements on the New York Stock Exchange, which made it a mandatory condition for listing to have an audit committee on the board of directors of the company, consisting exclusively of independent directors. On the other hand, the reductionrepresentation of portfolio investors is due to the aggressive buying up shares by strategic investors to consolidate blocking stakes.

The Russian practice of the work of independent directors is just beginning to take shape, many aspects and advantages of their activities are not fully understood by the public. Therefore, from the point of view of explaining the understanding of the role and functions of an independent director, the issue of “carriers” of modern knowledge and experience in this area is relevant. The development of an association of independent directors is an important part of the process of forming a professional community of directors.

1 November 2001 Investor Protection Association (IPA) and Ernst EndYash CIS jointly announced the launch of a joint independent directors program withwith the aim of developing the practice of independent directors in Russia and improving the culture of corporate governance. This local initiative is part of a widerprograms supported by Ernst Ond Young together with the Institute of Directors in the UK and with the Investor Protection Association in Russia.

Along with the adoption of a code of corporate conduct recommended by the Russian FCSM, the joint initiative of Ernst & Young and the Investor Protection Association is designed to serve the benefit of Russian business as a whole, complementing the existing IPA practice of nominating and electing investor representatives to the boards of directors of Russian companies.

On September 17, 2002, the Association of Independent Directors (IDA) announced the official opening of membership in the Association. Today, over 90 Russian and international directors and corporate governance experts are members of the Association.

The Association of Independent Directors (IDA) is currently the only organization of corporate directors in Russia that has undertaken the functions of forming and developing a professional community of independent corporate directors. AID mission is to assist Russian joint-stock companies in increasing the effectiveness of their activities by introducing the best world practice of professional independent directors.

The activities of the professional association will allow independent directors to exchange experience, as well as create a mechanism for effectively meeting the market demand for independent directors with company side.

Corporate governance mechanisms in market economy aimed at ensuring the implementation of property rights and the formation of appropriate corporate control structures. These mechanisms are traditionally divided into external (i.e., the impact of the external environment) and internal (internal procedural mechanisms for managing a joint-stock company).

External mechanisms include:

1) corporate legislation and its enforcement infrastructure (the main elements of such an infrastructure in our country can be distinguished: the system of arbitration managers, the FSFR, the system of arbitration courts);

2) financial market control;

3) the threat of bankruptcy due to the erroneous policy of managers;

4) application of bankruptcy procedures;

5) the corporate control market (the threat of a hostile takeover and change of managers).

These mechanisms are interconnected: control of the financial market includes bank control, generated by the debt market, and control of the securities market, which is carried out through the activities of financial intermediaries capable of carrying out close information monitoring of companies whose shares are traded on the market. The stock market can function as a market for corporate control if it does not so much finance large capital investments as it provides the resources for massive mergers and acquisitions. A hostile takeover (takeover) is an attempt to gain control over the financial and economic activities or assets of the target company with the resistance of the management or key members of the company. Hostile takeovers occur through share buybacks, proxy hunting for shareholder meetings, bankruptcy, and so on.

The key feature of Russia at the present time is the predominance of harsh hostile takeovers (essentially "captures") with the use of administrative resources. During the period of the first bankruptcy law (the law of the Russian Federation of November 19, 1992 “On the insolvency (bankruptcy) of enterprises”), the bankruptcy procedure was not widely used in Russia.

With the adoption on January 8, 1998, of the second bankruptcy law (the Federal Law “On Insolvency (Bankruptcy)”), aggressive takeovers began to be carried out primarily through bankruptcy and various debt schemes. arose the following problems in the field of insolvency: 1) violation of the rights of the debtor and its founders; 2) non-payment of taxes; 3) withdrawal of the debtor's assets in the course of bankruptcy proceedings; 4) "non-transparency", weak regulation of bankruptcy procedures, allowing arbitration managers and other participants in the bankruptcy process to abuse their shortcomings; 5) the lack of effective mechanisms for the responsibility of unscrupulous and inefficient arbitration managers, etc. To solve the problems of seizing a business or a property complex, ousting shareholders, withdrawing assets, etc., set by the initiators of bankruptcy, it was this mechanism that turned out to be associated with lower costs compared to with other ways. In addition, bankruptcy procedures make it possible to secure control in joint-stock companies in which the invader is not a shareholder, and at the same time oust all large and small shareholders from them.

