Who is more important, the founder or the CEO? Who is the owner of a group of companies: the founder or the director? Possible consequences of unsuccessful activities

From a legal point of view, these terms are almost identical: the founder is the participant involved in the creation of the LLC. We will not take this minor difference into account below. Management in an LLC can be:

1. Three-level, including:
   • general meeting of participants (GMS);
   • board of directors (BoD);
   • one or more executive management bodies.
2. Two-level, without the formation of diabetes. For an LLC with 1 participant, having a board of directors in the management system does not make practical sense; in this case, a two-level management system is used.

Executive power in an LLC can be organized in 3 ways:

1. Sole executive body.

Advantages of an LLC with one founder - he is also the director

Thus, the Pension Fund of the Russian Federation in its Letter dated May 6, 2016 No. 08-22/6356 “On reporting” indicated the following:

• In accordance with paragraph 2.2 of Article 11 of the Federal Law of 04/01/1996 N 27-FZ “On individual (personalized) accounting in the compulsory pension insurance system” (which entered into force on 04/01/2016), the policyholder provides monthly information about each insured person working for him . Reporting is presented in the form SZV-M, approved by Resolution of the Board of the Pension Fund of the Russian Federation dated 01.02.2016 N 83p. When implementing this norm, working citizens are understood to be persons specified in Article 7 of Federal Law No. 167-FZ of December 15, 2001 “On Compulsory Pension Insurance in the Russian Federation,” which includes those working under an employment contract, including heads of organizations who are the only participants (founders), members of organizations.

What responsibility does the founder of an LLC bear in 2018?

Description of the position of the General Director The General Director is appointed by a person representing the sole management body of a commercial company, most often a joint-stock company or a limited liability company. He may be the owner, co-owner of the business or, conversely, not have a share in the capital of the company, but be an employee. This designation of the position of a key figure is typical for developed multi-level structures, including several separate divisions.
Each independent enterprise or branch, representative office included in the united group of companies is headed by a director responsible for the work of the constituent unit. Subordinate to the general director there may be several directors vested with powers within the framework of the regulations on the structural unit and a power of attorney to exercise management in any area.

If the only participant (founder) is the director of the organization

Labor Code) and the norm for calculating wages in proportion to the established working hours (Article 285 of the Labor Code). IMPORTANT! The rule on the need for permission to work part-time from the higher management body of the LLC, contained in Art. 276 of the Labor Code does not apply to the founding director, since it is in Ch. 43 of the Labor Code, and this chapter does not apply to this situation. Please note that a large number of simultaneously held director positions is a reason for inspection by the tax inspectorate.
Thus, one of the criteria for the possible unreliability of information included in the Unified State Register of Legal Entities is the combination of more than 5 such positions in different organizations by an individual holding a director position (letter of the Federal Tax Service dated August 3, 2016 No. GD-4-14/14126@). An LLC with one participant (aka director) is a very common and convenient practical instrument of entrepreneurship in business life.

What is the difference between the position of director and CEO?

Law enforcement practice: TD with a director in an LLC with one participant (aka director) As a result, different law enforcers expressed different views on this subject and formed different law enforcement practices in their activities. Let's consider the points of view expressed.

1. Rostrud, in letter No. 177-6-1 dated March 6, 2013, stated that an employment contract with the director in this case is not concluded.
2. On the website onlineinspektsiya.rf (information portal of Rostrud) on March 10, 2015, the answer was given that the TD (and no other agreement) in such a situation is not concluded, the director’s salary is not accrued, and contributions to the Pension Fund and Social Insurance Fund are not made. But on March 17, 2016, the opposite answer was given to the same question: the TD is concluded, the salary is accrued.
3. The Ministry of Health and Social Development believes that in this case, labor relations arise regardless of whether the TD is concluded or not (order No. 428n dated June 8, 2010).

• By virtue of Article 39 of the LLC Law, the appointment of a person to the position of director is formalized by the decision of the sole founder of the company, therefore, labor relations with the director as an employee are formalized not by an employment contract, but by the decision of the sole participant. Accordingly, such an employee who has a labor relationship with the company has the right to compulsory social insurance provided for by the Labor Code of the Russian Federation and the Federal Law “On the Fundamentals of Compulsory Social Insurance.”

