Article 129. Powers of the bankruptcy trustee

1. From the date of approval of the bankruptcy trustee until the date of termination of bankruptcy proceedings, or the conclusion of a settlement agreement, or the removal of the bankruptcy trustee, he shall exercise the powers of the head of the debtor and other management bodies of the debtor, as well as the owner of the debtor's property - unitary enterprise within the limits, in the manner and under the conditions established by this Federal Law.

2. The bankruptcy commissioner is obliged:

take over the debtor's property, conduct an inventory of such property within a period not later than three months from the date of the introduction of bankruptcy proceedings, unless a longer period is determined by the court considering the bankruptcy case, on the basis of a petition of the bankruptcy trustee in connection with a significant amount of the debtor's property;

include in the Unified Federal Register of Information on Bankruptcy information on the results of an inventory of the debtor's property within three working days from the date of its completion;

engage an appraiser to appraise the debtor's property in the cases provided for by this Federal Law;

take measures aimed at searching, identifying and returning the debtor's property held by third parties;

take measures to ensure the safety of the debtor's property;

notify the debtor's employees of the upcoming dismissal no later than within a month from the date of the introduction of bankruptcy proceedings;

present claims to third parties that have a debt to the debtor for its collection in the manner established by this Federal Law;

declare in the prescribed manner objections to the claims of creditors presented to the debtor;

keep a register of creditors' claims, unless otherwise provided by this Federal Law;

transfer for storage the debtor's documents subject to mandatory storage in accordance with federal laws. The procedure and conditions for the transfer of the debtor's documents for storage are established by federal laws and other regulatory legal acts. Russian Federation;

conclude transactions in which there is an interest, only with the consent of the meeting of creditors or the committee of creditors;

perform other duties established by this Federal Law.

3. The bankruptcy commissioner has the right:

dispose of the debtor's property in the manner and on the terms established by this Federal Law;

dismiss the debtor's employees, including the head of the debtor, in the manner and on the terms established by federal law;

declare a refusal to execute contracts and other transactions in the manner established by Article 102 of this Federal Law. The bankruptcy commissioner is not entitled to declare a refusal to execute the debtor's contracts if there are circumstances preventing the restoration of the debtor's solvency;

file an application to the arbitration court on behalf of the debtor for the invalidation of transactions and decisions, as well as for the application of the consequences of the invalidity of void transactions concluded or executed by the debtor, claims for the recovery of losses caused by the actions (inaction) of the head of the debtor, persons included in the board of directors (supervisory Council), collegial executive body or other management body of the debtor, the owner of the debtor's property, persons acting on behalf of the debtor in accordance with the power of attorney, other persons acting in accordance with founding documents the debtor, bring claims for the recovery of the debtor's property from third parties, for the termination of contracts concluded by the debtor, and perform other actions provided for by federal laws and other regulatory legal acts of the Russian Federation and aimed at returning the debtor's property;

to exercise other rights related to the performance of the duties assigned to him, established by this Federal Law.

6. The meeting of creditors has the right to decide on the termination economic activity of the debtor, provided that such termination does not entail man-made and (or) environmental disasters, the termination of the operation of facilities used to ensure the activities of preschool educational organizations, other educational organizations, medical institutions, facilities used to organize first aid, emergency and emergency outpatient, inpatient medical care, utility infrastructure facilities related to life support systems, including water, heat, gas facilities and energy supply, water disposal, cleaning Wastewater, processing, recycling, neutralization and burial of municipal solid waste, objects intended for lighting urban and rural settlements, objects intended for the improvement of territories (hereinafter - socially significant objects), necessary for the life support of citizens. The bankruptcy commissioner is obliged to stop the production of goods by the debtor (performance of works, provision of services) on the basis of the decision of the meeting of creditors to terminate the economic activity of the debtor within three months from the date of such a decision.

