M.G. Sukhovskaya, lawyer

If the director of the LLC is disqualified

Punishment in the form of disqualification appointed for a period of 6 months to 3 years and only to the judge Part 1, Art. 2 3.11 Code of Administrative Offenses of the Russian Federation.

Agree, the disqualification of the company's top person is an extremely unpleasant, but quite possible situation.

Most often, managers who violate labor laws are subject to this punishment (for example, they did not pay wages to employees on time). see, for example, Resolution of the Sverdlovsk Regional Court dated January 23, 2012 No. 4a-5/2012; Moscow City Court dated December 1, 2011 No. 4a-2473/11; St. Petersburg City Court dated 04/06/2012 No. 4a-381/12), despite the fact that they had previously been fined for such an act Part 2 Art. 5.27 Code of Administrative Offenses of the Russian Federation.

Let's see what disqualification means for a director and what should be done to mitigate its consequences for the company.

Consequences of disqualification

Since entry into force court ruling on disqualification, the manager is obliged to immediately stop managing the organization Part 1 Art. 32.11 Code of Administrative Offenses of the Russian Federation; Resolution 13 AAS dated 02/10/2011 No. A26-7335/2010. This resolution comes into force:

We wrote about where and how to get information about disqualified persons: 2012, No. 4, p. 5

• <если>it was not appealed - after 10 days from the day the director receives a copy of the resolution clause 1 art. 31.1, part 1 art. 30.3 Code of Administrative Offenses of the Russian Federation;
• <если>appealed - on the day the district court made a decision on the complaints clause 3 art. 31.1 Code of Administrative Offenses of the Russian Federation.

Also on the date of entry into force of the decision on disqualification must be terminated employment contract with the director, if I had one clause 10 art. 77, paragraph 8 of Art. 83 Labor Code of the Russian Federation; Part 2 Art. 32.11 Code of Administrative Offenses of the Russian Federation, provided that the director cannot be transferred to another job available in the organization Art. 83 Labor Code of the Russian Federation(more on this below).

If the director, despite disqualification, continues to lead the organization and this becomes known, in particular, to the police or the prosecutor (for example, during a prosecutor's audit), then the court may fine the director 5,000 rubles, and the organization up to 100,000 rub. Art. 14.23, part 1 art. 23.1, clause 1, part 2, art. 28.3, clause 1, part 1, art. 25.11, part 1 art. 28.4 Code of Administrative Offenses of the Russian Federation; Decision of the AS of the Sverdlovsk region dated February 11, 2011 No. A60-44858/2010-C6 Unless the 3-month statute of limitations for prosecution is missed, which is calculated from the moment this violation is discovered Part 1, Art. 2 4.5 Code of Administrative Offenses of the Russian Federation, that is, from the date of drawing up the protocol on the administrative offense and clause 1 part 4 art. 28.1 Code of Administrative Offenses of the Russian Federation.

Note: if, already being disqualified, the manager enters into any agreement on behalf of the company, his it is forbidden will invalidate on the basis that the director, as a body of the legal entity, exceeded his powers.

In this case, a transaction is concluded by a person without authority. That is, the agreement will simply be considered concluded on behalf and in the interests of the disqualified director, unless the company subsequently approves this transaction from Art. 183 Civil Code of the Russian Federation; pp. 1, 2 Information letter of the Presidium of the Supreme Arbitration Court dated October 23, 2000 No. 57; Resolution 7 AAS dated June 26, 2009 No. 07AP-2754/2009, for example, by accepting goods shipped under the contract.

Procedure for disqualification

STEP 1. You must appeal within the allotted 10-day period. court order about disqualification to the court that made this decision Part 1 Art. 30.2 Code of Administrative Offenses of the Russian Federation, even if there is no hope that the complaint will be satisfied. After all, while the complaint is being considered - and this may take about 2 months Art. 30.2, part 1.1 art. 30.5 Code of Administrative Offenses of the Russian Federation- the director of the company is not considered disqualified. That is, he can manage the organization, in particular, sign contracts, payments, reports, issue powers of attorney, accept management decisions. Consequently, the director will gain time to resolve all issues related to his possible disqualification.

