Responsibility for own property. We dispel the myths that the founders are not liable for the debts of the LLC with their property

The use of government coercive measures constitutes legal liability. It applies to the offender. For committing an illegal act, a person is responsible before the law.

Attraction algorithms

Establishes that he is not liable for the obligations of the company. The LLC, in turn, is not liable for its debts. Thus, it turns out that the LLC founder is liable only to the extent authorized capital.

As for the JSC, its participants bear responsibility within the limits of amounts contributed by payment for shares. This provision is provided for in Art. 2 clause 1 of Federal Law No. 208.

If an organization is solvent, pays taxes to the state on time, payments to counterparties, then its cannot be collected for debts. Therefore, ordinary people, who are little familiar with the laws and the changes that have occurred in them, create a false impression that the founders and participants of LLCs and JSCs lack real responsibility.

But the algorithm for holding, for example, LLC participants accountable is as follows: as long as the company operates, limited liability is valid. If the company is in the process of bankruptcy, the founders may be subject to subsidiary liability, as well as additional liability.

But in this case, one caveat applies: creditors who want to get their money back must prove that the short-sighted and, in some places, illegal actions of its founders and participants led to the collapse of the company.

The possibility of imposing a subsidiary type of liability on these persons is indicated.

Responsibility of a legal entity and LLC participants

No. 127-FZ is intended to protect the rights of creditors. Its provisions are aimed at applying one or another method of protection within the framework of bankruptcy, and compensation and liability depend on the degree of guilt of the founder.

Legal consequences of a guilty act can be eliminated in certain ways. For example, within the framework of recognizing the transactions they have completed as illegal: in this case, according to the Civil Code of the Russian Federation, provisions on the invalidity of concluded contracts will be applied to such legal relations.

In addition, there is an option to involve these individuals in different types responsibility.

Manager and founder rolled into one

This person is liable within the authorized capital of the company. In addition, subsidiary liability if bankruptcy proceedings are initiated by him or a creditor or other interested party.

Vicarious liability is considered as an additional punishment for persons who may be subject to collection together with a debtor who is unable to pay off debts. But the grounds for imposing this punishment are strictly regulated by the law.

Conditions within the authorized capital

The conditions under which the founder of the company is liable for debts within the amount of the authorized capital are determined by the Civil Code of the Russian Federation and No. 14-FZ. In the event of liquidation of a company or its bankruptcy, the founder is liable exclusively with the property of the organization and its assets.

If an enterprise has suffered a financial collapse, its debts to creditors and counterparties exceed the value of the enterprise's property, the founder may not cover the difference. This is due to the fact that he is not liable with his own property for the debts of the LLC.

Thus it is different from legal status the same individual entrepreneur who personally, with his property, pays off the debts of the individual entrepreneur. That is why, according to existing statistics, citizens are more likely to try, and individual entrepreneurs are created less often. It turns out that the shareholder of the LLC does not actually bear the risk of losing his own property.

Debt settlements

Bringing the guilty person to justice for arrears of money to the state treasury cannot exempt him from paying subsequent amounts. Responsibility for arrears within the legal entity lies with its officials (general director, Chief Accountant), in addition, the subject of liability (other than criminal) may be the legal entity itself.

For non-payment of taxes

Liability is established by the Tax Code of the Russian Federation; in addition, in relation to a company that evades payment of mandatory fees, the provisions provided for by criminal law apply. Forms of responsibility:

• administrative;
• tax

Loans

Banks issue loans to legal entities. If the borrower violates the loan agreement or its individual provisions, the bank has the right to file claims with the organization aimed at eliminating the violations.

Since credit legal relations imply mandatory out-of-court review controversial issue , banks first send a claim. You need to make sure that it is reviewed by the other party.

If a response to the claim is not received within a reasonable time, the bank may go to court. The claim is drawn up in accordance with the form established in Article 131 of the Code of Civil Procedure of the Russian Federation, with a demand for payment of the debt, with interest and a penalty under the current contract. In case of a positive decision of the judge, the legal entity is obliged to pay the debt, cover the penalty with all%, that is, fully comply with the requirements of the credit institution.