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 necessary information about 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 period of time no 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;

provision in Pension Fund(its territorial subdivision) 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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• Practice of the Supreme Court of the Russian Federation on tax disputes for October 2019

  Current and in case of default by the bankruptcy trustee of the obligation to repay current payments ... the court with a requirement to oblige the bankruptcy trustee to fulfill this duty. The courts also ... ., Armavir Electrometallurgical Plant represented by the bankruptcy trustee) - Contracts with counterparties were concluded in ...

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• Cases of mandatory property valuation

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• Subsidiary property liability of the heads and founders of the debtor (bankrupt)

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Powers of the Governing Council

Can the council consider topical issues if the decisions of the council on them are not provided for by the charter?

At a meeting of the council, any issue related to its competence can be considered. On issues for which the charter of the educational institution does not give the council the authority to make decisions, the conclusions of the council are advisory in nature. If these issues have demonstrated strategic importance for the institution, then it is advisable to initiate the adoption of amendments and additions to the charter, assigning to the council the authority to make decisions on relevant issues.

The board has many powers to coordinate the management decisions developed by the director. What does it mean?

The fact that the governing board has the power to agree on a decision on a particular issue means that the principal of the school cannot independently make a decision on this issue without the consent of the governing board. It should be noted that at the same time the governing council itself cannot make a decision on it on its own. Thus, in matters to be agreed between the administration of the school and its governing board, it is necessary to develop an agreed, mutually acceptable point of view.

Formally, this means that two sources of its legitimacy are indicated on the title of the document. It must be indicated: “Approved by order No. ___ dated _____ 201__. Head" and "Agreed by the decision of the Governing Council, Protocol No. __ dated "__" ____ 201__". The first entry is certified by the signature of the head, the second - by the signature of the chairman of the governing board. It is clear that the timing must precede the approval.

There are already precedents when the prosecutor's office acknowledged the director's approval of the protocol for the distribution of the incentive part of the wage fund without the consent of the governing council, as required by the school's charter, already exists.

Moreover, this raises questions about the legitimacy of spending earmarked funds. budget funds aimed at the incentive part of wages.

In matters to be agreed upon between the school administration and the governing council, it is desirable to come to an agreement, a mutually acceptable point of view. And if it fails, what then?

In the event of such a conflict between the governing board and the director of the educational institution (the director disagrees with the decision of the board and / or the board disagrees with the decision (order) of the director), which cannot be resolved through negotiations, the decision on the conflict issue is made by the founder. Both the director and the managing board (chairman of the managing board) can apply to the founder.

What are the powers and functions of the governing council in the provision of paid services by an educational institution?

The powers and, accordingly, the functions of the governing council in matters of regulating income-generating activities, in particular service provision activities, are determined by the charter of the educational institution.

The charter of an educational institution may provide for the following powers of the governing council:

Upon approval (agreement) of the list and procedure for the implementation of additional paid services in general educational institution;

· According to the approval (coordination) essential conditions and texts of contracts of an educational institution with a consumer of additional paid services.

In this case, the governing board has the right and the obligation to:

Install the implementation of additional paid educational services, which are provided by the head of the educational institution and the teaching staff;

· Determine the prices for such services (but not higher than the prices set by the founder);

· Develop a system and procedures for assessing the quality of such services and the satisfaction of their main consumers - students and their parents.

To resolve these issues, the governing council needs to organize interaction with the pedagogical council of the educational institution. It is the expert opinions and recommendations of this body that will allow the governing council to correctly navigate the organization of the paid educational activities institutions, based on the available resources of the institution (primarily personnel) and the possibilities of attracting resources from outside.

It is possible that nothing is said about the role and functions of the governing council in the implementation of additional paid educational services, but at the same time it has the right to coordinate or approve the development program of the educational institution.

The institution's development program may include a special section on the development of income-generating activities and, in particular, activities to provide additional paid educational services.

In this section, for the planned period of time, the governing council may establish a list of additional paid educational services, the implementation of which the institution must organize within the time limits established by the development program.

