The Great Chamber of Supreme Court in Resolution dated 8 June 2021 in the case No. 906/1336/19, solved exclusionary legal problem concerning the necessity of figuring out moment when new owner of shares in share capital was gaining property rights according to the Law of Ukraine “On limited and additional liability companies”.
As the par 5 of Art. 24 of aforementioned law states, the member is deemed to exit the partnership from the day of state registration of his withdrawal. However, the law does not directly identify the moment when purchaser of share in Charter Capital is deemed to enter into the partnership. This should held in mind in regard to the fact that the state registration of shares purchaser`s rights is connected with the great number of legal facts according to the law.
In this case, the courts ruled that plaintiff sold his share to another person on 12 of June 2018. This happened before the Law of Ukraine “On limited and additional liability companies” entered into force. The transfer of share by act and state registration of changes of information about legal entity happened on 13 of December 2018 which means it happened after the Law of Ukraine “On limited and additional liability companies” entered into force.
The Great Chamber of Supreme Court ruled that transfer of share does not mean automatic transfer of corporate rights from initial shareholder to the purchaser. The agreement may stipulate that the ownership of the share passes to the purchaser from the moment of signing the agreement, but the transfer of share requires the will of both parties in this regard. The transfer of share from the member to the purchaser can be the final stage of the agreement (for example, after payment of the purchase price). This may happen much later than signing of an agreement. Thus, the act of acceptance/delivery of share is a document that reflects the will of the parties to transfer ownership from a member in the company to the purchaser of share.
From the moment of state registration of a share in the Charter Capital of the company, the possessor of the share gains the status of a member of the partnership, which allows him to exercise the rights arising from its share.
The moment of gaining the rights on share in the Carter Capital (property rights) and the moment of gaining the rights arising from a share (the right to participate in a partnership) differs and may not coincide in time. The agreement on transaction of a share in the Charter Capital is the legal basis for the gaining the right on share (ownership of the share), and therefore the moment of gaining the right on share may be determined by the terms of such agreement. At the same time, the moment of transfer of corporate rights arising from the share in the Charter Capital transferred to another person is the legal fact of registration in the state register of changes in the company ownership structure on the basis of the act of acceptance/delivery provided by one of the parties of agreement.
