The charter of the LLC, a model of which is considered typical for all organizations, contains key provisions relating to the activities of the company. It establishes the operating procedure of the enterprise, describes the main activity, formulates the rights and obligations of participants. The same document establishes the legal status of the sole executive body of a legal entity. Further consider what it is.
General information
The sole executive body of a legal entity is, in fact, a special position in a company held by a citizen. He can acquire and exercise rights, bear the responsibilities of the organization. In practice, this activity is transferred to the head. The charter of the LLC, a model of which is presented in the article, determines its scope of competence and other issues.
Normative base
Legal regulation of the activities of the head of the company is carried out:
- Federal Law "On Limited Liability Companies".
- Labor Code of the Russian Federation.
- Federal Law "On Joint-Stock Companies".
- Civil Code of the Russian Federation.
- Federal Law "On State Registration of Individual Entrepreneurs and Legal Entities".
- Law No. 161 “On Municipal and State Unitary Enterprises”.
Civil Code
The Civil Code established that any organization receives its rights and bears responsibilities through its own bodies. They operate on the basis of legislative provisions, other regulatory acts, including local ones. The latter, in particular, include constituent documentation. It determines the procedure for the election or appointment of company management. This position is enshrined in Art. 53 GK.
The specifics of a managerial position
Any legal entity must have its own executive body. It can be one subject or group of citizens. The competence of management includes operational activities, control and organization of the company. It receives rights and bears the corresponding responsibilities of the company. The Federal Law "On Limited Liability Companies" defines special rules for the managerial staff. First of all, they relate to the management of the company. In Art. 32, p. 4 of the aforementioned Federal Law, it is determined that the management of the current work of the enterprise is carried out by the sole executive body of a legal entity independently or jointly with a collegial structure. All subjects included in the management apparatus of the company are accountable to the general meeting and the supervisory board. One of them is electing the management of the enterprise. The founder, who is also the general director, signs a contract with the organization. On her behalf, the signature is put by the subject who presided at the general meeting where the election took place. The charter may transfer this right to the supervisory board. An entity that is not a member of the organization may also act as a leader.
Director: Credentials
The head of the company carries out activities on her behalf. Moreover, he does not need a power of attorney. In accordance with the legislation, the following powers are allocated to the sole executive body of a legal entity:
- Representation of the interests of the company, the implementation of activities on its behalf, transactions.
- Issuing orders on the adoption of staff, dismissal and transfer, the application of incentive measures and disciplinary punishments.
- The issuance of a power of attorney, which vests the right of representation on behalf of the company, including with the possibility of subversion.
- Other powers not attributed by law or local acts of the company to the competence of the supervisory board, general meeting and collegial management structure of the enterprise.
Election specifics
The procedure in accordance with which the sole executive body of a legal entity is created is fixed by the local act of the company. The election of a leader, as well as his early dismissal, is carried out by the general meeting. His competence also includes the transfer of powers of the director to the manager, approval of the latter and conclusion of an agreement with him. The adoption of the relevant decision is made by a majority of votes. Other amounts may be determined by the charter. By the same document, the solution of the above issues may be included in the competence of the supervisory board.
Deputy Head
The functions of the sole executive body of a legal entity may be transferred to another organization or to an individual entrepreneur. This opportunity is fixed in Art. 42 of the Federal Law No. 14. Until July 1, 2009, there was a rule that the powers of the executive body of the company can be transferred to the manager, if this is expressly provided for in the local document. This condition was repealed by Federal Law No. 312.
Rules for JSC
They are established in the Federal Law No. 208. As in the previous case, the management of the affairs of the company can be carried out by one entity independently or together with the board. The governing body is accountable to the board of directors and the general meeting. In the local document of the company, providing for joint management, the competence of the collegial structure is determined. In this case, the sole executive body of a legal entity holds the position of its chairman.
Competence of the head of AO
The president of the company resolves all issues related to managing the current work of the company. Its competence does not include tasks assigned to the supervisory board or general meeting. The head of the company, without a power of attorney, represents her interests, makes transactions on her behalf, accepts employees, dismisses them and transfers them, gives instructions and issues orders that are binding on all employees.
The procedure for creating an executive body in JSC
In accordance with the general rule, the formation of a management structure in the enterprise is the responsibility of the meeting of shareholders. At it, a decision is made on the early dismissal of the subject from office. Owners of voting shares participate in these procedures. Decisions are made by a majority of the total number present at the meeting. These issues may also be included in the competence of the supervisory board.
