A trembling creature or CEO?
The CEO is an important element in the work of the company, no matter how it is called - the president, the manager, the CEO or just the director, the essence does not change.
But, as practice shows, not all companies, from start-ups to corporations, know how to “prepare them correctly”. Yes, and the head himself must understand that his responsibility is extensive enough and he receives not only a beautiful chair, but also many responsibilities in the appendage to him.
The sole executive body (director) is appointed by decision of the general meeting of participants or the board of directors (if such a body was created and the company's Articles of Association referred this issue to its competence).
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If there is only one participant in the company, he makes the decision individually and appoints the director. Note that the only participant LLC and an individual entrepreneur - things are completely different. The individual entrepreneurs, though, may have employees, but there is no charter and there can be no general director.
The text of the decision / protocol may be something like this:
The term of office of the director is specified in the Articles of Association and the decision on appointment.
For example, if under the Charter you have a term of office of 5 years, then you cannot appoint a director for 10 years without changing the provisions of the Charter.
After the appointment of a director, you should make changes to the Incorporation so that the counterparties and government agencies can see who your sole executive body is.
The General Director provides current management of the company. But this does not mean that he owns it. The owners are the founders, and the director can be an ordinary employee who is chosen by the founders, and he is obliged to report to them on the work done. Yes, without a director, a company cannot conduct business, but it can be replaced in the manner prescribed in the Charter.
The director has the right to sign documents without a power of attorney and to conclude transactions in the course of current work or, in other words, in the course of the company's business. In order to protect the organization from the unscrupulous behavior of the director, the Articles of Association may provide that certain types of transactions are subject to mandatory prior approval by the general meeting of participants (the board of directors).
For example, in the statute you can specify that the transaction for the alienation of intangible assets, transactions worth more than 1,000,000 rubles must be approved. etc.
If, in violation of such rules, the director concludes transactions without approval, the transaction itself can be considered invalid, and the director can recover damages through the court. In such a case, the LLC will be the Claimant, and the unfortunate director as an individual will be the Respondent.
At present, the judicial practice in relation to the director is becoming tougher and tougher and, more and more often, losses are collected from him in favor of the company.
Losses will be recovered from the director in the same way as from a physical person, that is, the losing party risks its property and funds in its personal accounts.
If you are NOT the only founder of the company, then the next step after the election of the director and the determination of his powers will be the conclusion of an employment contract with him. After all, the director is not only the executive body of the company, but also an employee, therefore his labor rights must be respected. Accordingly, the amount of compensation, the period of performance of duties and his responsibility should be entered into the employment contract with the director. Note that the CEO, like any employee, may have a trial period. It is usually a maximum of 3 months, but the director can last up to six months.
It makes sense to prescribe in detail the procedure for the director, the procedure for his dismissal, as well as to develop the Regulation on the Director General and specify the following in it:
The Labor Code establishes a number of features for the head of the organization as an employee:
And remember: the employment contract and the position of the general director must comply with the Charter of your company.
A director is removed from office by a general meeting of members or a board of directors. In this case, the authorized body is absolutely not obliged to indicate the reasons.
The director can resign at his own request. But it happens that the director’s desire does not coincide with the desire of the board of directors. They may even accept the application, but until a new candidate is appointed, the old director will be listed in the USRLE. The head becomes a hostage to such a controversial situation, and lawyers shrug their shoulders, because there is no specific practice on this issue.
The Federal Tax Service of Russia expressed its opinion on this matter in a letter dated 01.07.2015 No. -4-14 / 11453, stating that the person holding the post of general director does not have the opportunity to ensure that information on the termination of his authority is entered into the Unified State Register. The information on the specified person as the sole executive body of the company will be contained in the state register until the company enters into the Incorporation information about the new CEO.
What it threatens the director:
How does this threaten the company:
So, if you are the founder of an LLC, remember that you can hire and fire the CEO. But this is not as easy as it seems, and a careless employee can paralyze the company's work for a long time, and in the worst case, even ruin it. Approach the choice with all care.
If you are appointed as CEO , remember that “great power entails great responsibility.” You get an office, an armchair and maybe even a personal secretary and a driver, but at the same time you are responsible for the whole company. Remember that the CEO in some cases will respond with his personal property, and not with the property of the Company.
If you are the only founder and you are the CEO , do not worry about it and work calmly.
But, as practice shows, not all companies, from start-ups to corporations, know how to “prepare them correctly”. Yes, and the head himself must understand that his responsibility is extensive enough and he receives not only a beautiful chair, but also many responsibilities in the appendage to him.
Step 1. Purpose
The sole executive body (director) is appointed by decision of the general meeting of participants or the board of directors (if such a body was created and the company's Articles of Association referred this issue to its competence).
')
If there is only one participant in the company, he makes the decision individually and appoints the director. Note that the only participant LLC and an individual entrepreneur - things are completely different. The individual entrepreneurs, though, may have employees, but there is no charter and there can be no general director.