STEP 2. While the appeal is ongoing, it is advisable to document that one of the company’s employees will act as a director for the period that he is unable to perform his duties. Unless, of course, this issue has already been resolved constituent documents. For example, it is necessary to issue a power of attorney to the deputy to perform representative and administrative functions on behalf and in the interests of the company. This will be very useful in case your complaint is denied.

To learn how to delegate authority to a deputy during the manager’s absence, read:

STEP 3. Let’s say things develop according to the worst-case scenario and the disqualification order is left unchanged. Then further actions depend on who the disqualified director is:

• <если>the director is the only participant, then he himself, as a participant, makes a written decision about who will manage the company Art. 39 of the Law of 02/08/98 No. 14-FZ (hereinafter referred to as Law No. 14-FZ), and enters into an appropriate agreement with this person;

Attention

Nothing prevents a disqualified director from acting in the interests of society (for example, representing it in government agencies) under a power of attorney issued by the new head of the company Resolution of the Federal Antimonopoly Service of the Eastern Military District dated December 17, 2009 No. A29-2090/2009.

• <если>the director is one of the participants of the LLC and has 10% of the votes or more, then he convenes an extraordinary general meeting of the participants as soon as possible subp. 4 paragraphs 2 art. 33, pp. 1, 2 tbsp. 35 of Law No. 14-FZ. They, in turn, appoint a new director or transfer his functions to a management organization or entrepreneur. Chairman general meeting participants signs an employment contract with the new director or civil contract to manage the company m clause 1 art. 40, paragraph 1, art. 42 of Law No. 14-FZ.

If the director is not one of the participants or has less than 10% of the votes, then he needs to notify the participants (preferably in writing) about the current situation and the need to convene a general meeting clause 2 art. 35 of Law No. 14-FZ. But, given that convening a meeting is a slow procedure, it is advisable to inform the participants in advance that they may have to gather on an emergency basis.

Disqualification ≠ automatic dismissal

We have already mentioned that a disqualified director cannot be fired without offering him another job ( vacant position) in the organization, including lower paid or lower positions and Art. 83 Labor Code of the Russian Federation. And it is his will to agree to this proposal or not.

Formally, this is what happens. Until the disqualification resolution comes into force, the director may well create a new position “for himself” (for example, deputy for economic affairs) and leave it vacant until the disqualification. And the new director will have to invite him to take this position.

Of course, this is a way out in a situation where the disqualification of a manager was the result of a fatal combination of circumstances and it is in the interests of the company itself that he remain, as they say, “in the harness.” By the way, if, as a result of such manipulation, the “punished” director takes one of the management positions in the company (for example, first deputy) for the period of disqualification, the fine for allowing a disqualified person to manage the organization is a Part 2 Art. 14.23 Code of Administrative Offenses of the Russian Federation the company is not in danger. After all, deputies, even first ones, are not the governing body of legal entities. Resolution of the Federal Antimonopoly Service of Ukraine dated 05.05.2008 No. Ф09-3037/08-С1.

Dismissal of a disqualified director

Let's say the director did not agree to the transfer offered to him. Or there is no vacancy in the company to which he could transfer. Then there is only one way out - dismissal clause 8 art. 83 Labor Code of the Russian Federation. Notify the director of the upcoming dismissal for some reason certain period not necessary.

Attention

None severance pay a director dismissed due to disqualification is not entitled to Art. 178 Labor Code of the Russian Federation.

By the way, the Labor Code does not prohibit dismissing the director in this case while he is on sick leave or on vacation. After all, this is not dismissal at the initiative of the employer. Art. 81 Labor Code of the Russian Federation when such a ban is in effect.