Information in the register
All data of the sole executive body of a legal entity are entered into the Unified State Register without fail. In case of change of any information, the entry in the register is subject to adjustment. The list of mandatory information that must be entered in the Unified State Register is defined by Art. 5 Federal Law No. 129. These include:
- The location (address) of the permanent executive body of the enterprise. If it is absent, information about the subject vested with the right to carry out activities on behalf of the company without a power of attorney is indicated. The address is required to contact the company. In the case when the company has a manager - a citizen or another company - the place of residence or location, respectively, is indicated.
- Name, position of the entity entitled to carry out activities without a power of attorney on behalf of the organization. Additionally, the data of a passport or other identity document in accordance with existing legislation is indicated. If available, the TIN is entered in the Unified State Register of Legal Entities.
Labor Relations
They are regulated by the Labor Code of the Russian Federation. Labor relations with the sole management body are regulated by Ch. 43 of the Code. In Art. 273 TC explains the concept of leader. He is a citizen, who, according to regulatory, including local acts, manages the enterprise, performs the functions of its executive (sole) body.
Termination of the employment contract
In addition to general grounds, in Art. 278 TC established additional conditions for termination of the contract. These include:
- The removal from office of the head of the debtor enterprise in accordance with the provisions of the bankruptcy (insolvency) law.
- The adoption by the authorized body of the organization or the owner of its property (its representative) of a decision to terminate the contract. Termination of labor relations with the head of a unitary enterprise is carried out by the body appointed by the owner of the material assets in the manner determined by the government.
- Other grounds provided for in the contract.
Guarantees for the head
Upon termination of the contract on the grounds provided for in paragraph 2 of Art. 278 TC, in the absence of guilt in the actions / inaction of the director, compensation must be paid to him. Its value is established in the employment contract. At the same time, the amount of compensation cannot be less than three times the average earnings per month. This rule is established in Art. 279 TC. Upon termination of the contract with the head of the enterprise, as well as the deputy director and Ch. accountant due to a change of ownership, the new owner of the property of the company is obliged to pay these employees cash compensation. Its value should be at least 3 times the average monthly salary. This rule is established by Art. 181 shopping mall. The head of the enterprise has the right to prematurely terminate the employment contract. Moreover, he is obliged to warn the owner about this for 1 month. A notification is sent in writing.
Responsibilities
The laws governing the activities of organizations define the responsibility of the executive body. In the exercise of his rights, he is obliged to act reasonably, solely in the interests of the enterprise. All losses caused by the fault of the head must be fully compensated by him. The liability of the executive body is established by Art. 277 shopping mall. The manager is responsible for the actual direct damage to the company. Calculation of losses arising from its actions / inaction is carried out in accordance with the rules of the Civil Code. The head is not held liable:
- Voted against the decision resulting in damage.
- Not participating in the meeting at which the resolution was adopted, due to the execution of which losses occurred.
Explanation
When establishing the grounds and degree of responsibility of the head, the usual norms of business turnover and other circumstances of significant importance should be taken into account. Compensation is provided only if the guilt of the subject is established. In h. 1 p. 1 Article 401 of the Civil Code, it is determined that a leader who has not fulfilled obligations or has performed them improperly is liable under the law, except in cases where other grounds are provided for by the contract or other regulatory acts. A subject may be found not guilty if he has taken all necessary measures with the degree of prudence and care that was required of him to exclude damage. According to paragraph 4 of Art. 401 of the Civil Code, the previously concluded agreement on limiting or excluding liability for intentional non-fulfillment of an obligation is considered void. In accordance with the law, any participant has the right to file a claim for compensation for harm caused to the organization by the leader.
Rules for applying sanctions to the manager
Within the meaning of the law, the provisions of paragraph 3 of Article 401 unless otherwise provided by law or contract. Appropriate sanctions are applied to the subject in case of failure to fulfill its obligations, if it does not prove that their fulfillment was impossible for valid reasons, force majeure circumstances (unavoidable and emergency in specific conditions). They can not be attributed, for example, violation of obligations on the part of counterparties, the lack of necessary products on the market or funds from the debtor himself.
Applying Sanctions to Collegial Management
If the organization manages several entities together, then they are jointly and severally liable. Sanctions can be applied only to those members of the collegial leadership who voted in favor of a decision that entailed damage to the company. Liability for losses is also abstained.