Пояснительная записка к закону о компаниях 2006 года

Расширенные комментарии к закону о компаниях 2006 года (собрание законодательства Великобритании; 2006; глава 46). Подготовлены Правительством Великобритании и содержат дополнительные сведения к положениям закона. Не входят в текст закона и не проходили процедуру одобрения в Парламенте. Полный текст оригинала на английском языке.

Среда, 12 июня 2019 апдейт:

Part 37: Companies: Supplementary Provisions

Sections 1134 and 1135: Company records

1454.These sections replace sections 722(1) and 723(1) and (2) of the 1985 Act and enable a company to use electronic storage or paper for its records provided that there can be paper printouts of electronic records. Section 1135(1) also enables the contents to be arranged as the directors see fit provided that it is adequately recorded. Section 1138 (duty to take precautions against falsification) also applies if the records are not kept in bound books.

Section 1136: Regulations about where certain company records to be kept available for inspection

1455.This section is a new provision. It provides power for the Secretary of State to make regulations to provide an alternative to the company’s registered office as the location for inspection of specified records. The regulations are subject to negative resolution procedure.

Section 1137: Regulations about inspection of records and provision of copies

1456.This section replaces section 723A of the 1985 Act. It allows the Secretary of State to make regulations about the inspection and provision of copies of company records.

Section 1138: Duty to take precautions against falsification

1457.This section replaces section 722(2) and (3) of the 1985 Act. It makes it an offence not to take measures that protect records from falsification or help trace any falsification. This provision applies to records that are not kept in bound books, whether or not they are kept electronically, but does not apply either to companies’ copies of the directors’ service contracts or to copies of any qualifying third party indemnity provisions benefiting a director.

Section 1139: Service of documents on company

1458.This section replaces section 725 of the 1985 Act. It ensures that there is a place at which a document may be served on companies registered under the Act. It also applies to overseas companies registered in accordance with regulations made under section 1046. Subsection (4) enables court service on a company registered in Scotland or Northern Ireland at the company’s principal place of business in England and Wales. (Since this is a provision about court service, the rules on companies registered in England and Wales carrying on business elsewhere in the UK will be found in the relevant legislation in those parts of the UK.) Subsection (5) makes clear that this section is supplemented by the «company communications provisions» referenced by section 1143.

Section 1140: Service of documents on directors, secretaries and others

1459.This section is a new provision. It ensures that the address on the public record for any director or secretary is effective for the service of documents on that person. Subsection (3) provides that the address is effective even if the document has no bearing on the person’s responsibilities as director or secretary. This provision also applies to the address on the public record of various other persons for whom the Act requires an address on the public record. Subsection (7) similarly makes clear that this section is supplemented by the «company communications provisions» referenced by section 1143.

Section 1141: Service addresses

1460.This section defines «service address» for the purposes of the Companies Acts as an address at which documents may be effectively served and provides a power for regulations to specify conditions with which a service address must comply.

Section 1142: Requirement to give service address

1461.This section is a new provision. It qualifies requirements elsewhere to give an "address". Unless the requirement is for a particular kind of address (say, the usual residential address), the section makes clear that a service address (as defined in the previous Section) is what is required.

Section 1143: The company communications provisions

1462.Section 1143 introduces sections 1144 to 1148 and Schedules 4 and 5. These make new provision for communications with or from companies, typically with their members but also with debenture-holders and others.

1463.The Companies Act 1985 (Electronic Communications) Order 2000 facilitated the use of electronic and website communications in certain contexts, but there has been uncertainty as to whether other provisions under the 1985 Act for information to be communicated ‘in writing’ required the use of paper or could be satisfied by electronic communications. The Act makes new general provision about communications, including electronic and website communications for the Companies Acts as a whole.

1464.The general principle behind the company communications provisions is that companies should be able to use hard copy or electronic communications in all cases. However, these provisions are subject to anything in or under any other enactment, and, as regards communications between companies and Companies House, they are also subject to the provisions of Part 35 of the Act.