In the order to terminate the employment contract (Form No. T-8) in the column “Grounds (document, number, date)” you must indicate the details of the court decision by which the director was disqualified. A notice of dismissal can be written as follows.

For more information on how to inform the Federal Tax Service about a change of manager and who else should be notified in this case, read:

In conclusion, let us remind you: if, due to the disqualification of the previous manager, a new person, he will have to notify the registration inspectorate of this fact within 3 days from the date of taking office. clause 2 art. 17 of the Law of 08.08.2001 No. 129-FZ.

On January 1, 2016, amendments to the Federal Law dated August 8, 2001 No. 129-FZ “On state registration legal entities and individual entrepreneurs", according to which the tax authority may refuse state registration on a new basis. The changes provide for the right of the tax authority to refuse an applicant who, at the time of exclusion from the Unified State Register of Legal Entities, is an inactive legal entity (Article 21 of the said Federal Law), who had a debt to the budget, was a participant in it with a share of at least 50%, or managed such a person.

This negative consequence, consisting in the impossibility of registering, for example, a new legal entity, has external signs of disqualification - administrative punishment, provided for by the Code of Administrative Offenses, - although, of course, it is not. When analyzing these seemingly similar categories, we can conclude that they are different legal nature. We can also conclude that the discussed provisions of the Federal Law need to be finalized and clarified.

Firstly, a person is subject to disqualification only in judicial procedure, that is, in conditions of a relatively adversarial procedure that provides a person with opportunities to protect his rights. The decision to exclude a legal entity from the Unified State Register of Legal Entities is made tax authority according to him own initiative and can only be appealed after the fact. Accordingly, the person to whom para. 2 or para. 3 points "f" part 1 art. 23 of the Federal Law, is placed in a situation where negative consequences are applied to him without giving him the opportunity to present arguments in his defense.

Secondly, you can be disqualified for offenses by general rule, within three months from the date of commission or discovery administrative offense. And due to the exclusion of a legal entity, the negative legal effect persists for no less than three years.

Moreover, the purpose of the institution of excluding an inactive legal entity from the Unified State Register of Legal Entities is to “clear” the Unified State Register of Legal Entities and preserve it in the register up-to-date information, and for the purpose of bringing to justice the unscrupulous general director who did not provide reports or allowed the existence of a debt to the budget, there are already corresponding legislative norms.

In this regard, the conceptual issue of proportionality is interesting. negative consequences in the form of inability to implement registration actions within 3 years, the consequences that may result from the exclusion from the Unified State Register of Legal Entities of a legal entity that owes money to the budget. Currently, the procedure for excluding inactive persons from the Unified State Register of Legal Entities does not provide for any differentiation of the degree of guilt of directors, founders (participants) in such exclusion, as well as the amount of debt or the fact of single or multiple participation in or management of an inactive legal entity that has debt.

It should also be noted that the new basis for refusal of registration, it seems, should not be applied retroactively. Based on the literal wording of the changes that have entered into force, the refusal will be legal in the event of the exclusion of a legal entity before January 1, 2016. In other words, persons can be held “liable” in the form of the inability to carry out registration actions for acts that are not unlawful and were committed before introduction of the ban in question.

Persons who have lost the opportunity to carry out registration actions may request that this ground of refusal be recognized as not subject to application in accordance with Chapter 21 of the CAS of the Russian Federation or try to recognize it as inconsistent with the Constitution of the Russian Federation to the extent that it allows for a restriction on the ability to carry out registration actions (carry out registration actions). entrepreneurial activity or carry out labor activity in the position of head of a legal entity) without taking into account the proportionality of such a restriction public danger circumstances in connection with which it is established.

Disqualification as a method of administrative punishment for directors (they are also general directors, managers, presidents, in short, the sole management body of an LLC) has become quite actively used by the Federal Tax Service over the past few years. You can even find the corresponding register of disqualified persons on the tax website.