This led to the need to adopt on October 26, 2002 a new Federal Law “On Insolvency (Bankruptcy). Significant positive developments in strengthening the protection of the rights of minority shareholders under the law on joint-stock companies and the rights of small creditors under the insolvency law further stimulate the demand for bankruptcies as an effective tool for solving various corporate problems, from protecting managers from owners to hostile takeovers.

Processes of redistribution of property are observed in all countries. The difference in Russia is that here they are massive, and also that they are carried out by methods that in most countries are recognized as illegal, or at least uncivilized.

Examples of bankruptcies in the Komi Republic that have received publicity allow us to draw the following conclusions about the features of these bankruptcies of enterprises in the republic:

1) situations of legal nihilism are observed, quasi-legal methods are used;

2) the largest corporate conflicts are associated with the reorganization of companies and hostile external takeovers;

3) it is necessary to note violations of the rights of shareholders or founders during the reorganization of companies, the use of law enforcement agencies to resolve corporate conflicts;

4) the practice of using the state (state and local authorities) as an instrument of struggle for control over the company remains;

5) the real owners, obviously, are generally absent in any registers of owners; financial management and the conclusion of various transactions with property are carried out by arbitration managers on the instructions of the real owners on a "trust" basis; the appointment of "one's own" arbitration (temporary, competitive or external) manager almost guarantees the solution of "one's own" problems.

6) the conflict flares up not between shareholders and hired managers and not between controlling and minority shareholders, but between nominal owners (shareholders, managers, labor collective) and real owners who seize the hands of arbitration managers.

7) lawsuits against real owners in case of damage to ordinary shareholders are impossible - the owners are hidden behind many structures.

Losses are also borne by creditors, suppliers, employees, the state as a whole. Since there are obviously state officials among the invaders, the result of applying bankruptcy procedures is understandable: not the withdrawal of the enterprise from the crisis, but the sale of the enterprise's assets for a pittance and the termination of its activities. In this situation, the organizational and legal form of the enterprise does not matter: OJSC, LLC, PC or State Unitary Enterprise. The picture of capture is essentially the same, although the forms of enterprises are different. It should be noted that such seizures in the Republic of Kazakhstan are provoked by the poor quality of management, the incapacity of internal and external control mechanisms, and the insolvency of enterprises.

Numerous empirical studies by foreign scientists show that the lower the level of economic development of the country and the more imperfect the existing institutional system, the higher the concentration of property in the hands of real owners. From a theoretical point of view, this phenomenon can be considered as a kind of substitute for the lacking or poorly functioning corporate governance and corporate control mechanisms in Russia, such as the protection of the rights of minority shareholders by law, an effective judicial system, the vigorous activity of financial intermediaries capable of carrying out close information monitoring of companies, whose shares are traded on the market, etc.

Often such an organizational and legal form as an open joint-stock company (in the classical sense) exists only formally. Shareholders included in the controlling group act according to a single scenario developed by the real owners. According to research by the Russian Economic Barometer on Property and Corporate Governance for 1995-2001, third-party individuals were the leading group of non-financial outsiders. However, in this case we are hardly dealing with the classical form of individual joint-stock ownership. As a rule, these are not individual investors who invest their savings in shares using the services of professional intermediaries participating in the securities market, but trustees of either managers or major shareholders who gain access to shares as a result of personal agreements with them, bypassing the organized market.

The role of bankruptcy in a market economy can be viewed from several angles: 1) the threat of bankruptcy gives rise to one of the most important tasks of corporate governance - the prevention of bankruptcy; 2) the application of bankruptcy procedures, first of all, should lead to the improvement of finances and an increase in the efficiency of corporations; 3) declaring a debtor bankrupt should provide a solution to the problem of withdrawing inefficient enterprises from the market, returning debts to creditors, thereby helping to reduce economic risks in the economy.

