In the event of bankruptcy of an enterprise, all responsibility passes to the founder or another person who directly manages the company. There are also frequent cases when the responsibility for bankruptcy of a company lies not with an individual person, but with the management body in general. If, as a result of the proceedings, a subsidiary liability of the director is established and his guilt is proved, then he, in turn, will have to pay off his debts with his financial means.
Description of the problem
If not so long ago, many founders of public organizations thought little about what subsidiary liability is and for which it is imposed, and did not consider themselves in danger, then, due to the introduction of new amendments to the legislation, as a rule, very few remain. During the bankruptcy of an enterprise, many founders of a company begin to think primarily about the responsibility that will be assigned to them.
Subsidiary liability - the liability of the second obligated person, which occurs when the first person, due to certain circumstances, cannot fulfill the obligation or pay fines. The role of such persons in many enterprises is played by managers and founders. They, with a shortage of company property, have the duty to pay off all accumulated debts.
Administrative and criminal liability
If the fact of fictitious bankruptcy is established, in which there is a concealment of property, property rights and obligations, then the directors of the enterprise will be brought to administrative responsibility.
If deliberate bankruptcy is considered, and the total amount of damage is high, then the founder’s responsibility for the activity may turn into criminal.
If the court order imposed subsidiary liability on the founder, then he will have to pay all fines, and if there is a lack of funds, even donate property. The decision on the need for imposing subsidiary liability is determined by the prolonged non-receipt of funds in the state budget due to the fact that the owners of the companies abandon them.
What laws should be considered?
When considering liability of this type, several normative and judicial acts should be operated on at once. This, for example, is the Federal Law of October 26, 2002 No. 127-ФЗ On Insolvency, the Law of February 2, 1998 No. 14-ФЗ On a Limited Liability Company, the Law of December 26, 1995 No. 208-FZ On Joint-Stock Companies , as well as the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 30.07.2013 No. 62 “On Certain Issues of Compensation of Losses of Legal Entities”, at the end, chapters 25 and 59 of the Civil Code of the Russian Federation should be considered in detail.
In September 2016, some amendments were made to the Federal Law. The wording of article 10 on insolvency has changed.
After these changes were introduced, all circumstances indicating that the debtor went bankrupt precisely because of actions or inaction of the controlling person or group of people began to be supplemented by one more reason - exceeding 50 percent of the threshold of the total number of claims of third-stage creditors resulting from a violation of certain rules (most often, violation of the requirements for collection and taxes).
Subsidiary liability
If the founder of the organization has this type of debt as bankruptcy develops, a claim may be made to bring the sole executive body to subsidiary liability for the obligations assigned to the debtor.
In this case, as in the case of other offenses, which are described in detail in article 10 (violation of creditors' rights in the preparation of the contract and the transaction, absence or substitution of documents from the accounting department), it is the director who begins to bear responsibility for the violations and tries to prove by all possible means lack of guilt in declaring the debtor bankrupt.
Until the fact of bankruptcy is disproved, the debtor of the organization continues to be considered insolvent due to the action or inaction of the controlling persons (first of all, the director of the enterprise is included here).
How to protect your rights?
It should be remembered that the main factor affecting the circumstances of the case for the manager is the proof of the absence of guilt: following in all his actions and inaction reasonableness and good faith, reducing the cost of the damage caused, and in that situation, if the institution changed leadership not so long ago or if there is a second director (who previously held this position), it is possible to shift responsibility to this person.
Currently, the legislation provides the bankrupt founding company with a large number of opportunities that it can use to protect its fundamental rights. According to paragraph 6 of Art. 10 of the Law "On the bankruptcy of a person", in the direction of which an application was filed for bringing to subsidiary liability, the persons participating in the bankruptcy case have certain rights and obligations. The main procedural right is the right to file a complaint, application or petition to the court.
The norm of the bankruptcy law of the company founder, adopted not so long ago, in spite of its wording, does not lead to immediate bringing subsidiary liability to the person.
