{"title":"创新活动中风险投资关系的参与者:欧洲经验与乌克兰法律现实","authors":"Yurii Zhornokui","doi":"10.37772/2518-1718-2023-2(42)-2","DOIUrl":null,"url":null,"abstract":"Problem setting. In modern economic and legal studies one may observe the tendency of refusing the usage of traditional forms of getting speculative profit and starting to use the sphere of venture investment into innovation activities, which is caused by unstable economic situation and a high probability of unpredictable crisis phenomena. However, such instability is caused by the issue of determining the range of persons who can participate in the field of venture entrepreneurship and acquire the appropriate status. At the same time, we should analyze not only the legislation and legal doctrine in Ukraine, but also the law-enforcement practice of the EU countries and Great Britain, which is stipulated by the European integration aspirations of our country. Analysis of recent researches and publications. Nowadays, it is possible to note the imperfection of the current legislation and the inadequacy of the legal doctrine in the context of determining the parties to the studied legal relations. It is applied to both Ukraine and the EU countries and Great Britain. Although it should be noted that the countries of the European Commonwealth and especially Great Britain, compared to Ukraine, have more progressive positions in this aspect. Therefore, their experience should form the basis for the further progress of the venture sector on the territory of our country. Doctrinal results of domestic and foreign experts, such as Yu. Ye. Atamanova, O. R. Kibenko, O. E. Simson, O. P. Sushch, J. Levin, G. Sutton, A. Mancuso, although contain analysis and arguments in favor of classifying certain persons or certain organizational and legal forms as participants in venture investment relations of innovative activities, but do not give an unambiguous answer to it. Purpose of the research is to analyze of European practice and legal doctrine in regard to defining the composition of participants in venture investment relations of innovative activities and the possibility of their application in the legal reality of Ukraine. Article’s main body. The Ukrainian legislator’s approach regarding the definition of the range of subjects of innovation activities does not provide answer to the question on the criterion for classifying certain individuals or legal entities as subjects of venture investment into innovation activities. We believe that such a criterion can be the fact of a person’s participation in the process of creating a new product and bringing it to its implementation into production or other spheres of activities. Venture investment accomplished by venture funds / private equity funds is significantly different from investing into debt and share financial instruments conducted by co-investment funds or other professional asset managers. Venture funds are not the separate type of legal entity, and therefore different organizational and legal forms are used for their creation abroad – starting from a joint-stock company to a simple company. Such examples of organizational and legal forms used for the placement of venture investments are the Limited Liability Company (USA), the Limited Liability Partnership (Great Britain) and the Kommanditgesellshaft auf Aktien (Germany). These organizational and legal forms occupy an intermediate position between corporations (as legal entities) and partnerships (as contractual entities). This key characteristic feature that unites the specified forms of activity and is the main reason for the orientation of their use for the development of venture investment into innovation activities, which requires a flexible legal approach in regulatory principles. At the same time, the specified organizational and legal forms, despite the fact that they were created to be used in those areas of activity that are associated with increased risk, have general legal capacity and can be used in any area of activity not prohibited by law. Conclusions and prospects for the development. The foreign legislator still has not fully resolved all the needs of the field of venture investments: 1) there is still the issue of ensuring equal or the most favorable legal conditions for the participation of foreign investors at venture investment markets; 2) creation of tax conditions and benefits of venture activities; 3) special attention is focused on the legal status of legal entities and their organizational and legal forms (at the same time, there is almost no attention to individuals, with the