Financial liability of the head of an organization: is it full or not, can the general director of an LLC be a financially responsible person, what is a sample agreement? YurExpert Online

Job responsibilities of the manager

General requirements for the position of director usually include:

presence of higher education;
At least 5 years of work experience in this field.

Like any other employee, a manager has job responsibilities.

We list the main ones:

Ensuring communication between all departments and organizing their work.
Management of economic, economic, production activities of the enterprise.
Supervision of contractual relations with all government and non-government structures.
Creation of favorable working conditions for employees, timely improvement of their qualifications.
Development of a collective agreement together with subordinates, support of their initiative.

Types of financial liability

The rules of law provide for the individual responsibility of the director in full, regardless of the nature of his act (Article 277 of the Labor Code of the Russian Federation), this means that he is compensated not only for the actual loss, but also for lost profits.

Article 243 of the Labor Code of the Russian Federation provides for the following cases of application of this type of liability:

the employee commits intentional harm;
failure to fulfill direct duties;
disclosure of personal information;
shortage of valuables (how to recover the shortage?);
causing harm in a state of various types of intoxication.

In general, the liability of persons holding management positions is regulated by the Labor and Civil Codes, as well as the relevant federal laws (“On Limited Liability Companies” No. 14-FZ dated 02/8/1998, “On Joint-Stock Companies” No. 208-FZ dated 26.12 .1995).

Reference! Financial liability cannot be reduced by mutual agreement of the parties; it does not depend on the imposition of another type of punishment for this offense.

Divided into:

Direct damage caused by a manager's action or lack thereof. For example, damage to property.
Losses incurred by the company. This includes payments to employees for downtime, fines paid due to the fault of the director.

Collection of direct damages is considered by courts of general jurisdiction, and losses - by arbitration courts.

Dismissal is not a significant reason for stopping the manager from being held financially liable (how is liability held?).

More information about what types of financial liability exist is described here, and here you can find out what types of liability exist on the part of the employee and the employer under an employment contract.

How is damage recovered?

The amount of damage caused by loss and damage to property is determined by actual losses, calculated on the basis of market prices prevailing in the area on the day the damage was caused, but not lower than the value of the property according to accounting records, taking into account the degree of depreciation of the property (Article 246 of the Labor Code of the Russian Federation ). In this case, the employer (founder) must assess the amount of damage, for which he has the right to create a special commission. In addition, according to Art. 247 of the Labor Code of the Russian Federation, the employer (founder) is obliged to request a written explanation from the head of the institution to establish the cause of the damage. If the manager refused or avoided providing an explanation, the founder draws up a corresponding act.

The procedure for collecting damages is also regulated by labor legislation (Article 248 of the Labor Code of the Russian Federation). An amount not exceeding the average monthly salary of the head of the institution is collected by order of the employer (founder). The order may be made no later than one month from the date of final determination of the amount of damage caused. If the month period has expired or the employee does not agree to voluntarily compensate for the damage caused, and the amount to be recovered exceeds his average monthly earnings, recovery can only be carried out through the court. If the employer (founder) fails to comply with the established procedure for collecting damages, the employee has the right to appeal the employer’s actions in court.

In court, the founder will have to prove the illegality of the actions of the head of the institution, as well as the fact that he caused losses. Otherwise, the court will side with the manager.

The head of the institution responsible for causing the damage may voluntarily compensate it in full or in part. By agreement of the parties to the employment contract, compensation for damage by installments is allowed. In this case, the head of the institution submits to the employer (founder) a written obligation to compensate for damages, indicating specific payment terms. Upon dismissal of the head of an institution who gave a written undertaking to voluntarily compensate for damages but refused to do so, the outstanding debt is collected in court.

With the consent of the employer (founder), the head of the institution may transfer equivalent property to compensate for the damage caused or repair the damaged property. Damage is compensated regardless of whether the head of the institution is brought to disciplinary, administrative or criminal liability for the actions (inaction) that caused the damage.

Reasons for the offensive

The occurrence of real damage. Most often it is discovered by the fact of inventory, or actual harm (Articles 238 - 239 of the Labor Code of the Russian Federation).
Illegal actions or lack thereof . For example, failure to fulfill official duties.
The action or its absence led to the fact that the employee cannot perform work (Article 234 of the Labor Code of the Russian Federation), for example, illegal dismissal.
Damage to an employee’s personal property (Article 235 of the Labor Code of the Russian Federation). The director is responsible for the safety of personal items, since his responsibilities include providing the employee with comfortable working conditions.
Unreasonable delays in wages and other payments due to the employee (Article 236 of the Labor Code of the Russian Federation).
For reference, we note that wages are usually paid twice a month with an interval not exceeding 15 days. In this case, specific numbers are determined individually at each enterprise. As for vacation pay, it must be accrued by the employer 3 days before the intended vacation; Payment upon dismissal is made on the last day worked.
Incorrect entry in the work book , due to which a person cannot find a job at a new place of work, or a delay in providing the necessary documentation (for example, a certificate of form 2-NDFL) (Article 234 of the Labor Code of the Russian Federation).
Causing moral harm (Article 237 of the Labor Code of the Russian Federation). Each violation of the law on the part of the director can lead to serious moral suffering on the part of the employee. Compensation is collected through the court at the discretion of the judge.