Disqualification, according to Art. 3.11 of the Code of Administrative Offenses of the Russian Federation can be imposed for a period of six months to three years. A disqualified person cannot hold state and municipal positions civil service, positions in executive body management of a legal entity, join the board of directors (supervisory board), carry out entrepreneurial activities to manage a legal entity and otherwise manage a legal entity.

Disqualification is imposed only by a court decision. A representative can initiate the procedure state power- tax inspector, prosecutor, labor inspector, etc. This employee, who discovered a violation or received information about violations, checks this information. If they are confirmed, he draws up a protocol on the administrative offense. The statute of limitations for such cases is 1 year from the date of commission or discovery of the violation.

The protocol is signed by the person who compiled it executive and the manager against whom a case of administrative offense has been initiated. If he refuses to sign the protocol, a corresponding entry is made in this document.

The protocol is sent to the court within three days from the moment of its preparation (clause 1 of article 3.11 and clause 1 of article 28.8 of the Code of Administrative Offenses of the Russian Federation). Within 15 days from the date of receipt of the protocol on the administrative offense and other materials of the case, the court must consider the case and make a decision on it (Clause 1 of Article 29.6 of the Code of Administrative Offenses of the Russian Federation).

And if the court decides to impose a penalty in the form of disqualification, the manager will be entered in the Register of Disqualified Persons and will be listed there until the period of disqualification has passed.

Read also: LLC registration foreign citizen in Russia in 2019

If the director holds a similar position in other legal entities, the prohibition applies to all cases. In addition, the wording “it is prohibited to carry out entrepreneurial activities to manage a legal entity and otherwise manage a legal entity” also implies that he will not be able to take part in meetings of participants (or make decisions as the only participant in the LLC).

There is an opinion that such a person, in order to retain his managerial functions, can be registered as an individual entrepreneur and appointed as a manager. This cannot be done, since in Part 1 of Art. 3.11 of the Code of Administrative Offenses of the Russian Federation expressly prohibits the following actions:

“disqualification consists of depriving an individual of the right to carry out entrepreneurial activities in managing a legal entity.”

In their attempt to rid the world of careless entrepreneurs, our creative legislators have come up with a new scourge that has far-reaching consequences.

As I already wrote in my article, on January 1, 2016, we began a quiet revolution in the registration of legal entities. Clarifications and by-laws, as usual, were a little late and only now are all the consequences beginning to appear in full.

Our client, for privacy sake let's call him Sergey, is a professional executive who has been heading a successful company for more than 10 years. He decided to register a new company. The founders are large companies that have been operating in the market for a long time. Sergey is the director.

Imagine his surprise when the Federal Tax Service received a refusal to register with reference to paragraphs. "f" p. st. 23 of the Federal Law “On State Registration of Legal Entities...” No. 129-FZ.

It turns out that two years ago a company was registered, where Sergey was the head, which was excluded from the Unified State Legal Entity as an inactive legal entity. Now, based on the above subparagraph, when trying to register a new legal entity, it will be refused.

Thus, in fact, Sergei is disqualified as a leader and entrepreneur for the events of two years ago. It's just a half-hearted disqualification. Nobody forbids him to manage the company he now heads. According to subparagraph “F”, he now cannot be the director and founder of a new legal entity.

Is this legal?

From the point of view of the law “On State Registration of Legal Entities...” the refusal is legal. The norm is formulated extremely clearly (see the text of the subparagraph below).

But... Disqualification is one of the types of administrative liability, which consists in depriving an individual of the right to occupy certain positions.

A person can only be disqualified by a court decision. This is directly stated in Article 3.11 of the Code of the Russian Federation on Administrative Offenses.

In our case there was no trial.

A person can only be held accountable on the basis of the law in force at the time the offense was committed. Law establishing or aggravating administrative responsibility for an administrative offense or otherwise worsening the situation of a person, does not have retroactive effect. (clause 2 of article 1.7 of the Administrative Code). This is one of the fundamental principles of the legislation on administrative offenses.