According to the bankruptcy laws in force at different stages of market reforms in our country, the bankruptcy of a joint-stock company is, first of all, bankruptcy legal entity. Therefore, despite the volume of the latest (2002 with amendments and additions) bankruptcy law, it is quite difficult to see in it the specifics of the bankruptcy of a joint-stock company or corporation. For the purposes of the Federal Law on Insolvency (Bankruptcy), the following basic concepts are used:

insolvency (bankruptcy) - the inability of the debtor to fully satisfy the claims of creditors under the arbitration court recognized monetary obligations and (or) fulfill the obligation to make mandatory payments (hereinafter referred to as bankruptcy);

a debtor is a citizen, including an individual entrepreneur, or a legal entity, who are unable to satisfy the claims of creditors for monetary obligations and (or) fulfill the obligation to make mandatory payments within the period established by this Federal Law;

pecuniary obligation - the obligation of the debtor to pay the creditor a certain sum of money on a civil - legal transaction and (or) other grounds provided for by the Civil Code of the Russian Federation;

obligatory payments - taxes, fees and other obligatory contributions to the budget of the appropriate level and state off-budget funds in the manner and on the terms determined by the legislation of the Russian Federation; the head of the debtor - the sole executive body of a legal entity or the head of a collegial executive body, as well as another in accordance with federal law, acting on behalf of a legal entity without a power of attorney;

creditors - persons having in relation to the debtor the right to claim for monetary obligations and other obligations, for the payment of mandatory payments, for the payment of severance benefits and for the remuneration of persons working under an employment contract;

bankruptcy creditors - creditors for monetary obligations, with the exception of authorized bodies, citizens to whom the debtor is liable for causing harm to life or health, moral damage, has obligations to pay remuneration under copyright agreements, as well as the founders (participants) of the debtor for obligations arising from from such participation;

authorized bodies - federal executive bodies authorized by the government of the Russian Federation to represent in a bankruptcy case and in bankruptcy proceedings claims for the payment of mandatory payments and claims of the Russian Federation for monetary obligations, as well as executive authorities of the constituent entities of the Russian Federation, local governments authorized to represent in in a bankruptcy case and in bankruptcy procedures, claims for monetary obligations, respectively, of the constituent entities of the Russian Federation and municipalities;

representative of the founders (participants) of the debtor - the chairman of the board of directors (supervisory board) or other similar collective management body of the debtor, or a person elected by the board of directors (supervisory board) or other similar collegial management body of the debtor, or a person elected by the founders (participants) of the debtor for representation of their legitimate interests during bankruptcy proceedings;

representative of the owner of the property of the debtor - a unitary enterprise - a person authorized by the owner of the property of the debtor - a unitary enterprise to represent his legitimate interests during bankruptcy proceedings;

representative of the creditors' committee - a person authorized by the creditors' committee to participate in the arbitration proceedings in the debtor's bankruptcy case on behalf of the creditors' committee;

representative of the meeting of creditors - a person authorized by the meeting of creditors to participate in the arbitration proceedings in the bankruptcy case of the debtor on behalf of the meeting of creditors;

arbitration manager (temporary manager, administrative manager, external manager or bankruptcy trustee) - a citizen of the Russian Federation approved by the arbitration court for conducting bankruptcy procedures and exercising other powers established by this Federal Law and being a member of one of the self-regulatory organizations;

interim manager - an arbitration manager approved by the arbitration court to conduct supervision in accordance with this Federal Law;

administrative manager - an arbitration manager approved by the arbitration court for financial rehabilitation in accordance with this Federal Law;

external manager - an arbitration manager approved by an arbitration court to carry out external management and exercise other powers established by this Federal Law;

bankruptcy commissioner - an arbitration commissioner approved by an arbitration court for conducting bankruptcy proceedings and exercising other powers established by this Federal Law;