• The FAS of the West Siberian District in the Resolution of the FAS of the West Siberian District dated November 18, 2009 in case No. A45-11064/2009 indicated: “According to Article 6 of the Federal Law of July 16, 1999

Labor Code of the Russian Federation.

• The Supreme Arbitration Court of the Russian Federation dated 06/05/2009 No. VAS-6362/09 in case No. A51-6093/2008,20-161 in the Determination substantiated this position with the following arguments:

• in accordance with Article 273 of the Labor Code, the provisions of Chapter 43 on the specifics of regulating the labor of the head of an organization and members of the collegial executive body of organizations apply to heads of organizations regardless of their organizational and legal forms and forms of ownership, except in cases where the head of the organization is the only participant (founder) , a member of the organization, the owner of its property. The stated provision does not mean that these persons are not subject to the Labor Code of the Russian Federation.

Who is the head of the organization - general director or founder

Practitioners assume that:

• laws do not prohibit the sole participant (founder, member, property owner) of an organization from becoming its leader (i.e., managing this organization, including performing the functions of its sole executive body). Thus, from Article 88 of the Civil Code and Articles 2, 7, 11 of the Federal Law “On Limited Liability Companies” (hereinafter referred to as the LLC Law) it follows that an LLC can be established by one person or may consist of one person. And from Article 39 of the Law on LLCs, it follows that the highest management body in an LLC is the general meeting of its participants; if there is only one participant, he makes the decisions of the only participant.

Info

In practice, this body/position is most often referred to as “general director,” although other names are also found.

• A sole executive body together with a collegial executive body (usually called “board” or “directorate”).
• A management company is another legal entity that performs the functions of an executive body.
If the founder and director of an LLC coincide in one person, the 1st option for organizing the executive body is usually used. The main management body of the LLC is the General Management Board; it makes decisions on the most important issues of the LLC’s functioning. The competence of the OSU is determined by Art. 33 of the Law “On Limited Liability Companies” dated February 8, 1998 No. 14-FZ (hereinafter referred to as Law No. 14-FZ).

Attention

The important ruling of the Supreme Court of the Russian Federation dated February 28, 2014 No. 41-KG13-37 concluded that such labor relations are regulated by the general provisions of the Labor Code (remember that Chapter 43 of the Labor Code does not regulate them). This point of view is confirmed in paragraph 1 of the Supreme Arbitration Court Resolution No. 21 dated June 2, 2015). A number of court decisions concluded that labor decisions arise on the basis of the decision of a single participant, and registration of a TD is not required (Determination of the Supreme Arbitration Court of June 5, 2009 No. VAS-6362/09).

• Article 9 of Law No. 165-FZ establishes that relations under compulsory social insurance arise for all types of compulsory social insurance from the moment an employment contract is concluded with an employee;
• in accordance with Articles 11, 16 of the Labor Code of the Russian Federation, labor relations that arise as a result of the election or appointment of a director of a company are characterized as labor relations on the basis of an employment contract. A person appointed to the position of director of a company is its employee, and the relationship between the company and the director as an employee is regulated by labor law.

• The nature of labor relations is hired (non-independent) labor. In the situation described above, the lack of independence of labor is lost, since he exercises employer powers in relation to himself.

Currently, this point of view is shared by Rostrud (Letter dated March 6, 2013 No. 177-6-1) and the Ministry of Finance of Russia (Letter dated October 17, 2014 No. 03-11-11/52558), i.e. in fact, officials deny the very possibility of labor relations.
The same point of view was previously held by the Ministry of Health and Social Development of Russia, justifying it by the fact that the basis of Part 2 of Article 273 of the Labor Code is the impossibility of concluding an employment contract with oneself, since the organization simply does not have other participants (members, founders).

Evgeny Smirnov

Bsadsensedinamick

# Business nuances

Possible consequences of unsuccessful activities

Despite some mitigations for the founder of an LLC, he should not get involved in fraudulent schemes, since in this case the Criminal Code or subsidiary liability comes into force.