How can one now disqualify a person for an offense that was not punished so harshly before?

Imagine this situation. A month ago you exceeded the speed limit by 5 km/h. There was a fine for this. Today, let’s say, a law came into force that introduced deprivation of rights for this violation. And your rights were taken away. Fair?

If you knew that your license could be taken away for exceeding the speed limit by 5 km/h, you would most likely drive more carefully. This is the purpose of the legislation on administrative offenses: to prevent illegal acts under pain of punishment, and not to collect fines from the population at any cost. Although sometimes you realize that the goal is the opposite...

The court must establish the guilt of the person in committed offense which may be committed intentionally or through negligence.

Three years ago, Sergei and his partners urgently needed to register a company for a specific project. While registration was underway, the need disappeared. The company did not even open a current account. As it happens, since the company did not work, they conveniently forgot about it and did not submit reports. Of course, this is an offense. Owners bear the burden of maintaining their property and reporting must be submitted regardless of the company’s activities. But for failure to submit reports, only a fine is provided, but not disqualification of the manager.

Later, the company was excluded from the register as an inactive legal entity in accordance with Art. 21.1. Tax Code RF.

At the time, Sergei regarded this as a benefit, since he did not have to incur costs in connection with the liquidation of a legal entity. There was no responsibility for this.

Together with Sergei, the founder who owned that ill-fated legal entity was actually disqualified. face 70% shares. What is his fault? Responsibility for failure to submit reports lies solely with the manager.

It must be said that in this way an operating company that does not submit reports and does not make transactions on the account can be excluded from the register. We were contacted by a client whose company had registered real estate, where he spent a long time carrying out repairs at his own expense. I did not submit reports and did not conduct transactions on the account, because... there was no income.

I found out about the exclusion of the company from the register by accident when I tried to restore financial statements and submit it to the tax office. There he was glad that his company no longer existed.

The procedure for excluding an inactive company only involves posting an announcement about the upcoming registration in the State Registration Bulletin and making an entry in the Unified State Register of Legal Entities. How many of us read the Messenger before going to bed? The deadline for appealing the decision was missed. Procedurally, it was no longer possible to restore the company to the Register.

The severity of the punishment must be proportionate to the degree of guilt.

In Art. 3.11 of the Code of Administrative Offenses establishes that a person can be disqualified for a period of 6 months to three years.

When imposing an administrative penalty on an individual, the nature of the crime committed by him is taken into account. administrative offense, the identity of the perpetrator, his property status, circumstances mitigating administrative responsibility, and circumstances aggravating administrative responsibility (Article 4.1 of the Administrative Code).

In our case, the court would have to establish all the circumstances and, taking this into account, determine the penalty by setting a period of disqualification. Sergey is a manager with many years of experience. Now he should go from directors to sales managers? Why is he deprived of the opportunity to earn money by doing what he knows? Or do we have so many professional managers?

Law on state registration actually establishes a ban on a person being the director or founder of a new legal entity for three years from the date of exclusion of the legal entity. persons from the register. That is, the measure of responsibility does not depend in any way on the circumstances of the offense and the identity of the perpetrator.

Thus, we see that the Law “On Registration of Legal Entities..”, by allowing the de facto possibility of disqualification of managers and participants, violated constitutional rights citizen and the fundamental principles of legislation on administrative offenses.

I understand that the goal was to limit the ability of unscrupulous individuals to create non-performing companies, not submit reports and not bear any responsibility for this.

This really needs to be done. But, making it possible to separate unscrupulous managers from those who once committed a minor offense and are now brought to justice backdating. The principle “they cut down the forest and the chips fly” should not justify the ill-considered actions of legislators.

Responsibility cannot be introduced retroactively.

p.s. We suggested that Sergei fight for his rights and get the actual disqualification lifted, but he decided to take the path of least resistance and we re-submitted documents for registration of a legal entity, indicating a different director. As it happens, Sergey will be the actual leader, and another person will be declared in the register.

