Meanwhile, at the stage of implementing these initiatives, it will be necessary to preserve the balance of interests between the interested plaintiffs and the company, in the person of its executive bodies, in order to prevent any restriction of the executive bodies’ lawful freedom of actions when implementing their functions under the constant threat of such claims to be lodged against them. In the light of this all, the possibility to judicially disqualify the members of executive bodies under legal proceedings launched against them by the owners of a company becomes especially important; this initiative has also been put forth by the Concept. In the sphere of mergers and takeovers, the implementation of these measures will make it possible to reduce the scope of abuse on the part of the “temporary” executive bodies appointed as a result of takeover actions.
At the same time, there still exist some doubts regarding the effectiveness of implementing one of the measures suggested in the Concept, namely, that “a member of a board of directors ( or a supervisory board, or a collegiate executive body) shall not have the right to take a vote, at any meeting, on any resolution regarding an issue in which this person, or a person with whom this person is associated, is materially interested, or has a duty which contradicts the interests of the company, or can come into conflict with the said interests”. In connection with the fact that the board of directors of a company is formed at a general meeting of stockholders (in the case of joint- stock companies), it is the stockholders who put forth the candidacies. Thus, it can be assumed that in the above interpretation, an accusation of being materially interested, which is addressed to a member of the board of directors of a company, can be addressed to any of them because, in view of the fact that any member of the board of directors is, by definition, a nominee of one or other interested owner, he or she is associated with a materially interested person, a stockholder. In our opinion, in the event of a corporate dispute, when the owners of a company have conflicting interests, this provision will make it possible to file legal actions with regard to virtually all contentious issues considered by the board of directors.
Another important and timely initiative is the regulation of the procedures for mixed reorganization of juridical persons, when the economic agents taking part in the reorganization belong to different legal organizational forms (including non-profit organizations). On the strength of existing legislation, at present, such forms of reorganizations are not permitted, which forces the owners to carry out some additional preliminary work aimed at changing the legal organizational forms of the economic agents to be reorganized. This is just another barrier which causes additional loss of time and money but brings no rewards.
Equally essential is the issue concerning the legislative regulation of the relations dealing with insider information and the prevention of its use by the insiders to the detriment of third parties. The Draft Concept offers no concrete description as to the possible ways of solving this issue. Therefore, it is advisable to address another document – The Strategy of the Development of the Financial Market of the Russian Federation - prepared by the Federal Service for Financial Markets (FSFM) in the year 2005 (hereinafter – the Strategy). This document was also developed with the help of the Panel of Experts in Corporate Governance created at the RF FSFM in April 2005. The FSFM has already prepared the corresponding draft law and is planning, in the nearest future, to develop the Law “On Insider Information and Market Manipulation”. In this draft law, the authors of the Strategy envisage the establishment of special mechanisms for detecting law violations and bringing to justice those state employees who are guilty of illegally using insider information. Also, the Strategy contains a number of concrete proposals concerning the classification of law violations in this sphere. These proposals relate to the following matters:
- the effectuation, by two or more participants in a tender, of two or more mutual transactions in their own interests or in the interests of their clients, i.e., the transactions in which each of the participants in a tender acts in the role of both the buyer and the seller of one and the same security. At the same time, these transaction are economically senseless for one of the participants in the tender (or his client), or for both participants in the tender (or their client);
- a the fact of bids with the highest purchasing price or the lowest selling price being repeatedly made by the participants in a tender, either in their own interests or in the interests of a client, which results in transactions that cause either a considerable increase or a considerable decrease in the price of the security in question.
Finally, we are going to focus on two more, and rather contradictory, initiatives. The first deals with principles for preparing the documents needed for registering a reorganization. According to the Concept, it is necessary to legislatively consolidate the norm according to which, after a decision on reorganization has been taken, the corresponding body of the juridical person is obliged to determine the general quantitative and qualitative parameters of the rights and obligations ( or property complexes, or parts thereof) to be transferred from the juridical person being reorganized to all the organizations being created as a result of the reorganization. The explanation for this “innovation” is as follows:
since the reorganization process can go on for months and even years, by the moment of its completion the division balance or the deed of conveyance may have lost their credibility. However, it should be noted that the quantitative and qualitative parameters determined in accordance with the above provision can also change. Thus, the measure seems unnecessary and irrelevant, as far as the existing state of affairs is concerned. In our opinion, there is no need to change the existing situation. At the same time, it may be useful to legislatively consolidate the provision stipulating that the division balance, to be approved alongside the minutes of the general meeting of stockholders which has taken the decision as to reorganization, must be once again considered and approved before the completion of the process of reorganization, with due regard to any corrections, should they become necessary.
The second initiative deals with the consolidation of the right of the creditors of a society under reorganization to demand an early discharge of any liabilities held by the company under reorganization.
The authors of the Concept propose that a judicial procedure for the enforcement of such demands be introduced. This innovation is likely to restrict the rights of creditors, because (as it has already been mentioned) any judicial procedure takes a long time to implement, and the suffering party will be not only the creditor, but also the company under reorganization. We consider it reasonable to preserve the state of affairs currently existing at the legislative level, when the issue concerning the rights of the creditors of a society under reorganization falls within the jurisdiction of a self-regulating organization, and not within that of the court of arbitration.
