Since the general director of the organization acts as the sole management body, manages its activities and represents its interests in relations with counterparties, municipal and state bodies, an important role is played by determining the term of its powers and the consequences of the end of such a period. When considering such a question, the legislation does not give clear definitions, does not establish the legal consequences following the expiration of the term of office of the general director of the LLC, the need for reassignment and other nuances. Therefore, it is customary to build on the existing judicial practice and the main regulatory provisions of labor law.
Strengthening the term of office of the general director of LLC
The legislative framework regarding the terms during which the general director of a company can exercise his direct functions is made up of the Federal Law “On LLC” and the Labor Code. These regulations contain general provisions regarding labor relations between the organization and its manager as an employee. The law details the rules applicable specifically to the LLC and its leader.
In addition, it is normatively stipulated that the rules on the procedure for the appointment and terms of office of the general director of an LLC should be reflected in the company's charter. The law states that the sole executive body is appointed for a period determined by the charter, and there are no more specific provisions on the urgency of the powers of the general director.
Director appointment conditions
Thus, the founders of the company in the charter may prescribe that the general manager is appointed to:
- the period until a certain event occurs (for example, when the CEO reaches a retirement age);
- a certain number of years (5 years, 3 years, etc.);
- a certain period of time (for 2017–2019).
The most correct is considered to be to make general formulations related to the term of appointment of the management body, and this is necessary so that when circumstances change, it is not necessary to introduce the charter of the LLC changes and register them.
Along with the charter, the term of office of the general director of the LLC can be indicated in the employment contract. In this case, the validity period of the document will completely coincide with the time period for which the head is appointed. The only limitation is Art. 58 of the Labor Code, subject to which a fixed-term employment contract may be concluded for five years. This is the maximum term of office of the general director of an LLC under one contract.
Termination of authority
The powers of the general manager of the LLC may terminate ahead of schedule. The reasons for this are:
- voluntary dismissal;
- at the request of the participants of the LLC (the general director does not fulfill his obligations and causes damage to the company);
- upon termination of the agreement by agreement of the parties;
- in the event of the liquidation of a legal entity or the commencement of bankruptcy proceedings in relation to it;
- in the event of the presence of secondary circumstances that are indicated in the employment contract;
- at the end of the term for which the general director was appointed.
Notification
Not later than 3 days before the termination of the employment contract, the founders are obliged to notify the head of the LLC that they do not want to continue working with him.
In each of these cases, the duties of the General Director of the LLC end on the basis of the relevant decision of the general meeting, after the procedure for appointing a new leader.
Is there a need to reassign the CEO?
According to information from the Labor Code, if none of the parties to the labor agreement requires termination of the contract after the expiration of its validity, and labor relations are maintained at the actual level, then such a contract acquires the status of unlimited.
In accordance with existing jurisprudence, this provision applies to the general manager of the company. Thus, despite the expiration of the term of office of the Director General of the LLC, he will be considered the current leader until a new meeting is appointed by the general meeting.
Such an approach is not a violation of the law. However, for the purpose of “reinsurance,” you can reassign the director of a legal entity. In other words, after making a decision, conclude a new contract and register such a fact with the tax authority. LLC participants have the right to choose for themselves the most suitable option of these two.
Extension methods
Many are interested in the answer to the question of how to extend the term of office of the general director of an LLC. In certain cases, when it is necessary to extend the powers of the head of the LLC for a certain time, it is necessary to terminate the expired labor agreement and conclude a new one. You should be aware that the only body that has the right to extend the powers of the general director of an LLC is the council of founders of the organization.
In some cases, renewal may be accomplished through a termination procedure. In a similar situation, a meeting of all the founders of the LLC is organized, at which a decision is made on the fulfillment by the head of his authority. After this, the standard procedure is carried out: a dismissal order is issued, an appropriate entry is made in the work book. Then a new officer is appointed, who is the former CEO. In fact, a new contract is concluded with the same employee.
Features of the meeting
If an LLC has only one founder, then in this situation everything is extremely simple. To extend the powers of the CEO requires his own decision.
If there are several participants (there are up to 50 individuals and legal entities), then preliminary notification of the upcoming meeting is made first. At the same time, the time and date are indicated, as well as the issue that will be considered.
Directly at the meeting distinguish:
- the chairman who leads the event;
- a secretary who keeps a protocol, recording in detail all that is happening and providing all participants in the meeting with copies of this document.