Article navigation

• Founder's degree of responsibility
• Risk of loss of authorized capital
• Responsibility in large and small businesses
• Conclusion

In this article, our expert Evgeny Smirnov will talk about the legal liability of the founder and directors in a limited liability company (LLC). Examples, legal nuances and basic legislative standards are given.

Founder's degree of responsibility

The main thing to start with is that the founder’s responsibility for the activities of the LLC is minimal. This is stated in Article 56 of the Civil Code. It reads as follows:

“The founder is not liable for the obligations of the legal entity LLC, and the company, in turn, is not liable for the obligations of the founder, unless otherwise provided by the charter or other federal laws.”

As an example, consider the following situation. An entrepreneur registered a limited liability company with the goal of opening an online store. He entered into several agreements, according to which he received an advance payment for goods that he would have to deliver in the future. The amount was 300 thousand rubles. The money was received, but the goods were never delivered. Is the manager responsible?

In this case, the buyer will file an application against the supplier in court in order to return the transferred funds. But he will be able to file a claim only against a legal entity, since it is this legal entity, and not the founder of the company, that is a party to the supply agreement. If a claim is filed against the founder or general director, it will be denied, according to the law.

Risk of loss of authorized capital

The founder bears certain risks when investing in the authorized capital of the company. One or more co-founders must deposit a certain amount into the LLC's current account. If the company develops debt on obligations, the founders risk only the funds of the authorized capital (in essence, their property). If the court forcibly collects debts from the company, and there is no more money in the account, except for the authorized capital, then the founders will lose their investments.

Business owners can take care in advance to withdraw part of the authorized capital, if the country’s legislation allows. This cannot be done in any order, since it is this money that confirms the credit reliability and solvency of the company.

However, there is a procedure for reducing the authorized capital, which depends on the chosen form of ownership of the enterprise. For an LLC, this may be a reduction in the value of participants' shares, repayment of part of them, or liquidation. For an OJSC, a decrease in the authorized capital can be carried out by reducing the value of shares or reducing their number.

Responsibility in large and small businesses

It is difficult to hold the founder of a small company accountable. For example, a company has an outstanding debt on office rent, which it does not have the means to pay. Owners and staff simply run away from the business center, leaving their property there. In this case, it is not possible under the law to collect debts from the founder of this company, even in court. The tenant of the premises in the lease agreement is a legal entity, and it must bear responsibility for the obligations.

In big business the situation is somewhat different. There is much more debt here, and the stakes and level of play are higher. Accordingly, there are laws that allow the founder or general director of an LLC to be recognized as a subsidiary defendant.

Most often this happens when a legal entity goes bankrupt. The initiator is the bankruptcy trustee and bankruptcy creditors. However, in order to impute subsidiary liability to the manager or organizer of a business, it is necessary to prove his involvement in the current state of affairs of the company, which is quite difficult to do.

To do this, it is necessary to have written confirmation of the fact that the founder, through his specific actions, caused the company, for example, to lose some property, which led to loss of income and bankruptcy.

For example, the founder decided to sell real estate that belonged to the company and was previously rented out, being the only source of income and repaying debts. In this case, a written decision on the sale is always drawn up, and the transaction is also recorded in Rosreestr. The founder knew about the critical situation with accounts receivable and this may serve as a reason for bringing the owner to subsidiary liability for the debts of the limited liability company.

The general director of an enterprise, who has the right to manage its funds, including within the framework of current economic activities, can also be held liable.

For example, he borrowed money from banks for a company at interest without proper collateral, and these loans were issued to the company. If the LLC is unable to repay its debts, then it is possible to prove the involvement of the general director in the current unfavorable financial situation of the organization and oblige him to be jointly and severally liable for loan obligations. In this case, it will be difficult to avoid responsibility.

Liability may be criminal, administrative or civil. Criminal liability is provided, for example, for tax evasion (full or partial). To determine the crime, tax arrears for the last three years are calculated, and if there is any, then a criminal case may be initiated.

There is such a thing as an organizer of a crime. This position is not formally related to the position of the founder. Charges can be brought against the organizer of the scheme when both the founders and the general director are dummies, and this fact can be proven.

Conclusion

Thus, it is more profitable to register a legal entity, since the financial and other liability of such founders is much lower, and often completely unprovable. This will allow the business owner to protect himself from liability for financial fraud by employees (for example, an unscrupulous accountant).

