Many people planning to start their own business prefer to open an LLC, since by choosing such an organizational form they can avoid liability for debts, since they risk only funds invested in capital during the opening of a business. In fact, the liability of the founders of an LLC for debts can be subsidiary, criminal or administrative, as it depends on numerous factors. Therefore, if citizens wish to carry out fraudulent activities with the help of such an organization, then in any case they will face serious negative consequences.
LLC concept
This company is represented by a limited liability company. This form is selected for various reasons:
- ease of opening;
- the ability to attract other founders, which allows you to establish a truly large and interesting business by combining several capital;
- risk sharing among all founders;
- it is possible to participate in the authorized capital of other enterprises.
But before opening such an organization, you should study what the liability of the founders of the LLC for debts is. This is especially true for the participant who prefers to take the place of the general director, since in this case he risks not only the means invested in the company, but also his personal property.
Determination of founders
When opening an LLC, founders who are entrepreneurs who invest their money in the authorized capital of a future company will certainly be identified. Such a company may have only one founder, but it is possible to attract other participants.
The peculiarity of the LLC itself, unlike the AO, is the absence of the need to issue shares to attract participants. The process of conducting business in such a company is regulated by the provisions of Federal Law No. 14. Based on this regulatory act, the founder is a citizen:
- approving charter of the future company;
- contributing equity to the authorized capital of the enterprise;
- determining who will be in the management team of the company;
- identifying controllers;
- having the right to vote in making various decisions relating to the work of the organization.
Founders can be both private individuals and different companies. The foundation of an enterprise can be handled not only by Russian individuals, but also by foreigners. The restrictions apply exclusively to country officials, deputies and the military. The liability of the founders of the LLC for debts is the same for all participants. An exception is the situation when one of the founders additionally acts as an employee of the company, therefore, is its general director.
Responsibility within the authorized capital
Based on the provisions of Federal Law No. 14, when opening such a company, the founders risk only the means that they invest in the authorized capital when organizing a business. The funds will be lost during the bankruptcy or liquidation of the company when it is required to pay off the debts of the company, therefore, the money invested in the authorized capital is used for this.
Often, tax debts or to other counterparties significantly exceed the size of the authorized capital. Under such conditions, participants have the right to refuse to repay the debt through the use of personal savings or property.Therefore, in fact, equity holders of the enterprise have no risk of losing money, real estate or other property.
Such restrictions on the liability of the founders of LLC debts are confirmed by numerous articles of the Civil Code. Based on Art. 56 of the Civil Code, it is the company, and not its owners, that are liable for the obligations, therefore the company acts as a separate business unit.
What is the responsibility of the CEO?
Experienced professionals can be involved in this position by business owners, but often this post is occupied by some founder of the enterprise. It is the person holding this position that is responsible for the activities of the enterprise. Therefore, usually the founders of companies prefer to attract outsiders to this position, who then must independently solve problems associated with the numerous debts of the company.
What does the founder of a debt LLC do if he does not occupy the post of CEO? In this case, he loses only his investments in the company. If the participant is also the director of the enterprise, then he will have to answer even with personal property to pay off debts. Therefore, the leader and founder in one person is quite rare.
When can participants risk their property?
Standard legal conditions apply exclusively to situations where debts are formed as a result of the legitimate conduct of business. If the company uses various fraudulent schemes during operation or the organization deliberately leads to bankruptcy, then participants may be held liable. Can the founder pay the debt of his LLC? When fraud is detected, personal property of participants can be used to pay off debt.
In the event of the fact of deliberate bringing the company to bankruptcy, the amount of debt may be recovered from the director and owners of the enterprise, which is indicated in the Federal Law No. 127. Under such conditions, participants are held to subsidiary liability.
In order to hold owners accountable and pay off taxes or other payments due to their personal funds, the owners ’guilt must be proved. To do this, the conditions must be met:
- the official way confirms the insolvency of the organization, for example, a company is declared bankrupt by an appropriate decision of the arbitral tribunal;
- in the course of the court session, a connection is established between the actions of the company participants and the bankruptcy of the company.
The founder of LLC for the debts of the company is brought to responsibility in a situation if, when studying the company, it turns out that there are no mandatory accounting documents. The presence in the documentation of false facts can also lead to punishment of direct participants in the company.
The concept of subsidiary liability
In theory, the CEO is not responsible for the obligations of the company, so he copes with his duties on the basis of the preparation of the employment contract. But most often in practice it is precisely his actions that lead to the bankruptcy of a company that cannot satisfy the claims of creditors.
