Law on the liability of individuals for companies. When the founder is responsible with property

Is the director liable for the debts of a liquidated company after bankruptcy?

Today we will talk about limited liability companies. In 2017, on June 28, creditors were given the opportunity to recover their debts from the director and participants of the company excluded from the Unified State Register of Legal Entities.

All business representatives are probably aware that the founders of this organizational form do not have any obligations to the company’s creditors for the debts of the company itself. Moreover, at the time of presenting the demands, it is no longer in all possible state registers.

In this article:

What are we talking about or is the director responsible for the debts of the LLC?

The legal rules have changed. And now even the former director of a limited liability company can be held vicariously liable for the debts of a company that has been liquidated (Clause 3.1, Article 3 of the Federal Law “On LLC”). Moreover, unexpectedly for myself.

On July 28, 2017, amendments to the law “On Limited Liability Companies,” known to all businessmen, officially came into force. In the text of our material, we will further refer to it as 14-FZ.

It is no secret that the easiest way for a company that has accumulated debts is to legally cease its activities very quickly. Previously, creditors would have been left with nothing.

However, thanks to legislative innovations, a theoretical opportunity has emerged to repay your debts. It is only important to correctly determine the direction of work.

Thanks to the work of legislators, it became possible to collect debts from the former director or founders. It is only important to justify the amount of debt and prove the illegality of actions on the part of the company’s management.

Who should be responsible

New amendments to Law 14-FZ define the following potential opponents in the dispute:

1. Directors (current and former).
2. Members executive body(collegial). This may be a board of directors, a management board, or another structure provided for by the charter of a particular LLC.
3. The person responsible for carrying out the entire liquidation procedure.
4. The founders of the enterprise (now the founder is liable for debts legal entity).

In addition, theoretically, those persons who contributed to the decision-making that led to the debt could be held financially liable for the company’s debts.

Their number could theoretically include both people who signed an agreement with the creditor under a power of attorney, and persons who control the debtor.

Another thing is that it is difficult to establish the real entity whose actions led to the debt.

After all, not every limited liability company allows the counterparty to familiarize itself in detail with its charter and other internal documents.

Of course, there is an extract from the Unified State Register of Legal Entities. However, the amount of information it contains may be limited.

When can you go to court?

In fact, the lender will have to carry out serious preparatory work.

These persons are liable for the obligations of the LLC only if the debt arises as a result of their dishonest and unreasonable actions.

And here another problem arises: how to prove a causal connection between the actions of the defendant and the debt incurred?

Documents alone are not enough here. It is necessary to study information about the company’s activities, obtain information from other counterparties, if known.

If you contact a lawyer, you can by legal means obtain information about dubious transactions made by the company (withdrawal of assets, appointment of a figurehead as a director).

A lawyer simply knows which way to approach solving such issues.

What are unreasonable and dishonest actions?

In fact, these concepts are vague and have an evaluative meaning. However, there may be some signs of fraud.

First of all, this is the sale of goods or the provision of services at prices that are significantly lower than market prices. In addition, this is carrying out transactions with companies that have a dubious reputation (“fly-by-night”, “fictitious companies”, etc.).

In turn, unreasonable actions should be understood as the negligent attitude of the enterprise management towards their immediate responsibilities.

In particular, the director could make decisions without taking into account information that is significant when concluding contracts or conducting the ongoing business activities of the organization.

In addition, knowing about the presence of debts, the manager attracted loans for purposes that were unreasonable for the company.

The lack of initiative to initiate insolvency proceedings (if the company was already burdened with debts) may also indicate unreasonableness. The withdrawal of assets before liquidation may also form the basis of a legal claim.

In any case, intent in non-payment of debt will have to be proven to the creditor, who nevertheless decides to receive his funds from the so-called subsidiary debtors.

It is useful to study the array before filing a claim judicial practice, and not only district, but also arbitration courts.

After all, the defendant in the case may be the founder - another company or individual entrepreneur, who were part of the participants of the defunct LLC.

In what cases can the director/participants of an LLC be subject to subsidiary liability?

From the wording of clause 3.1 of Art. 3 of the Law “On LLC” it ​​follows that subsidiary liability can (but should not!) be assigned to the director/participants of an LLC excluded from the register.