We wrote in a separate article about the cases in which financial liability of an employer to an employee may arise.

Where is it reflected?

Labor relations are necessarily formalized by an employment contract. This document specifies the responsibilities of the parties to the contract. It is there, in the section “Rights and obligations of the parties. Responsibilities of the employer" and sets out the framework of obligations of the head of the enterprise in relation to employees.

Moreover, in contrast to the mandatory conclusion of an agreement on full financial responsibility with an employee, such a measure is not applied with the employer.

A separate document “ Agreement on the financial responsibility of the employer to the employee ” is not provided for by Labor Law and does not exist in principle.

In the agreement with the employee on financial responsibility there is also a mention of the obligations of the head of the organization - in the section “Responsibility of the Parties”. The form of this document is unified and recorded in the 85th Resolution of the Ministry of Labor.

The amount of financial liability can be determined not only by the Labor Code, but also by internal, local acts of the enterprise.

According to them, the amount of compensation payments may be higher than what is provided for by law. But if the acts to which the contract refers reduce the size, then they cannot be considered valid. And in the event of a dispute, the only applicable document is the Labor Code.

Agreement on financial liability with the director - sample.

Preparation of contract

The conclusion of such a document will help to avoid unnecessary litigation in the event of property damage to the organization. The form, content and procedure for its preparation are provided for by Resolution of the Ministry of Labor of Russia dated December 31, 2002 No. 85. This act contains a complete list of positions with which it is necessary to conclude such an agreement.

Its basic concept is set out in the form of a separate section of the employment contract (Article 244 of the Labor Code of the Russian Federation), or an independent act can be drawn up on its basis (read about the material liability of the parties to the employment contract here). Moreover, in the latter case, it is signed after the conclusion of the main agreement.

The amount of liability of the parties is determined, as a rule, by local acts, but it cannot be less than the established norm.

The procedure for signing the agreement is as follows:

An inventory report or an inspection report is drawn up, which indicates the items and their condition at the time of transfer of authority to the director.
The parties sign the drawn up act.
Familiarize yourself with the provisions on the financial liability of the parties.
They put their signature.
In case of disagreement with its terms, appropriate adjustments are made, after which the procedure for signing it also takes place.
Changes to the terms of the current agreement, their addition or termination of the act are carried out by mutual agreement of the parties, expressed in writing. All changes made are an integral part of the contract.

The document is valid from the moment of its conclusion. If there is a demonstrable reluctance to sign such an act, the person may be dismissed for failure to fulfill his direct duties. In this case, the fact of refusal is recorded strictly in writing, so that in the future there will be no controversial issues regarding what happened.

Structure

Title of the document, place of preparation, date of signing.
Preamble. Description of the parties.
Document text.
It clearly reveals the obligations of the parties to each other, the duty of the director to compensate for the damage caused to the organization if the damage was caused through his fault. The contents of the document should include references to force majeure situations (flood, earthquake, etc.). If conditions arise that do not depend on the actions of the director, his responsibility for the consequences that occur is excluded.
Validity period, procedure for renewing the contract.
Signatures of the parties and their decoding, and the seal of the organization is required.

Content

The agreement on liability is drawn up in writing in two copies. It should contain the following information:

Title of the document (agreement on full liability).
Date and place of compilation (the date must be indicated in words, for example, the third of August two thousand and eight; and the place of compilation is indicated without unnecessary abbreviations).
Name of the organization, necessary details (TIN, OGRN, legal address, current account).
Full name, passport details of the director (you must indicate all information about him, including the following must be indicated: series, passport number, date of issue, place of registration).
Information about the duration of the contract (as a rule, it is valid until the termination of the employment contract, but there are exceptions).

I'm bankrupt myself. No, I'm bankrupt

According to the law, the manager, having come to the conclusion that the company is insolvent, is obliged to apply to the arbitration court within a month to declare it bankrupt. The duty was introduced to prevent wider negative consequences for creditors, so that the company could not accept further unrealistic monetary obligations.

It is with the root cause of the inclusion of this basis of liability in the legislation that its key feature is connected - it is not possible to bring the manager (and only the manager) to subsidiary liability for the untimely submission of the debtor’s application for all obligations for which the Company’s property is not enough to satisfy. He is liable only for those that arose after the expiration of the period allotted for filing such an application.

Therefore, in practice, all legal disputes bringing the head (liquidator) of the debtor to subsidiary liability are associated with establishing the date of occurrence of the obligation to independently file a bankruptcy petition.