If a legal entity cannot fulfill its financial obligations to the bank, repeatedly, for more than three months from the date of payment of the loan, then the bank has the right to initiate bankruptcy of the company.

In case of bankruptcy

Bankruptcy is a rather lengthy procedure that contains certain signs. In particular, a legal entity may be declared insolvent if it:

• collectively owed creditors a sum of 300,000 rubles (taxes and fees to the state treasury are also included in this amount);
• the company has violated payment terms: it has not paid creditors for more than three months;
• employees of the enterprise (organization) have not been paid wages or severance pay.

Bankruptcy can be initiated by the LLC itself, as well as by other persons interested in this process:

• prosecutor;
• creditors;
• authorized state bodies.

As part of the bankruptcy of a company, a bankruptcy trustee acts. The purpose of this procedure is not necessarily the liquidation of the legal entity. In most cases, the task of bankruptcy is different - financially improve the enterprise and give it a new life.

The bankruptcy trustee has the right to make claims against the founders of the LLC for subsidiary liability. This happens only if, based on the analysis of the activities of the legal entity, it was revealed that the financial collapse occurred due to the guilty actions of the founders.

New conditions for liability include:

1. The debtor may have a person controlling him. This citizen acts for the benefit of not only creditors, but also the organization itself for its financial recovery. If violations are revealed in the actions of the controlling person, then he, together with the founders of the bankrupt company, bears subsidiary liability for compensation for damage caused to creditors. It must be caused subject to the execution of the instructions of the persons who control the debtor, as well as in the fulfillment of the current obligations of the company in the event of insufficiency of its property, which constitutes the bankruptcy estate.
2. The law establishes the grounds on which a controlling person can be held vicariously liable.

Vicarious liability is not caused by bringing a legal entity to bankruptcy in its pure form, but more by causing harm to creditors. And causing harm to the property rights of creditors is associated with a fairly large list of illegal actions of persons controlling legal entities.

According to the new rules, we can clearly say that an illegal action of a controlling person is an action aimed at aggravating the property situation of a legal entity that cannot pay its debts, having obligations to creditors.

You can learn more about the responsibility of LLC founders from this video.

The problem of bringing legal entities to criminal liability is one of the most intractable in the Russian Federation. The point is that, unlike foreign countries, in Russia a legal entity is not a subject of criminal liability. According to the Criminal Code of the Russian Federation, only sane citizens bear criminal liability. How to deal with involving a legal entity in this type of liability?

Recruitment procedure

Until the legislator considers it necessary to amend the Criminal Code of the Russian Federation by introducing amendments to it regarding bringing an LLC or JSC to criminal liability, it is valid for it COAP. It is in this law that we can see all the penalties that are currently provided for legal entities:

Many lawyers say that practical activities It is advisable for legal entities to introduce such punishment as a warning. But at the present time the most common punishment is fine. It can vary in size: it all depends on the guilty act.

A fine is a punishment of a property nature. The provisions of the Code of Administrative Offenses of the Russian Federation, however, do not cover other situations that can be considered as punishment for legal entities. These are circumstances such as:

• suspension of the enterprise;
• changing the enterprise quota regime.

It is believed that these provisions go beyond the administrative regulation of the enterprise. Accordingly, they cannot be imposed on legal entities.

When a fine is imposed on a legal entity, it is obliged to pay it within a strictly defined period of time by law. This can be done through Sberbank, as well as other payment services. The legal entity must have proof that it has paid the fine. This is a receipt.

One of the penalties is the forced liquidation of a legal entity. The measure is established by the Civil Code of the Russian Federation, in particular, in Article 61, paragraph 2. This occurs if a legal entity, without permission, engages in work for which it is necessary to obtain a license.

In addition, there are a number of grounds on which a legal entity can be forcibly liquidated.

Everything about the responsibility of the general director of an LLC is in this video.

Let's consider the main types of responsibility for the founder and director of an LLC in 2018.

Main types of responsibility for the founder and director of an LLC in 2018

What is the liability of an LLC founder? A novice businessman usually remembers and confidently says the following phrase: “ individual entrepreneur risks all his property, and the liability of the founders of the LLC is established only in the amount of the share in the authorized capital.” The Civil Code (Article 87) does contain this statement, but this is only part common system rights. You cannot be guided by one rule of law without taking into account the others!