Therefore, to impose this liability, it is not enough to simply exclude the LLC from the Unified State Register of Legal Entities with debts; there must be additional grounds established by the court, namely: bad faith or unreasonableness of the controlling persons, due to which the LLC did not fulfill its obligations to the creditor.

So, subsidiary liability for the debts of the company can be assigned to controlling persons if two conditions are simultaneously met:

1. Exclusion of an inactive LLC from the register of legal entities if there is an outstanding debt to a creditor. Proving this circumstance is elementary.
2. The presence of a cause-and-effect relationship between the failure to fulfill an obligation (to the creditor) and the dishonest or unreasonable behavior of the controlling persons. This aspect needs to be dealt with in more detail.

How are bad faith and unreasonableness established in practice?

The courts regard the following as unreasonable (unfair) behavior:

• failure to take measures to repay the debt to the creditor “during the lifetime” of the LLC (A71-20472/2017, A53-29729/17);
• actual termination of the company's activities after termination of the powers of the controlling persons (A53-29729/17);
• failure to take action to terminate or cancel the procedure for excluding the LLC from the Unified State Register of Legal Entities. (A71-20472/2017);
• the fact of failure by the head of a legal entity to file an application for bankruptcy of an enterprise with an arbitration court, in the presence of signs of bankruptcy (Appeal ruling of the Investigative Committee for civil cases of the Moscow City Court dated January 30, 2018 in case No. 33-3879).

Finally, there are judicial acts in which, when bringing to subsidiary liability, the dishonesty and unreasonableness of the controlling persons is not analyzed at all, and the conclusion about bringing to liability follows simply from a statement of failure to fulfill the obligations of the LLC (A60-47830/2017).

I don't think this is the right approach. Most likely, it is based on the fact that the defendant behaved passively and the court applied Part 3., 3.1 of Art. 70 Arbitration Procedure Code of the Russian Federation.

And here interesting example“negative” practices, decisions in favor of the controlling person.

The court imposed on the Plaintiff the obligation to prove the existence of losses, the illegality of the defendant’s behavior and the causal relationship between the losses and the defendant’s behavior (A45-2887/2018). The court decision rejected the creditor's claim, and the appeal “overpowered” the said decision.

It should be taken into account that the court can exempt a participant from liability due to the fact that the size of his share in the authorized capital does not allow him to make key decisions on the activities of the company, that is, the participant is essentially not a controlling person (a similar approach was demonstrated in case A53-29729/17) .

Who to sue

Depending on the situation, there may be several defendants at once.

Naturally, the leader comes to the fore. After all, he signs all documents and is personally responsible as a director for the debts of the LLC.

At the same time, a claim can be brought simultaneously against the person who actually controls the activities of the organization and who was involved in the controversial operation. The same applies to the director who led the company for a long time or at the time of its closure.

The above also applies to the liquidator (head of the liquidation commission), to whom all rights to manage the company were transferred at the stage of termination of activity.

Is it possible to hold a founder liable for the debts of a legal entity?

With LLC participants the situation is more complicated. After all, it is very difficult to prove their involvement in making a decision unfavorable to the creditor. In this state of affairs, the founder’s liability for the debts of the legal entity is reduced to zero.

Moreover, the plaintiff may not know the actual composition of the participants of the LLC that has ceased its activities. In addition, the plaintiff and the court will have difficulty determining the degree of involvement of each participant in the debt.

You should also remember that an LLC can be created by one person, who is also its director. Therefore, in this case, the question of determining the defendant disappears by itself.

The most ideal option will identify several defendants. In any case, this will not affect the amount of the creditor's legal costs.

Preparation of the evidence base

Naturally, not all documents will be available to the plaintiff. Therefore, it is necessary to submit a petition to the court to request part of the materials from the archive and the Federal Tax Service body, under which the closed LLC was registered.

It is advisable to involve not only a lawyer in the analysis of the case materials, but also a specialist versed in accounting and financial documents companies.

This could be an experienced accountant or auditor. Perhaps the intention behind the non-repayment of the debt lies behind the numbers.

If the case is already in court, then in some cases it is useful to insist on conducting a forensic accounting examination of the documents that were obtained for the liquidated limited liability company.