But why should we adapt and look for ways to circumvent ill-conceived prohibitions? Why can’t a state that claims to support business quickly correct its mistakes in lawmaking?

I urge people affected by this norm to fight for their constitutional rights and through joint efforts achieve the correction of insanity norms

For reference:

P.p. "f" p. st. 23 of the Federal Law “On State Registration of Legal Entities...” No. 129-FZ:

“f) if documents are submitted to the registration authority to include information about the founder (participant) of a legal entity or about a person who has the right to act on behalf of the legal entity without a power of attorney in relation to one of the following persons:

who, at the time of exclusion of a limited liability company from the unified state register of legal entities as an inactive legal entity, owned at least fifty percent of the votes of the total number of votes of participants in this limited liability company, which at the time of its exclusion from the unified state register of legal entities had a debt to the budget or budgets budget system Russian Federation or in respect of which the specified debt was recognized as hopeless for collection due to the presence of signs of an inactive legal entity, provided that at the time of submission of documents to the registration authority, three years have not elapsed since the exclusion of this limited liability company from the unified state register of legal entities;

who, at the time of exclusion of a legal entity from the unified state register of legal entities as an inactive legal entity, had the right, without a power of attorney, to act on behalf of such a legal entity, which at the time of its exclusion from the unified state register of legal entities had a debt to the budget or budgets of the budget system of the Russian Federation or in relation to whose specified debt was recognized as hopeless for collection due to the presence of signs of an inactive legal entity, provided that at the time of submission of documents to the registration authority, three years have not elapsed since the exclusion of the specified legal entity from the unified state register of legal entities;

who are persons who have the right to act without a power of attorney on behalf of a legal entity in respect of which the unified state register of legal entities contains a record of unreliability of information about the legal entity provided for in subparagraph “c” or “l” of paragraph 1 of Article 5 of this Federal Law, or there is an unexecuted court decision on the liquidation of the specified legal entity, except for cases where an entry about the unreliability of information about the legal entity contained in the unified state register of legal entities is entered into the unified State Register legal entities in the manner prescribed by paragraph 5 of Article 11 of this Federal Law, or when, at the time of submitting documents to the registration authority, three years have passed since the date of making the corresponding entry in the unified state register of legal entities;

who are participants in a limited liability company, owning at least fifty percent of the votes of the total number of votes of participants in this limited liability company, in respect of which the unified state register of legal entities contains an entry about the unreliability of information about the legal entity provided for in subparagraph “c” or “ l" paragraph 1 of Article 5 of this Federal Law, or there is an unexecuted court decision on the liquidation of the specified legal entity, except for the case when, at the time of submission of documents to the registration authority, three years have passed since the date of making the corresponding entry in the unified state register of legal entities;

Vasily Nedelko

The disqualification of the general director of an LLC is prescribed in the legislation of the country and can serve as a punishment for violations: labor and banking, as well as those related to the payment of taxes and bringing the organization to a state of bankruptcy.

Legal norms and their implementation

Disqualification of the general director of an LLC as a punishment was designed to motivate company managers to work more actively to improve the quality of the production process. It also makes administrative responsibilities more efficient.

It must be said that disqualification is regarded as an extremely unfortunate and undesirable event. Judicial practice shows that in the last few years, decisions have begun to be made more often in favor of just this outcome of cases.

And how did this happen?

For what reason can the general director of an LLC be disqualified? In practice, most often this development of the situation is provoked by numerous violations of the laws in force in the country. Many managers neglect modern payroll. There are many known cases when the position of “General Director” was occupied by a person who deliberately led the organization to bankruptcy, while not planning to compensate for the damage caused to others by legal and individuals damage.

As a rule, just one violation will not cause such serious measures. But a repetition of the situation, a systematic disregard for the laws, is already a sufficient reason to provoke the dismissal of the general director.