What is wrong with a new entrepreneur? If the LLC is doing well, then all the company’s obligations (debts to suppliers, partners or the budget) are repaid with its own funds. An LLC is an independent legal entity: it takes out loans, earns money, pays off creditors, ... This continues as long as the LLC exists.

But if the company is declared bankrupt, the situation immediately changes. The company's property is not enough to pay off its debts, and (participants) fall due. This norm is established by Article 3 of the Federal Law of 02/08/1998 No. 14-FZ “On LLC”. Subsidiary liability is not limited by the size of the authorized capital and must correspond to the amount of debt to the creditor. And the founders brought to subsidiary liability are required to repay debts at their own expense.

It is necessary to make a reservation that in the event of bankruptcy one is not always brought to subsidiary liability: the legislation provides for a number of conditions, which we talk about in the article “Subsidiary liability of LLC founders.” The point is that the founder should not be “let go with the flow” open company without wondering who is responsible for its activities. Limited liability of founders in fact, it may turn out to be unlimited, and if the outcome is unfavorable, the company’s debts will have to be covered from one’s own pocket!

Let's consider the types of liability to which the founder may be held.

​Joint and several liability

Joint and several liability, unlike subsidiary liability, implies joint fulfillment of debt obligations. It does not matter which of the debtors and in what amount the debt was repaid. Occurs in the following cases:

1. At the stage, before it state registration. This may include obligations to pay for consulting services, print production, etc.
2. Upon liquidation of the company. In accordance with Article 62 of the Civil Code of the Russian Federation, founders (participants) legal entity are obliged to take actions to liquidate it at the expense of the company's property. If the company’s property is insufficient, then the founders (participants) are obliged to carry out the liquidation procedure jointly and severally at their own expense.
3. If the participants have not fully paid for their shares in the authorized capital. In this case, joint liability arises for the obligations of the company within the value of the unpaid part of the contribution of each of the company participants (clause 1 of article 87 of the Civil Code of the Russian Federation, clause 1 of article 2 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Companies responsibility").

Criminal liability of the founder

The founder is considered a decision maker, that is, a manager. Therefore, his actions (or inaction) may be qualified as damaging to the company or violating the law. Even if the founder did not directly manage the company, but acted through a hired director, he can be brought to criminal liability if there is evidence of guilt.

Occurs when the following articles of the Criminal Code of the Russian Federation are violated:

• Article 195 “Illegal actions in bankruptcy.” Offenses of this article include concealment of property, failure to provide information about it, unlawful satisfaction of property claims of creditors, obstruction of the activities of an arbitration manager or temporary administration. Punishments under this article vary significantly: from a fine of 100 thousand rubles. to imprisonment for up to 3 years.
• Article 196 “Intentional bankruptcy”. Intentional bankruptcy is qualified if the founder has committed actions that obviously lead to bankruptcy. Punishment - a fine of 200-500 thousand rubles, forced labor for a term of up to 5 years or imprisonment for up to 6 years.
• Article 197 “Fictitious bankruptcy”. If the founder knowingly makes a false declaration of bankruptcy, he faces a fine of 100 to 300 thousand rubles, forced labor for up to 5 years, or imprisonment for up to 6 years.
• Article 199 “Evasion of taxes and fees from an organization.” Under this article, the founder can be charged as an accomplice to the crime (the main defendants are the head of the company and the chief accountant). Of course, the entrepreneur’s involvement must be proven.

From the above it is clear What responsibility does the founder of an LLC bear?, if he wants to “bankrupt” his company without paying off creditors. If the liquidation of the company took place without a bankruptcy procedure, then there is nothing to hold the founder accountable for.

Tax and administrative responsibility

The founder is not responsible for tax and administrative offenses committed by the company itself. Only officials guilty of offenses can be held accountable for such types of liability. At first glance, the director and chief accountant, who were hired under an employment contract, are always to blame. It was their incompetence, neglect of duty or criminal intent that led to the company's debts and losses.

However, any employee has the right to protection: he can prove in court that he was forced to limit his activities in accordance with the requirements or direct instructions of the owner. Then liability is removed, bankruptcy proceedings are initiated, after which subsidiary liability may be imposed on the owner.