Be that as it may, the creditor of the former company should not go to court empty-handed.

Which court should I go to?

When choosing a judicial authority, there are several rules, since a claim can be filed either in a district court or in a court of arbitration jurisdiction.

Everything will depend on the nature of the dispute and the composition of its future participants.

1. If the legal relationship was in the nature of entrepreneurial activity for both parties: a supply agreement, construction contract, etc., and the creditor is an organization or individual entrepreneur, then the claim must be filed in an arbitration court.
2. If the legal relationship was in the nature of satisfying the personal needs of a citizen: provision household services and the like, and the creditor is an individual, then you need to apply to a court of general jurisdiction. Also applies former employees excluded from the LLC register.

Cases regarding the recovery of damages from the head of an organization (including a former one) are considered by both arbitration courts and courts of general jurisdiction, in accordance with the rules on the delimitation of competence (clause 7 of the RF Armed Forces Decree dated 06/02/15 No. 21).

That is, economic disputes - arbitration (Article 33 of the Arbitration Procedure Code of the Russian Federation), other disputes - a court of general jurisdiction (Part 3 of Article 22 of the Code of Civil Procedure of the Russian Federation). In essence, the jurisdiction of the dispute is determined in the same way as it would be determined for a creditor’s claim against an LLC excluded from the register; the rules are exactly the same.

District Court

It is worth contacting there in the case when the defendant in collecting the amount is an individual: founders or director former company.

And there is one nuance here. It is quite obvious that the plaintiff may not know about the residential addresses of the relevant citizens. Therefore, the most reasonable solution would be to file a claim in the district court at the location of the liquidated enterprise.

Similar statement of claim can be accompanied by a petition to request address data on the defendants from the tax office. After receiving them, the judge himself will decide on the transfer of the case to jurisdiction (if such a need arises).

Arbitration court

Often, formally collecting a debt from a director simply does not make sense (especially if it was a so-called “dummy”). In this case, claims can be addressed to the founder of the liquidated company (if he acts as a legal entity or individual entrepreneur).

In addition, arbitration should also be applied when the debt arose from corporate relations. For example, a participant was not paid a debt on dividends or part of the profit from the activities of a liquidated company.

If we are not talking about corporate disputes, then before going to arbitration it is worth filing a claim with the defendant. By general rule it is reviewed within a month from the date of its receipt.

Depending on the amount of the stated claims, the arbitration tribunal has the right to consider the case both according to the usual procedure and using simplified proceedings. In the latter case, a separate procedural document is issued.

Regardless of whether the appeal is to a district or arbitration court, the claim must indicate all registration data for the liquidated legal entity. If you have a copy of the extract from the Unified State Register of Legal Entities, you should attach it too.

What happens next

So, judgment in any case necessary. However, it will not be enough.

When the court act comes into force, it is necessary to obtain a writ of execution. It is issued by the court of first instance. This rule applies to both district and arbitration courts.

Next, you should establish interaction with bailiffs. The creditor can help find the debtor’s property, provide the necessary transportation technical means and so on. The speed of obtaining funds to repay the debt largely depends on the fruitfulness of cooperation.

Let's summarize: prospects for joint liability of the director and founders for the obligations of the LLC

On June 28, 2017, amendments to Law 14 - Federal Law came into force. Their essence is that the director or founders may be liable for the debts of a liquidated limited liability company.

However, there is one significant “but”. To collect debt from these entities, it is necessary to prove that a certain amount of money was not repaid due to malicious or unjustified actions.

Therefore, before deciding to file a lawsuit to hold the director and other persons liable for the unpaid debts of the enterprise, you need to thoroughly prepare and collect evidence of their malicious actions.

When choosing a legal form (individual entrepreneur or LLC), the main argument in favor of registering a company is often the limited liability of a legal entity. In this, Russia differs from other countries where a company is created for the sake of partnership, and not because of avoiding financial risks. About 70% of Russian commercial organizations created by a single founder, who, in most cases, manages the business himself.

Many companies do not really function, not even earning enough for the director’s salary and not differing in profitability from a freelancer who provides services in his free time from hired work. However, legal entities in Russia are registered as often as individual entrepreneurs.