For the manager, one month is established, and for the liquidator - 10 days for filing an application from the moment of occurrence of one of the following circumstances:

satisfying the claims of some creditors makes it impossible to satisfy others;
foreclosure on the debtor's property will significantly complicate or make impossible the debtor's business activities;
there is a debt to employees outstanding for 3 months;
the debtor has signs of insolvency and (or) insufficiency of property.

Insufficient property is an excess of the amount of monetary obligations and obligations to pay obligatory payments of the debtor over the value of the debtor’s assets; Insolvency is the termination of the debtor’s fulfillment of part of his monetary obligations or obligations to pay obligatory payments, caused by insufficient funds. In this case, the presumption of insufficient funds applies until proven otherwise. (paragraph 35 and paragraph 36 of article 2 of the Bankruptcy Law)

In fact, all of the above circumstances intersect with each other and in practice (Resolution of the Arbitration Court of the Ural District dated February 18, 2021 in case No. A34-170/2017) come down to proving that the Company has signs of insolvency and insufficient property. To resolve this issue, we propose to proceed from the approach that has developed in judicial practice on the basis of a systematic interpretation of bankruptcy rules to determine the financial insolvency of the debtor and the insufficiency of property:

Financial insolvency must be understood as a condition that does not allow him to satisfy the demands of creditors for monetary obligations and (or) fulfill the obligation to make mandatory payments, which amount to at least 300,000 rubles. within 3 months from the date on which they must be executed.

Simply sending a claim by the creditor to the debtor for payment of the debt and failure to fulfill it on time is not evidence of the debtor's insolvency. At the same time, in all cases, the courts take into account the fact that obligations are not fulfilled precisely due to the lack of any assets in the Company.

The deadline for filing a debtor’s independent application for bankruptcy is determined in the following order:

Actually, for violating these deadlines, the manager, as well as other persons (!) who were obliged to make the appropriate decision, will receive a “subsidy”. Own, personal, personal. Even if he was innocent of the fact of bankruptcy.

To determine the limits of this special form of subsidiary liability, all obligations of the debtor company can be divided into two groups: those that served as the real cause of bankruptcy and those that arose after signs of bankruptcy appeared. For failure to file a self-bankruptcy application, it is possible to hold the debtor's manager accountable only for the latter. For the first group of obligations, the manager is held accountable on general grounds.

In this case, it does not matter what obligation the debtor was unable to repay: did not pay taxes, did not repay the loan, did not pay for goods (work, services) within the period established by the contract.

But a creditor whose obligations to whom arose after a month from the moment the company showed signs of bankruptcy can count on the fulfillment of obligations to him at the expense of the director in any case.

It is obvious that in practice, in order to bring to subsidiary liability on the basis under consideration, it is important not only that the Company has an undisputed debt/confirmed by a court decision for more than three months, but also that there are no assets to repay it.

Duties of the parties

Typical responsibilities of a director, as a financially responsible person, include:

Prudent attitude towards property.
Generating periodic reports on funds provided.
Timely audit of entrusted property.

Below are the standard responsibilities of an employer:

Creating favorable conditions to ensure the integrity of property (this includes basic rules of behavior when working with a team and material things).
Informing about changes in current legislation in this area (this is the most important factor reflecting the decency, honesty and openness of both the business as a whole and the employer).
Checking the safety of property (this procedure is called inventory and takes place according to the approved schedule).

Who is the head of the organization?

The employer, like the employee, is a participant in the labor relationship. It can be any individual (individual entrepreneur, persons required to register and license their activities, etc.) or legal entity (president, director, head of LLC, CJSC, JSC, JSC, etc.).

Moreover, the head of the organization can be a very young person - at the age of 14 years. All activities of the employer, in particular those aimed at company employees, must be within the framework of the labor code.

The boss, in essence, is not only the face of the company and the most important person, but also an employee who is responsible for all the workers working for him and for all the actions performed by them. Can a director be a financially responsible person or not?

The legislation does not divide the financial responsibility of the organization's managers into full or partial (general), as is the case with subordinates. For a manager, compensation for damage caused by his actions, or vice versa - inaction, is always fraught with compensation for damage in full. That is, the director is a financially responsible person.

Moreover, the boundaries of the area for which he is responsible should not be less than the law dictates. This law is the Labor Code, and all the nuances are in Chapter 38.

Features for the general director of LLC and branches

The head of the LLC is usually the general director, and the co-founders have no relation to the employer. In such a situation, full responsibility for illegal acts will fall on the shoulders of the manager.

The director of the branch is not a direct employer , but only a representative of the interests of the head of the entire general structure. Therefore, the responsibility of the branch manager will be limited only to his personal actions.

A rather complicated situation is when the branch is located on the territory of the Russian Federation, and the company itself is located outside its borders. The difficulty lies, first of all, in the presence of disagreements in legal norms.

The best way out of this delicate situation is an agreement with a detailed description of the rights and obligations of the parties, as well as an indication of its territorial jurisdiction.