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Bankruptcy manager (external manager). Scheme of interaction in the company with the executive director

P signing of documents by representatives of the managing organization performing the functions of the sole executive body legal entity, - the phenomenon is not new, however, it is not so often encountered in practice and mainly in commercial organizations. The transfer of powers of the head of the managing organization or manager takes place, as a rule, in large and medium-sized businesses. Let's consider what powers a managing organization can have, how it exercises them, and, finally, how documents are signed on behalf of the company.

Powers of the managing organization

AT joint-stock companies(JSC) and companies with limited liability(LLC), the legislation provides for a special way of transferring the powers of the head - the managing organization or the manager. Moreover, the powers of the head himself are either suspended or terminated, depending on what transfer procedure is provided for by the charter of the company.

Let's try to figure out in accordance with what documents the managing organization or the manager can exercise their powers.

Charter

Firstly, it is the charter of the organization, which reflects the competence of the management bodies of the company, in particular, it is indicated who decides on the formation of the executive body and on the early termination of its powers. The excerpt wording is shown in Example 1.

Example 1

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9.3. The competence of the Board of Directors includes the following issues:

20) formation of the sole executive body of the Company and early termination of its powers, approval of the terms of an employment contract with it, as well as the adoption of a decision on the transfer of powers of the sole executive body of the Company to a commercial organization or an individual entrepreneur (manager), approval of such a manager and the terms of the contract with him;

Solution

Secondly, in accordance with paragraph 1 of Art. 69 federal law dated December 26, 1995 No. 208-FZ “On joint-stock companies”, the powers of the sole executive body of a joint-stock company may be transferred under an agreement to a commercial organization (managing organization) or to an individual entrepreneur (manager) by decision general meeting shareholders (only at the suggestion of the board of directors ( supervisory board) society). However, paragraph 3 of this article allows the decision on this issue by the board of directors (supervisory board) of the company, if this is referred by the charter to its competence.

Article 42 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies” establishes a similar procedure for transferring the powers of the sole executive body of a limited liability company to a manager.

The decision of the general meeting of shareholders / participants on the transfer of powers of the sole executive body to the managing organization or the manager also determines the period for which the powers are transferred, and other terms of the contract.

Let us give an example of the resolutive part of the solution (Example 2).

Example 2

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Resolved:

1. Early termination of powers CEO Society - Markov Dmitry Sergeevich.

2. Transfer the powers of the General Director of the Company to the managing organization - Closed Joint Stock Company "TAS" for a period of three years.

3. Conclude with Closed Joint Stock Company "TAS" an agreement on the transfer of powers of the executive body on the terms in accordance with Appendix No. 1 by January 25, 2014.

Treaty

Thirdly, the rights and obligations of the managing organization or the manager are also determined by the contract concluded with her / him, which, in fact, is a contract for the provision of services for compensation. The contract on behalf of the JSC with the managing organization/manager is signed by the chairman of the board of directors (supervisory board) of the company or a person authorized by the board of directors (supervisory board) of the company.

Note

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If the powers of the sole executive body are transferred to the managing organization or the manager, then they are transferred in full.

The agreement with the manager on behalf of the LLC is signed by the person who chaired the general meeting of the company’s participants, who approved the terms of the agreement with the manager, or by the company’s participant authorized by the decision of the general meeting of the company’s participants, or if the decision on these issues is within the competence of the board of directors (supervisory board) of the company, chairman of the board of directors (supervisory board) of the company or a person authorized by the decision of the board of directors (supervisory board) of the company.

The transfer of powers of the sole executive body to the managing organization or the manager should be notified to the registering body on the basis of the requirements of Federal Law No. 129-FZ of August 8, 2001 “On state registration legal entities and individual entrepreneurs” within three working days from the moment of changing the information about the sole executive body of the legal entity (clause 5, article 5).

Note

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In joint-stock companies, taking into account the recommendations of the Code corporate conduct dated 04/05/2002, approved by order of the Federal Commission for the Securities Market dated 04/04/2002 No. 421/r "On the recommendation for the application of the corporate conduct code" (clause 2.1.10), the agreement between the company and the managing organization (manager) must provide for :

goals, the achievement of which must be ensured by the managing organization (manager);
the amount of remuneration of the managing organization (manager);
liability arising from the managing organization (manager) in connection with the performance by it of the functions assigned to it;
the procedure for terminating the powers of the managing organization (manager);
the volume and content of information and reports that the managing organization (manager) is obliged to submit to the board of directors and shareholders regarding its work and performance indicators of the company, the frequency with which such reports must be provided;
a list of officials of the managing organization who are obliged to report on its work.

The contract should include provisions on rights, duties and responsibilities, an example of which is given in Example 3.

Example 3

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3. RIGHTS AND OBLIGATIONS OF THE MANAGING ORGANIZATION

3.1. The managing organization, represented by its sole executive body (general director), performs the functions of the sole body of the Company without a power of attorney, including acts on behalf of the Company, represents the interests of the Company before Russian and foreign organizations, state bodies and local governments, courts and arbitration courts, and as well as other persons and bodies.

3.2. The managing organization prepares drafts of the Company's annual budgets and annual reports on the Company's activities. The draft annual budget of the Company must be prepared for approval by the General Meeting of Members of the Company no later than December 15 of the year preceding the budget year. The draft annual report must be prepared for approval by the General Meeting of Members of the Company no later than April 15 of the year following the reporting year.