The subsidiary liability of the director and founder of the LLC for debts is represented by the financial responsibility of citizens to the creditors of the organization. It arises exclusively in a situation where the cause of bankruptcy is the intentional actions of business owners or the CEO.
Based on Art. 56 of the Civil Code, participants are held accountable in the correct sequence of actions:
- initially, the organization declares itself bankrupt, therefore, the procedure for paying off debts to various creditors begins at the expense of the available cash and assets of the enterprise;
- in the process of filing a company’s insolvency, it is revealed that the main reason for the loss of solvency was actions or inaction on the part of the director or founders of the company;
- in this case, violators are held accountable, for which a trial is being conducted;
- the court obliges the director or founders to pay off part or all of the debt at the expense of personal funds and property;
- all the culprits jointly answer for the debts, so the claims of creditors pass on to the personal values of citizens.
Thus, if any criminal or fraudulent actions on the part of the founders of the company are identified, they may be held liable. The subsidiary liability of the founder of the LLC for debts implies that he will have to use his personal property to pay off existing debts to creditors.
Material
The head of the company usually personally makes numerous and important decisions for the enterprise related to the development and functioning of the organization, therefore if he makes any erroneous decisions or takes illegal actions that damage the work of the company, he is held liable.
This type of responsibility applies exclusively to the general director, who may be one of the founders or an employee. It applies not only to direct losses of the enterprise that arose through the fault of the citizen, but even to lost profits.
If it is revealed that the company has suffered material damage due to the actions of the head, then the culprit will have to:
- recover lost assets;
- to compensate for the costs that people have to bear to restore the rights violated by the head of the enterprise.
If it turns out that due to the actions of the head the company did not receive a certain profit, then the damage caused by the director is calculated based on the provisions of the Civil Code. According to Art. 53 of the Civil Code, all members of the company may require the director to compensate for losses incurred, and for this it is not required to contact state authorities. If he refuses this process, then he will have to file a lawsuit.
Criminal
The risks of the founder of LLC debts may even be related to the fact that the head of the company, represented simultaneously by the participant, may be prosecuted. This happens exclusively in a situation where criminal acts are detected that are committed against employed workers, and various illegal actions are also included here to carry out large-scale fraud with money.
The possibility of criminal prosecution depends on how serious the damage was. For example, such punishment is provided for in the conduct of illegal business activities or in the commission of various operations aimed at intentionally bringing the company to insolvency. For such actions, administrative liability may be assigned if the damage caused does not exceed 1.5 million rubles in size. If the damage is greater, then the provisions of the Criminal Code apply.
There are several reasons for holding the head of a company criminally liable. This includes situations:
- dismissal without reason of a pregnant woman;
- disclosure of trade secrets;
- denial of employment of a pregnant woman;
- delayed payment of salaries for two months or a longer period of time, but it should be proved that such actions were committed for personal gain;
- copyright infringement;
- unfair competition, on the basis of which the company receives from 5 million rubles. illegal way;
- use of commercial bribery;
- illegal activities of the company on a large scale (from 1.5 million rubles) or on a particularly large scale (from 6 million rubles);
- tax violations and crimes;
- borrowing a trademark without legal grounds, which leads to damage in the amount of 1.5 million rubles .;
- intentional concealment of property, the purpose of which is the reluctance of management to repay debts to creditors;
- the use of illegal methods to launder funds;
- avoidance of debt repayment or tax, and it must be malicious;
- abuse of authority in the process of company management.
If tax violations are detected, a criminal case will be opened if the amount of debt exceeds 3 million rubles in three years.
Types of punishments under the Criminal Code
For not too serious violations, the following types of punishments apply:
- a fine of up to 300 thousand rubles;
- arrest of perpetrators for up to 6 months;
- community service up to 480 hours;
- imprisonment, and the term can reach even seven years.
But with more significant violations serious penalties are used in the framework of the criminal liability of the founder for the debts of the LLC. Judicial practice shows that a fine of up to 1 million rubles, imprisonment of up to 12 years and forced labor for up to 5 years may be imposed.
Is the director held accountable after dismissal?
Even the dismissal of the director cannot be a reason not to hold him liable if his involvement in various violations or bankruptcy of the company is established. Therefore, a court may recover damages from him for damages.
The criminal liability extends to the dismissed director, but this takes into account the limitation period, the duration of which depends on the severity of the violation.
Conclusion
Each member of the company should know what threatens the founder for the debts of the LLC. Responsibility depends on existing violations and circumstances. If the founder is simultaneously the general director, then he may be held liable, criminally or subsidiary liable. The rest of the participants are only under subsidiary liability.
Penalties depend on the severity of the crime or offense. Therefore, in some situations, the founders of the company can repay the debts of the company at the expense of personal property.