Types and functions of executive bodies LLC. The sole executive body of the organization - what is it

Sole executive body legal entity- is the subject through which the company implements its rights and obligations. In the publication, we will further consider general questions about the sole bodies that act on behalf of business entities, their possible names, the formation procedure, powers and responsibilities.

Sole executive body of LLC, JSC and other commercial and non-commercial organizations

To manage the current affairs of the organization, a sole executive body (director, head, authorized person, etc.) is appointed. Information about him as a subject entitled to act on behalf of the organization when communicating with third parties without a power of attorney, in without fail is reflected in the Unified State Register of Legal Entities (EGRLE). Only from the moment of such registration, the head is considered an official of the company. At the same time, for the Unified State Register of Legal Entities, in terms of data about the head (introduction of information or changes), he is considered a director already from the moment the decision on this is made by the relevant body of the enterprise.

The functions of the sole governing body may be performed by:

• Individual.
• Individual entrepreneur (manager).
• A legal entity (managing organization), although the mention of the possibility of its involvement is only in Art. 69 of the Law "On Joint Stock Companies" dated December 26, 1995 No. 208-FZ. However, in this case, all powers are in the hands of one person, whose data is registered in the Unified State Register of Legal Entities (as a rule, this is the director of the organization involved in the management).

In addition, constituent documents may assign the duties of a leader to several persons at the same time (paragraph 3, clause 1, article 53 of the Civil Code of the Russian Federation). At the same time, they can function both jointly and independently, that is, as separate executive bodies.

Note that in some companies (general partnerships, limited partnerships) the governing body in question is not formed at all. In such cases, a legal entity exercises rights and obligations through its participants (Articles 72, 84 of the Civil Code of the Russian Federation).

The name of the sole executive body - what is it and what options are possible?

The name of the sole executive body of the company is the name of the position, therefore, behind any name there is a specific individual.

There are 2 approaches to the procedure for the formation of the name of a managerial position:

1. When the name of the sole executive body is not regulated, but recommended. This category includes almost all corporate and unitary commercial and non-commercial legal entities. The choice of the title of the position is carried out by the participants independently (director, CEO, president, etc.).
2. When the name of the sole executive body is determined by law:

• for a production cooperative and a partnership of real estate owners - the chairman;
• unitary enterprise and institution - director, general director.

How the sole executive body is formed in LLC, JSC and other organizations

The governing body in different organizations is formed in almost the same way: it is elected by the participants of the organization at the general meeting, followed by the adoption of the protocol general meeting or collegiate body, if the latter is given the appropriate authority. The procedure is regulated by constituent documents, the Civil Code of the Russian Federation and other laws, depending on the type economic society. At the same time, certain nuances are characteristic for different organizations (we will talk about them later).

Business companies

In society with limited liability only an individual or individual entrepreneur can be a manager. AT joint stock company powers of the executive body may also be delegated managing organization, as previously stated.

Production cooperative

In most enterprises of this kind, outside entities that are not the founders of the organization can be elected to the position of head. However, the chairman of the production cooperative, according to paragraph 1 of Art. 106.4 of the Civil Code of the Russian Federation, may be appointed only from among its members.

Unitary enterprises

The head is not elected, but appointed by the authorized body. At the same time, he is accountable to the body that appointed him.

Non-profit corporate organizations

The sole executive body is elected by the general meeting within the competence specified in paragraph 2 of Art. 65.3 of the Civil Code of the Russian Federation.

Non-profit unitary companies

In unitary organizations, as well as in corporate ones, the executive body is elected by the supreme council. The exception is institutions where the head is appointed by the founder either (in state and municipal organizations) is elected by the collegiate body and after the election is approved by the founder (clause 4 of article 123.21 of the Civil Code of the Russian Federation).

Documents confirming the powers of the sole executive body, registration of the head for the position

Directly before third parties, confirmation of the powers of the sole executive body can be carried out using one of the following documents:

• minutes of the general meeting;
• extracts from the minutes, if it reflects many issues besides the issue of electing the head of the company;
• decisions of the collegiate body;
• appointment order.

In addition to the above documents, an extract from the Unified State Register of Legal Entities may also be submitted to third parties as an official confirmation of the director's powers.

