Many entrepreneurs prefer to open an LLC, because when choosing such an organizational form, they manage to evade responsibility for the obligations of the enterprise. Founders are liable for debts by invested funds in the authorized capital, if they do not independently manage the company. But at the same time, it is possible to hold the CEO accountable, who is usually one of the co-owners of the company. Such liability may be material or subsidiary, and often criminal, if it is possible to find evidence of the use of special fraudulent schemes.
What is the responsibility of the founders of the enterprise?
Each person, regardless of their status, financial situation and other parameters, should be responsible for their actions or inaction. But there are certain limitations. If an LLC is opened, then often the founders do not become directors, preferring to use the services of hired specialists. Responsibilities for these citizens will vary significantly.
The responsibility of the general director is determined by different legislative acts, but it is slightly different from what requirements are imposed on the founders of the enterprise. Therefore, there are some differences:
- the requirements for the founders will be less, since they respond solely with those funds and property that were invested in the company as a share in the authorized capital;
- but the founders are not always able to avoid responsibility, since they are officially managers, therefore they have the main levers of managing the organization, various employees and a director, therefore, it takes into account how fully one or another participant was engaged in management;
- the degree of responsibility of participants depends on the share in the capital of the enterprise;
- the general director acts as the main manager of the company, so he must be responsible for making wrong decisions or other illegal actions, and can also be prosecuted.
Therefore, the general director of the company is responsible for all the debts of the enterprise. He must competently approach the adoption of certain decisions, and must also be well versed in the specifics of a particular enterprise.
What is the punishment for a director?
If the founder can only respond by investing in the company, then such a restriction does not apply to the director. Often, when a company goes bankrupt, it is the CEO who is charged with the damage caused to debtors.
Most often, the CEO is held accountable in situations:
- Incorrect management actions led to the bankruptcy of the company;
- conducting activities in violation of the laws of the Russian Federation.
Also, the reason presented by the abuse of authority is often used as a reason for imposing different penalties for the general director. Usually this is due to the fact that the property belonging to the organization is used irrationally, for the personal purposes of a citizen or there are serious violations in the field of labor protection. Often, the provisions of the TC are violated altogether, therefore, the general director of the company is necessarily held accountable.
What penalties can be applied?
Different penalties can be used for the general director. They are represented by varieties:
- accrual of significant fines, and they depend on the period of violation, the damage done and other features;
- involvement in correctional or forced labor;
- deprivation of the ability to occupy any leadership positions for a long time;
- arrest on the basis of the provisions of the Civil Code;
- the suppression of freedom, which is certainly accompanied by the prohibition of holding leadership positions and work in any specific field of activity.
If there is evidence at all that illegal actions were committed by a group of people on the basis of a preliminary conspiracy, then the punishment will be more severe.
Grounds for prosecution
Punishment for the head of the company may be different, as it depends on the available grounds. Most often, various measures are assigned as part of the bankruptcy of an enterprise. The grounds are provided for in Art. 399 Civil Code. The provisions of the bankruptcy law of the company provide for the responsibility of the general director of an LLC, taking into account the nuances:
- the head of the enterprise bears personal and not subsidiary liability if during the bankruptcy procedure the provisions of the law are violated or any damage is caused to creditors;
- if an application for initiating bankruptcy is not filed, then the director is brought to subsidiary liability on the basis of the obligations of the enterprise;
- if the cause of the bankruptcy of the company is the wrong actions or inaction on the part of the management team, the director bears subsidiary liability with other officials of the company.
Incorrect actions may be associated with the lack of necessary documents and reports, and material damage to creditors may be detected if the transaction was made in favor of the general director.
Types of Responsibility
The CEO can be punished for company debts for various reasons. In this case, various measures of responsibility are applied to him. They depend on the causes of the onset of a given situation, as well as on the actions or inaction of the leader.
Each type of responsibility of the general director of the LLC has its own consequences for the specialist.
Material
The head of the company acts as an official of the enterprise. This gives him the opportunity to independently make different decisions regarding the work of the company. Often, the general director completely performs certain actions that are the responsibility of the chief accountant.
For illegal actions, the liability of the Director General is assigned. He must at the expense of personal funds to compensate for losses. Often, even they cover lost profits through the adoption of untimely decisions.
Usually, when a specialist is employed, a contract of material liability of the general director is drawn up. It indicates how the damage caused by the director during work is compensated for by the company. The most commonly covered expenses are:
- compensates for the cost of various property lost through the fault of the head of the company;
- compensation for the costs that others have to pay to restore their rights, for example, this includes income that a company could receive if the director general made timely, objective and correct decisions.