exception of cases when such persons place investments into objects of venture entrepreneurship or when it is related to the sphere of intellectual property relations in regard to the distribution of property and personal non-property rights to the relevant objects). Taking into account the best global experience of using organizational and legal forms for venture investment into innovative activities of the USA, EU countries and Great Britain, we offer to enshrine the norms at the legislative level (while adopting the Law «On Venture Activity in the Innovation Sphere» or «On Venture Funds») that joint-stock companies and limited liability companies are organizational and legal forms of legal entities who can be used in the field of venture investment and innovative activities","PeriodicalId":133481,"journal":{"name":"Law and innovations","volume":"116 1","pages":"0"},"PeriodicalIF":0.0000,"publicationDate":"2023-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"1","resultStr":"{\"title\":\"Participants in Venture Investment Relations of Innovation Activities: European Experience and Ukrainian Legal Reality\",\"authors\":\"Yurii Zhornokui\",\"doi\":\"10.37772/2518-1718-2023-2(42)-2\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"Problem setting. In modern economic and legal studies one may observe the tendency of refusing the usage of traditional forms of getting speculative profit and starting to use the sphere of venture investment into innovation activities, which is caused by unstable economic situation and a high probability of unpredictable crisis phenomena. However, such instability is caused by the issue of determining the range of persons who can participate in the field of venture entrepreneurship and acquire the appropriate status. At the same time, we should analyze not only the legislation and legal doctrine in Ukraine, but also the law-enforcement practice of the EU countries and Great Britain, which is stipulated by the European integration aspirations of our country. Analysis of recent researches and publications. Nowadays, it is possible to note the imperfection of the current legislation and the inadequacy of the legal doctrine in the context of determining the parties to the studied legal relations. It is applied to both Ukraine and the EU countries and Great Britain. Although it should be noted that the countries of the European Commonwealth and especially Great Britain, compared to Ukraine, have more progressive positions in this aspect. Therefore, their experience should form the basis for the further progress of the venture sector on the territory of our country. Doctrinal results of domestic and foreign experts, such as Yu. Ye. Atamanova, O. R. Kibenko, O. E. Simson, O. P. Sushch, J. Levin, G. Sutton, A. Mancuso, although contain analysis and arguments in favor of classifying certain persons or certain organizational and legal forms as participants in venture investment relations of innovative activities, but do not give an unambiguous answer to it. Purpose of the research is to analyze of European practice and legal doctrine in regard to defining the composition of participants in venture investment relations of innovative activities and the possibility of their application in the legal reality of Ukraine. Article’s main body. The Ukrainian legislator’s approach regarding the definition of the range of subjects of innovation activities does not provide answer to the question on the criterion for classifying certain individuals or legal entities as subjects of venture investment into innovation activities. We believe that such a criterion can be the fact of a person’s participation in the process of creating a new product and bringing it to its implementation into production or other spheres of activities. Venture investment accomplished by venture funds / private equity funds is significantly different from investing into debt and share financial instruments conducted by co-investment funds or other professional asset managers. Venture funds are not the separate type of legal entity, and therefore different organizational and legal forms are used for their creation abroad – starting from a joint-stock company to a simple company. Such examples of organizational and legal forms used for the placement of venture investments are the Limited Liability Company (USA), the Limited Liability Partnership (Great Britain) and the Kommanditgesellshaft auf Aktien (Germany). These organizational and legal forms occupy an intermediate position between corporations (as legal entities) and partnerships (as contractual