moratorium - suspension of the debtor's performance of monetary obligations and payment of mandatory payments;

representative of the debtor's employees - a person authorized by the debtor's employees to represent their legitimate interests during bankruptcy procedures;

self-regulatory organization of arbitration insolvency practitioners (hereinafter also referred to as self-regulatory organization) - a non-profit organization based on membership, created by citizens of the Russian Federation, included in the unified state register of self-regulatory organizations of arbitration insolvency practitioners and whose activities are to regulate and ensure the activities of arbitration insolvency practitioners;

regulatory body - the federal executive body exercising control over the activities of self-regulatory organizations of arbitration managers.

Among these definitions, most of them refer to participants in bankruptcy proceedings; the law distinguishes them into persons participating in a bankruptcy case and persons participating in an arbitration process in a bankruptcy case.

The persons participating in the bankruptcy case are:

Debtor;

Arbitration manager;

bankruptcy creditors;

Authorized bodies;

Federal executive authorities, as well as executive authorities of the constituent entities of the Russian Federation and local governments at the location of the debtor in the cases provided for by this Federal Law;

The person who provided the security for financial recovery.

Persons participating in the bankruptcy proceedings:

Representative of the debtor's employees;

Representative of the owner of the debtor's property - a unitary enterprise;

Representative of the founders (participants) of the debtor;

Representative of the meeting of creditors or representative of the committee of creditors;

Other persons in the cases provided for by the Arbitration Procedure Code of the Russian Federation and this Federal Law.

Such a detailed definition and expansion of participants in bankruptcy should help to eliminate the practice when potentially attractive enterprises within the framework of stable cooperative ties were the objects of bankruptcy. The imperfection of the institution of bankruptcy made it possible to use it in contradiction with its very meaning - against solvent enterprises, violating the interests of the state as a creditor and owner.

Corporate control associated with the threat or application of bankruptcy procedures implies the possession of such an important financial concept that reveals the mechanism for the occurrence of bankruptcy of a joint-stock company, as the "cost of capital". The source of the capital of a joint-stock company is primarily the funds of shareholders (the company's own capital) and loans. Other forms of financial obligations of the enterprise (debts to suppliers, deferred debts, etc.), which arise automatically and do not bear interest, are not considered in this context in order to identify the specifics of a joint-stock company.

Shareholders and creditors expect remuneration in accordance with prevailing market conditions, interest rates and dividends on similar bonds, shares and other types of financial liabilities. Obviously, their calculations can be justified only if the profit is sufficient to make the expected payments.

The weighted average expected payments (as a percentage of debt and equity) are the "cost of capital". These expectations are provided by the actual profitability of the use of JSC assets. One of the first signs of bankruptcy is when a firm's profitability falls below its cost of capital.

In practice, this is expressed in the fact that the interest on the loan and the dividends paid by the company cease to meet the prevailing market conditions, investing in this company becomes a less attractive financial event. The price of the company's shares falls, the risk of a return of funds increases.

The firm is having difficulty with cash. They already arise in connection with the relative decline in the profitability of the enterprise and possible difficulties in paying expenses. But cash difficulties can escalate dramatically if creditors find it too dangerous to renew them even at higher interest rates, do not renew loan agreements for the next period, and the firm has to pay not only interest, but also the amount of the principal debt.

Then a liquidity crisis may arise and the firm will enter a state of "technical insolvency". This stage of decline can be considered as bankruptcy, and this is a reason to go to court. However, a deeper drop is possible.

A decrease in a firm's profitability means a decrease in its price. The value of a firm is the present-day cash flows to creditors and shareholders (the "cost of capital" is used as a discount factor). The price of the firm may fall below the amount of obligations to creditors. This means that the share capital disappears. This is complete bankruptcy, bankruptcy of shareholders. If the price of a firm falls below the liquidation value of its assets, then it is the latter that is considered as the price of the firm. The liquidation of the firm becomes more profitable than its operation, and if the liquidation value of the firm is lower than the price of obligations, then the shareholders lose all their capital.