The amount of material damage is calculated based on the provisions of the Civil Code. In Art. 53 states that the company participants themselves may demand compensation for damage, therefore they do not need to contact third-party companies for this.
Subsidiary
If the general director is engaged in many affairs in the company, then some of the financial risks fall on him. In Art. 44 of the Law on LLC states that the subsidiary liability of the Director General is applied if the damage was caused intentionally or due to inaction of a specialist.
Subsidiary liability cannot be limited by the size of the authorized capital. It is calculated on the basis of debt to all creditors of the organization. Therefore, if a company went bankrupt, but a loan of 600 thousand rubles was previously taken, then the director, the founder, will have to return all these funds, even if he invested about 50 thousand rubles in the authorized capital.
Under such conditions, the general director is equated with the status of individual entrepreneur, therefore, he is liable with his personal property.
Criminal
In some situations, different penalties may be applied under criminal law. The criminal liability of the general director of the LLC is considered the most significant for each person. It is appointed in the presence of significant damage caused by an official. Such penalties are applied under the following conditions:
- without good reason, the head of the company refuses to employ a pregnant woman or a woman engaged in raising a child up to three years;
- dismissal of a pregnant employee without permission;
- for two months or a longer period no salary is paid to full-time employees, and the funds are sent by the citizen for personal purposes;
- copyright infringement;
- Using bribery to benefit yourself or your company.
What is the responsibility of the CEO for the above violations? For this, the provisions of criminal law are used. Therefore, arrest, correctional labor, and restrictions on leadership positions may be imposed.
Tax debts
Statistics show that the Federal Tax Service rarely can not collect tax debts. If the head of the company uses various illegal actions to reduce fees or to avoid paying them, then this leads to many negative consequences. The legislation provides for the liability of the general director for debts. In this case, the nuances are taken into account:
- if the debt exceeds 300 thousand rubles in size, and the delay is more than three months, then the company is placed in the risk zone, therefore, it is urgent to pay off the debt or start bankruptcy proceedings;
- if the above actions are not taken, then an audit will begin on the part of the employees of the Federal Tax Service, who identify the perpetrators of this situation;
- if the CEO or founders are trying to withdraw assets from the company in order to prevent the loss of property, then in court they can be prosecuted.
Therefore, company officials should be well versed in what actions they should take to prevent violations. Otherwise, the director general of the LLC debts is brought to justice, for which he will have to pay off debts at the expense of personal property.
How are wage arrears repaid?
Often funds are not transferred to employees in the form of salaries. Under such conditions, the CEO is responsible for such violations. Even criminal liability has been introduced for this.
Based on Art. 236 TC, any employer must pay workers compensation in case of delayed payment of salaries. It does not matter for what reason such a delay has occurred. A fine of 30 to 50 thousand rubles is imposed. If there is a repeated violation, the fine is increased, so 50 to 70 thousand rubles are paid.
If within three months there are no salary transfers, then such a violation leads to criminal prosecution, so the director can be imprisoned for up to 5 years.
Process features
The procedure of prosecution begins after the company is declared bankrupt. At the same time, the responsibility of the CEO and founder is significantly different. The main nuances of the process include:
- participants can not always limit their liability only by funds or property to the authorized capital, since a trial is certainly carried out, so if it is revealed that the founder was managing the company, then he is responsible for the debts with personal property;
- if a hired specialist is brought in for management, then a special liability agreement is drawn up with him, on the basis of which he is held liable in the event of unlawful actions or inaction;
- it is important to control the maintenance of financial statements, as the loss of documentation or falsification of various documents is a significant violation, the purpose of which may be the bankruptcy of the enterprise;
- creditors may claim damages from business owners if the company cannot cope with its debts at the expense of its assets;
- it is difficult for the founders of the company to pay off debts, since in court practice they are rarely held accountable;
- if business owners are trying to withdraw assets illegally, then they will be prosecuted.
Only the head of the company can initiate bankruptcy of the company, although he can use the help of lawyers.
Thus, the responsibility of the former CEO of a bankrupt company may be subsidiary, material or criminal. In this case, there must be evidence that the company was declared bankrupt through the fault of the head. The responsibility of the founders and directors is significantly different, so the hired specialist is responsible for personal property debt. If the owner of the enterprise is in charge of managing the company, then he cannot limit himself to investing in the authorized capital only; therefore, if there is significant debt, he will have to cover losses with his own funds.