Hello! In this article we will talk about the liability of the director of an LLC for debts.

Today you will learn:

1. What can a director be held accountable for?
2. What are the features of the founder’s liability for the company’s debts;
3. What are the administrative and criminal responsibilities of the director of an LLC.

Often, company leaders make decisions alone. This also applies to LLCs. Since the director is the person who directly manages the company, he is responsible for all actions that were carried out illegally.

Responsibility of the director for debts

It is possible to oblige the director to fulfill his debt obligations, but this will have to be done through the court. The evidence presented must be compelling and confirm that, due to the actions of the director and founders, the company suffered losses and was approaching.

List of grounds for litigation

• Concluding transactions that resulted in losses;
• Concealment of signed agreements and distortion of data;
• Concluding agreements without agreement with other LLC bodies;
• Keeping important documents with you after leaving office;
• Signing agreements that are obviously unprofitable;
• Cooperation with companies that are not trustworthy.

Of course, you cannot expect ideal actions from a leader; everyone makes mistakes. It is also impossible to calculate all the risks, but there are certain limits within which errors are permissible. When these boundaries are violated, responsibility will follow.

If we talk about losses, they are subject to compensation.

How much depends on the circumstances, namely:

• On the amount of direct damage;
• On the amount of indirect damage;
• From the amount of lost profit.

General director's liability for debts

There are special requirements for the general director. This is justified, since it is within his competence to carry out all functions for the development of the company. General directors may be subject to the sanctions that are set out in a number of legislative norms.

The CEO can be punished not only financially, but also bear administrative and criminal liability.

Let's present it in the form of a table.

Let us now consider all types of liability in more detail, and also dwell on the amount of fines.

Responsibility under the Administrative Code

If we think from a legal point of view, here the head of the LLC as a person holding a certain position and the company itself will be held accountable for offenses. Moreover, punishment cannot replace or cancel another.

Composition of offenses for which penalties of up to 5,000 rubles are imposed:

• Ignoring sanitation requirements;
• Illegal lending.

The following are punishable with fines from 5 to 30 thousand rubles and/or disqualification for a 3-year period:

• A number of violations committed in the advertising sector;
• A number of violations committed in customs clearance;
• Implementation of unconscionable ;
• Implementation of fictitious bankruptcy;
• Providing services and selling goods of poor quality;
• Refusal to provide information to the Antimonopoly Service;
• Violation of general meetings;
• Concealing information about the company's foreign currency accounts abroad.

More serious fines, that is, over 30 thousand rubles, are paid if:

• The head of the LLC violates fire safety rules;
• The head of the LLC violates migration laws and attracts foreign labor to work (with violations in the hiring procedure);
• For carrying out illegal currency transactions.

Responsibility to the tax authorities (administrative):

• Violation of the deadlines within which registration must be carried out;
• Lack of a business license;
• Violation of deadlines for filing declarations;
• Activities without cash register;
• Violation of reporting deadlines.

Criminal liability

In this case, it is important to clearly see the fine line when an administrative offense becomes a criminal offense. And it lies in the amount of damage that was caused.

For example, it may qualify under both the Administrative Code and the Criminal Code, depending on how wide the scope of this business is: up to 1.5 million rubles or more than this figure.

The actions that will be listed below imply bringing the director of the LLC personally to criminal liability:

• , or a woman with a child under 3 years old;
• Violation of the terms of payment of salaries to employees for more than 2 months, for selfish purposes;
• Violation of copyright laws;
• Exceeding official authority;
• Carrying out commercial bribery.

Categories of crimes in the economic sphere

• Carrying out illegal business on a large and especially large scale;
• “Laundering” of financial assets obtained in a way related to the commission of crimes;
• Unfair competition on a large and especially large scale (1-3 million rubles);
• The company uses other people's trademarks, which causes damage;
• Failure to pay tax payments on a large and especially large scale;
• Concealing property from the Federal Tax Service.

Criminal liability for tax-related violations occurs if the amount of payment debts is more than 2 million rubles and has not been paid for 3 years.

In other situations, the gene. the director will not be responsible for non-payment of taxes, the subject will be a legal entity. face.