Therefore, the measures to prevent the bankruptcy of organizations, provided for by the Bankruptcy Law of 2002, include the following points:

1) the head of the debtor is obliged to send to the founders (participants) of the debtor, i.e. shareholders information about the presence of signs of bankruptcy;

2) founders (participants), authorities at different levels are obliged to take timely measures to prevent bankruptcy of enterprises;

3) in order to prevent the bankruptcy of organizations, the founders (participants) of the debtor, creditors and other persons, on the basis of an agreement with the debtor, take measures aimed at restoring the solvency of the debtor. As part of bankruptcy prevention measures, the debtor may be provided with financial assistance in an amount sufficient to pay off monetary obligations and mandatory payments and restore the debtor's solvency (pre-trial resolution);

4) the provision of financial assistance may be accompanied by the assumption by the debtor or other persons of obligations in favor of the persons who provided financial assistance.

Of course, bankruptcy should be avoided, but if it is inevitable, then it can be regarded as a kind of health-improving procedure, as sometimes the only way to save an enterprise from final decline, to change the old order. Bankruptcy acts as the last chance for creditors and shareholders to remove incompetent and corrupt management before it completely destroys and plunders the entire enterprise. In this sense, bankruptcy, to one degree or another, is part of the internal mechanism of corporate governance. Although the representatives of the Foundation "Center for the Development of the Stock Market" T. Medvedeva and A. Timofeev believe that "The institution of bankruptcy cannot be classified as a legal institution of corporate governance and is associated with it only by that as a result of bankruptcy, the subject composition of the joint-stock company or the ratio of the degree of influence of various entities in it may change.

Indeed, the Russian legislative acts on bankruptcy (1992, 1998, 2002) do not separate bankruptcy procedures for a joint-stock company. The Federal Law on Insolvency (Bankruptcy) 2002 applies to all legal entities, with the exception of state-owned enterprises, institutions, political parties and religious organizations. Relations associated with the insolvency (bankruptcy) of citizens, including individual entrepreneurs, are also regulated by this Federal Law.

However, the very definition of bankruptcy procedures given in the law shows that only one of them (bankruptcy proceedings) directly declares the debtor bankrupt, the rest have the goal of preserving and improving the enterprise, and only if this goal is not achieved, there is a transition to bankruptcy proceedings. When considering a case on bankruptcy of a debtor - a legal entity, the following bankruptcy procedures are applied:

Observation;

Financial recovery;

External management;

competitive production;

world agreement.

Supervision - a bankruptcy procedure applied to a debtor in order to ensure the safety of the debtor's property, analyze the financial condition of the debtor, draw up a register of creditors' claims and hold the first meeting of creditors.

Financial recovery - a bankruptcy procedure applied to a debtor in order to restore its solvency and pay off debt in accordance with the debt repayment schedule.

External administration is a bankruptcy procedure applied to a debtor in order to restore its solvency.

Bankruptcy proceedings are a bankruptcy procedure applied to a debtor declared bankrupt in order to adequately satisfy the claims of creditors.

Settlement agreement - a bankruptcy procedure applied at any stage of the bankruptcy proceedings in order to terminate the bankruptcy proceedings by reaching an agreement between the debtor and creditors.

Both legally and in fact, bankruptcy procedures will take several years. If we agree with the opinion of the above scientists, we will have to admit that during this period corporate governance in joint-stock companies is not carried out. The position of the Supreme Arbitration Court of the Russian Federation, when in 2000 it decided on the legality of repaying the debts of an enterprise with its shares, was precisely based on the fact that during the bankruptcy procedure, the usual management bodies of a joint-stock company do not operate. However, for example, the meeting of creditors during the implementation of the bankruptcy procedure can be considered as a successor to the functions of traditional management bodies. Improving the bankruptcy law will not give the proper result if civilized external and internal mechanisms of corporate governance and control do not function.

Joint Stock Business: Textbook / Ed. V.A. Galanova. M.: Finance and statistics, 2003. - S. 149.