To begin with, it is important to observe the basic conditions on the availability of an appropriate subject of responsibility. That is, to verify that the bankrupt founder of the company has the appropriate rights to implement management of the organization and management, as well as the existence of an insolvency certificate.
Responsibility of the founder of the organization
A member of the organization is not responsible for its financial components, as the company is not responsible for its debts. Bankruptcy of a legal entity directly depends on the size of its share in the capital of the enterprise. However, such a definition cannot be called complete. Since limited liability continues to exist until the time the legal entity operates.
Bankruptcy of a legal entity may lead to imposition of subsidiary liability on the debts of the organization. But this is possible only with proof of his guilt in the insolvency of the organization or with the inability to form a bankruptcy estate of the debtor.
The subsidiary liability of the bankrupt founder of the company for activities may be imposed in the following cases:
- signing of known loss-making agreements and other types of contracts;
- non-observance of the legislation in the course of the sale and use of property;
- in case of failure to provide accounting and primary accounting documents to the arbitration manager;
- non-transfer of the application for declaring the debtor insolvent.
What can be done?
In view of the responsibility of the founder for the activities of the enterprise, the latter can take steps to save the situation, such as:
- Attracting financial assistance from a partner organization or from personal savings of participants in the company;
- takeover of the company by another enterprise (debts in this case are transferred to the new head);
- debt repayment in the process of liquidation of the company, which leads to the sale of assets (bankruptcy).
What could be the consequences?
The consequences of bankruptcy of a legal entity for the organizer are possible, but in order for something to change, the organizer's guilt must first be proved.
Subsidiary liability reaches the amount of debt obligations of the enterprise and is in no way connected with the size of the authorized capital in the organization. For example, if an enterprise has a debt of 600 thousand rubles, and it does not have liquid assets, when brought to justice, the total amount will be withdrawn in full to satisfy creditors.
This rule continues to apply even when the share of the founder in the company is only 10 thousand rubles.
Organization Responsibility
What is the responsibility of the founder and the formed society? The company is not responsible for the debts of the persons who organized it. In the framework of the personal bankruptcy of the founder, the court may recover from it a share of the authorized capital.
But most often this happens when the borrower does not have enough finance or liquid assets to pay off the debt. The financial assets of the remaining members of the organization are not subject to foreclosure.
What and how do the director and the founder respond to? If the participant and the founder of the company is one person, then he will be responsible to creditors, including the payment of assets of his company. Attempts to withdraw funds from the account of the company are immediately identified during the trial.
Transactions that were concluded with the purpose of concealing the property and material assets of the organization become invalid. The organizer may be held criminally or administratively liable.
How to reduce liability?
If bringing to subsidiary liability cannot be completely avoided, then the main attention should be paid to reducing the size of the fine. According to paragraph 4 of Article 10 of the Law on Bankruptcy, the size of the organizer's subsidiary liability will be determined in the aggregate amount of the claims of creditors included in the register, as well as those declared after its closure, which remained outstanding due to lack of property of the debtor.
The final amount can only be reduced if it is possible to prove that all the damage caused to the property rights of creditors through the fault of the management is significantly less than the amount of claims to be satisfied by the person.
Since this type of responsibility is primarily civil, it is important to remember the general provisions of Ch. 25 and 59 of the Civil Code.
Legal advice to the liability liability founder of LLC
In a situation where it is not possible to prevent the imposition of responsibility on a person, a separate argument may be the change of director during the work of the organization. In this case, it is necessary to exclude the time zone of responsibility of a certain director and the criterion of the existing debt of the enterprise during the period of work of this particular manager. The court, when providing evidence, will begin to study the issue of the director’s responsibility throughout the entire period of his management of the enterprise.
After receiving all the evidence and their subsequent assessment, the court will come to a decision on the validity or unreasonableness of the tax requirements to bring the director or organizer to subsidiary liability.