entities). This key characteristic feature that unites the specified forms of activity and is the main reason for the orientation of their use for the development of venture investment into innovation activities, which requires a flexible legal approach in regulatory principles. At the same time, the specified organizational and legal forms, despite the fact that they were created to be used in those areas of activity that are associated with increased risk, have general legal capacity and can be used in any area of activity not prohibited by law. Conclusions and prospects for the development. The foreign legislator still has not fully resolved all the needs of the field of venture investments: 1) there is still the issue of ensuring equal or the most favorable legal conditions for the participation of foreign investors at venture investment markets; 2) creation of tax conditions and benefits of venture activities; 3) special attention is focused on the legal status of legal entities and their organizational and legal forms (at the same time, there is almost no attention to individuals, with the exception of cases when such persons place investments into objects of venture entrepreneurship or when it is related to the sphere of intellectual property relations in regard to the distribution of property and personal non-property rights to the relevant objects). Taking into account the best global experience of using organizational and legal forms for venture investment into innovative activities of the USA, EU countries and Great Britain, we offer to enshrine the norms at the legislative level (while adopting the Law «On Venture Activity in the Innovation Sphere» or «On Venture Funds») that joint-stock companies and limited liability companies are organizational and legal forms of legal entities who can be used in the field of venture investment and innovative activities\",\"PeriodicalId\":133481,\"journal\":{\"name\":\"Law and innovations\",\"volume\":\"116 1\",\"pages\":\"0\"},\"PeriodicalIF\":0.0000,\"publicationDate\":\"2023-06-25\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"1\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Law and innovations\",\"FirstCategoryId\":\"1085\",\"ListUrlMain\":\"https://doi.org/10.37772/2518-1718-2023-2(42)-2\",\"RegionNum\":0,\"RegionCategory\":null,\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"\",\"JCRName\":\"\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Law and innovations","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.37772/2518-1718-2023-2(42)-2","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"","JCRName":"","Score":null,"Total":0}
引用次数: 1
摘要
问题设置。在现代经济和法律研究中,人们可以观察到一种趋势,即拒绝使用传统的获取投机利润的形式,而开始将风险投资领域用于创新活动,这是由不稳定的经济形势和不可预测的危机现象的高概率造成的。但是,造成这种不稳定的原因是确定能够参与风险企业领域并获得适当地位的人的范围的问题。同时,我们不仅要分析乌克兰的立法和法律学说,还要分析欧盟国家和英国的执法实践,这是由我国的欧洲一体化愿望所规定的。分析最近的研究和出版物。当前,在确定所研究的法律关系当事人的背景下,可以注意到现行立法的不完善和法律理论的不足。它适用于乌克兰和欧盟国家以及英国。虽然需要指出的是,欧共体国家特别是英国在这方面的立场比乌克兰更为进步。因此,他们的经验应该成为我国风险投资领域进一步发展的基础。国内外专家的理论成果,如余。你们。Atamanova, O. R. Kibenko, O. E. Simson, O. P. Sushch, J. Levin, G. Sutton, A. Mancuso,虽然包含了支持将某些人或某些组织和法律形式归类为创新活动风险投资关系参与者的分析和论点,但没有给出明确的答案。研究的目的是分析欧洲的实践和法律理论,以确定创新活动的风险投资关系的参与者的组成及其在乌克兰法律现实中适用的可能性。文章的主体。乌克兰立法者关于创新活动主体范围定义的办法没有回答关于将某些个人或法律实体作为风险投资主体归类为创新活动的标准的问题。我们认为,这样一个标准可以是一个人参与创造一种新产品并将其付诸生产或其他活动领域的过程的事实。风险基金/私募股权基金进行的风险投资与共同投资基金或其他专业资产管理公司进行的债务和股票金融工具投资有很大不同。风险基金不是单独的法律实体类型,因此在国外它们的创建采用了不同的组织和法律形式——从股份公司到简单的公司。用于进行风险投资的组织和法律形式的例子有有限责任公司(美国)、有限责任合伙(英国)和Kommanditgesellshaft auf Aktien(德国)。这些组织和法律形式在公司(作为法律实体)和合伙(作为合同实体)之间占据中间地位。这一关键特征将各种特定形式的活动统一起来,是将其用于发展风险投资为创新活动的主要原因,这需要在监管原则中采取灵活的法律办法。与此同时,具体的组织和法律形式,尽管是为了在那些与风险增加有关的活动领域中使用而设立的,但具有一般的法律行为能力,可以用于法律不禁止的任何活动领域。结论及发展展望。外国立法者仍然没有完全解决风险投资领域的所有需求:1)仍然存在确保外国投资者参与风险投资市场的平等或最有利的法律条件的问题;(2)创造创业活动的税收条件和利益;3)特别关注法律实体的法律地位及其组织和法律形式(同时,几乎不关注个人,除非这些人投资于风险创业的对象,或者当它与知识产权关系领域有关,涉及财产分配和个人对相关对象的非财产权利)。
Participants in Venture Investment Relations of Innovation Activities: European Experience and Ukrainian Legal Reality