Section 1144: Sending or supplying documents or information

1465.This section introduces two Schedules, which apply irrespective of the company’s articles:

Schedule 4 deals with documents and information sent or supplied to a company;

Schedule 5 deals with communications by a company and between companies.

1466.Sections 1146 (requirement of authentication), 1148 (interpretation of company communications provisions) and 1168 (hard copy and electronic form and related expressions) contain provisions necessary for the interpretation of Schedules 4 and 5.

Schedule 4: Documents and information sent or supplied to a company

1467.This Schedule brings together the rules on communications to a company. In some cases a company will have other companies as members, debenture holders etc, and paragraph 1(2) of the Schedule makes clear that communications by such members etc is governed by Schedule 5.

1468.Part 2 of the Schedule sets out the position for communications sent or supplied in hard copy form. These are very similar to the present position. Part 3 sets out rules for communications in electronic form. Part 4 is a more general provision and means that unless the Companies Acts specify a means of communication, for example under section 291(3)(a) (circulation of written resolutions proposed by directors), then a communication to the company can be sent or supplied in any way agreed by the company.

Schedule 5: Communications by a company

1469.This Schedule sets out provisions on how companies are to communicate with their members, debenture holders etc. These rules are subject to, for example, additional rules which the FSA may require of companies traded on a regulated market.

1470.Part 2 of the Schedule sets out standard rules for communications in hard copy. Paragraph 4 lists the addresses to which the company may send or supply documents or information. Where the company has no address for the intended recipient, the company may use the recipient’s last known address. By virtue of section 310(4), this provision does not prevent a company making provision in its articles not to send notice of a general meeting to members for whom the company no longer has a valid address. Section 423(2) makes similar provision for the annual report and accounts.

1471.Part 3 of the Schedule relates to communications by e-mail or other electronic methods. Paragraph 6 allows a company to send a document or information in electronic form to a person who has agreed (either generally for all communications or specifically for a particular document or piece of information) and where such person has not revoked that agreement.

1472.Part 4 deals with publication of documents or information on a website. Paragraph 10 allows a company to pass a members’ resolution or make provision in its articles about website communication. If it has done so, members (or their nominees) are taken to have agreed to receiving information from the company via a website if they have also been asked individually for their acceptance and have either agreed or not responded within 28 days of the company’s request. Where a member has not agreed to communications in this way, the company may not ask the member again within a period of twelve months. In addition, section 1145 (right to hard copy version) gives a member the right to request a hard copy of the communication. Paragraph 11 and section 1145 make equivalent provision for debenture holders. Paragraph 13 requires companies to notify intended recipients each time material is published on a website. Paragraph 15 enables the company and a member to agree alternative methods of communication, for example other than website communication where a company has defaulted to website communications.

Section 1145: Right to hard copy version

1473.This section provides individual members or debenture holders the right to require information to be sent in paper copy form. A company is required to send a paper copy of the document or information within 21 days of receiving a member’s request at no charge to the member. Subsections (4) and (5) impose a penalty on every officer in default if the company fails to comply.

Section 1146: Requirement of authentication

1474.This section operates where provisions of the Companies Acts require information sent or supplied to a company to be authenticated. This is chiefly the case in the context of written resolutions and requests (formerly requisitions) for meetings, etc. The rule is that a signature on a document in hard copy form by the person sending it is always sufficient authentication. The company can make its own rules in respect of documents in electronic form (but there is a default where no such rules exist).Subsection (4) makes it clear that, where someone purports to authenticate a document on another's behalf, the company can require proof of the former's authority to do so.

Section 1147: Deemed delivery of documents and information

1475.This section sets out when communications from the company are deemed to have been delivered, but it can be excluded by contrary provision elsewhere (for example, in other legislation, in contracts or in the articles). Subsection (5) provides that the 48-hour period for deemed delivery is counted during normal working days only. For example, a document posted on a Friday at 3.00 pm is deemed to have been delivered the following Tuesday at 3.00 pm, unless it is a bank holiday weekend, in which case deemed delivery is the Wednesday at 3.00 pm.

Section 1148: Interpretation of company communications provisions

1476.This section sets out defined terms used in the company communications provisions and, in particular, makes clear that references in the Companies Acts to «sending» and "supplying» documents or information include all such similar expressions.

