Appointment to office
Appoint the General Director in the following order.
Before concluding an employment contract with the general director, a decision must be made by the owner of the organization on his election (appointment) to the position.
This decision can be made by:
- general meeting of participants (shareholders) of the company, documenting it with minutes (for example, in an LLC - minutes of the general meeting of company participants);
- the board of directors (supervisory board) of the company (if the resolution of this issue is within its competence by the charter), formalizing it by decision.
This is provided for in Article 63 and paragraph 3 of Article 69 of the Law of December 26, 1995 No. 208-FZ, Article 37 and paragraph 1 of Article 40 of the Law of February 8, 1998 No. 14-FZ.
If there is only one owner in the organization, then the general director is appointed based on the decision of the sole participant (shareholder) (clause 2 of Article 7 and clause 1 of Article 40 of the Law of February 8, 1998 No. 14-FZ, clause 2 of Art. 2 and Article 69 of the Law of December 26, 1995 No. 208-FZ).
Before concluding an agreement with the general director, check whether there are any violations in the procedure for making a decision on his election (appointment). The decision must not only be made in compliance with all legal requirements, but also correctly formalized (Article 40 of the Law of February 8, 1998 No. 14-FZ, Article 69 of the Law of December 26, 1995 No. 208-FZ). To check the correctness of the decision, refer to the organization's charter. First of all, it is necessary to check which body has jurisdiction over the issue of forming a sole executive body, whether the procedure for convening a meeting or session has been followed, whether the quorum necessary for making a decision has been met, and who is entrusted on behalf of the organization to sign an employment contract with the elected general director.
The general director may have the status of an individual entrepreneur. The legislation does not prohibit this (Article 40 of the Law of February 8, 1998 No. 14-FZ, Article 69 of the Law of December 26, 1995 No. 208-FZ).
Attention : if a person not from among the organization’s employees is applying for the position of general director, make sure that he is not on the register of disqualified persons (Article 32.11 of the Code of Administrative Offenses of the Russian Federation).
To do this, you need to contact the tax service with a request (on paper or electronically) (clause 4 of the Procedure approved by order of the Federal Tax Service of Russia dated December 31, 2014 No. ND-7-14 / [email protected] ). Forms of requests on behalf of an individual and an organization are given in the Administrative Regulations for the provision of information from the register of disqualified persons, which was approved by Order of the Ministry of Finance of Russia dated December 30, 2014 No. 177n.
The request can be submitted electronically through the official website of the Federal Tax Service of Russia or a single portal of state and municipal services. A request on paper can be submitted to any tax office (by mail or through a representative of the organization).
The information contained in the register is open and is provided in the form of an extract in the form approved by order of the Federal Tax Service of Russia dated December 31, 2014 No. ND-7-14 / [email protected] If there is no information about disqualification in the register, a certificate of absence of the requested information.
You will need to pay 100 rubles for providing information. (Clause 1 of the Decree of the Government of the Russian Federation of July 3, 2014 No. 615).
Employees who have been disqualified are prohibited from holding leadership positions in the executive body of the organization for a period of six months to three years (Part 2 of Article 3.11 of the Code of Administrative Offenses of the Russian Federation). If a disqualified employee is in a managerial position, working as the head of an organization will mean failure to comply with an administrative decision, which may result in criminal liability for him (Article 315 of the Criminal Code of the Russian Federation). The employment contract concluded with such an employee must be terminated (Part 1 of Article 84 of the Labor Code of the Russian Federation).
Essentially a similar procedure applies when changing the general director. In particular, first the founders draw up a protocol (the only participant is the decision). Next, an employment contract is concluded and an appointment order is drawn up. Don't forget to notify the tax office as well.
Situation: what order should be used to formalize the appointment of the general director of a JSC or LLC?
The law does not establish this. To avoid any disputes in the future, it makes sense to draw up two documents at once:
- order to take office;
- The order of acceptance to work.
The director issues an order to take office on his own behalf. The basis for the order is the decision of the participants (shareholders) to whom the director is appointed. The order form has not been approved, so it can be free.
Such an order reflects that the procedure for electing a person to this position has been followed: the director was elected by the participants at the meeting, the decision of the participants is documented in the minutes. This order, together with the decision on election, will need to be submitted to the bank where the company’s current account is opened, and to other persons when it is necessary to confirm the powers of the director.
An employment order (in Form No. T-1 or in a self-developed form) must be issued in order to comply with the formal requirements of accounting legislation. Unlike the order on taking office, it does not reflect the election procedure, but determines the regime and nature of the director’s work, and the amount of the official salary.
The procedure for formalizing relations with the general director, who is the sole founder (participant, shareholder), has its own characteristics.