3.3. The managing organization has the right:

form the composition and lead the activities of the Company's personnel;
represent the interests of the Company in all state authorities and local governments, Russian and foreign organizations;
make transactions within its competence and powers;
dispose of the property of the Company within the limits established by its Charter and current legislation Russian Federation;
sign economic and labor contracts on behalf of the Company;
independently, within its competence, to resolve all issues of professional and economic activity Society;
dispose of any property of the Company, except for cases when the resolution of such issues falls within the exclusive competence of the General Meeting of Participants;
open settlement and other accounts in Russian and foreign banks, sign payment and other bank and financial documents;
approve organizational structure, staffing, job descriptions for all employees of the Company;
approve the rules, procedures, instructions and other internal documents of the Company, with the exception of documents approved by the General Meeting of Participants;
hire, transfer to another job and dismiss employees of the Company, apply incentive measures to them and impose disciplinary action in accordance with the current legislation of the Russian Federation;
in accordance with the current legislation of the Russian Federation, determine information constituting a trade secret and other confidential information about the activities of the Company;
issue orders and instructions binding on all employees of the Company, give instructions on all issues of the current activities of the Company, exercise control over their execution;
represent the interests of the Company in all judicial bodies of the Russian Federation and foreign states and perform procedural actions on behalf of the Company to the same extent that they could be performed by the General Director of the Company;
issue powers of attorney for the right to represent on behalf of the Company and sign documents, including powers of attorney with the right of substitution;
perform other actions that, in accordance with the Charter of the Company and the current legislation of the Russian Federation, are referred to the competence of the sole executive body of the Company.

3.4. The managing organization is obliged:

take care of the affairs of the Company with the same degree of care and discretion with which she would take care of the conduct of her own affairs, taking into account the knowledge and experience of the organization as a conscientious merchant;
ensure the creation of favorable and safe working conditions for the Company's employees;
make decisions on filing claims and lawsuits (applications, complaints) against legal entities and individuals on behalf of the Company and on satisfaction of claims and lawsuits filed against the Company;
to exercise their rights and fulfill their obligations in relation to the Company in good faith and reasonably, taking into account the relations of special trust existing between the Managing Organization and the Company;
ensure the convocation, preparation and holding of the General Meeting of the Company's Members;
exercise control over the rational and economical use of material, labor and financial resources;
ensure compliance with the law in the activities of the Company;
take all necessary measures to preserve the confidential information of the Company, which became known to the Managing Organization in the course of the execution of this Agreement, as well as to preserve information constituting the trade secret of the Company and other confidential information protected by law;
at the first request, submit a report to the General Meeting of Members of the Company on the state of affairs;
organize and ensure the implementation of decisions of the General Meeting of Members of the Company;
no later than the 3rd day of the month following the previous one, submit the Certificate of Services Rendered for signature to the Company, as well as issue an invoice;
solve other issues of the current activities of the Company, which, in accordance with the Charter of the Company and the current legislation of the Russian Federation, are referred to the competence of the sole executive body of the Company.

4. RIGHTS AND OBLIGATIONS OF THE COMPANY

4.1. The General Meeting of Members of the Company has the right at any time to demand from the Managing Organization a full report on the work done.

4.2. Within the limits of its competence established by the Charter of the Company, the General Meeting of Members of the Company has the right to give instructions to the Managing Organization in connection with the performance by it of the functions of the sole executive body of the Company and control their execution. The General Meeting of Members of the Company is not entitled to interfere in the current activities of the Company carried out by the Managing Organization.

4.3. The General Meeting of Members of the Company is obliged, upon first request, to submit to the Managing Organization documents, information and explanations on the issues of the Company's activities.

4.4. The Company is obliged, within three days from the moment of signing this Agreement, to transfer to the Managing Organization all Required documents and print.

4.5. To check and confirm the correctness of annual reports and financial statements, as well as to check the state of current affairs, the General Meeting of Members of the Company has the right to appoint an audit. The managing organization is obliged to provide the auditor with all necessary information and documents.

5. RESPONSIBILITIES OF THE PARTIES

5.1. The Parties shall be liable for non-fulfillment or improper fulfillment of obligations under this Agreement in accordance with the current legislation of the Russian Federation.

5.2. The Managing Organization shall be liable to the Company for losses caused to the latter by the guilty actions (omissions) of the Managing Organization, unless other grounds and amount of liability are established by the current legislation of the Russian Federation.

5.3. When determining the grounds and extent of liability of the Managing Organization, the usual conditions of business transactions and other circumstances relevant to the case must be taken into account.

5.4. The managing organization is not responsible for losses, the occurrence of which is due to circumstances that arose before the entry into force of this Agreement.

5.5. Losses caused to the Company, which can be classified as normal commercial and production and economic risks, are not subject to compensation by the Managing Organization.

5.6. The managing organization is not liable for losses caused to the Company by its action or inaction, committed in pursuance of the decisions of the General Meeting of Members of the Company.

5.7. For transactions concluded by the Managing Organization after the entry into force of this Agreement, the Managing Organization shall bear subsidiary liability, unless otherwise provided by the Agreement.

5.8. The managing organization is responsible for the accuracy of the information provided to the General Meeting of Members of the Company.

5.9. Compensation for losses is made by the Party that has not fulfilled or improperly fulfilled its obligations in excess of the sanctions established by this Agreement.

5.10. If several persons are responsible, their liability to the Company will be joint and several.

5.11. The Party shall be released from liability for failure to fulfill obligations under this Agreement if it proves that the obligation has not been fulfilled or has been improperly fulfilled due to a force majeure event or a circumstance that was beyond its control and which the Party could not foresee and prevent by acting reasonably and in good faith, provided that this Party warned the other Party about the occurrence of such a circumstance immediately, as soon as it became aware of it.<…>

In addition to the above documents, the managed company must issue an appropriate order (see Example 4 on page 62). It is not a document on the basis of which the managing organization operates; nevertheless, it fixes organizational issues related to the transfer of the documentation of the managed company to the responsible employees of the managing organization.