Naturally, tax and administrative liability is possible in the case where the founder and director are the same person. If the owner has assigned himself the functions of the sole executive body, then he bears all types of responsibility personally.

Many people planning to open their own business prefer to open an LLC, because by choosing such organizational form they can avoid liability for debts because they are only risking their capital investment when starting a business. In fact, the liability of the LLC founders for debts can be subsidiary, criminal or administrative, as it depends on numerous factors. Therefore, if citizens wish to carry out fraudulent activities with the help of such an organization, then in any case they will face serious negative consequences.

LLC concept

This company is represented by a limited liability company. This form is chosen for various reasons:

• ease of opening;
• the ability to attract other founders, which allows you to found a truly large and interesting business by combining several capitals;
• risks are shared between all founders;
• there is an opportunity to participate in the authorized capital of other enterprises.

But before opening such an organization, you should study what the liability of the LLC founders is for debts. This is especially true for a participant who prefers to occupy the position of general director, since in this case he risks not only the funds invested in the company, but also his personal property.

Definition of founders

When opening an LLC, the founders are certainly identified, who are entrepreneurs who invest their funds in the authorized capital of the future company. Such a company may have only one founder, but it has the opportunity to attract other participants.

A special feature of an LLC, unlike a JSC, is the absence of the need to issue shares to attract participants. The process of conducting activities in such a company is regulated by the provisions of Federal Law No. 14. Based on this regulatory act, the founder is a citizen:

• approving the charter of the future company;
• contributing own funds to the authorized capital of the enterprise;
• determining who will be on the management team of the company;
• identifying controllers;
• having the right to vote on adoption different solutions related to the work of the organization.

The founders can be both individuals and different companies. Not only Russian persons, but also foreigners can start an enterprise. The restrictions apply exclusively to country officials, deputies and military personnel. The liability of the LLC founders for debts is the same for all participants. An exception is the situation when one of the founders additionally acts as an employee of the company, and therefore is its general director.

Liability within the authorized capital

Based on the provisions of Federal Law No. 14, when opening such a company, the founders risk exclusively with the funds that they invest in the authorized capital when organizing the business. The funds will be lost in the event of bankruptcy or liquidation of the company, when it is necessary to pay off the company’s debts, so money invested in the authorized capital is used for this.

Often, tax debts or debts to other counterparties significantly exceed the amount of the authorized capital. Under such conditions, participants have the right to refuse to repay the debt by using personal savings or property. Therefore, in fact, shareholders of the enterprise have no risk of losing money, real estate or other property.

Such restrictions on the liability of LLC founders for debts are confirmed by numerous articles of the Civil Code. Based on Art. 56 of the Civil Code, it is the company, and not its owners, that is responsible for its obligations, therefore the company acts as a separate economic unit.

What are the responsibilities of the CEO?

Experienced professionals may be hired by business owners to fill this position, but often this position is occupied by one of the founders of the enterprise. It is the person holding this position who is responsible for the activities of the enterprise. Therefore, usually the founders of companies prefer to attract outsiders to this position, who then independently must solve problems associated with the numerous debts of the company.

How is the founder of an LLC responsible for debts if he does not hold the post of general director? In this case, he only loses his investment in the company. If the participant is also the director of the enterprise, then he will have to answer even with personal property to pay off debts. Therefore, a leader and founder in one person is quite rare.

When can participants risk their property?

Standard terms of law apply exclusively to situations where debts are incurred as a result of legitimate business activities. If the company uses various fraudulent schemes during its work or the organization is deliberately brought to bankruptcy, then the participants may be held accountable. Can a founder pay the debt of his LLC? If fraud is detected, the personal property of the participants may be used to pay off the debt.

If it is established that the company was deliberately brought to bankruptcy, the amount of debt may be recovered from the director and owners of the enterprise, as specified in Federal Law No. 127. Under such conditions, the participants are held vicariously liable.

In order to hold the owners accountable and pay off debts on taxes or other payments from their personal funds, the guilt of the owners must be proven. To do this, the following conditions must be met:

• the insolvency of the organization is confirmed in an official way, for example, the company is declared bankrupt by making an appropriate decision by the arbitration court;
• During the court hearing, a connection is established between the actions of the company participants and the bankruptcy of the company.