Punishment according to deserts

Disqualification of the general director of an LLC constitutes such an official judgment, which prohibits a person from holding a certain position. In this case, you can no longer be a leader on the executive board, and access to the board of directors becomes closed. In addition, a person convicted in this way does not have the right to be an entrepreneur managing a certain legal entity.

The period of disqualification is never less than six months, but does not last more than three years. The specific time period will be set by the judge during the hearing of the case.

In some cases, those persons who were involved in operations are disqualified:

• economic;
• administrative;
• administrative;
• organizational.

This also includes the dismissal of the general director and arbitration manager. A court decision may apply to persons who conducted business activities without having an appropriate basis for this.

Employment contract and disqualification

There are several subtle points that must be taken into account in this difficult situation. In particular, the decision comes into force only after the time allocated for appeal has passed. Alternative: a period of time determined during cassation or appeal.

If administrative disqualification was cancelled, then the person has the right to be restored to his position and again receive all the rights and obligations that he previously had.

Remember the following points regarding dismissal:

• it is possible only when the employee does not consent to the transfer;
• it applies to the specialist who holds the position specified in the court decision.

Where it leads?

If gen. the director has been disqualified, the manager no longer has the right to manage the company and must cease his activities immediately.

• when appealing - on the day when district court will determine the resolution;
• in the absence of an appeal - 10 days from the moment when the gen. the director receives a copy accepted by the court solutions.

It must be said that there are also cases when a court decision turns out to be insufficient motivation for a manager and he does not want to vacate his position. If this happens, then data about this will soon reach the prosecutor's office or the police, which leads to the issuance of a considerable fine. Usually, prosecutor's checks follow one after another after the decision on dequalification, so it is unlikely that it will be possible to “secretly” remain “at the helm”. The fine for the director personally will be up to five thousand, and for the organization a payment of up to one hundred thousand rubles will be imposed.

Art. 3.11 of the Code of Administrative Offenses of the Russian Federation states that in case of disqualification it is necessary to terminate the employment contract. At this point, the cooperation between the manager and the organization completely stops.

Disqualification and obligations

Undoubtedly, even if the manager was disqualified, the company still has the contracts that he signed. And this is where conflicts can begin, since according to the law, all of them become invalid, since they were approved by a person who does not have the authority to do so.

At the same time, even after disqualification, a person can act in such a way as to benefit his enterprise. In particular, he can represent a legal entity in government bodies if he is given a power of attorney in the established form. But the issuance of this power of attorney will be dealt with by the new head, who comes to replace the removed judge.

Disqualification and taxes

For what can a manager be disqualified? Practice shows that a very large percentage of situations are associated with tax violations, widely accepted in enterprises nowadays. The following errors in work can lead to a court decision with such serious consequences:

• transmission of knowingly false information;
• repeated violation of laws and rights;
• disclosure of data that does not comply with the regulations and laws of the country.

In such a situation, up to 85% of cases place the main blame on the manager, that is, on the leader. It follows from this that modern judicial practice considers disqualification as effective method influence on the economic sphere through management personnel.

Who's in danger?

If not complied with job description general director, of course, such a manager must be aware that there is a certain amount of risk regarding him. However, it is not only the CEO who should be wary of such a development of the situation. Disqualification may be applied to the following managers in the LLC:

• administrative;
• economic;
• administrative.

The nature of the disqualification is relatively specific. This means that the punishment is basic, and its duration varies within legal limits. When imposing such a punishment, the court evaluates:

• personality;
• features of the offense;
• circumstances.

It is necessary to analyze whether it is possible to keep the person at his job or whether this is excluded. In the second case, the general director of the LLC is disqualified. The reasons for this are various, usually complex. They will also determine whether, in principle, an undeveloped manager can engage in this or that type of entrepreneurship in the future.

Features of disqualification

The law does not provide specific guidance on who exactly should initiate the process. Consequently, any individual or legal entity can provoke trial. This can be a participant in an enterprise managed by a director, as well as a shareholder or any interested party.