If you want to find out in detail how an organization differs from an individual entrepreneur, we advise you to read the article “”, and here we will try to dispel the myth that registering a company is a sure way to avoid losses in business.

Liability of a legal entity

First, let’s find out where the confidence in what to lead comes from. entrepreneurial activity Is the LLC form financially secure? Article 56 of the Civil Code of the Russian Federation states that the founder (participant) is not liable for the obligations of the organization, and the organization is not liable for its debts. That is why, to the question: “What responsibility does the founder of an LLC bear?” the majority answers - only within the limits of the share in the authorized capital.

Indeed, if the company is solvent and pays on time to the state, employees and partners, then the owner cannot be attracted to pay the company’s bills. The created organization acts in civil circulation as an independent entity and is itself responsible for its own obligations. As a result, a false impression is created of a complete lack of responsibility of the LLC owner to creditors and the budget.

However, the limited liability of a company is valid only as long as the legal entity itself exists. But if an LLC is declared bankrupt, then the participants may be subject to additional or subsidiary liability. True, it is necessary to prove that it was the actions of the participants that led to the financial disaster of the company, but creditors who want to get their money back will make every effort to do this.

Article 3 of Law No. 14-FZ dated 02/08/1998: “In the event of insolvency (bankruptcy) of a company due to the fault of its participants, these persons, in the event of insufficient property of the company, may be assigned subsidiary liability for its obligations.”

Vicarious liability not limited by size authorized capital, and is equal to the amount of debt to creditors. That is, if a bankrupt company owes a million, then it will be recovered from the founder of the LLC in full, despite the fact that he contributed only 10,000 rubles to the authorized capital.

Thus, the concept of limited liability within the authorized capital is relevant only to the organization. And the participant can be held to unlimited subsidiary liability, which in a financial sense makes him equal to an individual entrepreneur.

Manager and founder rolled into one

The subsidiary liability of the founder and director of an LLC for the obligations of a legal entity has its own characteristics. In a situation where an organization is managed by a hired general director, some share of the financial risks passes to him. According to Article 44 of the Law “On LLC”, the manager is responsible to society for losses caused by his guilty actions or inaction.

Liability for debts arises if there are such signs of guilty actions or inaction:

• making a transaction to the detriment of the interests of the enterprise he manages, based on personal interest;
• concealment of information about the details of the transaction or failure to obtain the approval of participants when such a need exists;
• failure to take measures to obtain information relevant to the transaction (for example, information about the contractor is not verified or clarified if the nature of the work requires it);
• making decisions about a transaction without taking into account information known to him;
• forgery, loss, theft of company documents, etc.

In such situations, the participant has the right to file a claim against the manager for compensation for damage caused. If the director proves that in the process of work he was limited by the orders or requirements of the owner, as a result of which the business became unprofitable, then responsibility will be removed from him.

But what if the owner is the manager of the company? In this case, it will not be possible to refer to an unscrupulous hired manager. The presence of outstanding debts obliges the sole executive body to take all measures to repay them, even if the owner is the only one, and at first glance, does not infringe on anyone’s interests with his actions.

Indicative in this sense is the determination of the Arbitration Court of the Jewish autonomous region dated July 22, 2014 in case No. A16-1209/2013, in which 4.5 million rubles were recovered from the founding director. Having a company that has been involved in heat and water supply for many years, he declared in a competition for the right to lease utility infrastructure facilities new company with the same name. As a result, the previous legal entity was left without the ability to provide services, and therefore did not repay the amount of the previously received loan. The court recognized that the insolvency was caused by the actions of the owner and ordered the loan to be repaid from personal funds.

Tax debts

The Federal Tax Service of Russia is proud of the high collection of taxes to the treasury. We will not now discuss the legality of the tax authorities’ methods of work; we will simply admit that they are not to be trifled with. It is possible to agree with private creditors on writing off part of the debt or restructuring payments, but with a critical budget the amount of debt will already be over 300,000 rubles.

The liability of the founder for the debts of a legal entity to the state is also prescribed by law.

Article 49 of the Tax Code of the Russian Federation: “If Money the liquidated organization is not enough to fulfill in full the obligation to pay taxes and fees, penalties and fines, the remaining debt must be repaid by the participants of the said organization.”

