Periodically, organizations such as LLCs end their activity with a bankruptcy stage or liquidation procedure. Therefore, the responsibility of the founder of a limited liability company continues to be a relevant topic. There are a number of nuances, having understood which, you can clearly understand what the founders of the LLC should do, and what you should not expect from them.
A little about organization management
Initially, you need to pay attention to the fact that both Russian citizens and foreign residents can act as organizers of the LLC. As for the number of founders, numbers from 1 to 50 are allowed, more is no longer possible. If necessary, the role of organizers can be performed by legal entities.
As the main governing element, you can define the General meeting of founders. It is this meeting that selects the only executive body, the general director, for the duration of the organization’s work. Any individual who, in the opinion of shareholders, can carry out managerial activities in the organization, taking into account all the facets of their interests, has the right to apply for the role of the latter.
Thus, it makes sense to consider not only the responsibility of the founders of the LLC, but also the CEO. It is important to understand that the charter of such an organization sometimes implies the possibility of creating a director’s board that oversees the work of the company and, if necessary, makes corrections in order to coordinate activities.
Question of responsibility
So, initially it is worth paying attention to the following thesis: the founders are liable only within the framework of their share, which was used to formation of authorized capital. Moreover, if the obligations of the created company are not fulfilled, then claims to the founders are irrelevant.
But there are circumstances when the founders of the enterprise will have to answer for their actions. This is a situation in which, through the fault of one of the shareholders, the organization suffers losses or becomes bankrupt. But the fact that the founder’s unfulfilled obligations proved to be the cause of material losses will have to be proved in court.
It is worth knowing that the responsibility of the founders, of a legal entity in particular, may be administrative in nature. Such an action is possible if a fictitious or intentional bankruptcy. This also includes unlawful acts committed during this procedure.
Management responsibility
If we talk about LLC, then the director, his deputies, chief accountant can be attributed to the leadership, provided that the enterprise is engaged in the production of any goods, and also the chief engineer.
Each of them responds strictly within its competence. That is, if damage to the enterprise was caused due to incorrect actions committed by the chief accountant, then no claims will be brought against the engineer.
As for the punishment itself, it can be an oral reprimand, dismissal, partial or full compensation for damage caused to the company. For such, full one-time repayment of losses or deduction from the wages of the culprit is used. Both founders and the court can impose penalties.
In which case is the director punished
Person exercising operational management activities of the LLC, is responsible for all activities of the enterprise.Thus, the general director of the company will have to answer for all actions that led to any kind of loss that caused the bankruptcy of the company.
There are other facets of the company, in which negative results imply the corresponding responsibility of the director. The founders may not be satisfied with any violations of the charter standards of the LLC and the current legislation, including the right to present a justified claim in this regard. If such claims have a real basis, the CEO will have to be responsible for the lack of control over the legality of the various processes. The punishment of a manager is also possible in the case of fixing actions involving criminal liability, as well as in case of negligent performance of assigned duties and abuse of authority.
The following types of violations fall into the category of actions that may cause punishment:
- non-compliance with security and labor protection standards;
- performance of those types of work for which the organization has not received a license or permission;
- violation of sanitary or fire safety standards;
- non-compliance with the technical cycle and financial discipline.
What could be the punishment
If the general director or the management of the enterprise has committed any of the above violations, the founders of the limited liability company have the right to bring the perpetrators to material, administrative and criminal liability.
Under material penalties, it is necessary to understand various types of fines, deprivation of bonuses or more severe measures. Inside the company, decisions on imposing fines are taken if the damage resulting from the actions of the head of the company can be determined to be small. In case of large losses, the court is already engaged in the size and form of material recovery.
Debt liability
As described above, bankruptcy or damage to the enterprise resulting from incorrect actions by the creators of the company, this is the responsibility of the founders. Debts that remain after the cessation of activity will be paid at the expense of personal property, funds of the founders of the company and the authorized share owned by them.
But before the procedure for paying off debts at the expense of the founders of the LLC, their guilt in bankruptcy must be proved in court. In addition, it is the court that will determine the specific form of recovery that will be imposed on the person whose actions led to the need to terminate the activities of the enterprise or significant damage.
More details on subsidiary liability
In this case, financial responsibility is implied, which is based on loan obligations that are not repaid within the agreed period. This can also include fictitious bankruptcy in order to avoid payment of existing debts.
Subsidiary liability the founder may occur for the following reasons:
- the illegality of transactions conducted by the head of the enterprise was proved;
- identification of the obvious connection between the actions of the director and the founder, which led to the bankruptcy of the company;
- significant losses and loans are recorded that are not repayable;
- in order for there to be subsidiary liability of the founder of the company, the party making the claim must accurately determine the amount of losses after the sale of the property of the debtor's company.
Responsibility Algorithm
In order for lenders to be able to get their money, they need to act within the framework of a certain scheme to achieve the desired result. It looks like this:
- First you need to wait until the arbitral tribunal reveals any violations of the insolvency law.Only after this stage is completed will the procedure for calculating the losses of the company as accurately as possible begin (after deducting the value of the property sold). The logical conclusion to this process is one of two outcomes. In the first case, in order for the founder’s liability to be full, a petition is submitted to the court with the aim of conducting a thorough examination for fictitious reports and contracts. The second option involves drawing up a lawsuit and subsequent prosecution of the creators of the enterprise.
- In order to obtain an extremely objective decision, it is recommended that the creditor closely monitor the work of an arbitration expert. If the actions of the latter were noticed errors, as a result of which the liability of the founder may be incomplete, then the creditor has the right to submit a request to the expert in order to reassess his actions. In the event that the court admits the fact of an error, the arbitration expert himself may be brought to subsidiary liability.
If the founder is a manager
In the performance of any actions, due to which a violation of the law occurred or damage was caused to the organization, claims will be directed mainly to the manager. The liability of the founder, however, is also possible if he is a legal entity and performs certain managerial functions related to the disposal of the property of the company. This information is especially relevant when it comes to tax evasion or concealment. material resources taxable enterprises.
Under such conditions, one of the founders of the LLC can be defined as the subject of a crime, which is fraught with litigation. And although the limited liability of the founders protects them from claims regarding violations of the law during the operation of the enterprise, in this case, when the creator is also the manager, you will have to answer in full.
As for administrative responsibility, the founder, as an independent entity, cannot be brought to it. However, if one of the founders of the LLC considers it necessary to assume the obligations of an official, namely the head of the enterprise, then the administrative form of punishment will be applicable to him. This principle also works if the founder, not being a director, performs administrative and business functions.
In fairness, it is worth noting that the founder of the LLC will always have the opportunity to hold accountable as a civilian.
Summary
There are a number of factors that must be considered before determining the responsibility of the founder.
The activities of the creator of the LLC in many respects affect the degree of penalty applicable to him. Thus, the maximum level of claims can be expected if the co-founder officially fulfills the duties of an official. In any other circumstances, his responsibility will be significantly less.