It should also be noted that the Concept ignores the necessity to legislatively adopt a norm according to which, in the event of reorganization of juridical persons, at least one legal successor preserves the licenses issued to the company under reorganization. The said norm seems to be only natural because, in practice, many companies are confronted with this problem (take, for example, the merger of the joint-stock company “VympelKom-Region” and the joint-stock company “VympelKom”, when there was a risk that both companies, being leaders on the corresponding markets, might lose their licenses to the provision of communication services; as a consequence, the merger was considerably postponed). Another flaw in the Concept is the absence of any proposals on establishing a complete list of affiliated persons. If the list of affiliated persons does not include, for example, the next of kin of the owners of a company, this may result in discrepancies between the lists of formal and actual beneficiaries of this company, and therefore to the informational non-transparency of the latter. This situation is mentioned in the Concept, but also without any concrete recommendations as to any possible reforming of legislation with regard to this issue.
A. V. Sizov Issues Considered at the Sessions of the RF Government on November 17 and At the November Sessions of the RF Government the Minister of Healthcare and Social Development of RF Zurabov M.Yu. presented a report “On implementation of the concept of development of the healthcare and medical sciences in the Russian Federation and the main trends of healthcare development for 2006-2010”, which emphasized the outstanding problems in healthcare and set the guidelines and measures for the development of healthcare for 2006-2010 (session of November 17), and also a report “On execution of the Federal law No. 122-FZ of August 22, 2004 with regard to provision of social support measures to individual categories of citizens and the work on its implementation in 2006” (session of November 24).
* * * In the November 17 report “ On implementation of the concept of development of the healthcare and medical sciences in the Russian Federation and the main trends of healthcare development for 2006-2010” it was stressed that the following healthcare problems remained actual: financing gap, unsatisfactory physical infrastructure, inefficient use of resources, regional differentiation, imbalance of the state guarantees assistance to the population, imperfection of the current OMS (compulsory medical insurance) system, inadequate economic self-reliance of budgetary healthcare institutions, etc.
Provided below are singled out the main trends and measures for the development of healthcare for 2006-2010:
1. Modernization of OMS, which suggests, in particular, creation of a centralized model of OMS system, liquidation of the two-channel system of funding, transferring of a part of financial responsibility to the non-state sector, strengthening of the financial basis of OMS by means of implementation of the territorial programs and more severe obligations of budgets of the RF Subjects on OMS of nonworking population.
2. Legislative consolidation of state guarantees of rendering medical aid to population, which should, among other things, specify the state guarantees provided by types, volumes, conditions and the procedure of rendering medical aid, set a single system of standardization of medical aid, conduct a transition from maintenance of medical and preventive treatment facilities to principles of financing the free medical care according to standards of its rendering regardless of the place it is provided.
3. Transformation of part of medical institutions into new legal organizational forms (autonomous institutions), which is planned to be carried out in two-three phases within several years. It was also stressed in the report that part of the healthcare (budgetary) institutions is advisable to retain in their present form, with due regard for such criteria as:
- strategic role of an institution;
- participation of an institution in the provision of defensive capacity of the RF;
- the necessity of presence of a given medical aid that dominates over optimization of the capacity utilization of a medical institution.
4. Improving the system of rendering of medical aid, in particular, priority development of primary health care, transferring a part of volumes of medical aid from the stationary to ambulatory stage, reduction of part of excessive hospital size, introduction of new methods of payment to medical workers (including transferring to sectoral wage systems).
In addition, the following healthcare trends were noted: provision of access for citizens to efficient, safe and quality medications, formation of complex program of pharmacological support for individual categories of citizens, attraction of additional sources of healthcare financing using the mechanisms of private-government partnership, strengthening the prophylactic direction of healthcare, raising the quality of professional training and retraining of staff in healthcare, creation on the basis of development of pharmaceutics and biotechnology of principally new and effective methods of prophylaxis, diagnosis and treatment, drugs and diagnostic preparations of new generation.
According to the data, presented in the November 24 report “On execution of the Federal law No.
122-FZ of August 22, 2004 with regard to provision of social support measures to individual categories of citizens and the work on its implementation in 2006” for realization of the social support measures, the expenditures for maintenance of citizens in 2005 increased, as compared to 2004, 2.77 times.
In 2005 it was provided for these purposes in the federal budget Rb 208.6 bn, in the regional budget - Rb 92.6 bn (in 2004 – Rb 45.4 and 63 billion accordingly).
In 2005, in all for realization of monthly payments have been provided for the means of the federal budget in the amount of Rb 116.34 bn, among them: to veterans – Rb 32.6 bn, disabled - Rb 76.1 bn, and to persons, who suffered radiation effects as a result of radiation accidents and nuclear tests, - Rb 7.04 bn. Expenditures for indexation of monthly installments make Rb 590 mln per month, and until the end of the year will amount around Rb 3 bn. Expenditure obligations for rendering citizens social services with regard to additional pharmacological support are funded in the volume of Rb 50.8 bn, as concerns provision of sanatorium-resort treatment – Rb 11.7 bn. To supply the disabled with technical means of rehabilitation it has been allocated from the federal budget Rb 4 654,0 million.
Assignment and payment of children's monthly allowances are referred to the expenditure obligations of the RF Subjects. According to the 9 months of 2005, 9 216149 citizens have received allowances for families with children. As many as 12867831 children have received allowances. The amount of charged allowances since the beginning of the year - 10, Rb 18 bn. It had been paid Rb 10.45 bn.
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