Example 4

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Delegation of powers

From the moment of transfer of powers of the head of the managing organization, the head of the managing organization will act on behalf of the managed company without a power of attorney. legal grounds, including signing various documents.

At the same time, the right to sign the documents of the managed company may be transferred by the head of the managing organization to other employees of the managing organization or the managed company. However, in order to represent the interests of the company before third parties and sign documents by other persons, except for the head, it is necessary to issue them with appropriate powers of attorney in the manner prescribed by Art. 185, 185.1 of the Civil Code of the Russian Federation.

In this case, the power of attorney must be issued by the managed company, i.e. drawn up on the letterhead of the latter with all its details and registered in accordance with the rules of record keeping of the managed company. Meanwhile, the head of the managing organization signs such a power of attorney. According to the new rules for issuing powers of attorney, which came into force in September 2013, it is not necessary to put a seal on a power of attorney. However, its presence will not contradict the current legislation, since affixing a seal on a document is a business custom. When signing the power of attorney by the head of the managing organization, if this custom is observed, the seal of the managed company is affixed.

We give an example of this power of attorney below (see Example 5).

Example 5

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In addition, it is necessary to issue an appropriate order on granting the right to sign documents to responsible employees of the company (Example 6).

Example 6

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Signing of documents

In all documents of the managed company signed by the head of the managing organization, the requisite "signature" should be indicated as shown in Example 7.

Example 7

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If the document is signed by a person other than the head of the managing organization, then something else is written in the document in the requisite "signature" (Example 8).

Example 8

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In the field of labor and other directly related relations in accordance with Part 6 of Art. 20 of the Labor Code of the Russian Federation, the rights and obligations of the employer are carried out by the governing bodies of a legal entity (organization) or persons authorized by them in the manner established by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of local authorities self-government, founding documents legal entity (organization) and local regulations.

Taking into account that in an LLC and JSC, powers can be transferred to a managing organization or a manager in accordance with federal laws, the managing organization (manager) will represent the employer in labor relations by its leader. Then in employment contract the wording of the preamble given in Example 9 is acceptable.

Example 9

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Limited Liability Company "Marun" (LLC "Marun") represented by the General Director of Closed Joint Stock Company "Consult" (CJSC "Consult") - the managing organization of LLC "Marun", acting on the basis of the Charter of LLC "Marun" and the Delegation Agreement of the sole executive body of the managing organization dated January 23, 2014 No. 23, hereinafter referred to as the "Employer" ...

In the likeness of the preamble of an employment contract, the preambles of other contracts and / or agreements drawn up within the framework of labor relations are drawn up:

additional agreements to the employment contract;
agreements on termination of the employment contract;
agreements on full individual and full collective (brigade) liability and etc.
vacation schedule;
travel certificate;
official task for sending on a business trip and a report on its implementation;
pay slips;
books and journals of documentation, etc.

According to the same principle, the requisite “signature” is drawn up in other documents, including letters and notices, signed by the head of the managing organization or other authorized employee.

Note

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Documents drawn up in a managed company use letterhead controlled society.

Often the question arises as to what kind of seal to put on documents (where it is necessary or used as a business custom): the managing organization or the managed company itself. Many points of view were expressed by experts on this issue. However, in practice, as a rule, the stamp of a controlled society is affixed.

Powers of the collegial executive body

Powers of the CEO

In accordance with the law, the powers of the General Director.

1. Manages the current activities of the company

2. Acts on behalf of the company without a power of attorney, including representing the interests of the company in the Russian Federation and abroad

3. Approves staffing

4. Submits the annual report and financial statements to the relevant authorities

5. Concludes transactions on behalf of the company, taking into account the restrictions established by law and the company's charter, issues orders and gives instructions to the company's employees

If the company establishes a collegial executive body, the charter must define separately the powers of the general director and the collegial executive body, since they are not defined in the JSC Law, but are established at the discretion of the company.

In accordance with the Code of Corporate Conduct, the charter of the company must define the powers of the collegial executive body for:

· development of documents relating to priority areas of the company's activities;

· development of financial and economic plan;

· Approval of the company's internal documents;

· approval of transactions in the amount of 5 or more percent of the value of the company's assets, which is accompanied by a requirement to immediately notify the Board of Directors of such transactions;

· approval of real estate transactions and obtaining loans that are not related to the normal business activities of the company;

Appointment of heads of branches and representative offices of the company;

approval of agenda items for general meetings of shareholders of subsidiaries, sole member which the company is, if these issues are not within the competence of the board of directors of the company;

· Appointment of persons representing the company at general meetings of subsidiaries, in which the company is the sole participant, and issuing instructions to them for voting at general meetings;

· nomination of candidates for the general director, members of the management board, manager, members of the board of directors, as well as candidates for other management bodies of organizations in which the company is a member;

· Approval of internal labor regulations;

· approval of job descriptions for all categories of employees of the company;

approval of the terms of employment contracts with middle managers;

· Approval of decisions on the conclusion of collective labor agreements.

The general meeting may delegate the powers of the general director to the manager on the basis of a written agreement.

The general meeting may decide to transfer the powers of the sole executive body to the manager only at the proposal of the board of directors.