The appointment of a manager to a position usually occurs in the following order:

1. The supreme (or collegiate) body of the business entity shall make an appropriate decision.
2. Consists of:

• civil law contract (if the executive body is a legal entity or individual entrepreneur);
• employment contract (if we are talking about an individual).

The chairman of the meeting or one of the participants acts as a person authorized to sign a civil law or labor contract on the part of the organization.

As regards the state and municipal enterprises and institutions where the head is appointed by a special body, then instead of the decision of the general meeting, the usual administrative document of the relevant body (order, order) is adopted. However, it should not be confused with personnel order. Otherwise, the registration procedure is no different from other companies.

Can an employment contract be a confirmation of the authority of the head

Civil and labor contracts are relevant only for the parties who signed them, but not for third parties. Contract of employment acts as a document that regulates labor relations between the head of the organization and its owner (employer). It cannot be used as confirmation of the authority of the director to counterparties, however, it can be presented in court as evidence of the manager's employment.

If at the same time the head of the organization transfers legally significant statements on behalf of the organization to third parties, he confirms his authority not with an employment contract, but with the above documents (appointment order, current extract from the Unified State Register of Legal Entities, etc.).

The nuances of labor relations with the head of the organization

Such relations are regulated by Ch. 43 Labor Code Russian Federation and its other norms. So, between the enterprise and the head, according to part 2 of Art. 59 and Art. 275 of the Labor Code of the Russian Federation, a fixed-term employment contract is concluded for a period determined by the constituent documents or by agreement of the participants. At the same time, the manager cannot be a part-time worker, if there is no consent of the supreme body or the owner of the enterprise, and is fully liable to the company for the actual damage caused to its property.

By virtue of Art. 278 of the Labor Code of the Russian Federation, in addition to the general ones, there are special grounds for early termination employment contract with the director:

1. Due to the beginning of the bankruptcy proceedings of the enterprise and the removal of the head.
2. In view of the adoption by the supreme body of the company of a decision to terminate the powers of the head.
3. For other reasons stipulated by the employment contract.

Upon termination labor relations based on the decision of the supreme body of the company, the former director is paid compensation in the amount of at least 3 average monthly earnings, although private organizations may provide for a larger amount.

If the authorized person terminates the agreement on his own initiative, he is obliged to notify the employer 1 month before the day of termination of the labor function.

IMPORTANT! If there is an employment relationship between the director and the company, in the event that the director is its sole participant, he is obliged to make all tax and extra-budgetary deductions for himself as for an ordinary employee (letter of the FSS of the Russian Federation “On taxation of payments ...” dated 12.21.2009 No. 02- 09/07-2598P).

Principles of activity of the executive body and its functions

The head of the company is elected certain period established by the founding documents of the economic company. The powers of the sole executive body include issues that do not fall within the competence of the supreme and collegiate management bodies. The list of powers is established both at the legislative level and at the level of the organization (constituent documents).

As a general rule, the executive body performs the following functions:

• makes transactions on behalf of the organization;
• represents the interests of the company before third parties;
• issues powers of attorney;
• issues administrative documents, including personnel documents (on hiring, dismissal, etc.);
• performs other actions stipulated by the constituent documents.

According to paragraph 3 of Art. 53 of the Civil Code of the Russian Federation, an authorized person must perform his duties taking into account the principles of good faith and reasonableness. The actions and decisions of a director may be deemed to be in conformity with these rules if he:

• ensures the performance by the company of its public law functions (tax, administrative, etc.);
• carefully selects contractors and supervises personnel.

If, after the expiration of the term of office of the head, the supreme body does not have time to form new executive bodies, the director continues his activities until the decision this issue.

The authorized person is accountable to the general meeting of the enterprise or to the sole proprietor (the body that appointed him to the position). Accordingly, the constituent documents may provide for the obligation of the sole body to report to the general meeting or the owner of the organization on its activities.

Responsibility of the sole executive body

If during the period of his activity the head violated the principles of good faith and reasonableness and this led to losses for the company, he may be held civilly liable. However, do not forget that not all losses can be the result of intentional errors of the director - perhaps this is the result of a normal entrepreneurial risk (clause 1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation “On Some Issues of Compensation for Losses ...” dated July 30, 2013 No. 62).