Sanctions under the Criminal Code

• Collection of a fine of up to 300,000 rubles;
• Implementation of arrest for up to 6 months;
• Community service – maximum 480 hours;
• Imprisonment in MLS - up to 7 years.

More significant penalties are also provided:

• Fines up to 1 million rubles;
• Work for the benefit of the state - maximum 5 years;
• Imprisonment – ​​maximum 12 years.

The punishment directly depends on the seriousness and gravity of the act.

Gradation by statute of limitations

Criminal proceedings can be initiated for those violations for which taxes can no longer be collected.

It is known that Federal Tax Service specialists can verify information only for a period not exceeding 3 years.

And cases under the Criminal Code are initiated within specific statutes of limitations:

• 2 years, if the gravity of the crime is minor (large taxes are not paid);
• 6 years if the severity of the crime is average (manipulation to conceal property or finances);
• 10 years, if the crime is particularly serious (especially large amount of tax evasion).

We conclude that investigators have the right to initiate a criminal case for tax evasion on a particularly large scale within 10 years from the date of commission of this crime. And this is several times longer than the period that can be checked by tax authorities.

How to avoid punishment under the Criminal Code

There is such a chance. A prerequisite for this is the commission of a crime for the first time, as well as full repayment of debt, arrears and penalties.

This must be done before the court date is set. Otherwise, the fact of repayment will only mitigate the guilt.

Subsidiary liability of the director for debts

This term refers to the liability of the director and founder of the LLC for debts. Thanks to this mechanism, debts are collected from the personal funds of the director and founders.

When it occurs:

• If the LLC is declared bankrupt.The bankruptcy of a company can only be recognized by the Arbitration Court. The condition for this is the presence of debts of at least 300,000 rubles;
• When the actions of the founders and directors led to the fact that the LLC cannot fulfill the requirements of creditors.

Practice

The creditor usually only has confirmation that a particular company has a debt to it. This is enough to initiate bankruptcy proceedings for a company, but it is clearly not enough to hold the director and founders vicariously liable.

The plaintiff does not know which transactions of the debtor are considered suspicious; only the arbitration manager has access to this information. The plaintiff can only agree or disagree with his presentation.

The arbitration manager can prove that the debtor acted lawfully and justifiably, in which case the company is declared bankrupt.

As a result: although bankruptcy is an important condition for subsidiary liability to arise, it can be a benefit for the company itself. It is because of this that there are attempts at fraud among persons who are debtors.

According to many lawyers, it is difficult to prove the guilt or intent of the LLC director or founders. Although statistics show that there are cases of evidence in judicial practice, and the company’s debts were collected from its participants by court decision.

Responsibility of the founder for the debts of the LLC

If we talk about facts, the risks for founders are small. But there are also pitfalls here. If it is proven that the company is approaching bankruptcy due to the actions or inaction of the founder, the losses incurred can be recovered from him.

If the founders committed a criminal act during their activities, they will be held accountable for it.

How can a manager protect himself?

If the manager fulfills his duties without violating the law, he has nothing to worry about. You will not have to pay the company’s debt obligations out of your own pocket.

• Create a commission that will deal with the transfer of affairs from the previous leader (when you take office);
• Accept company seals and stamps according to a special act;
• Check out the list of persons who have the right to sign documentation;
• Conduct an audit of all contracts with contractors and partners of the company;
• Avoid disputes between society participants as much as possible, especially do not take sides in them;
• Do not look for workarounds, but rather try to find legal means to compensate for the loss;
• Do not violate the rules for approving transactions;
• Don't try to avoid responsibility by resigning. Even if the manager is already a former manager, he must cover losses if they are his fault.

If the director of the LLC renounces his powers, but does not compensate for the damage, another general director is elected. The shareholders remove the previous manager and appoint a new one at a general meeting. This must be done.

If the company is under pressure from obligations, there is no need to panic, nor should you leave your post, especially since this is not an option. Analyze the actual circumstances and, if necessary, turn to outside specialists. Don’t let yourself down from the start by entering into contracts that are obviously unpromising.

Let's summarize. If a decision has been made to head an LLC, you need to adequately assess your capabilities, as well as analyze information and increase the “transparency” of the company’s activities.