The founder of the LLC is held liable for the company’s debts in a situation where, upon examination of the company, it turns out that there are no mandatory accounting documents. The presence of false facts in the documentation can also lead to punishment for direct participants of the company.

The concept of subsidiary liability

According to theory, the general director is not responsible for the company’s obligations, so he copes with his job responsibilities based on the compilation employment contract. But most often in practice, it is his actions that lead to the bankruptcy of a company that cannot satisfy the demands of creditors.

The subsidiary liability of the director and founder of an LLC for debts is represented by the financial responsibility of citizens to the organization’s creditors. It arises exclusively in a situation where the cause of bankruptcy is the intentional actions of the business owners or the general director.

Based on Art. 56 of the Civil Code, holding participants accountable occurs in the correct sequence of actions:

• Initially, the organization declares itself bankrupt, so the procedure begins to repay debts to various creditors at the expense of existing Money and assets of the enterprise;
• in the process of filing the insolvency of a company, it is revealed that the main reason for the loss of solvency was the actions or inaction on the part of the director or founders of the enterprise;
• in this case, the violators are held accountable, for which a trial is held;
• the court obliges the director or founders to repay partially or fully the debt from personal funds and property;
• all culprits are jointly liable for debts, so the claims of creditors are transferred to the personal values ​​of citizens.

Thus, if any criminal or fraudulent actions are detected on the part of the founders of the company, they can be held accountable. The subsidiary liability of the LLC founder for debts implies that he will have to use personal property to pay off existing debts to creditors.

Material

The head of a company usually personally makes numerous and important decisions for the enterprise related to the development and functioning of the organization, therefore, if he makes any erroneous decisions or commits illegal actions that lead to damage to the work of the company, he is held liable.

This type of liability applies exclusively to the general director, who can be one of the founders or an employee. It applies not only to direct losses of an enterprise caused by the fault of a citizen, but also even to lost profits.

If it turns out that the company suffered material damage due to the actions of the manager, then the culprit will have to:

• replace lost assets;
• compensate for the costs that individuals have to bear to restore rights violated by the head of the enterprise.

If it turns out that the company did not receive a certain profit due to the actions of the director, then the damage caused by the director is calculated based on the provisions of the Civil Code. According to Art. 53 of the Civil Code, all participants of the company can demand compensation from the director for losses incurred, and for this there is no need to contact government authorities. If he refuses this process, he will have to file a lawsuit.

Criminal

The risks of the founder regarding the debts of the LLC may even be associated with the fact that the head of the company, who is also represented by a participant, may be held criminally liable. This happens exclusively in a situation where criminal acts committed against employed workers are revealed, and also includes various illegal actions for carrying out large-scale fraud with money.

The possibility of criminal prosecution depends on how serious the damage was caused. For example, such punishment is provided for the conduct of illegal entrepreneurial activity or when performing various transactions aimed at deliberately bringing the company into insolvency. Administrative liability may be assigned for such actions if the damage caused does not exceed 1.5 million rubles. If the damage is greater, then the provisions of the Criminal Code apply.

There are several grounds for bringing the head of a company to criminal liability. This includes situations:

• dismissal without cause of a pregnant woman;
• disclosure of trade secrets;
• refusal to employ a pregnant woman;
• delay in payment of wages for two months or a longer period of time, but it must be proven that such actions were committed for personal gain;
• copyright infringement;
• unfair competition, on the basis of which the company receives from 5 million rubles. in an illegal way;
• use of commercial bribery;
• illegal activities of the company on a large scale (from 1.5 million rubles) or especially large amounts (from 6 million rubles);
• tax violations and crimes;
• borrowing a trademark without legal grounds, which leads to damage in the amount of 1.5 million rubles;
• deliberate concealment of property, the purpose of which is the reluctance of management to repay debts to creditors;
• use of illegal methods to launder funds;
• evasion of repayment of debts or payment of taxes, and it must be malicious;
• abuse of authority in the process of company management.

If tax offenses are detected, a criminal case is opened if the amount of debt exceeds 2 million rubles over three years.