Signs of bad faith (clause 2 of resolution No. 62):

1. Making an unprofitable transaction in the presence of a conflict of interest (personal and enterprise). A contract is recognized as unprofitable if, in terms of price or subject matter, it differs greatly for the worse from similar transactions of the same period.
2. Concealment and transmission of false information regarding concluded transactions.
3. Conclusion of an agreement without mandatory approval by the authorized bodies of the company (for example, a major transaction).
4. Retention of documents on unprofitable transactions after removal from office.
5. Taking actions contrary to the interests of the organization.

Signs of unreasonableness (clause 3 of resolution No. 62):

1. Ignoring important information when making decisions.
2. Taking actions without attempting to obtain the important information needed to take them.
3. Carrying out a transaction without the necessary internal approval (for example, with the accounting department or the legal department)

So, the sole executive body is the management body of the organization, acts on its behalf without a power of attorney, has its own name, which is entered in the Unified State Register of Legal Entities (director, president, general director, etc.). The functioning of the sole executive body of a legal entity is based on the principles of reasonableness and good faith. At the same time, each leader is responsible for the results of his activities to the organization and its founders.

The charter of an LLC, the sample of which is considered typical for all organizations, contains key provisions relating to the activities of the company. It establishes the procedure for the operation of the enterprise, describes the main activities, formulates the rights and obligations of participants. The same document establishes legal status sole executive body of a legal entity. Let's consider further what it is.

General information

The sole executive body of a legal entity is, in fact, a special position in a company occupied by a citizen. He can acquire and exercise the rights, bear the responsibilities of the organization. In practice, this activity is transferred to the head. The charter of an LLC, a sample of which is presented in the article, defines the scope of its competence and other issues.

Normative base

Legal regulation of the activities of the head of the company is carried out by:

1. Federal Law "On Limited Liability Companies".
2. TK RF.
3. Federal Law "On joint-stock companies".
4. Civil Code of the Russian Federation.
5. Federal Law "On state registration of individual entrepreneurs and legal entities".
6. Law No. 161 "On Municipal and State Unitary Enterprises".

Civil Code

The Civil Code establishes that any organization receives its rights and bears obligations through its own bodies. They act on the basis of the provisions of the law, including other regulatory ones. The latter, in particular, include the constituent documentation. It determines the procedure for the election or appointment of the company's management. This provision is enshrined in Art. 53 GK.

The specifics of a leadership position

Any legal entity must have its own. It can be one entity or a group of citizens. The competence of management includes operational activities, control and organization of the company. It is he who receives the rights and bears the corresponding obligations of the company. The Federal Law "On Limited Liability Companies" defines special rules for the management apparatus. First of all, they relate to the procedure for managing the activities of the company. In Art. 32, paragraph 4 of the said Federal Law, it is determined that the management of the current work of the enterprise is carried out by the sole executive body of the legal entity independently or jointly with the collegial structure. All entities included in the company's management apparatus are accountable to the general meeting and the supervisory board. One of them elects the management of the enterprise. The founder, who is also the CEO, signs an agreement with the organization. On her behalf, the signature is put by the subject presiding at the general meeting where the election took place. This right may be transferred to the supervisory board by the articles of association. An entity that is not a member of the organization can also act as a leader.

Director: powers

The head of the company carries out activities on its behalf. It does not require a power of attorney. In accordance with the legislation, the following powers of the sole executive body of a legal entity are distinguished:

The specifics of the election

The procedure in accordance with which the sole executive body of a legal entity is created is fixed by a local act of the company. Election of a leader, and early withdrawal his office is carried out by the general meeting. His competence also includes the transfer of powers of the director to the manager, the approval of the latter and the conclusion of an agreement with him. The adoption of the relevant decision is made by a majority of votes. A different number may be determined by the charter. By the same document, the solution of the above issues may be included in the competence supervisory board.

Replacement of the head by the manager

The functions of the sole executive body of a legal entity may be transferred to another organization or individual entrepreneur. This possibility is enshrined in Art. 42 of the Federal Law No. 14. Until July 1, 2009, there was a rule that the powers of the executive body of the company could be transferred to the manager, if this is expressly provided for in the local document. This condition was canceled by Federal Law No. 312.