The manager performs the functions of the general director and reports to the board of directors and the general meeting. The JSC Law does not establish requirements for an agreement with a manager, other than that the chairman of the board of directors or another authorized person signs an agreement with the manager on behalf of the company.

In accordance with the Code of Corporate Conduct:

1. The board of directors must present to the general meeting a clear justification for the need to transfer powers to the manager and provide information on:

the reasons for this decision;

the risks associated with it;

persons who will report on behalf of the managing organization;

other companies managed by the managing organization;

members of the board of directors, executive bodies and largest shareholders managing organization, as well as other information that may be necessary to determine the likelihood of a conflict of interest.

2. The manager must provide the Board of Directors and the general meeting with the following information:

· a document confirming that the manager has sufficient assets or has concluded insurance contracts in case of default by him of obligations under the contract with the company, as well as the financial statements of the managing organization;

the charter of the managing organization;

an agreement with the manager, providing for:

a) the objectives to be achieved by the manager;

b) the amount of the manager's remuneration;

c) the principles of liability applicable to the manager;

d) the procedure for terminating the powers of the manager (contained
in the contract, a provision on the termination of powers);

e) reports that the manager is required to submit to the board of directors and the general meeting, including information on who and when must submit such reports.

f) In addition, the manager must not perform similar functions in a competing company or be in property relations with a competing company.

Competition manager- this is a person who, according to the law of the Russian Federation of November 19, 1992 “On the insolvency (bankruptcy) of enterprises, carries out.

The task of the bankruptcy trustee

The bankruptcy commissioner is obliged to conduct a procedure aimed at the forced or voluntary liquidation of an insolvent organization.

How is a bankruptcy trustee appointed?

Bankruptcy managers are people who are specially trained and perform certain actions at the time of bankruptcy of the object, who are members of the self-regulatory organization arbitration managers.

The bankruptcy trustee is appointed by the arbitration court. The bankruptcy trustee is the head of the insolvent object and its management bodies, as well as the owner of the debtor's property, if any.

To appoint a bankruptcy trustee, the court shall issue an appropriate ruling, which may be appealed. The action of the bankruptcy trustee ends at the moment of termination of this bankruptcy proceedings.

To become a bankruptcy trustee, one must work as a lawyer, an economist, or have a practice in doing chores.

It should be noted that the bankruptcy trustee has an irregular working hours, works with a large amount of information, and is engaged in a complex procedure for preparing the bankrupt's property for sale.

Obligations of the bankruptcy trustee

The duties of the bankruptcy trustee include the following:

conduct an inventory of the bankrupt's property;

organize the valuation of property with the involvement of an appraiser;

within a week after receiving the powers, the bankruptcy trustee is obliged to publish information about the bankrupt and his property in special sources;

control the safety of the bankrupt's property;

search for and recover the debtor's property stored with third parties;

analyze the financial situation of the debtor;

in case of dismissal, notify the employees of the bankrupt about the upcoming dismissal no later than one month from the date of declaring the debtor bankrupt;

provide information in full about the debtor and its property to applicants who are interested in the debtor's lot and plan to take part in the auction;

maintain a list of creditors' claims, if this task is not performed by a specialized organization - the registrar.

Powers of the bankruptcy trustee

In addition to a number of obligations, the bankruptcy trustee is endowed with a whole package of powers.

Powers of the bankruptcy trustee:

own the property of a bankrupt in a lawful manner and conditions;

engage in the dismissal of employees of a bankrupt, are no exception and employees on leadership positions;

send the debtor's documentation for storage;

present statements of claim on the invalidity of transactions carried out by the debtor;

demand the property of the bankrupt, which is kept by third parties, and perform other actions aimed at the return of property.

Responsibility of the bankruptcy trustee

The powers of the bankruptcy trustee are directly related to the responsibility of the bankruptcy trustee. Given that the bankruptcy trustee is endowed with a number of powers, he is held liable for violation or failure to fulfill his duties and powers.

Liability may follow in the event of the following administrative violations:

unnatural creation of insolvency of persons by special actions or inactions;

the bankruptcy trustee conceals the location of the debtor's property;

does not provide the necessary information about the property;

destroys or falsifies information about the property;

does not agree on the procedure for transferring the debtor's property;

does not comply with legal requirements when concluding contracts or when external management;

makes transactions in excess of official authority.

If the first and last points are violated, the bankruptcy trustee risks being left without work in this position for a temporary period of not more than three years.

Bankruptcy manager's report

After the settlements with all creditors are completed or the bankruptcy proceedings are terminated, the bankruptcy trustee must submit a report on the work done, on the results of this procedure, to the arbitration court.

The report of the bankruptcy trustee is a list of documents confirming:

sale of the debtor's property;

repayment of credit obligations;

providing the Pension Fund (its territorial subdivision) with information about the date, place of birth of the debtor, his citizenship and passport data, including the full name, gender and address of the permanent registration of the bankrupt person.

In addition to the above documents, bankruptcy trustees must attach to the report a register of creditors' claims, which will indicate the amount of paid debts of the bankrupt person.

After the bankruptcy commissioner has drawn up and submitted his report to the competent authority, he is obliged to notify the creditors of this fact.

Supervision of the activities of the bankruptcy trustee

Control over the activities of the manager is carried out in accordance with Art. 143 FZ "On bankruptcy".

According to this law, creditors (meeting or committee) receive all the information necessary for this at least once every three months, unless otherwise established by the meeting of creditors.

Information provided for control may be in the form of reports or any separate documents showing the state of affairs during the competition or at its completion.