The text of the decision / protocol may be something like this:
- To appoint Ivan Ivanovich Ivanovich (passport of a citizen of the Russian Federation No. 7777 series 8888, issued by ...) to the position of General Director of Romashka LLC.
- In accordance with the current legislation of the Russian Federation, register changes made to the Unified State Register of Legal Entities in MIFNS No. 46 in Moscow.
- To appoint Ivan Ivanovich Ivanov as the responsible person for the state registration of changes made to the Unified State Register of Legal Entities.
The term of office of the director is specified in the Articles of Association and the decision on appointment.
For example, if under the Charter you have a term of office of 5 years, then you cannot appoint a director for 10 years without changing the provisions of the Charter.
After the appointment of a director, you should make changes to the Incorporation so that the counterparties and government agencies can see who your sole executive body is.
Step 2. Powers
The General Director provides current management of the company. But this does not mean that he owns it. The owners are the founders, and the director can be an ordinary employee who is chosen by the founders, and he is obliged to report to them on the work done. Yes, without a director, a company cannot conduct business, but it can be replaced in the manner prescribed in the Charter.
The director has the right to sign documents without a power of attorney and to conclude transactions in the course of current work or, in other words, in the course of the company's business. In order to protect the organization from the unscrupulous behavior of the director, the Articles of Association may provide that certain types of transactions are subject to mandatory prior approval by the general meeting of participants (the board of directors).
For example, in the statute you can specify that the transaction for the alienation of intangible assets, transactions worth more than 1,000,000 rubles must be approved. etc.
If, in violation of such rules, the director concludes transactions without approval, the transaction itself can be considered invalid, and the director can recover damages through the court. In such a case, the LLC will be the Claimant, and the unfortunate director as an individual will be the Respondent.
At present, the judicial practice in relation to the director is becoming tougher and tougher and, more and more often, losses are collected from him in favor of the company.
Losses will be recovered from the director in the same way as from a physical person, that is, the losing party risks its property and funds in its personal accounts.
Step 3. Design
If you are NOT the only founder of the company, then the next step after the election of the director and the determination of his powers will be the conclusion of an employment contract with him. After all, the director is not only the executive body of the company, but also an employee, therefore his labor rights must be respected. Accordingly, the amount of compensation, the period of performance of duties and his responsibility should be entered into the employment contract with the director. Note that the CEO, like any employee, may have a trial period. It is usually a maximum of 3 months, but the director can last up to six months.
It makes sense to prescribe in detail the procedure for the director, the procedure for his dismissal, as well as to develop the Regulation on the Director General and specify the following in it:
- reporting to the founders;
- procedure for the appointment of an acting in the absence of the Director General.
The Labor Code establishes a number of features for the head of the organization as an employee:
- the head of the organization can work part-time with another employer only with the permission of the authorized body of the legal entity, or the owner of the property of the organization, or the person-authorized body (body) authorized by the owner;
- the head of the organization is fully liable for the direct actual damage caused to the organization;
- special grounds can be provided for dismissing a manager;
And remember: the employment contract and the position of the general director must comply with the Charter of your company.
Step 4. Dismissal
A director is removed from office by a general meeting of members or a board of directors. In this case, the authorized body is absolutely not obliged to indicate the reasons.
The director can resign at his own request. But it happens that the director’s desire does not coincide with the desire of the board of directors. They may even accept the application, but until a new candidate is appointed, the old director will be listed in the USRLE. The head becomes a hostage to such a controversial situation, and lawyers shrug their shoulders, because there is no specific practice on this issue.
The Federal Tax Service of Russia expressed its opinion on this matter in a letter dated 01.07.2015 No. -4-14 / 11453, stating that the person holding the post of general director does not have the opportunity to ensure that information on the termination of his authority is entered into the Unified State Register. The information on the specified person as the sole executive body of the company will be contained in the state register until the company enters into the Incorporation information about the new CEO.
What it threatens the director:
- In the case of imposing fines on the director of the company will be the one who is listed as such in the Registry. Moreover, in the case of the imposition of two fines from any supervisory authority during the year, he is not only obliged to pay fines, but will also be disqualified and for some time will not be able to hold the position of general director anywhere else.
- Official claims from counterparties will also be sent to those listed in the Unified Register.
How does this threaten the company:
- In essence, nothing. The director will have to prove that he is fired.
So, if you are the founder of an LLC, remember that you can hire and fire the CEO. But this is not as easy as it seems, and a careless employee can paralyze the company's work for a long time, and in the worst case, even ruin it. Approach the choice with all care.
If you are appointed as CEO , remember that “great power entails great responsibility.” You get an office, an armchair and maybe even a personal secretary and a driver, but at the same time you are responsible for the whole company. Remember that the CEO in some cases will respond with his personal property, and not with the property of the Company.
If you are the only founder and you are the CEO , do not worry about it and work calmly.
Source: https://habr.com/ru/post/300514/
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