Beginning of the new CEO's term of office
A change in the general director of a company is one of the most common reasons for making changes to the State Register of Legal Entities.
The need to make these changes arises for various reasons, such as the end of the term of office, dismissal at will, appointment of a new manager, etc.
Changing the head of an enterprise is not considered a complex legal action, however, it may require not only knowledge of how to carry out registration procedures, but also an understanding of certain subtleties associated with this process.
The change of the general director is directly registered with the tax inspectorate, which acts as a registration authority and with which the enterprise is registered. As for the city of Moscow, all registration actions are carried out by MIFTS No. 46 for the city of Moscow.
On the pages of our website there are instructions on how to independently change the general director, and you can also use the services of our company to change the head of the enterprise
But this article is devoted not so much to the procedure for changing a director, but to issues related to the termination of the powers of the general director and the beginning of the powers of the newly appointed director of the company.
Powers of the general director of the enterprise
When changing the general director of a company, questions often arise: From what moment do the powers of the previous general director cease, and from what moment does the new general director take office and acquire the corresponding powers? Who must sign an application for amendments to the Unified State Register of Legal Entities?
So, from what moment does the new general director of the company take office and acquire powers?
The legitimacy of the signature on administrative documents, statements, and contracts depends on the date of assumption of the position of the head of the company. Many people ask, from what moment can a new CEO sign documents?
The General Director (or other sole executive body of the company) acquires the corresponding powers from the moment the decision is made by the general meeting of participants (shareholders)
on his appointment to the relevant position and the signing of an employment contract with the general director.
In this connection, the new general director takes office on the date specified in the decision/minutes of the general meeting of participants (shareholders) of the company.
After the election of the general director and the conclusion of an employment contract with him, the new director issues an order on his appointment to the position and, according to the law, must notify the registration authority within three days about the changes that have occurred in the company.
The main nuance in the process of changing the general director is that from the moment the general meeting of participants makes a decision to change the director, until the moment these changes are registered in the Unified State Register of Legal Entities, there is a discrepancy between the information in the internal documents of the enterprise and the Unified State Register of Legal Entities, and such a discrepancy lasts as long as minimum 5 days. On the one hand, the decision has been made, the employment contract has been signed, and the new manager has begun to perform his duties, on the other hand, the Unified State Register of Legal Entities does not yet contain information about the new manager, therefore, when contacting the bank where the company account is opened to reissue a bank card, most likely difficulties will arise. Even when concluding an agreement, the counterparty can order an extract from the Unified State Register of Legal Entities, which will not contain information about the new director of the enterprise. And here, the legislator does not give clear “instructions” for the further legal activities of the company.
https://www.youtube.com/watch?v=sM5n8AoBtLM
Article 12 of the Federal Law “On Limited Liability Companies” provides that changes made to the constituent documents of the company become effective for third parties from the moment of their state registration. The same position is enshrined in the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs”.
However, no law or by-law provides that changes to the information contained in the Unified State Register of Legal Entities and not related to amendments to the constituent documents must come into force from the moment of their state registration by the tax authority. In this connection, we confidently say that the powers of the new general director begin from the moment the company’s participants make a decision to change the head of the organization.
This is confirmed by the registration authority, since it recognizes the powers of the new general director, despite the lack of information about him in the Unified State Register of Legal Entities when submitting an application for registration of changes in form P14001 in order to register a change in the head of the company.
Let us remind you that when making changes to the Unified State Register of Legal Entities related to changes in information about the head of the company, an application is submitted, which is signed by a person who has the right to act on behalf of the legal entity without a power of attorney, i.e. director
The registration authority accepts applications signed both by old directors whose powers have been terminated, and applications signed by new directors, information about which is not available in the Unified State Register of Legal Entities, but subject to the provision, simultaneously with application R14001, of an additional protocol (decision) on the change of the general director in the original .
Based on this, the new manager, before registering changes in information in the Unified State Register of Legal Entities, signs application R14001 as a manager with the ensuing rights and responsibilities.
Director change services
Source: https://businessgarant.com/news/2013/04/14/vstuplenie_v_dolgnost/
Employment contract
An employment contract with the head of an organization has a number of features, namely:
- may be concluded for a period established by the constituent documents of the organization, agreement of the parties or norms of federal legislation, but not more than five years (Articles 58, 59, 275 of the Labor Code of the Russian Federation);
- may provide for a condition of probation for a period of up to six months (Part 5 of Article 70 of the Labor Code of the Russian Federation). The probationary condition can be established only if the general director is appointed and not elected to the position by competition (Part 4 of Article 70 of the Labor Code of the Russian Federation);
- may contain additional grounds for its termination.
In addition to the mandatory terms of the employment contract, do not forget to include in it an additional condition on responsibility for ensuring the protection of confidential information (Part 6, Article 11 of the Law of July 29, 2004 No. 98-FZ).