The framework and guidelines for making such decisions of the governing council should be the Rules for the provision of paid educational services (approved by Decree of the Government of the Russian Federation of July 5, 2001 No. 000 as amended by Decree of the Government of the Russian Federation of April 1, 2003 No. 000), regulatory legal acts of the relevant authorities local self-government, establishing the conditions for the implementation of additional paid educational services by subordinate educational institutions and the maximum allowable prices for them.

It is in this legal field that the governing council has the right to determine the tasks for the development of additional paid educational activities in the relevant section of the development program of the educational institution. The development program approved or agreed upon by the governing council thus becomes a local legal act of the educational institution, binding on its head.

It is mono to point out the following advantages that the governing council has in resolving the issues of organizing income-generating activities by the institution for the head of the institution.

First, public participation in the development marketing strategy paid educational services increases the chances of making it consumer-oriented.

With the adoption in May 2010 of Federal Law No. 83-FZ, the institution earned from the sale of additional services paid educational services, funds are excluded from the composition of the relevant budgets - municipal or state (depending on who is the founder). Thus, these funds again became extra-budgetary, which the educational institution has the right to dispose of independently by the decision of the governing body of the educational institution, to which the right to such a decision is assigned. In other words, these funds cannot be included in the financial support of the municipal (state) assignment to an educational institution from the relevant budget.

The practice of the federal experiment on approbation of the model of governing councils educational institutions and implementation of the direction of complete projects for the modernization of education (HGVJ) "Expansion of public participation in the management of education" in the years. made it possible to test such roles and powers of the governing council as approving or agreeing on an estimate for spending funds from extrabudgetary sources, approving reports from the head on the implementation of such an estimate.

The new legislative situation makes it possible to consolidate and expand the role and powers of the Governing Council in dealing with such issues. In this case, the role and responsibility of the governing council in the overall resource planning for the development of an educational institution increases. Accordingly, when deciding on the organization of additional paid educational services, the governing board should be based not only on taking into account the opinions and interests of the consumer of these services, but also proceed from the tasks of resource provision of the educational institution, effective use additional resources to ensure the required quality of conditions educational process and, ultimately, the quality of education.

The Department of Education wants to fire the principal of the school. Teachers and parents disagree. Does the governing council have the ability to influence management decisions?

In accordance with the Law of the Russian Federation "On Education" (clause 4, article 35), the appointment and, accordingly, the dismissal of the head of an educational institution can be carried out in different ways.

The head of a state and municipal educational institution, in accordance with the charter of the relevant educational institution, may be:

1) Elected by the staff of the educational institution;

2) Elected by the staff of the educational institution upon prior approval of the candidate (candidates) with the founder;

3) Elected by the staff of the educational institution with subsequent approval by the founder;

4) Appointed by the founder with the provision of the council of the educational institution with the right of veto;

5) Appointed by the founder;

6) Hired by the founder.

If the charter of the institution provides for the procedure for appointing a head in accordance with paragraph 4 of this article of the law, then the founder is not entitled to dismiss the head without the consent of the council. If the charter of an institution establishes the procedure for appointing a head in accordance with paragraphs 5 or 6, then the governing board has no formal leverage to influence the decisions of the founder in this matter.

The Governing Council always has the right to consider any issue in relation to its educational institution, even if it is not referred by the charter to its competence, and, based on the results of the consideration, issue its opinion in the form of a recommendation, conclusion (value judgment), petition to the body authorized to make the final decision or to higher authority and administration.

Thus, if the governing board meets on this issue and make a decision (for example, in the form of a reasoned petition to the founder) not to dismiss the principal of the school, that is, there is a chance that the founder will listen to this opinion of the governing board. Otherwise, the governing board may apply to the municipal public education board for the latter to make a recommendation to the founder not to dismiss the director. Also, the governing council may apply to the head local government and to the local council.

Establishment of a governing council

Some schools have a provision for a council, while in others, everything related to its creation and operation is included in the charter. How right?