Optional stage
It should be noted that the appointment of a secretary and chairman is not a mandatory step, as often only a few people are present in the LLC. The meeting can be considered valid if at least 50% of the participants in the LLC were present. Based on the results of voting, an order is drawn up in which an order is given. After that, a secondary agreement is concluded with the employee for the current employment contract.
Protocol extending the powers of the director of LLC
To date, there is no binding, standard form protocol for the extension of the powers of the Director General of LLC. In accordance with this, company representatives have the opportunity to execute it in any form or according to the model, which is approved in the accounting policy of the company.The main thing at the same time is to ensure that, in terms of its content and structure, such a document meets certain office work standards.
Conventionally, the protocol can be divided into three parts: the beginning, the main part and the conclusion.
Information about limited liability companies is entered in the initial part, information on the persons present at the meeting, on its progress is entered in the main part, and the decision of the founders of the company is indicated in the conclusion.
The protocol is mandatory signed by all those present. So they confirm that all the information entered into it is correct.
Stamping a document is necessary only when the requirement for the use of various cliches is fixed in the local acts of the company.
The protocol must be made in a single original copy. If necessary, copies of it can be made, which must be certified by means of signatures of responsible persons. Information about the form should be entered in the register of internal documentation of the enterprise. He, as a rule, is with the secretary of the organization.
The protocol is stored as one of the most important personnel documents and papers related to the activities of the company. The storage period is established by internal legal acts and federal legislation (but not less than 5 years).
Term of office
The approval of the sole executive body of the LLC for the position is regulated by the law “On limited liability companies”, according to which:
- The General Director is elected by the participants, which is drawn up by the protocol.
- The term of office of the general director of the LLC is determined by the charter of the company.
But there are other situations. It is also possible for an LLC where the duration of the powers is established by the board of directors. In this case, such an opportunity is recorded in the charter of the LLC.
In accordance with such a norm, the period of authority is prescribed in the charter of the LLC to the general director. Since the content of the charter is determined by Art. 12 14-ФЗ and the norms of the Civil Code, the term is:
- specific calendar date;
- the expiration of a certain period, calculated in months, years, days, etc.
- some event that will come in the future.
Duration of work of the general director under an employment contract
The order and characteristics of labor relations with the head of the organization are regulated by Ch. 43 of the Labor Code of the Russian Federation. It provides for the possibility of concluding a fixed-term employment contract with the general director of the company, indicating the term of office of the general director of the LLC, as determined by the charter.
An employment contract of this type is concluded for a certain period, which cannot last more than 5 years. But, if the document expires and none of the parties announced its termination, then the urgency condition ceases to act. The document takes on an unlimited form.
In addition, if the general director of the organization is the sole founder of the LLC, then the labor contract is not concluded at all.
What to do if the statutory period has expired
The legislation does not provide for legal consequences if the urgency of the powers of the general director according to the charter has expired, however, he continues his activities. In this situation, there is still a risk of adverse effects. For example, when submitting a charter to the registering authorities for a real estate transaction or when opening current accounts, inspectors may refer to the absence of a signature right on the head, since the term of office of the general director of the LLC according to the charter is over.
In such a situation, it is necessary:
- Drawing up a new protocol of the meeting of participants and approval of the powers of the head for a new period.
- Issuing an order on the entry into the post of general director.
Copies of such documents are provided to the financial institution or other third parties simultaneously with the notification letter, which is in free form.
What happens if the directors are not re-elected?
Despite the fact that the legislation does not spell out the spectrum of consequences of the expiration of the term of office, they nevertheless occur. In this situation, it is necessary to rely on logic that is not characteristic of Russian law. Thus, if you think logically, then when the period of activity of the general director of an LLC ends, he cannot continue his work, since he no longer has the rights to do so. If the director is re-elected, then a protocol must be drawn up on the extension of functions.
Judicial practice recognizes that if the consequences of the end of the head’s authority are not provided for by law or in the charter of the LLC, then the employee continues to perform his functions after the expiration of the term. However, in this case, problems may arise when working with bank accounts. If the general director of the LLC has not been re-elected, then the bank has the right to block his access or to refuse to open an account.
In addition, the notary will not certify documents, justifying such actions by the fact that the term of office of the director general has expired. It is useless to refer to judicial practice in such a situation, since it is not considered a law, it can only be taken into account, but not used as evidence of correctness.