Types of punishments under the Criminal Code

For minor violations, the following penalties apply:

• fine up to 300 thousand rubles;
• arrest of the perpetrators for up to 6 months;
• public Works up to 480 hours;
• imprisonment, and the term can even reach seven years.

But for more significant violations, serious penalties are used within the framework of the criminal liability of the founder for the debts of the LLC. Arbitrage practice shows that a fine of up to 1 million rubles, imprisonment of up to 12 years and forced labor for up to 5 years can be imposed.

Is the director held accountable after dismissal?

Even the dismissal of a director cannot become a basis for not holding him accountable if his involvement in various violations or bankruptcy of the company is established. Therefore, the court may recover compensation from him for the damage caused.

Criminal liability is extended to the dismissed director, but the statute of limitations is taken into account, the duration of which depends on the severity of the violation.

Conclusion

Each company participant should know what the founder faces for the LLC’s debts. Liability depends on the existing violations and circumstances. If the founder is also the general director, then he may be held liable for material, criminal or subsidiary liability. The remaining participants face only subsidiary liability.

Penalties depend on the severity of the crime or offense. Therefore, in some situations, the founders of a company can pay off the company’s debts using personal property.

A company that is a legal entity formed by one or more citizens who are considered the founders of the company, and subsequently participants in its activities, is called a limited liability company (hereinafter referred to as LLC). Each of the organizers contributes a certain amount to the authorized capital of the enterprise. The founder's share can be expressed in money, shares, valuables, and other property relevant to the activities of the newly opened organization. The founder's responsibility for the activities of the LLC is limited by legislative acts.

What is limited liability of participants

Many citizens, when registering an LLC, believe that this method of organizing activities will protect the founders from possible claims by creditors. Legislative regulations it is provided that business owners bear obligations within the limits of their shares or shares, expressed in monetary amounts, in the authorized capital (hereinafter referred to as the authorized capital) of the company. Its minimum value is 10 thousand rubles. Profits are shared by the founders of the LLC based on the provisions of the organization’s Charter.

The owner can hire an individual to act as director of the company or become the head of the company himself and manage its work. If an enterprise conducts legal activities and has no debts to the federal, regional budgets or other creditors, then its closure does not contribute to the emergence of obligations of the company’s organizers to lenders. The founder's liability for the LLC's debts occurs if creditors prove that a member of the company, through inaction or malicious actions, led the organization to bankruptcy.

Legal regulation

The obligations of the LLC creator are determined by Article 87 of the Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation) “Basic provisions on a limited liability company.” It says that the debts of the organizer of the company are limited to the share he contributed to the charter capital. Fraudsters used this standard to create “fly-by-night companies” for the withdrawal of assets and other illegal actions, so the legislation became stricter.

Article 3 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies” as amended on December 31, 20107. provides that the founders are charged with subsidiary (joint) obligations before the law if their actions cause intentional harm to the organization’s activities, which leads to inevitable bankruptcy. If the company cannot repay the existing debt, then the personal property of the founders is seized, in accordance with Art. 49 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation).

The liability of the LLC founders for non-payment of taxes and debts to creditors is determined by Federal Law No. 127-FZ of October 26, 2002 “On Insolvency (Bankruptcy)”. It will not be possible to avoid punishment for illegal activities. Criminal and administrative liability of the LLC founder before the law is provided for the deliberate illegal liquidation of the enterprise.

Types of responsibility

The legislation provides different variants obligations of the company organizer. They depend on how actively the founder takes part in the work of the company. There are two liability options:

1. For the actions of the hired general director. A meeting of participants in an enterprise may transfer management of the main work of the organization to a third party, who is subject to certain financial and legal obligations before LLC.
2. Behind own actions. This situation often occurs if the organizer of the enterprise is also the director of an LLC, directly managing the activities of the company.

For the actions of the director

If business owners hire an individual to manage the company, then this person must monitor financial statements and bear obligations before the law for his actions. The liability of the LLC founder for the actions of the director occurs if the hired employee proves that he was forced to carry out orders that led to bankruptcy and liquidation of the organization, in accordance with the instructions of his superiors.