The report of the bankruptcy trustee must contain the following information:

on the inventory of the debtor's property, its assessment, if required;

on the amount of funds that were credited to the debtor, and the sources of such financing;

on the process of selling the property of a bankrupt entity, indicating the amounts received;

on the size and number of debt collection claims submitted to third parties;

on the number of people working for the debtor who continue to work after the opening of the competition, and the number of dismissed (resigned) employees;

on the work that was done to ensure that the transactions were declared invalid, in the interests of the debtor;

on the compilation and maintenance of a register of creditors' claims, with information on their total amount and size separately in each queue;

about the measures that were taken to preserve the property of the bankrupt object and to recover the property that belongs to it, but for some reason is held by third parties;

on the amount of current debt, with a description of the reason for its formation;

on the work performed by the bankruptcy trustee to close the accounts of the debtor;

on bringing to subsidiary liability persons who bear obligations in connection with bringing the debtor to bankruptcy;

all other information, the content of which is established by the bankruptcy trustee, creditors or arbitration court.

All data relating to the bankruptcy proceedings, for example, about the expenses of the bankruptcy trustee for conducting the relevant process, the bankruptcy trustee must provide at any time at the request of the arbitration court.

Still have questions about accounting and taxes? Ask them on the accounting forum.

Bankruptcy manager (external manager): details for an accountant

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Powers of the Manager as an executive body (director) in a microcredit company. What documents will the management company confirm its authority to the contractors of the LLC.

Question: Is it possible to prescribe the powers of the Manager of a microcredit company in an agreement, and not in the Charter itself? Will banks find fault with this? (for example, when opening a current account)

Answer: The powers of the Managing Director as the executive body (director) of the organization must be specified in the Articles of Association. Information that must be specified in the charter.

№	Intelligence	Article or paragraph of the LLC Law
1	Full and abbreviated company name
2	Location. You can only specify locality or municipality(Clause 2, Article 54 of the Civil Code of the Russian Federation). Then, when changing the address within it, it will be necessary to make changes only to the Unified State Register of Legal Entities
3	The composition and competence of the governing bodies. This block includes: Issues of exclusive competence of the general meeting of participants; Decision-making procedure; Issues on which decisions are taken unanimously or by a qualified majority of votes
4	The size authorized capital
5	Rights and obligations of participants
6	The procedure and consequences of the withdrawal of a participant from the company, if the charter provides for the right to withdraw
7	The order in which a share in a company can be transferred to another person
8	The manner in which the company keeps documents and provides information to members and other persons
9	The tenure of the director. It can be fixed in the charter that this issue falls within the competence of the board of directors	P. 1 Art. 40
10	The order of the director's activities, how he makes decisions
11	Dates of the next general meetings of participants. The law establishes that the meeting must be held from March 1 to April 30
12	Establishment provisions audit commission or the election of an auditor. This is mandatory when there are more than 15 members in the society	P. 6 Art. 32, p., art. 47
13	The period for which the LLC was established. It is obligatory when a society is created on certain period	P. 3 Art. 2
14	Regulations on the presence of a seal, if the company has a seal

Labor functions, that is, the regulations for current work, are established by the parties in an employment contract (Article 57 of the Labor Code of the Russian Federation). Or if a management contract is concluded (with an LLC or an individual entrepreneur), as a type of civil law contract, then the powers, rights and obligations are agreed by the parties in the contract itself.

Rationale

The concept of “management company” (“management organization”) is not disclosed by the law. In fact, the management company is commercial organization which provides services in the field of enterprise management. No license is required to provide these services.

Functions management company can also perform individual entrepreneur- manager.

The LLC instructs the management company to manage its affairs and property by exercising the powers of the sole executive body (director). The managing company, in turn, is represented by its director or another person authorized by him.

The general meeting of participants or the board of directors should decide on the transfer of powers of the director of the management company, approve such a company and the terms of the contract with it, including the amount of remuneration. It depends on what the charter says about this (subclause, clause 2.1, article 32, of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”, hereinafter referred to as the LLC Law). There is no need to make any further changes.

If the decision is made by the general meeting of participants, a simple majority of votes is sufficient. For the board of directors, a different rule may be established in the charter or an internal document regulating the activities of the board (for example, in the Regulations on the Board of Directors).

In addition, the LLC concludes an agreement with the management company, according to which it transfers the powers of the director to it (clause 1, article 42 of the LLC Law). Scroll essential conditions contract is not defined in the law. In terms of content, this is a mixed contract, since it has signs of a contract for the provision of services for a fee, an agency contract and an agency contract.

The powers of the management company should be specified in the contract as detailed as possible. This is especially important if there are other executive bodies in the society, since a dispute over competence may arise later - at the most inconvenient moment, when delay will cost society dearly.

Also, the agreement between the company and the management company can provide for:

1. goals to be achieved by the management company. At the same time, it is better not to be limited to common goals, but to regularly draw up annexes to the contract with exact planned indicators, which the company under the leadership of the management company should achieve after a certain time. This will contribute to the achievement of an unambiguous understanding by the management company of the goals that the company wants to achieve;

2. the amount of the management company's remuneration. It can be set depending on the achievement of the indicators indicated in the previous paragraph. This will motivate her to work effectively, as well as minimize the risk that the cost of paying for her services will not be recognized as an income tax expense. The amount of remuneration should be divided into a fixed fee, compensation for direct expenses approved by the company, and remuneration from the result based on the results of the reporting period;

3. liability arising from the management company in connection with the performance by it of the functions assigned to it;

4. the procedure for terminating the powers of the management company;

5. the volume and content of information and reports that the management company is obliged to submit to the board of directors and shareholders regarding its work and the performance of the company, the frequency with which such reports must be submitted;

6. a list of officials of the managing organization who are obliged to report on its work to the board of directors and the general meeting of shareholders of the company;

7. conditions for non-disclosure of confidential information (volume of such information, terms of non-disclosure and responsibility).

