The disqualification of the general director of an LLC is prescribed in the legislation of the country and may serve as a punishment for violations: labor and banking, as well as related to the payment of taxes and bringing the organization into bankruptcy.
Legal norms and their implementation
The disqualification of the CEO of LLC as a punishment was designed so that company managers had the motivation to work more actively to improve the quality of the production process. In addition, this makes administrative responsibility more efficient.
It must be said that disqualification is regarded as an extremely unsuccessful and undesirable event. Judicial practice shows that in the past few years, decisions are made more often in favor of just such an outcome of cases.
And how did this happen?
For what reason can a disqualification of the CEO of an LLC occur? In practice, this development of the situation is most often provoked by numerous violations of laws in force in the country. Many managers neglect modern payroll. There are many cases where the position of "general director" was held by a person who deliberately led the organization to bankruptcy, while he did not plan to compensate the damage caused to other legal entities and individuals.
As a rule, just one violation will not cause such serious measures. But the repetition of the situation, the systematic neglect of the laws - this is already sufficient reason, provoking the dismissal of the CEO.
Deserving punishment
The disqualification of the CEO of an LLC is such an official court decision that prohibits a person from holding a certain position. At the same time, you can no longer be a leader in the executive board, access to the board of directors becomes closed. In addition, in this way a convicted person is not entitled to be an entrepreneur managing a certain legal entity.
The period of disqualification does not happen for less than six months, but it does not last more than three years. A specific time period will be established by the judge in the framework of the hearing of the case.
In some cases, those involved in operations are disqualified:
- household;
- administrative
- administrative;
- organizational.
This also includes the dismissal of the CEO, arbitration manager. A court decision may extend to persons who have conducted entrepreneurial activities without having the appropriate basis for this.
Employment contract and disqualification
There are several subtle points that must be considered in this difficult situation. In particular, the decision shall enter into force only when the time available for appeal has passed. Alternative: the period of time determined during the cassation or appeal.
If the administrative disqualification was canceled, then the person has the right to reinstate in his post and again receive all the rights and obligations that he had before.
Remember the following aspects regarding dismissal:
- it is possible only when the employee does not give consent to the transfer;
- it is applicable to the specialist who is in the position indicated in the court decision.
Where it leads?
If the gene. the director was disqualified, the manager no longer has the right to manage the company and must stop his activities immediately.
The decision made by the court will be considered effective:
- upon appeal, on the day when the district court determines the decision;
- in the absence of appeal - after 10 days from the moment when the gene is officially. the director receives a copy of the decision made by the court.
I must say, there are also cases when a court decision is not enough motivation for the manager and he does not want to vacate the post. If this happens, then the data about it will soon be sent to the prosecutor's office or to the police, which leads to a considerable fine. As a rule, prosecutorial checks follow one after another after the decision to dequalify, so it’s unlikely that they will “remain at the helm” “secretly”. The director personally will be fined within five thousand, and up to one hundred thousand rubles will be assigned for the organization.
Art. 3.11 of the Code of Administrative Offenses of the Russian Federation states that in the event of disqualification, it is necessary to terminate the employment contract. On this, the cooperation of the manager and the organization is completely stopped.
Disqualification and Obligations
Undoubtedly, even if the manager was disqualified, the company still has the contracts that he signed. And here conflicts can begin, since according to the law all of them become invalid, because they were approved by a person who does not have the authority to do so.
At the same time, even after disqualification, a person can act in such a way as to bring benefit to his enterprise. In particular, he may represent a legal entity in state bodies if he is issued a power of attorney of the established form. But now the issuance of this power of attorney will be handled by a new leader who has come to the place of the ousted judge.
Disqualification and Taxes
Why can a leader be disqualified? Practice shows that a very large percentage of situations are associated with tax violations that are massively committed at enterprises in our time. The following errors in the work may lead to a court decision so severe in its consequences:
- transfer of knowingly false information;
- repeated violation of laws and rights;
- Disclosure of data that does not comply with the regulations and laws of the country.
In such a situation, up to 85% of cases are the laying of the main blame on the manager, that is, on the leader. From this it follows that modern judicial practice considers disqualification as an effective method of influencing the economic sphere through management personnel.
Who is in danger?
If the job description of the Director General is not followed, of course, such a manager should be aware that there is some risk in relation to him. However, not only the general director should be afraid of such a development of the situation. Disqualification may apply to the following managers in the LLC:
- administrative;
- economic;
- administrative.