Manager and founder rolled into one

Often there is a situation when the organizer of an enterprise is its manager. He is found responsible for committing the following illegal acts:

• concluding contracts with counterparties that are obviously unprofitable for the company;
• failure to provide important information about a civil contract to other company participants, concealment important facts;
• unjustified risk when concluding transactions, lack of checks on the loyalty and reliability of partners (failure to ascertain whether contractors or counterparties have a license);
• deliberate damage, forgery, theft of accounting, financial, legal documents.

What is the LLC founder’s responsibility for debts?

According to the provisions of the Civil Code of the Russian Federation, the organizer of a company is liable before the law to the extent of its share in the management company, unless it is proven that the difficult economic and business situation of the enterprise, which led to bankruptcy, was caused by the malicious actions of the founder. There are the following types of obligations for which the owner of the company is personally responsible:

1. For taxes and insurance payments. Article 48 of the Tax Code of the Russian Federation provides that if the company’s money is not enough to pay off debts on fees to budgets of all levels in the event of bankruptcy, then the LLC participants must pay the arrears to the Federal Tax Service (FTS) from their share of the capital. If you lack finances, you will have to pay with personal property.
2. For obligations to creditors. If there is a cause-and-effect relationship between the actions of the founder of the LLC and the liquidation of the company, then the perpetrators of the event will need to repay the debt to the creditors. The order of payments is established by arbitration courts.
3. In case of bankruptcy. The process of winding up a company that is malicious in nature for the purpose of obtaining personal gain is punishable. The liability of the founder in the event of bankruptcy of an LLC can be criminal, material and administrative.

General (joint and several) within the authorized capital

The state has established that the organizers of a company, when registering a legal entity, have certain obligations. The founders are liable before the law in the following circumstances:

• when registering a legal entity, you need to contribute your share to the management company according to a preliminary agreement;
• the company's losses received are divided among all LLC participants according to the size of the management company's share;
• if the money was partially contributed to the management company, then, if the company operates at a loss, the founder bears obligations according to the size of the unpaid share;
• By decision of the board, a participant may assign additional responsibilities to one or more of the company’s organizers.

Subsidiary liability of LLC founders

The legislation defines the circumstances under which people who organized an LLC bear joint (subsidiary) responsibility for the results of the organization’s activities. With this option of obligations, the initial size of the management company’s share does not matter. You will have to answer for all the company's existing debts. There are conditions and circumstances under which the presumption of guilt of the organizers of the enterprise works. In such a situation, the founders of the company have to prove their non-involvement in the events that led to the ruin of the organization.

The legislation provides that not only the organizers and participants of the LLC, but also individuals who have had a significant influence on the work of the company over the past three years will have to be held accountable for their actions. Citizens who gave orders that had a negative impact on financial results enterprises are considered, on a par with business owners, as persons controlling the company. Creditors' claims are satisfied on a competitive basis after the organization's activities cease.

Conditions of attack

In order for the courts to recognize the onset of subsidiary liability of business owners, not limited by the contributed shares of the management company, it is necessary to comply certain conditions. These include the following provisions:

1. Official bankruptcy of a legal entity.
2. Recognition of the organizer of the company as a person who has had a significant impact on the work of the organization.
3. The actions of the founder of the LLC, proven by the plaintiff, led the company to bankruptcy.
4. The arbitration court makes a decision on the occurrence of subsidiary liability.

Under what circumstances is it recognized by default?

Legislative regulations provide for circumstances in which the fault of the business owner in the bankruptcy of the organization is recognized by default. These include the following events:

• completion of a transaction at the direction (approval, insistence) of the owner of the company, resulting in damage to the property rights of the lenders;
• loss, damage, damage to financial statements for which the owner was responsible;
• bringing a company or participant to administrative or criminal liability for the period the individual is in given status, subject to the formation of debts from third-priority lenders exceeding half of all creditor claims.

Limits of subsidiary liability

The court establishes that all demands and claims of creditors declared after the liquidation of the legal entity, included in the register, determine the limits of the subsidiary obligations of the company's participants. The amount of debt may be reduced if the defendant proves that the damage caused by his actions (or inaction) to the lender is less than that specified in the statement of claim.