Issue an order for the appointment of the general director using the unified form No. T-1 (Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1). The first order of the general director should be an order to take office. Usually there is the wording: “In pursuance of the decision of the shareholders (participants), I begin to perform my duties on such and such a date.”
An example of an employment contract with the general director
According to the charter of JSC Alfa, the election of the general director is not within the competence of the board of directors (supervisory board) of the company.
At the general meeting of Alpha shareholders, A.V. was elected general director. Lvov (protocol). An employment contract was concluded with him.
Situation: is it possible to conclude an employment contract with the general director for a period exceeding five years?
The answer to this question depends on what kind of agreement is concluded with the general director.
The organization has the right to conclude both a fixed-term and an open-ended employment contract with the general director. This is explained by the fact that labor legislation provides for the right, and not the obligation, to enter into a fixed-term employment contract with the general director. This is stated in Part 2 of Article 59 of the Labor Code of the Russian Federation.
An exception is provided only for cases where otherwise is established in federal legislation (Part 2 of Article 58 of the Labor Code of the Russian Federation). For example, this applies to the president of a state or municipal educational organization of higher education, an employment contract with whom can only be concluded for a period of no more than five years (Part 14 of Article 51 of the Law of December 29, 2012 No. 273-FZ). In other cases, the organization has the right to conclude an open-ended employment contract with the general director.
If an organization enters into a fixed-term employment contract with the general director, its term cannot exceed five years. In this case, the specific period of work within the five-year limit is determined by the constituent documents of the organization or by agreement of the parties. This procedure follows from the provisions of Part 1 of Article 275 and Article 58 of the Labor Code of the Russian Federation.
This procedure meets the requirements of the laws on joint stock companies and LLCs (Clause 1, Article 40 of the Law of February 8, 1998 No. 14-FZ, Article 69 of the Law of December 26, 1995 No. 208-FZ) and is confirmed by a resolution of the Constitutional Court of the Russian Federation dated March 15, 2005 No. 3-P.
For more information on how, if necessary, to extend a fixed-term contract concluded with the general director, see How to conclude a fixed-term employment contract.
Situation: who should sign an employment contract with the CEO on behalf of the organization?
On behalf of the joint stock company, the employment contract with the general director must be signed by the chairman of the board of directors (or supervisory board). It may also be a person who is authorized by that governing body. This is stated in paragraph 3 of Article 69 of the Law of December 26, 1995 No. 208-FZ.
In an LLC, the employment contract on behalf of the organization must be signed by one of the following persons:
- the chairman of the general meeting of participants or a member of the company who is authorized by the decision of the general meeting;
- the chairman of the board of directors (supervisory board) of the company or a person authorized by a decision of the board of directors (supervisory board) if the resolution of such issues is referred by the charter to the competence of these structures of the company.
This procedure is provided for in paragraph 1 of Article 40 of the Law of February 8, 1998 No. 14-FZ.
There are no special rules for other organizations, so the agreement on behalf of the organization can be signed by a person authorized to decide on the appointment of a general director to the position. It could also be the person who heads the relevant governing body.
Situation: is it necessary to conclude an employment contract with the general director, who is the sole founder (participant, shareholder) of the organization?
No no need.
If the head of an organization is also its sole founder (participant, shareholder), an employment contract is not concluded with him (letter of the Ministry of Health and Social Development of Russia dated August 18, 2009 No. 22-2-3199). The arguments are as follows: the specifics of regulating the labor of organization managers are established in Chapter 43 of the Labor Code of the Russian Federation. At the same time, the provisions of this chapter do not apply to managers who are the only founders (participants, shareholders) of organizations. This clearly follows from the provisions of Article 273 of the Labor Code of the Russian Federation. This rule is based on the impossibility of concluding an employment contract with oneself, since the organization has no other founders (participants, shareholders).
In this situation, the director must, by his decision, assume the functions of the sole executive body. In this case, the director will carry out management activities without concluding any contract, including an employment contract. The assumption of office is formalized by an appropriate order.
A similar conclusion is contained in letters of Rostrud dated March 6, 2013 No. 177-6-1 and dated December 28, 2006 No. 2262-6-1.
Since an employment contract is not concluded with the general director - the sole founder (participant, shareholder), the organization is not obliged to accrue and pay him a salary. This follows from paragraph 1 of Article 135, paragraph 2 of Article 145 of the Labor Code of the Russian Federation.