Rules for AO

They are established in Federal Law No. 208. As in the previous case, the management of the company's affairs can be carried out by one entity independently or jointly with the board. The management apparatus is accountable to the board of directors and the general meeting. In the local document of the company, providing for joint management, the competence of the collegiate structure is determined. The sole executive body of the legal entity in this case holds the position of its chairman.

Competence of the head of JSC

The President of the company decides all issues related to the management of the current work of the company. Its competence does not include tasks assigned to the jurisdiction of the supervisory board or the general meeting. The head of the company without a power of attorney represents its interests, makes transactions on its behalf, hires employees, dismisses them and transfers them, gives instructions and issues orders that are binding on all employees.

The procedure for creating an executive body in a JSC

In accordance with general rule, the formation of a management structure at the enterprise is within the competence of the meeting of shareholders. It also decides on the early dismissal of the subject from office. Owners of voting shares participate in these procedures. Decisions are taken by a majority of the total number present at the meeting. These issues may also be included in the competence of the supervisory board.

Information in the Unified State Register of Legal Entities

All data of the sole executive body of a legal entity are entered into the Unified State Register without fail. If any information is changed, the entry in the Unified State Register of Legal Entities is subject to adjustment. Scroll mandatory information, which must be entered into the Unified State Register, is defined by Art. 5 Federal Law No. 129. These include:

Labor Relations

They are regulated by the Labor Code of the Russian Federation. with a sole governing body are regulated by Ch. 43 of the Code. In Art. 273 of the Labor Code explains the concept of a leader. It is a citizen who, according to regulatory, including, local acts, manages the enterprise, performs the functions of its executive (sole) body.

Termination of an employment contract

In addition to general grounds, Art. 278 of the Labor Code establishes additional conditions for terminating the contract. These include:

Guarantees for the leader

Upon termination of the contract on the grounds provided for in paragraph 2 of Art. 278 of the Labor Code, in the absence of guilt in the actions / inaction of the director, compensation must be paid to him. Its value is established in the employment contract. At the same time, the amount of compensation cannot be less than three times the average monthly salary. This rule is established in Art. 279 TK. Upon termination of the contract with the head of the enterprise, as well as the deputy director and chief. accountant due to a change of ownership, the new owner of the company's property is obliged to pay these employees monetary compensation. Its value must be at least 3 times average salary per month. This rule established by Art. 181 TK. The head of the enterprise has the right to terminate the employment contract ahead of schedule. At the same time, he is obliged to warn the owner about this 1 month in advance. The notice shall be sent in writing.

Responsibilities

The laws regulating the activities of organizations define the responsibility of the executive body. When exercising his rights, he is obliged to act reasonably, solely in the interests of the enterprise. All losses caused through the fault of the head must be compensated in full. The financial responsibility of the executive body is established by Art. 277 TK. The manager is responsible for the actual direct damage caused to the firm. The calculation of losses incurred as a result of his actions / inactions is carried out in accordance with the norms of the Civil Code. The leader is not liable for:

clarification

When establishing the grounds and degree of responsibility of the head, the usual rules of business turnover and other circumstances of significant importance should be taken into account. Material compensation is provided only if the guilt of the subject is established. In Part 1, Clause 1, Art. 401 of the Civil Code, it is determined that a manager who has not fulfilled obligations or fulfilled them improperly is liable under the law, except when other grounds are provided for by the contract or other regulatory acts. The subject may be found not guilty if he took all the necessary measures, with the degree of diligence and care that was required of him, to exclude damage. According to paragraph 4 of Art. 401 of the Civil Code, an agreement concluded in advance on the limitation or exclusion of liability for intentional failure to fulfill an obligation is considered void. In accordance with the law, any of its participants has the right to file a claim for compensation for harm caused to the organization by the head.

Rules for applying sanctions to the manager

Within the meaning of the law, this person the provisions of paragraph 3 of Art. 401, unless the law or the contract provides for other conditions of liability. Appropriate sanctions are applied to the subject if he fails to fulfill his obligations, unless he proves that their fulfillment was impossible for good reasons, force majeure circumstances (unavoidable and emergency in specific conditions). These cannot include, for example, violation of obligations by counterparties, lack of necessary products in the market or money from the debtor himself.