The management company actually replaces the director. The actions of the management company give rise to rights and obligations for the LLC (clause 2, article 42 of the LLC Law). The management company must act in the interests of society in good faith and reasonably (clause 1, article 44 of the LLC Law).

At the same time, it is not necessary for the management company to transfer all the powers of the director, only a part can be transferred. In addition, you must not forget to distribute the rest of the powers among the management bodies of the LLC.

In judicial practice, there was such an opinion that the remaining part of the powers can be left with the director without completely terminating his powers. However, this may cause disputes with the tax authorities.

Example from practice: the tax office tried (though unsuccessfully) to charge additional income tax and VAT on the cost of paying for the services of a management company

LLC "G." and LLC "N." concluded an agreement dated June 5, 2004 No. 4 on the transfer of powers of the sole executive body of the company to the management company. Changes have been made to the Unified State Register of Legal Entities.

The competence of the director of LLC "G." (according to the job description) included operational management of current production processes with the right to enter into transactions that are insignificant for the company (up to USD 25,000).

The management company has been granted broader powers, its position corresponds to the position of the director defined in the LLC Law (according to the agreement on the transfer of powers).

According to the results of the tax audit LLC "G." was brought to tax liability, he was additionally assessed income tax and VAT, as well as accrued penalties, fined. Tax office, having charged additional taxes, insisted that the organization had no right to transfer part of the functions of the director to the management company (and, therefore, pay for such services and take this amount into account in its income tax expenses). The inspection argued that the LLC has the right to transfer either all the functions of the director, or none.

LLC "G." (applicant) did not agree with the decision of the inspection and applied to the arbitration court.

The court took the applicant's position because:

1. The Law on LLC does not limit the scope of powers transferred to the management company, therefore, it is possible to transfer both all powers and part of them;

2. There is no duplication of managerial functions.

Requirements of LLC "G." were satisfied. The courts of appeal and cassation agreed with the court of first instance (Decree of the Federal Antimonopoly Service of the Moscow District dated July 23, 2009 No. КА-А41/6105-09 in case No. А41-20225/08).

If you still leave the general director and the management company “at the helm” of the LLC, you must make sure that their powers are not duplicated. Otherwise, this may create not only tax risks, but also disputes over competence, which in practice will lead to destabilization in society.

What documents will the management company confirm its authority to counterparties of LLC

Two groups of documents can be distinguished.

First, the documents that confirm that the management has been transferred to the management company:

1. decision of the general meeting of LLC participants on the transfer of powers to it;

2. agreement on the transfer of powers to the managing organization;

3. extract from the Unified State Register of Legal Entities for LLC;

4. charter of the LLC.

Secondly, documents that confirm the powers of the CEO of the management company:

1. charter of the management company;

2. order on the appointment of the general director;

3. extract from the Unified State Register of Legal Entities for the management company itself;

4. decision of the general meeting of participants of the management company on the election of the general director.

Often, the CEO delegates the authority to manage the company to one of the employees of the management company. In this case, the authority of the latter must be confirmed by a power of attorney signed by the general director and accompanied by the seal of the management company. Such a power of attorney is not required to be certified by a notary, since the general director of the management company acts on behalf of the company without a power of attorney (clause 4, article 185.1 of the Civil Code of the Russian Federation).

The agreement with the management company is signed by the chairman of the general meeting of participants, which approved the terms of the agreement, or a participant authorized by the general meeting.

If the management company is approved by the board of directors, then the contract is signed by the chairman of the board of directors or a person authorized by the board of directors (clause 3, article 42 of the LLC Law).

When transferring the powers of the director of the management company, information about this change must be entered in the Unified State Register of Legal Entities.

What is the responsibility of the management company

The management company is liable to the company for losses caused to it by its guilty actions (inaction). Reimbursement can be demanded only through the court, the company itself or the participants have the right to do this (clause 5, article 44 of the LLC Law).

Case study: an organization (LLC) recovered from its director the losses caused by the fact that, on his personal order, the procedure for returning goods from the buyer was violated

This example concerns a director, but this practice is also applicable to a management company. Since in our country the involvement of management companies is not very common, judicial practice little with their participation. However, the same rules apply to the management company as to the director. Therefore, an example of recovering losses from a director can be taken into account in relations with a management company.

Between LLC "P." and LLC "M." a supply agreement was concluded, according to which OOO P. supplied by LLC "M." meat products, including chilled poultry meat.

After some time, LLC "P." citizen P. was appointed acting director. He exercised these powers from June 26 to December 23, 2009.

On September 5, 2009, the buyer was shipped products - chilled carcasses of broiler chickens of the 1st grade in the amount of 18 tons for a total amount of 1,458,000 rubles.

The buyer accepted the products without comment, as evidenced by his signature and stamp on the invoice.

At the same time, on September 8, 2009, during the subsequent delivery of similar products to the buyer in the amount of 15 tons, by order of citizen P., the driver took from the buyer part of the previous batch of products in the amount of 6588 kg for a total of 539,096 rubles. 4 kop. as a defective product.

All products accepted upon return from the buyer, on the personal order of P., were found unfit for free sale and were accepted into the warehouse for subsequent disposal.

LLC "P." applied to the arbitral tribunal statement of claim to citizen P. for the recovery of 539,096 rubles. 4 kop. damages, referring to the fact that the defendant did not comply with the established procedure for the return of products.