The nature of the disqualification is relatively specific. This means that the punishment is basic, and its duration varies within the legal framework. In imposing such a punishment, the court shall assess:
- personality
- features of the offense;
- circumstances.
It is necessarily analyzed whether it is possible to leave a person further at his work or is it excluded. In the second case, the director general of the LLC is disqualified. The reasons for this are various, usually complex. They will determine whether, in principle, an unformed manager can deal with this or that type of business in the future.
Disqualification Features
The law does not specifically indicate who should initiate the process. Consequently, any individual, legal entity can provoke a trial. This can be a participant in the enterprise, which is managed by the director, as well as a shareholder or any interested person.
They apply disqualification not only when the job description of the CEO has been violated, but if the violations are registered in the Code of Administrative Offenses.Most often, punishment is prescribed in the following situations:
- Art. 14.21, mismanagement;
- Art. 14.13, incorrect actions in bankruptcy;
- Art. 14.12 fictitious bankruptcy or deliberate business conduct so as to provoke bankruptcy;
- Art. 5.27 violation of labor legal standards;
- Art. 14.25 incorrect registration, associated with the submission of knowingly false information to state bodies.
It can be concluded that disqualification is assigned for rather specific offenses related to managerial tasks. It can become a punishment for the leader at different stages of activity and becomes an effective measure to regulate compliance with laws in various real situations.
And the law has flaws
Such a severe punishment is due to the fact that the violations listed above are considered practically crimes. This means that the court decision will not depend on the age of the defendant, nor on gender, or on other characteristics of the person. Also, the law does not provide for minimal damage, after which it can already be said that the person is inefficiently managing the organization. What does this lead to? If there is some interested person in whose interests it is to remove the director from his post, he can draw up a lawsuit and disqualification will occur if the damage is ridiculously small.
A similar situation exists with violations of the country's laws regarding labor standards. Now there are 424 articles with a variety of norms. All of them must be strictly carried out by the leaders of any company. If there is a violation, and there is also a lawsuit, then disqualification becomes a very likely outcome. Moreover, with a certain desire and presence of an interested party, it is not uncommon for a situation to arise where a so-called “out-of-game” case is created, which makes it possible to open a trial.
What does it look like?
Imagine yourself as the head of an enterprise. And here on “friendly” terms a certain businessman, well-known to you (you may have already done business with him) offers a loan - not simple, but without collateral. Agree, such an offer looks very attractive. But here's the catch: funds may then be required to be returned ahead of time. If you do not cope with this, then sanctions are introduced into the game, and then disqualification follows.
This may seem like a simulated, far-fetched situation, but in judicial practice in recent years there are a lot of such.
The main problem, as lawyers say, is that the current legislation does not allow us to talk about the different degrees of danger of offenses. Even the smallest lead to the most disastrous consequences. You can avoid bias if you monitor compliance with all standards, as well as control your detractors.
When is disqualification impossible?
In some cases, the court does not have enough rights to disqualify the management personnel of the enterprise. This is typical for the following situations:
- there are no justifications claiming that certain circumstances force the director to be disqualified;
- there is no evidence that the introduction of such a sentence will have a positive effect on the situation.
But most often they resort to disqualification in a situation where the company went bankrupt and the court concluded that this was due to the actions of the head. Moreover, according to the court, the manager was striving for just such an outcome. If you can prove it, you can decide in favor of disqualification.
Reasons: important aspects
In some cases, the disqualification of the head occurs in violation of the law governing labor standards and the rights of workers. In addition, such a measure applies to those directors who violate the procurement and provision of services.In this way, you can also punish leaders who have violated safety standards in industry.
As for the bankruptcy situation, then the basis will be illegal behavior of the management team. This is the very most common article on which disqualification occurs.
On the other hand, such punishment, relative to other administrative ones, is relatively rare. Statistics say that in no more than 4% of cases, entrepreneurs are called guilty and punished with disqualification. More often than not, a judge orders a fine to be paid, and the case is closed.
To summarize
Disqualification of the director of an LLC is possible in case of violation of labor law by him and in case of non-compliance with the standards in case of bankruptcy of an enterprise. As a rule, such a sentence takes effect if the violations were severe enough or the entrepreneur was already held accountable under a similar article. To draw the court’s attention to non-compliance with laws and regulations in some organization, it is enough to file a lawsuit. This can be done by both employees of the company and third-party individuals and legal entities. In particular, if you are not paid wages or regular delays in payment, you can contact the police or the prosecutor's office and write a statement that will give cause to the case.