Applying sanctions to collegiate leadership

If the organization is managed by several entities jointly, then they bear Sanctions can be applied only to those members of the collegiate management who voted for the decision that caused damage to the company. Responsibility for losses is borne by those who abstain.

The abbreviation EIO stands for "Sole Executive Body". It is a legal term meaning an official of a commercial or public organization who has the right to manage and represent the company.

The sole executive body is the chief executive officer who has the right to manage all processes and represent the interests of the organization in commercial, public and government structures. In practical terms, the CEO is the CEO, president or chairman of the board of the company.

The management structure of an organization, regardless of status, can be of three types:

1. The sole executive body of a legal entity is one or more officials who manage all management processes in accordance with the charter of the organization.
2. Collegial executive body is a community of competent specialists or shareholders who jointly manage the activities of the organization (meeting of shareholders, board of directors, steering committee, board of directors). The functions of the collegiate body and its members are determined by the charter of the organization.
3. Combination of sole and collegiate (public) executive bodies- a unified management system, where the priority of the head is reserved for the CEO (president, general director).

The functions of the sole executive officer can be performed by employees of the organization, involved third parties, other companies or individual entrepreneurs.

How is the sole executive body of the organization appointed?

The procedure for appointing the CEO is carried out by the sole owner of the company or by a collegial management body - the board of directors or shareholders. If the charter of an organization implies a collective decision on the choice of a leader, the appointment is made on the basis of the minutes of the meeting of shareholders, the board of directors, members of the public organization. When appointing a sole executive body in organizations with a single founder, the procedure is carried out similarly. The only difference is that the protocol is signed by a single participant.

In order to properly conduct the procedure for appointing an EIO, you must follow the following procedure:

1. Examine the charter of the organization and check which body is authorized to decide on the election and appointment of an employee to the position of chief executive of the organization. This information must be included in founding documents commercial or public organization.
2. Hold a meeting of the collegial executive body, if any. At the meeting, a decision is made on the appointment of the head, the protocol is signed.
3. Conclude an employment contract with an employee elected to the position of CEO, and then issue an order for employment.
4. After a collegial decision is made, a protocol is drawn up and an employment contract is signed, the CEO has the right to independently issue an order to take office.
5. An employment contract between the collegiate body and the head is concluded on behalf of the chairman of the community or an authorized representative.
6. If the sole executive body, in accordance with the charter of the organization, is not elected, but appointed to the post by the board of founders, he may be appointed probation. When appointed to the post of head of competitive basis the probationary period is prohibited by law (part 5 of article 70 of the Labor Code of the Russian Federation).

After the appointment of the head of the organization, it is necessary to notify the bank servicing the company's accounts so that the new CEO can manage financial activities.

Functions and powers of CEO

The sole executive body of a legal entity manages the internal structures of the organization and represents interests in state, tax, judicial, and financial authorities. The chief official has the right to conduct partnerships, conclude contracts on behalf of the organization.

The financial functions of the CEO are determined by the charter of the organization. The head has the right to conclude transactions, open bank accounts on behalf of the organization, manage financial flows, dispose of property. The activity of the sole executive body is accountable - it is obliged to provide the founders with financial statements, annual balance sheet, information on expenses and distribution of profits. Regarding the employees of the organization, the CEO acts as the main manager and control body.

Legal acts regulating the activities of the sole executive body are presented in the table below.

Greetings, dear friends! A few words about why I decided to write this article. As you already know, Federal Law 44, which came into force, brought a lot of surprises into our lives. And one of them was, it would seem, a rather “harmless” requirement for participants in the order - providing, along with other information, the taxpayer identification number (TIN) of the founders, members of the collegial executive body, the person acting as the sole executive body of the procurement participant.

This requirement is expressly established for participation in open competition (clause 1 of part 2 of article 51), in electronic auction (clause 1 of part 5 of article 66), and in request for quotations(paragraph 4 of part 3 of Article 73).

The absence of these data (TIN) in the participant's application is the reason for the rejection of such an application.

In the case of entering information about the procurement participant in registryunscrupulous suppliers (RNP) into it, i.e. the following information is also entered in the register, in accordance with paragraph 2 of part 3 of article 104: the name, taxpayer identification number of a legal entity or, for a foreign person, in accordance with the legislation of the relevant foreign state, an analogue of the taxpayer identification number that is the founder of the legal entity specified in part 2 of article 104 , surnames, names, patronymics (if any) of the founders, members of collegial executive bodies, persons performing the functions of the sole executive body of legal entities specified in part 2 of article 104.