Disqualification is applied not just when the job description of the general director was violated, but if the violations are prescribed in the Code of Administrative Offenses. Most often, punishment is prescribed in the following situations:

• Art. 14.21, improper management;
• Art. 14.13, inappropriate actions during bankruptcy;
• Art. 14.12 fictitious bankruptcy or deliberate conduct of business in such a way as to provoke bankruptcy;
• Art. 5.27 violation of labor legal standards;
• Art. 14.25 incorrect registration associated with submission to government bodies knowingly false information.

We can conclude that disqualification is assigned for fairly specific offenses related to management tasks. It can become a punishment for a manager at different stages of activity and becomes an effective measure for regulating compliance with laws in various real situations.

And the law has flaws

Such a severe punishment is due to the fact that the previously listed violations are considered practically crimes. This means that the court decision will not depend either on the age of the defendant or on gender identity, nor from other human characteristics. Also, the law does not provide for minimum damage, after which we can already say that a person is ineffectively managing the organization. What does this lead to? If there is some interested person whose interests it is to remove the director from his position, he may make lawsuit and disqualification will occur in the case where the damage is ridiculously small.

A similar situation exists with violations of the country’s laws regarding labor standards. There are now 424 articles with various norms. All of them must be strictly followed by the heads of any companies. If there is a violation and there is also a claim, then disqualification becomes a likely outcome. Moreover, with a certain desire and the presence of an interested party, situations are not uncommon when a so-called “out-of-game” case is created, which leads to the possibility of opening a trial.

What does it look like?

Imagine yourself in the role of a business manager. And then, on “friendly” terms, a certain entrepreneur well known to you (perhaps you have already done business with him) offers a loan - and not a simple one, but without collateral. Agree, such an offer looks very attractive. But here’s the catch: in this case, the funds may be required to be returned ahead of time. If you fail to do this, then sanctions are introduced into the game, followed by disqualification.

This may seem like a feigned, far-fetched situation, but in judicial practice recent years there are a lot of them.

The main problem, as lawyers say, is that current legislation does not allow us to talk about different degrees of danger of offenses. Even the most insignificant ones lead to the most catastrophic consequences. You can avoid bias if you monitor compliance with all norms and also control your ill-wishers.

When is disqualification not possible?

In some cases, the court does not have sufficient rights to disqualify the management personnel of an enterprise. This is typical for the following situations:

• there are no justifications stating that certain circumstances force the director to be disqualified;
• there is no evidence that the introduction of such a sentence into force will have a positive impact on the situation.

But most often disqualification is resorted to in a situation where an enterprise has gone bankrupt and the court has concluded that this was due to the actions of the manager. Moreover, according to the court, the manager was striving for exactly this outcome. If this can be proven, a decision can be made in favor of disqualification.

Reasons: important aspects

In some cases, the disqualification of a manager occurs in violation of legislation regulating labor standards and employee rights. In addition, such a measure applies to those directors who violate the procedure for purchasing and providing services. Managers who violate safety standards in industry can also be punished in this way.

As for the bankruptcy situation, the basis here will be the unlawful behavior of the management team. This is the most common article for which disqualification occurs.

On the other hand, such punishment, compared to other administrative ones, is relatively rare. Statistics say that in no more than 4% of cases, entrepreneurs are called guilty and are punished with disqualification. Much more often, the judge orders a fine to be paid, and the case is closed.

Summing up

Disqualification of the director of an LLC is possible if he violates labor legislation and in case of non-compliance with the standards in case of bankruptcy of the enterprise. As a rule, such a sentence comes into force if the violations were quite serious or the entrepreneur has already been prosecuted under a similar article. To draw the court's attention to non-compliance with laws and regulations in a certain organization, it is enough to file a lawsuit. This can be done both by the company’s employees and by third-party individuals and legal entities. Particularly if you don't get paid wages or there are regular delays in payment, you can contact the police or prosecutor’s office and write a corresponding statement, which will set the matter in motion.