The court upheld the position of the plaintiff in connection with the following.

According to the contract, in the event of a product quality discrepancy, the buyer is obliged to call the supplier's representative to draw up an act, and if the supplier's representative does not arrive, the act must be drawn up with the participation of a representative of an independent expert organization.

In this case, the order was not observed, no written documents were received from the buyer to the plaintiff, no claims were received regarding the quality of the delivered products.

The defendant did not comply with the necessary conditions for identifying and accepting the return of low-quality products from the buyer. This caused the plaintiff damage in the amount of 539,096 RUB. 4 kop.

The claims were satisfied. The court of cassation agreed with the court of first instance (decree of the Federal Antimonopoly Service of the Volga District of April 28, 2011 in case No. A65-15620 / 2010, determination of the Supreme Arbitration Court of the Russian Federation of August 1, 2011 No. VAS-9669 / 11).

Case study: an organization recovered losses from its director in the form of a sum of money that he received from the cash desk under the report

The following example concerns the director of a CJSC, however, this practice is also applicable to the management company LLC.

From January 2007 to September 2008, citizen S. performed the functions of the general director of CJSC "P." and during this time received from the cash desk of the company to the account on cash disbursement orders cash for a total amount of 48,494,829 rubles. 31 kop. The funds received were partially returned in the amount of 8,779,000 rubles, the balance of the debt in the amount of 39,715,829 rubles. 31 kop. not returned, advance reports on the expenditure of funds for the amount of the debt were not drawn up.

Later ZAO "P." was declared bankrupt and, represented by the bankruptcy trustee, filed a lawsuit against S. for the recovery of 39,715,829 rubles. 31 kopecks, since this amount is the losses of the company, and they must be compensated at the expense of the defendant.

Court of Arbitration The first instance dismissed the claims. However, the courts of appeal and cassation upheld the plaintiff's position in connection with the following.

The defendant referred to the existence of relations between the parties under a loan agreement, to the transfer of debt and the termination of an obligation by novation and offset of mutual claims, but did not prove this.

In this regard, the funds received from the company are obliged to return exactly the person who received them, that is, S.

The claims were satisfied (decree of the Federal Antimonopoly Service of the West Siberian District of March 21, 2011 in case No. A70-3844/2010).

If several persons are responsible, then it will be joint and several (clause 4, article 44 of the LLC Law).

It is usually quite difficult to recover losses, since it is necessary to prove the fact of a violation by the management company of its obligations, its guilt and a causal relationship between actions and losses incurred, as well as the amount of such losses (the following examples of long-term and unsuccessful recovery of losses relate to directors in joint-stock companies, but such the practice is also applicable to the management company in an LLC: decision of the Supreme Arbitration Court of the Russian Federation of May 22, 2007 No. 871/07; decision of the Federal Antimonopoly Service of the Central District of May 4, 2008 in case No. A36-1075 / 2006).

In addition, if the management company has not achieved the intended results, it is possible not to pay part of the remuneration to it (if this was agreed in advance in the contract).

In some cases, the management company (manager), as well as the general director, may be held administratively liable. specific individual(manager) can also be held criminally liable if his actions contain corpus delicti.

Also, LLC participants may invalidate the decision of the management company, which is contrary to the law or the charter and violates their interests (clause 3, article 43 of the Law on LLC).

Answered by Alexander Sorokin,

Deputy Head of the Operational Control Department of the Federal Tax Service of Russia

“CCP should be used only in cases where the seller provides the buyer, including its employees, with a deferral or installment plan for paying for their goods, works, services. It is these cases, according to the Federal Tax Service, that relate to the provision and repayment of a loan to pay for goods, work, and services. If an organization issues a cash loan, receives a return of such a loan, or itself receives and repays a loan, do not use the cash desk. When exactly you need to punch a check, see the recommendations.

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A key figure in the operation of any retail or wholesale trade is a store manager. The duties, functions, powers and rights of the person holding this position are carefully spelled out in his job description, as well as in some regulatory legal acts of the current legislation.

Important Points

First of all, it is worth noting that the position of "store manager" belongs to the category of managers. As a rule, it is directly subordinate to the owners or top management, such as network managers. From the point of view of legislation, it is the store manager who is responsible for meeting the requirements of regulatory legal acts, norms and standards. The duties of such an employee include interaction with representatives of authorities, various authorities, services and departments in order to ensure the functioning of the point of sale without violations and deviations. It is this official who puts his signatures and approves reporting documents, including strict ones, and is also responsible for compliance with fire, sanitary safety measures, and so on. It follows from this that such a leader bears responsibility for the quality of his work not only to the owner or top management, but also to the law.

The main provisions of the job description

What is the main document on which the store works? Job description usually consists of several points: functions or responsibilities. Below are the main general theses of these sections. This document is approved by the owner-entrepreneur alone or by a meeting of founders, owners or shareholders, depending on the legal form of the legal entity. After hiring director outlet with his signature confirms familiarization with the job description and undertakes to fulfill it in full.

