A guardian of the property of a person who has gone missing under special circumstances has the right to take part in the general meeting of an LLC and to vote in place of such a participant – SC CommCC

A guardian of the property of a person who has gone missing under special circumstances has the right to take part in the general meeting of a legal entity and to vote in place of such a participant, since the right to participate in the management of the company is a component of the management of the share as property. At the same time the guardian must exercise such rights in good faith, in the interests of the person who has gone missing, with a view to preserving that person’s property and in the absence of a conflict of interests.

This conclusion was reached by the Commercial Cassation Court within the Supreme Court.

As established by the courts of the previous instances, on 24 February 2022 a participant of an LLC went missing. On 7 March 2023 guardianship was established over her property and a guardian was appointed. On the same day the guardian represented the missing person at the general meeting of the LLC and voted on her behalf. On 29 March 2023 the participant of the LLC appeared and personally lodged an application for the termination of the guardian’s powers, after which the notary terminated the guardianship over her property.

The participant of the LLC challenged the decision of the general meeting and the new version of the articles of association, asserting that the guardian of her property had unlawfully exercised her corporate rights. At the contested meeting the director and the registered office of the company were changed and a new version of the articles of association was approved.

The court of first instance allowed the claim, proceeding inter alia from the fact that a 100 per cent vote was required in order to change the director and that the claimant had not taken part in the meeting. The appellate court set aside that decision and dismissed the claim, concluding that the guardian had the right to take part in the general meeting and to vote at it.

In reviewing the case the Commercial Cassation Court of the Supreme Court noted that a share in the authorised capital is the property of a company participant, and therefore the right to participate in the management of the company, including voting at the general meeting, is a component of the management of that property. A guardian of the property of a person who has gone missing under special circumstances is that person’s legal representative and may exercise the corresponding corporate rights. The exercise of such rights begins from the moment information about the issuance of the certificate of appointment of the guardian is entered in the Unified Register of Persons Missing under Special Circumstances.

In this case the company was registered in the temporarily occupied territory, and therefore, in order to continue its activities, it was necessary to change the tax address to territory under Ukrainian control, which required amendments to the articles of association and a change of the company’s director. The claimant did not put forward any alternative mechanism for effecting such relocation.

The Commercial Cassation Court of the Supreme Court concluded that the purpose of the meeting was not the dismissal of the director as such, but the securing of the possibility for the company to continue its economic activity in the interests of all its participants, including the claimant. The actions of the guardian were found to have been taken in good faith, since they did not result in any reduction of the claimant’s share, her exclusion from the composition of the participants or any redistribution of shares, and the new version of the articles of association preserved the proportionality of the number of votes to the size of each participant’s share.

Moreover, the change of director was objectively necessary for the state registration of the change of the company’s registered office, because the relevant application could be submitted by the director or by a person acting under a power of attorney signed by the director of the LLC.

Accordingly, the Commercial Cassation Court of the Supreme Court reached the conclusion that the guardian had lawfully exercised the claimant’s corporate rights, and that the contested decisions were aimed at ensuring the continuous activity of the company, corresponded to the interests of its participants and did not infringe the claimant’s corporate rights. No conflict of interests was established in the guardian’s actions.

The Commercial Cassation Court of the Supreme Court left unchanged the resolution of the appellate commercial court.

Resolution of the Commercial Cassation Court of the Supreme Court of 29 July 2026 in case No. 904/1430/24 – https://reyestr.court.gov.ua/Review/138646594.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.