In the text of the charter, it is possible to describe as densely and in detail as possible the procedure for the formation and activities of the governing board. But this will most likely lead to the fact that the text of the charter for the most part will be devoted only to the governing board. Another approach is also possible. The charter can describe the quantitative and qualitative composition of the governing council, the general procedure for its formation, the term of office, the frequency of its meetings (sessions) and elections.

All other details of the formation and activities of the governing council can be taken out in a special school Regulation “On the governing council”. It is also possible to develop a separate special school regulation “On the procedure for forming the governing council”. These provisions must be recognized by the charter as school local acts and it is necessary to determine in the charter who has the right to approve such provisions by their decision: the founder, school conference, governing council or other school body.

To do this, in the section of the charter devoted to the governing board, it is useful to indicate that the procedure for its formation and activities in the part not regulated by the charter is determined by other local acts: the Regulation “On the governing board”, the Regulation “On the procedure for forming the governing board”.

What specific changes to make to the charter of the school when creating the governing council?

Specific changes that it is advisable to make to the charter are determined by the educational institution. Working group to create a governing council, prepares a draft of a new edition of the school charter, coordinates it within the school community, and then submits it to the founder for approval. At the same time, it is possible to identify approximate changes that it is advisable to make to the charter.

Approximately this approach is served by the document “Methodological recommendations for amending the charters of educational institutions in connection with the creation of governing councils and the organization of their activities in the process of implementing a comprehensive project for the modernization of education in the Moscow Region”, which you can find on the website “Public participation in education management » (http://gouo/inform/method1).

How does the founder legally formalize the creation of the governing council of an educational institution?

The creation of the governing council of the school is formalized by two orders of the founder.

The first order of the founder formalizes the decision that he makes upon receipt from the head of the educational institution of the protocol of the election commission and the list of elected members of the governing board. This decision applies to the following items:

· Approval of the elected new composition of the governing board;

· Appointment to the new composition of the governing board of the representative of the founder and head of the educational institution ex officio;

· Approval of the date of expiration of the powers of the current composition and the date of entry into the powers of the new composition of the governing council of the educational institution.

The second order formalizes the decision of the founder to approve the full composition of the elected, appointed and co-opted members of the governing board of the educational institution. The founder takes this decision upon receipt of the protocol of the governing council on the co-optation of new members to it.

If the terms for the formation of governing councils in several schools coincide, for example, they pass within one month, the education department can issue one order (one document), but containing all the necessary provisions for each school based on the results of the elections, and one order based on the results of co-optation.

At the discretion of the head of the education department, it can somewhat simplify its paperwork in relation to school governing councils: issue one ready-made order to form a governing council after co-optation. But in this case, you will have to send a representative to the first meeting, giving him a written instruction-power of attorney to represent the interests of the founder in the council, and permanent basis appoint one general final order.

In the case of by-elections (elections of members to replace the former ones), the same full or slightly simplified procedure, as indicated above, is implemented, but only with regard to the registration of newly elected members. It is not required to confirm the registration of all others and to appoint a representative of the founder.

Can the founder not approve the charter proposed by the school if he "does not like" the list of powers of the governing board that the school proposed?

In accordance with the Law, the founder does have the right not to approve the draft version of the charter proposed by the educational institution. Of course, the wording “did not like” is not quite suitable for determining the position of the founder, who must clearly and definitely formulate his comments and objections. The new edition of the school charter is the subject of an agreement between the school community and the founder.

At the same time, it should be taken into account that the founder, when determining his position, is guided by the existing regulatory and instructive-methodological acts of the federal, regional, municipal level, which determine the procedure for the creation and operation of public administration bodies, including the approximate composition of the powers of the governing council. Most often, these are the Approximate Regulations on the Governing Council of a General Education Institution approved by the government of a constituent entity of the Russian Federation, in some constituent entities of the Russian Federation - laws on public administration. Actually, the school, in its work on the editorial board of the charter, should rely on these documents.

Composition of the governing board

Is it obligatory for students to be represented on the governing board only by high school students?

