Subsidiary liability of the director for the debts of LLC. Attraction of the director to subsidiary responsibility

The Director-General is not justhead of the company. This is the executive body of the LLC, which is responsible for the company's activities to participants and counterparties. At non-observance of the duties there is a various legal, including subsidiary responsibility of the head which is provided by the administrative, tax and criminal legislation. In some cases, he can get off fine, and in others, even lose his freedom. The article addresses various types of punishment and details the subsidiary liability of the director for the debts of LLC.

Leadership

The heads of the organization include:

• Director;
• alternates;
• Chief Engineer;
• Chief Accountant.

Each of these persons is accountable under the law withintheir competence. Except as under the current legislation, responsibility also comes in accordance with the organization's charter. Penalties may be verbal. But officials can also fire, and also oblige to compensate for the damage. In addition, directly for the director may occur subsidiary responsibility for its obligations. Let us dwell on this point in more detail.

Director

The manager makes decisions regarding theactivity of the company. To prevent abuse, labor legislation provides for the responsibility of that official for damage caused by improper actions. The norm extends to both direct losses and inaction, as a result of which profit was lost.

This is about:

• material damage due to reimbursement of the value of property that was lost;
• compensation of costs for the restoration of rights due to misconduct of the manager;
• incomplete income, when there were all opportunities to receive them.

What do lenders expect?

Each creditor who applies forbankruptcy of the debtor, wants to return its invested funds. However, after the sale of the property, most money for this does not remain. After all, assets that would be able to pay off creditors, in fact, no. Otherwise, the company could take a loan secured by property to pay off the debt or find another way to stay afloat.

Therefore for creditors the question is actualthat the subsidiary responsibility of the director comes in bankruptcy. By the way, it happens not only in connection with this procedure. But in this article this situation is considered.

Subsidiary liability of Director LLC

Lenders can meet the requirements only foraccount for the sale of company property or share capital. It is known that in the LLC, neither the director nor the participants are responsible for their debts. This provision is explicitly provided for in the Civil Code, namely article 56, paragraph 2.

At the same time, having penetrated into the letter of the law, it becomesIt is clear that exceptions to this rule can be established by separate laws. So, the normative act of bankruptcy allows for the involvement of the director in subsidiary responsibility and the owners of the company. This becomes possible when they brought the company to insolvency intentionally and did not fulfill the obligations in the bankruptcy procedure, preventing settlement with creditors.

The debtor controlling person

Thus, for debts created inAs a result of the usual risk in the conduct of economic activities, the subsidiary liability of the director for the debts of LLC can not come. But if it can be proved that deliberate actions took place, then, based on the law on bankruptcy, it becomes possible.

In 2009, amendments were made to the law,as a result of which business owners and company managers can be held accountable for failing to fulfill obligations to creditors. At the same time, a new term was introduced: "the person controlling the debtor".

Who are they attracted to?

Persons who can be responsible for this type of activity are:

• leader;
• the founder (or founders);
• administrative body;
• liquidation commission (or liquidator);
• owner of property.

All of them are persons controlling the debtor. Even if they are no longer related to the company, within two years after they are removed from their authority they can be attracted if the court accepts an application for declaring bankrupt the debtor.

The grounds under which the subsidiary responsibility of the director

Often, business leaders and ownersThey are sure that it is impossible to recover money from the company from their debts. Very often, such organizational and legal forms of the company as limited liability companies are created. Based on the name, it becomes clear that the liability is limited (it is about property).

At the same time, the general law (CivilThe Code provides for the need to exercise leadership in good faith and reasonably. And special laws provide for liability for the premeditated losses of the company.

In order for the director to become subsidiary responsibility, such conditions must be proved:

• losses at which the company's assets will not be enough to pay off debts;
• the unlawfulness of the actions of the director (if he performed his functions strictly within the law and the consequences did not come because of him, then prosecution is impossible);
• amount of losses - creditors must determine how much losses the company suffers, if it is done during the bankruptcy procedure, it becomes possible after the sale of the property;
• the relationship between the cause and effect, that is, the actions of the director and the losses that have occurred (for example, the obvious fact of such a connection is the sale of property at a too low price).

In addition, responsibility can occur inIf during the period when creditor claims are considered, it will be found out that there are no necessary documents for accounting, a report, or they are unreliable. And this applies to the leader at the time of the bankruptcy procedure, and his predecessors, if they are guilty of the fact that the state of the company was brought to such a limit.

Who is applying?

The subsidiary liability of the director for debtsLLC in bankruptcy arises as a result of filing an application within the company's bankruptcy procedure. The persons who can submit it are the competitive and external managers or an authorized body. Thus, they submit this requirement in the performance of their activities, since after the completion of the procedure such a procedure becomes impossible.

So in general, the subsidiaryresponsibility for debts accumulated by the debtor-bankrupt. This topic has many nuances that require special attention. Consider now the penalties that are imposed on the directors-offenders.

Administrative responsibility of the manager

In the Code of Administrative Offensessubjects of responsibility can be legal entities and physical - official. Thus, the organization and the director can be punished, and, which is characteristic, simultaneously.

So, the smallest possible leadera fine of up to five thousand rubles is imposed in cases where consumer rights are violated, with minor tax misconduct and lending with violations of the law.

A more severe punishment, namely fine tothirty thousand rubles and a three-year disqualification, expects it when the law on advertising activities, fictitious bankruptcy is violated (because of what, among other things, the subsidiary responsibility of the general director of LLC comes), there is no information to the authorized body, unfair competition is initiated, fixed poor quality of provided services and goods, as well as due to failure to provide information about accounts located abroad.

The Director-General may be required to payan even larger fine. The basis for this is violation of fire safety regulations, legislation on migrants (namely, illegal employment of labor), as well as for illegal currency transactions.

Criminal responsibility of the head

In addition to administrative responsibility forillegal actions the head may be punished and under criminal law. In many respects, offenses are similar to administrative ones, but they are more serious in the consequences. So, both under one, and under other legislation the deliberate bankruptcy falls. Punishment in this case depends on the size of the funds: up to one and a half million rubles and higher, respectively.

So, personal responsibility comes as a result of:

• non-payment of wages;
• illegal dismissal;
• bribery;
• violation of the author's rights;
• exceeding the authority.

Economic crimes include the following:

• illegal business activity;
• laundering of money;
• evasion of debts;
• illegal receipt of credit;
• disclosure of a commercial secret;
• violation of tax legislation;
• fictitious bankruptcy.

How to make it so that everything was, and for this nothing happened

The above offenses, includingthose for which there is a subsidiary responsibility of the director for the debts of LLC, are by no means all of the possible for which an official can be punished. The manager must strictly observe the labor legislation, environmental requirements when carrying out activities and other requirements of the law when working.

The newly elected director should protect himself from the consequences of those actions that were undertaken by his predecessor. For this it is desirable to take the following steps:

• appoint a commission to transfer cases;
• receive an act of acceptance;
• re-register the documents with the account of persons having the right to sign;
• get information about all bank accounts and sample signatures;
• check all contracts;
• to apply for data changes in the Unified Register;
• notify counterparts of the appointment of a new CEO.

When taking office, it is necessary to evaluate soberlytheir capabilities and apply all the data in order to really analyze the situation at the firm. After all, as it turns out, even despite the organizational and legal form in the form of a limited liability company, the secondary responsibility of the general director can still come.