However, the organization has the right to do this. After all, the absence of an employment contract with the general director - the sole founder (participant, shareholder) does not call into question the existence of labor relations between him and the organization. According to official explanations, relations that arise as a result of election to a position, appointment to a position or confirmation in a position are characterized as labor relations on the basis of an employment contract (Articles 16–19 of the Labor Code of the Russian Federation). In particular, this means that the specified manager is subject to compulsory social insurance in case of temporary disability and in connection with maternity and has the right to payment of sick leave in the general manner, even in the absence of an employment contract concluded with him according to the general rules (clause 2 of the clarifications, approved by order of the Ministry of Health and Social Development of Russia dated June 8, 2010 No. 428n). The legality of this position was also confirmed by the court (determination of the Supreme Arbitration Court of the Russian Federation dated June 5, 2009 No. VAS-6362/09).
Accordingly, the salary of such a general director is subject to personal income tax and contributions to compulsory social (pension, medical) insurance and insurance against accidents and occupational diseases in the general manner (Article 210 of the Tax Code of the Russian Federation, Article 8 of the Law of July 24, 2009 No. 212-FZ , Article 20.1 of the Law of July 24, 1998 No. 125-FZ, letter of the Ministry of Labor of Russia dated May 5, 2014 No. 17-3 / OOG-330).
The salary of the general director, who is the only founder (participant), can be set in the staffing table or order.
What to consider when transferring a position
The founder must, at the time of signing the order, remove the authority from the previous manager. Also, before starting to perform their duties, the newcomer is recommended to check the orders, decrees and powers of attorney that were previously issued by the previous management.
The founder (when the old general director is removed and a new one is not appointed) must cancel unnecessary old powers of attorney and other documents on the main activity. And then only make a decision to issue an order to assume the position of general director of the LLC.
Employment history
Situation: what document should be indicated as the basis for hiring in the work book of the general director elected to the position by the general meeting of participants (shareholders) of the organization?
As the basis for hiring the general director, indicate in his work book:
- or details of the order for the general director to take office;
- or details of the minutes of the general meeting of participants (shareholders) (decision of the sole participant, minutes of the board of directors (supervisory board)) on the election (appointment) of the general director.
It is explained like this.
Column 4 of the work book indicates the date and number of the order (instruction) or other decision on hiring an employee (clause 3.1 of the Instruction, approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69).
The general director is the sole executive body of the company and is elected (appointed) to the position by the general meeting of participants (shareholders) of the organization (sole participant, board of directors (supervisory board)) for a certain period (clause 1 of article 40, article 39 of the Law of February 8 1998 No. 14-FZ, paragraph 1, 3 Article 69 of the Law of December 26, 1995 No. 208-FZ).
The agreement between the organization and the general director is signed on behalf of the company by the chairman of the general meeting of participants (shareholders) (the only participant, the chairman of the board of directors (supervisory board) or other authorized person of the organization (paragraph 2, paragraph 1, article 40 of the Law of February 8, 1998 No. 14-FZ, paragraph 2, clause 3, article 69 of the Law of December 26, 1995 No. 208-FZ).
Moreover, if an employment contract has been concluded with the general director, his hiring must be formalized by order (instruction) (Part 1 of Article 68 of the Labor Code of the Russian Federation). Therefore, the general director issues an order to take office.
Thus, for such an employee of the organization as the general director, as a basis for hiring in the work book, you can indicate both the details of the order for taking office and the details of the minutes of the general meeting of participants (shareholders) of the organization (decision of the sole participant, minutes of the council directors (supervisory board)) on the election (appointment) of the general director.
Similar clarifications are contained in the letter of Rostrud dated September 22, 2010 No. 2894-6-1.
Situation: is it possible, when hiring a new manager, to combine his work with the departing manager to transfer affairs?
No impossible.
The responsibilities of the manager include managing the organization, including performing the functions of its sole executive body (Article 273 of the Labor Code of the Russian Federation). That is, there cannot be two leaders in an organization at the same time.
The specific procedure for transferring powers (cases) in the event of a change in the head of the organization should be fixed in advance in the statutory documents of the organization itself, the job description of the manager or his employment contract (Articles 57, 274 of the Labor Code of the Russian Federation). So, for example, in the section “Rights and obligations of an employee” of an employment contract with the head of an organization, the following clause may be included: “In the event of termination of the employment contract (both by agreement of the parties and unilaterally), the manager is obliged within ten working days after termination of the employment contract with him, transfer the affairs to the newly appointed manager (or the person performing his duties) in the manner established by the founder of the organization.”
What other documents need to be completed?
On forums people are often asked what needs to be drawn up: an order in the T-1 form or an order to assume the position of general director of an LLC. Both of these papers are necessary for the normal functioning of the organization and for reporting.
The order in form T-1 refers to documents on personnel, and on taking office - to papers on the main activity.
This means that the personnel service has nothing to do with the order. The order is entered into the register (journal) of orders for the main activity as the first paragraph. This is the only way the company’s future activities will be possible.