Indeed, in the Methodological recommendations on the functions, organization and work of the governing boards of educational institutions (Appendix to the letter of the Ministry of Education of Russia dated 01.01.2001 No.) and the model Regulations known to us on the governing council of a general represent students of the secondary (complete) stage general education.

The argument in favor of this approach is that students of this age have more school and life experience. Because of this, they can formulate their opinion and defend not only their own interests, but also the interests of the majority of students.

At the same time, it is quite possible that there will be children from grades 8-9 at the school who will be able to adequately represent the interests of all students in the governing council. Therefore, each school itself has the right to fix age limits for students - public managers in the charter and regulation on the governing council. Here you can focus on two legally applicable age limits for children to manage a non-profit legal entity
- 12 and 14 years old.

What is co-optation to the governing board and how to conduct it correctly?

Co-optation is the introduction of new public managers into the governing board of the school by decision of the current school board without holding elections. Co-optation of new members of the council can be carried out within two months of the activity of the newly elected council. Responsibility for conducting co-optation rests with the chairman of the council. Candidates may include:

members of the governing board,

parents,

workers and school students,

· Representative of the educational authority, local self-government.

All proposals for co-optation are made in writing to the board, together with the candidate's application for consent to be included on the school governing board. Members of the council, introduced into its composition by co-optation, are called "co-opted". The number of co-opted public administrators should not be large, for example, it should not exceed one quarter of the board's payroll.

An important circumstance for the consideration of candidates is the absence of restrictions on public, pedagogical activity candidate in this educational institution. Selecting a candidate for school administrators through co-optation is a responsible matter.

As a rule, these should be interested people who have professional significance and interest in the development of the school - lawyers, economists, media representatives, public organizations, businessmen, specialists, that is, everyone who can somehow influence their knowledge, resources, actions to improve life at school.

This is the order of co-optation. Lists of persons proposed for co-optation are considered at a meeting of the council. Those who have passed approval are approved by candidates for school administrators by open or secret ballot at a meeting of the council by a simple majority of the votes cast for the candidate. The minutes of the voting results, together with the minutes of the meeting of the council, are sent to the relevant educational authorities for issuing an order on the introduction of co-opted school managers into the governing council.

Is it possible to involve the school secretary as the secretary of the governing board? Does it need to be co-opted for this?

The Secretary of the Governing Council is not in without fail council member, so you may well involve the secretary of the school without co-opting.

What is the procedure for the formation of a new composition of the governing board after the expiration of the term of office of its previous composition?

The algorithm of actions in this situation is as follows.

1. The decision of the Governing Council (general meeting or conference) on the expiration of powers and on the appointment of the terms and procedure for the formation of a new composition of the Governing Council, the personal appointment of the election commission.

2. Conducting elections scheduled by the election commission in accordance with the procedure established by the charter, the regulation on the governing council (on the formation of the council, elections and co-optation), by the decision of the council (or general meeting, conference, see clause 1).

3. The decision of the election commission (drawn up in the minutes of its meeting) on ​​the results of the elections and the establishment of the list of elected representatives of employees, students and parents (legal representatives).

4. Consideration by the founder of the protocol of the election commission, verification of compliance with the prescribed procedure for elections - at the discretion of the founder.

5. An order (instruction) of the founder on the recognition of the results of the elections to the council, on the registration of elected members of the council in the unified municipal register of public school administrators, on the appointment of a representative to the council, on the inclusion of the school director ex officio.

6. The decision of the first meeting of the council (opened by the representative of the founder) on the co-optation of representatives of the out-of-school community, on the election of the chairman of the council, the secretary, and, if necessary, the deputy chairman.

7. An order (instruction) of the founder (based on the minutes of the first meeting of the council of the new composition) on the formation of a new council in full force at the school, on the registration of co-opted members in the unified municipal register of public school managers.

In what cases can a member of the Governing Council be removed from membership?

A member of the council may be removed from its composition by decision of the council in case of missing more than two meetings in a row without a good reason.