Sections 1149 to 1153: Requirements as to independent valuation

1477.These sections restate the requirements in sections 108 and 110 of the 1985 Act for the independent valuation of non-cash assets accepted by a public company. The independence requirements in sections 1151 and 1152 correspond to the independence requirements for a statutory auditor (see section 1214). They include a new specific power for the Secretary of State to define a disallowed connection for the purposes of determining whether a person is sufficiently independent to be a valuer. This is consistent with the approach taken in sections 344 and 936 of the Act.

Sections 1154 and 1155: Duty to notify registrar of certain appointments etc and failure to give such notice

1478.These sections are new provisions. The requirement to give notice of the appointment of a judicial factor (in Scotland) gives effect to a recommendation by the CLR (Final Report, paragraph 11.39). The section also requires the Charity Commissioners to notify their appointment of a receiver and manager and the regulator of community interest companies to give notice of the appointment of a manager. These officers displace directors. Section 1155 makes failure by a judicial factor to give notice an offence.

Section 1156: Meaning of "the court"

1479.This section defines the term "the court" for the purposes of the Companies Acts. The effect of this definition is that, except where an enactment or rule of law provides otherwise, cases under the Companies Acts can be heard either in the High Court or the county court in England and Wales, in the Court of Session or the sheriff court in Scotland, and, in Northern Ireland, in the High Court of Northern Ireland.

1480.The allocation of cases between the county court (or sheriff court) and the High Court (or Court of Session) will be determined partly by the courts' general powers and partly by subordinate legislation. The allocation of cases between county courts will, as now, be determined by orders made by the Lord Chancellor (see subsection (3)).

Section 1157: Power of court to grant relief in certain cases

1481.Under this section, which restates section 727 of the 1985 Act without substantive amendment, an officer of a company (such as a director) or a person employed by a company as auditor may apply to the court for relief from liability for negligence, default, breach of duty or breach of trust. A court may grant relief if it appears to the court that:

the director (or other officer or auditor) has acted honestly and reasonably; and

having regard to all the circumstances, he ought fairly to be excused.


Part 1: General Introductory Provisions
Part 2: Company Formation
Part 3: a Company’s Constitution
Part 4: a Company’s Capacity and Related Matters
Part 5: a Company’s Name
Part 6: a Company's Registered Office
Part 7: Re-Registration as a Means of Altering a Company’s Status
Part 8: a Company’s Members
Part 9: Exercise of Members’ Rights
Part 10: Company Directors
Part 11: Derivative Claims and Proceedings by Members
Part 12: Company Secretaries
Part 13: Resolutions and Meetings
Part 14: Control of Political Donations and Expenditure
Part 15: Accounts and Reports
Part 16: Audit
Part 17: a Company’s Share Capital
Part 18: Acquisition by Limited Company of Its Own Shares
Part 19: Debentures
Part 20: Private and Public Companies
Part 21: Certification and Transfer of Securities
Part 22: Information about Interests in Company’s Shares. Background
Part 23: Distributions
Part 24: a Company’s Annual Return
Part 25: Company Charges
Part 26: Arrangements and Reconstructions
Part 27: Mergers and Divisions of Public Companies
Part 28: Takeovers Etc
Part 29: Fraudulent Trading
Part 30: Protection of Members Against Unfair Prejudice
Part 31: Dissolution and Restoration to the Register
Part 32: Company Investigations: Amendments
Part 33: Uk Companies Not Formed under Companies Legislation
Part 34: Overseas Companies
Part 35: the Registrar of Companies
Part 36: Offences under the Companies Acts
Part 37: Companies: Supplementary Provisions
Part 38: Companies: Interpretation
Part 39: Companies: Minor Amendments
Part 40: Company Directors: Foreign Disqualification Etc
Part 41: Business Names
Part 42: Statutory Auditors
Part 43: Transparency Obligations and Related Matters
Part 44: Miscellaneous Provisions
Part 45: Northern Ireland
Part 46: General Supplementary Provisions
Part 47: Final Provisions

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