Problem setting. In modern economic and legal studies one may observe the tendency of refusing the usage of traditional forms of getting speculative profit and starting to use the sphere of venture investment into innovation activities, which is caused by unstable economic situation and a high probability of unpredictable crisis phenomena. However, such instability is caused by the issue of determining the range of persons who can participate in the field of venture entrepreneurship and acquire the appropriate status. At the same time, we should analyze not only the legislation and legal doctrine in Ukraine, but also the law-enforcement practice of the EU countries and Great Britain, which is stipulated by the European integration aspirations of our country. Analysis of recent researches and publications. Nowadays, it is possible to note the imperfection of the current legislation and the inadequacy of the legal doctrine in the context of determining the parties to the studied legal relations. It is applied to both Ukraine and the EU countries and Great Britain. Although it should be noted that the countries of the European Commonwealth and especially Great Britain, compared to Ukraine, have more progressive positions in this aspect. Therefore, their experience should form the basis for the further progress of the venture sector on the territory of our country. Doctrinal results of domestic and foreign experts, such as Yu. Ye. Atamanova, O. R. Kibenko, O. E. Simson, O. P. Sushch, J. Levin, G. Sutton, A. Mancuso, although contain analysis and arguments in favor of classifying certain persons or certain organizational and legal forms as participants in venture investment relations of innovative activities, but do not give an unambiguous answer to it. Purpose of the research is to analyze of European practice and legal doctrine in regard to defining the composition of participants in venture investment relations of innovative activities and the possibility of their application in the legal reality of Ukraine. Article’s main body. The Ukrainian legislator’s approach regarding the definition of the range of subjects of innovation activities does not provide answer to the question on the criterion for classifying certain individuals or legal entities as subjects of venture investment into innovation activities. We believe that such a criterion can be the fact of a person’s participation in the process of creating a new product and bringing it to its implementation into production or other spheres of activities. Venture investment accomplished by venture funds / private equity funds is significantly different from investing into debt and share financial instruments conducted by co-investment funds or other professional asset managers. Venture funds are not the separate type of legal entity, and therefore different organizational and legal forms are used for their creation abroad – starting from a joint-stock company to a simple company. Such examples of organizational and legal forms used for the placement of venture investments are the Limited Liability Company (USA), the Limited Liability Partnership (Great Britain) and the Kommanditgesellshaft auf Aktien (Germany). These organizational and legal forms occupy an intermediate position between corporations (as legal entities) and partnerships (as contractual entities). This key characteristic feature that unites the specified forms of activity and is the main reason for the orientation of their use for the development of venture investment into innovation activities, which requires a flexible legal approach in regulatory principles. At the same time, the specified organizational and legal forms, despite the fact that they were created to be used in those areas of activity that are associated with increased risk, have general legal capacity and can be used in any area of activity not prohibited by law. Conclusions and prospects for the development. The foreign legislator still has not fully resolved all the needs of the field of venture investments: 1) there is still the issue of ensuring equal or the most favorable legal conditions for the participation of foreign investors at venture investment markets; 2) creation of tax conditions and benefits of venture activities; 3) special attention is focused on the legal status of legal entities and their organizational and legal forms (at the same time, there is almost no attention to individuals, with the exception of cases when such persons place investments into objects of venture entrepreneurship or when it is related to the sphere of intellectual property relations in regard to the distribution of property and personal non-property rights to the relevant objects). Taking into account the best global experience of using organizational and legal forms for venture investment into innovative activities of the USA, EU countries and Great Britain, we offer to enshrine the norms at the legislative level (while adopting the Law «On Venture Activity in the Innovation Sphere» or «On Venture Funds») that joint-stock companies and limited liability companies are organizational and legal forms of legal entities who can be used in the field of venture investment and innovative activities