However, as practice has shown this requirement, established by 44-FZ, caused a lot of questions and difficulties in understanding, both on the part of customers and suppliers. Moreover, cases of rejection of applications of participants due to the lack of TINs of the founders, members of the collegial executive body, a person acting as the sole executive body of the procurement participant have become more frequent.

As you know, according to paragraph 4 of Article 3 44-FZ, any legal entity, regardless of its organizational and legal form, form of ownership, location and place of origin of capital, or any individual, including those registered as individual entrepreneur.

However, the Tax Code of the Russian Federation Art. 83, 84 DOES NOT OBLIGATE individuals receive a TIN.

Registration of individuals who are not individual entrepreneurs, but who pay taxes, for example, property or land tax, is carried out tax office"in absentia" on the basis of information provided by the registry office, the traffic police, the passport and visa service, the registration chamber and other bodies listed in Article 85 of the Tax Code of the Russian Federation. These citizens no obligation, in contrast to IP, receive a TIN certificate, they can only get it if they want to.

But there are people who, not being an individual entrepreneur, must receive this certificate, due to their professional duties. These are civil servants, heads of enterprises, chief accountants and a number of other categories of workers.

Now a few words about the extract from the Unified State Register of Legal Entities. This extract must contain information about the founders (participants) of the legal entity (Resolution No. 438 of 06/19/2002). Pay attention to p.p. "l" of paragraph 1 of Appendix 2 of this Resolution, which states that the Unified State Register of Legal Entities must also contain information about a person who has the right to act on behalf of a legal entity without a power of attorney (last name, first name, patronymic, position, details of an identity document in accordance with legislation Russian Federation, TIN ( IN THE PRESENCE OF)). Those. it follows that the TIN may or may not be.

All extracts from the Unified State Register of Legal Entities of organizations with which I was lucky to work, and which personally passed through my hands, had the corresponding section “Information about the founders (participants) of the legal entity - individuals". In this section, the names of the participants, TIN and information about the share in the authorized capital were indicated. However, in some extracts such information about the founders is completely absent.

And the wording in the extract from the Unified State Register of Legal Entities “Founders (participants) of a legal entity” does not allow you to immediately understand which of the indicated participants is the founder. Also, in practice, one may encounter such a situation when there is not a single founder among the participants of the company at the time of participation in the procurement, for example, the founder has withdrawn from the participants, etc.

In this regard, the question arises, how to present this information to the Customer and in what form?

If the required TIN is indicated in the extract from the Unified State Register of Legal Entities, then it would be logical not to indicate them again, however, if the customer provides for a specific form with the appropriate column, then this information must be duplicated in the form.

What if this form does not exist?

In this case, you can make your own custom form with the required information. For example, the Form “Information on the TIN of the founders, members of the collegial executive body, the person acting as the sole executive body of the procurement participant in accordance with the requirements of paragraph 1 of part 2 of Art. 51 44-FZ".

But what if there is no information about the TIN in the extract from the Unified State Register of Legal Entities?

If there is data on the founders and their TIN, but they are not in the extract, then also provide this data in any form, as described above. However, a counter question arises: how will the Customer verify the accuracy of this information?

And if there is no TIN, then what to do?

Will it be sufficient for the customer to simply declare that the TIN is not available for such and such a reason and that its presence is not mandatory for certain persons? I think that in this case everything will depend on the specific customer.

If there is no TIN, and the application was rejected, then will this not be a restriction of competition?

While there is no judicial practice and official clarifications from the FAS on this issue, one can only guess in which cases an application in the absence of a TIN is considered to be compliant, and in which not? Indeed, such a problem exists at the moment, and it requires official clarification.

P. S.: What do you think about this? If you have an opinion on this subject or if you stumble upon any official document, regarding this issue, then be sure to share your comments below on this article. I will be grateful to you.

P. S. S: Oh yes, I almost forgot ... Maybe someone will come in handy. Here is a link to the State Services website, where, if you have passport data, you can find out the person's TIN - http://www.gosuslugi.ru/pgu/fns/findInn