Collection of arrears is carried out at the expense of the individual property of the participant (participants) of the enterprise, if the legal entity’s funds are insufficient to eliminate the debt. If the amount of damage is large, and the creator of the business cannot pay it off with his own funds, then bankruptcy proceedings for an individual can be initiated. If a citizen is declared insolvent and unable to make payments, then the debts will be written off.

Administrative and criminal liability of LLC founders

In order for management’s guilt in the bankruptcy of an LLC to be considered proven, law enforcement, tax, and other regulatory authorities are guided by legal norms. According to the provisions of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) and the Code of Administrative Offenses (COAP), a clear corpus delicti is required, with the presence of the following circumstances:

1. Actions of the organizer of a legal entity that fall under the characteristics of criminal or administrative offenses.
2. Definition of the founder as the subject of the crime.
3. Available evidence of the guilt of the business owner for creating a difficult situation in the company, which led to the formation of debts and liquidation of the organization.
4. Causing material and other damage by this legal entity to third parties (lenders) associated with the actions (or inaction) of the enterprise’s management.

Any third party who has an interest in the current situation can make the business owner solely responsible for the work of the enterprise. The procedure for filing and the form of the statement of claim are stipulated by legal regulations. The following facts are considered an outright violation:

• intentional falsification, distortion, damage, loss of financial documentation;
• provision by the debtor of false reporting to the Federal Tax Inspectorate;
• signing illegal contracts, inappropriate legal requirements RF;
• non-payment to employees wages without good reasons;
• evasion of taxes and fees, use of fraudulent schemes that understate the amount of payments;
• deliberate or fictitious bankruptcy;
• other violations in the maintenance of accounting, tax, personnel records, leading to material, moral damage and losses to interested citizens.

Deliberate bankruptcy

Creating a situation in which an enterprise is obviously unable to fulfill the requirements of counterparties, suppliers, and lenders is considered deliberate bankruptcy. The owners of the company can withdraw assets, transfer property to legal entities, individuals, and co-founders. Such actions are considered criminal if as a result the victims suffered damage exceeding 2.25 million rubles. If the sum of the total claims of creditors is less than this amount, then the actions of the perpetrators are qualified as an administrative offense.

Unlawful actions during the liquidation of an enterprise

The laws of the Russian Federation provide for holding the organizers of an LLC accountable if they committed illegal actions during the liquidation of the company. Such offenses include the following circumstances:

• concealment of valuable property, information about it, distortion of information relating to the expression of the monetary value of fixed or working capital organization, concealment or provision of knowingly false data about the location of the enterprise's real estate;
• malicious transfer of company property to a legal or to an individual;
• damage, purposeful destruction of fixed assets of an enterprise;
• malicious violation of the organizational and legal mechanism of bankruptcy of the organization;
• distortion, destruction of accounting, tax and other documentation containing information about the involvement of business founders in an offense.

Such actions of the company’s organizers may threaten them with the following consequences:

• restriction of freedom of movement for 4-6 months;
• arrest for up to 3 years;
• imprisonment for 2 years with a fine of 200-500 minimum sizes remuneration (hereinafter referred to as the minimum wage).

If a business owner satisfies the personal demands of one creditor to the detriment of the interests of others, then such actions are also considered unlawful and can be punished in the following ways:

• restriction of freedom for up to two years;
• arrest for 4-6 months;
• imprisonment for 1 year and a fine of 100-200 minimum wages.

Fictitious bankruptcy

If a business owner disseminates false information among customers, contractors, and lenders about the insolvency of the LLC in order to mislead them in order to obtain a deferment in the payment of arrears, then such actions are recognized as fictitious bankruptcy. Before this, the owners of the company try to transfer the company’s assets to the accounts of relatives, friends, and shell companies in order to write off debts. Creditors are left to divide the remaining property. Such actions are considered criminal offenses and are punishable as follows:

• restriction of freedom for up to 6 years and a fine of up to 100 minimum wages;
• penalties of 500-800 minimum wage.

Tax evasion

If it is proven that the arrears in fees, fines and penalties resulted from malicious actions of the owner of the enterprise, then he can be convicted under Article 199 of the Criminal Code of the Russian Federation, which provides for liability for tax evasion. The founder will have to pay the entire amount of the debt and bear administrative or criminal liability, depending on the amount of damage caused to budgets at all levels.

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