Job Responsibilities

Since the main employee of the outlet is the store manager, the duties of this person are quite wide. As a rule, they boil down to the following:

Organization of the work of the point of sale, including setting a schedule, compiling and standardizing the work schedule, determining days off and public holidays.
Compliance with legal requirements for the functioning of the store, depending on the specifics of its activities.
Submission of documents, registration and receipt of all necessary permits in accordance with the current legislation, taking into account the profile of the store (licenses, conclusions, certificates, etc.).
Ensuring the availability and functioning of all necessary commercial equipment, measuring instruments, cash registers, terminals, etc., as well as monitoring their timely Maintenance, metrological verification, as well as, if necessary, registration in government bodies and authorities.
Drawing up work plans, bringing them to the attention of employees and monitoring their implementation.
among employees, the issuance and execution of individual assignments, instructions, orders.
Providing employees with everything necessary to fulfill their job descriptions, as well as monitoring the rational use of Supplies, financial and material resources.
Negotiating with suppliers and customers, organizing and conducting business meetings, presentations.
Conclusion of contracts of sale, commission, lease within the amounts established by the higher management or the owner of the store.
Preparation and submission of reports to state or founders of the outlet.

Other functions of the store manager can be added to this list at the discretion of the owners or top management of the chain.

Rights

The store manager has not only responsibilities, but also a number of opportunities, which are also indicated in the job description. So, the manager of the point of sale has the right to:

Submit proposals for improving work, changing work schedules, expanding or reducing the range of products, holding promotions or advertising campaigns etc.
Employ and fire store employees at your discretion.
Take disciplinary measures in relation to employees who have violated the work schedule or dishonestly perform their duties, including in the form of reprimands, with or without entry in personal files and work books, as well as bringing to material liability (imposition of fines).
To reward employees who have distinguished themselves in the performance of work, within the limits established by the higher management / owner of the store or the budget.
Require the employer to provide all necessary conditions to perform their immediate duties, including providing a workplace that meets the requirements labor law, means and opportunities for the implementation of the norms and requirements of regulatory legal acts or the elimination of existing violations.
Transfer part of their functions or duties, as well as the right to sign certain documents to another official with prior (or without it) approval from the higher management or the owner. Such a person, for example, may be a deputy manager of a store or a chief accountant.

This is also not full list, but only the main provisions. As in the case of duties, the rights of the manager can be much broader depending on the specifics of the activity and the level of confidence of the employer.

Requirements

Since such a position implies a certain level of knowledge, skills and abilities that a store manager must have, duties are not the only important item in the job description. Often, the employer also prescribes requirements for the store director. For example:

Constantly improve the level of their qualifications by taking special training courses, trainings, attending conferences and round tables for managers.
Not to be regular customer competing trading network or shop.
Always have a well-groomed and neat appearance that complies with the corporate policy of the network.

Sometimes the employer also prescribes a requirement to answer calls from higher management at any time, even at night or on a weekend, as well as other specific items related to the specifics of the activity.

A responsibility

As noted above, the store manager is responsible not only to the owners or top management of the network, but also to the law. It basically boils down to a few job descriptions:

For damages as a result of failure to perform or improperly perform their official duties the head is responsible in the amount established internal documents store (or network), as well as applicable law.
For the use of financial, material and technical resources of the point of sale in their own interests or in the interests of third parties, the manager is liable depending on the amount of damage caused.
For non-compliance with the requirements of regulatory legal acts, as well as for filing false reports to the authorities government controlled and control of the store manager is responsible in the amount established by law.

Working time

A difficult question is how this work is normalized. The store manager, like any other employee, can work no more than the number of hours per week that is established by applicable law. But, as a rule, this is only in theory. In practice, the store manager has an irregular working day and often works without days off and holidays. This is due to the great responsibility and volume of work. But with the right selection of personnel and competent distribution, it can organize its own working time productive and have a perfectly normal schedule. The main requirement of all owners usually boils down to the following: the business must work and generate income not below a certain level, and the rest is the task of the head of the outlet, and he will do it on his own, working at night, or will meet the deadlines, without processing, the founders in mostly interested in the last.

Salary

The salary of a store manager depends on many factors: the region in which the outlet is located, the focus and specifics of the work, the need or lack thereof on business trips and business trips, the volume of trade, the need for specific knowledge. The level of earnings of the director is almost always influenced by the profitability of the enterprise, as well as the fulfillment by employees of the point trading plans and charts. In other words, wage the director of a small grocery store in a residential area of the city will certainly be significantly lower than the income of the manager of an expensive car dealership. Moreover, this difference can be not several thousand, but vary in the range of several orders of magnitude.

Features of food trade

A grocery store has its own specifics of activity associated with very strict requirements of legal documents for its activities. Since such a product can have an impact on human health or even life, the law is very strict about sanitary and hygienic standards for sales, as well as product quality. That is why the head of a retail outlet for the sale of food products (whether it is a wholesale warehouse or a regular grocery store) bears great responsibility and is obliged, among other things, to closely monitor the availability of all necessary certificates for products, the conditions of their transportation and storage, as well as the health and physical condition of their employees.

Resumes and candidates

A store manager resume should contain information about education and work experience. Such a position, as a rule, cannot be taken without having certain skills and knowledge in the field of trade. Please list all previous jobs. Most likely, the employer will be interested in the candidate who has gone through the entire career path from an ordinary salesperson to senior management. In this case, the applicant for the position will most likely have the most complete picture of the work process, possible difficulties and features.

Higher rank

Store chain manager - a position that, in essence, is very similar to the position of a store manager, but hallmark is the management of not one outlet, but several. As a rule, a manager of this level does not interact directly with all employees of the chain stores, but most often only with directors or their deputies. The duties and rights of such official almost the same as the store manager. The responsibility of the network director is, as a rule, to the owners or founders.

Non-standard approach

Today it is becoming more and more popular non-standard approach to a position such as a store manager. Responsibilities of the director of a retail outlet have recently been supplemented with new items, including making non-standard decisions and introducing creative ideas for business development. It all depends on the corporate policy of the network and the views of the owners on the conduct of trade.

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