Also, a member of the council is removed from its composition in the following cases:

· At his request, expressed in writing;

· When the representative of the founder is recalled;

· Upon dismissal from work of the head of a general education institution or dismissal of an employee of a general education institution elected as a member of the council;

· In connection with the graduation from a general education institution or the expulsion (transfer) of a student representing the level of secondary (complete) general education in the student council;

In case of committing an immoral offense incompatible with the performance of educational functions, as well as for the use of actions related to physical and (or) mental violence against the personality of students;

· In case of committing illegal actions incompatible with membership in the board of a general education institution;

· If the following circumstances are identified that prevent participation in the work of the council: deprivation of parental rights, a court ban to engage in pedagogical and other activities related to working with children, recognition by a court decision as incompetent, the presence of an unexpunged or outstanding criminal record.

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.

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, a management company is a commercial organization that provides services in the field of enterprise management. No license is required to provide these services.

The functions of a management company can also be performed by an individual entrepreneur - a 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 is said in this regard in the charter (subclause, clause 2.1, article 32, of the Federal Law of February 8, 1998 No. 14-FZ “On companies with limited liability", 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 enters into management company an agreement under which he transfers the powers of the director to her (clause 1, article 42 of the LLC Law). The list of essential terms of the 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. However, it is better not to limit common goals, but regularly draw up annexes to the contract with the exact targets that the company must achieve after a certain time under the leadership of the management company. 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 effective work, as well as to minimize the risk that the costs of paying for its services are not recognized as income tax expenses. 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. list officials 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 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. duplication managerial functions missing.

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 LLC "at the helm" CEO and the management company, it is imperative to ensure that their powers are not duplicated. Otherwise, it may create not only tax risks, but also disputes about 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 per total amount RUB 1,458,000

The buyer accepted the products without comment, as evidenced by his signature and seal 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 arbitration court with a statement of claim against citizen P. for the recovery of 539,096 RUB. 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 respondent did not comply the necessary conditions identifying and accepting the return of defective 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 the actions and the 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. A specific individual (manager) may 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 Department operational control 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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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

In joint-stock companies (JSC) and limited liability companies (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 next questions:

20) formation of the sole executive body of the Company and early termination of its powers, approval of the conditions employment contract with him, as well as making a decision on the transfer of powers of the sole executive body of the Company 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 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies”, the powers of the sole executive body joint-stock company may be transferred under an agreement to a commercial organization (managing organization) or an individual entrepreneur (manager) by decision of the general meeting of shareholders (only at the proposal of the board of directors (supervisory board) of the company). 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 terminate the powers of the General Director of the Company - 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 date of change in 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 of Corporate Conduct dated April 5, 2002, approved by order of the Federal Market Commission valuable papers 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, government bodies and local governments, courts and arbitration courts, 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 bodies state power and local government, Russian and foreign organizations;
• make transactions within its competence and powers;
• dispose of the Company's property within the limits established by its Articles of Association and the current legislation of the Russian Federation;
• sign economic and labor contracts on behalf of the Company;
• independently, within the limits of its competence, resolve all issues of professional and economic activity of the Company;
• 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 banking and financial documents;
• approve organizational structure, staffing, job descriptions for all employees of the Company;
• approve rules, procedures, instructions and other internal documents Companies, 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 the information constituting trade secret and other confidential information about the activities of the Company;
• issue orders and directives 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 the presentation on behalf of the Company of claims and lawsuits (applications, complaints) against legal and individuals and on the satisfaction of claims and lawsuits brought 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;
• submit a report upon request general meeting members of the Society 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 status 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 normal conditions business turnover and other circumstances relevant to the case.

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 is 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 circumstances force majeure or a circumstance that was beyond its control and which the party could not foresee and prevent, 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 authority

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, constituent documents of a 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 the wording of the preamble given in Example 9 is acceptable in the employment contract.

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.
11
• 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 the managed company shall use the letterhead of the managed company.

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.