The name of the position of the head of the organization is specified in the constituent documents and in connection with the regulatory reflection of the sole management body.

The principle of designating the head of an enterprise and the construction of his labor relations with the company depends on a number of factors and functional areas of the company, as well as on the scale of production or other activities.

Director Job Description

A director, as a rule, is a person appointed in a non-profit structure who has a number of management, supervisory, representative and other functions to manage the organization.

The director's key responsibilities and area of ​​responsibility are directly related to the company's activities. For example:

• The head of the transport organization ensures the safety of transportation and the creation of conditions for the work and rest regime of drivers. In some cases, it is responsible for licensing activities and providing special vehicles.
• In the field of public catering, the head of a canteen or plant is personally responsible for the quality of food preparation, compliance with technology, sanitary standards, and product safety.

Under his leadership, a collectively developed development strategy for the organization’s profile is implemented, production and economic plans are implemented, and financial and economic issues are resolved.

He appoints deputies for the management of various areas of activity, delegates powers to officials for the management of branches, representative offices, divisions, and sites.

Deputy managers are appointed in both non-profit and commercial structures; there are no restrictions on the use of this position. The following job designations have become common: Deputy Director

• on development;
• on educational work;
• on scientific and methodological work;
• public relations;
• on the administrative and economic part;
• for general questions, etc.

In practice, in small limited liability companies with a minimum number of employees, there is a combination of a director and a founder in one person, who additionally performs the role of an accountant or HR clerk. In such cases, they become one not through a competition or as a result of elections of the general meeting, but through self-appointment.

General Director Job Description

A person representing the sole management body of a commercial firm, most often a joint-stock company or limited liability company, is appointed general director. He may be the owner, co-owner of the business or, conversely, not have a share in the capital of the company, but be an employee.

This designation of the position of a key figure is typical for developed multi-level structures, including several separate divisions.

Each independent enterprise or branch, representative office included in the united group of companies is headed by a director responsible for the work of the constituent unit.

Subordinate to the general director there may be several directors vested with powers within the framework of the regulations on the structural unit and a power of attorney to exercise management in any area. So, for example, in practice we often find executive director, technical director, development director, financial director, branch director, commercial director, etc. In fact, they are functional managers in areas of activity.

The title of CEO can be replaced by the laconic “president”. This definition of management emphasizes the status and image of a large company or holding, and the election of an honorary person.

Differences between them

From a legal point of view no fundamental differences between the names of top officials in the management of organizations. In the qualification directories, the positions of director, managing director and general director are designated as variant titles in a single group of enterprise managers.

True differences in the use of terms appear in practice.

You should pay attention to the scope of the company's activities. In business, the key figure is more often referred to as the CEO; in non-profit organizations, the director.

The number of people in the organization and the hierarchy of various levels also influence the name of the leader. In small companies, the team is traditionally headed by a director. In large industry institutions, groups of companies, corporations or holdings, the sole management body is represented by the general director.

When concluding transactions and signing contracts, you should pay attention to the powers of the person representing the company, no matter what his name is. The rights of the manager must be reflected in the constituent documents of the organization or in the power of attorney issued to him.

The constituent documents of the organization and, in particular, its charter must state the name of its leader - an individual who exercises leadership and performs the functions of the sole executive body, as defined by Article 273 of the Labor Code of the Russian Federation. According to it, the founders can choose any name: director, general director, chairman or president - there is no difference, this does not change the essence in any way, the rights and responsibilities of the director also do not depend on this.

An individual elected to the position by the general meeting or who occupied it on a competitive basis is appointed as the head of the organization.

Therefore, you can choose any name, but you should still take into account the specifics of the work, area of ​​activity and production volumes of this particular organization. If it is small, its leader can be called a director without any damage to his authority. But in the case when this is a fairly large enterprise, which has, for example, several branches and subsidiaries, their managers may be called directors, and the general will be the one who carries out general management. A manager may also be called the General Director in cases where the enterprise has positions, for example, technical, financial or executive directors.

The signature on behalf of the employer in the employment contract is placed by the person specified in the Charter. This may be the chairman of the general meeting of founders or the chairman of the Board of Directors.

Features of formalizing labor relations with the head of the enterprise