If the amount of tax debt exceeds 300,000 rubles, and the repayment period is more than 3 months, then the organization is at risk. It is necessary to take all measures to pay off the debt or declare the LLC bankrupt, otherwise the tax inspectorate will do this, but with the requirement that the manager and/or founders be found guilty.

Attempts to withdraw assets from the organization in order not to pay arrears on taxes will also not lead to anything good. For example, in case No. A07-7955/2009, the Arbitration Court of the Republic of Bashkortostan held the founders to subsidiary liability under the following circumstances.

The company, having a tax debt in the amount of 675 thousand rubles, transferred all its assets to another organization created by the same persons. The participants believed that if there were no funds to pay the tax and the company was declared bankrupt, the obligations of the legal entity would cease. However, the tax inspectorate, having filed a lawsuit, proved the guilt of the company's owners in creating arrears and collected the debt from their personal funds.

Of course, it is more difficult and longer to attract the founder of an LLC for the debts of his company than an individual entrepreneur, because the bankruptcy procedure is quite lengthy. However, since 2015, tax inspectors have had another collection tool - as part of the initiation of a criminal case under Article 199 of the Criminal Code of the Russian Federation.

Thus, in the ruling of the Supreme Court of the Russian Federation dated January 27, 2015 No. 81-KG14-19, the court found the manager and sole owner responsible for failure to pay VAT in large size and confirmed the legality of collecting damages from an individual to the state in the amount of unpaid tax. This decision, in fact, became a judicial precedent, after which all similar cases are considered easier and faster. The founder, in addition to the obligation to repay the debt itself, also receives a criminal record.

Prosecution procedure

At what point does the founder become responsible for the activities of the LLC? As we said above, this is only possible in the process of bankruptcy of a legal entity. If an organization simply ceases to exist, having honestly paid all creditors in the process, then there can be no claims against the owner.

Protecting the interests of the budget and other creditors is the law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”, the provisions of which are also valid in 2019. It details the procedure for carrying out bankruptcy and bringing to responsibility the managers and owners of the company, as well as persons controlling the debtor.

The latter refers to persons who, although not formally owners, had the opportunity to instruct the manager or participants of the company to act in a certain way. For example, one of the most impressive amounts in the case of bringing to subsidiary liability (6.4 billion rubles) was recovered from the controlling debtor of a person who was not part of the company and did not formally manage it (Resolution of the 17th Arbitration court of appeal in case No. A60-1260/2009).

The manager must submit an application to recognize the legal entity as a debtor, but if he does not do this, then employees, contractors, and tax authorities have the right to begin bankruptcy proceedings. In this case, the party filing the claim appoints the selected arbitration manager, and this has special meaning in attracting the owner to the obligations of the LLC.

In addition, in order to increase the bankruptcy estate, the plaintiff has the right to challenge transactions made within a year before the application for declaring the debtor bankrupt was accepted. In cases where the transaction was completed at prices below market prices, the period for challenging is increased to three years.

During the insolvency process, the director, business owner, and beneficiary are involved in the proceedings. If the court recognizes the connection between the actions of these persons and insolvency, then a penalty in the amount of the plaintiff’s claims is imposed on personal property.

What conclusions can be drawn from all that has been said:

1. The liability of a participant is not limited to the size of the share in the authorized capital, but can be unlimited and repaid from personal property. There is little point in establishing an LLC just to avoid financial risks.
2. If the company is run by a hired manager, provide for an internal reporting procedure that allows you to have a complete picture of the state of affairs in the business.
3. Accounting statements must be under strict control, loss or distortion of documents is a particular risk factor indicating intentional bankruptcy.
4. Creditors have the right to demand collection of debts from the owner himself if the legal entity is in the process of bankruptcy and is not able to meet its obligations.
5. It is more difficult to attract the owner of an enterprise to pay business debts than an individual entrepreneur, but since 2009 the number of such cases has been in the thousands.
6. Creditors must prove the connection between the financial insolvency of the company and the actions/inactions of the participant, but in some situations there is a presumption of his guilt, i.e. no proof required.
7. Withdrawal of assets from a company on the eve of bankruptcy is a significant risk of criminal prosecution.
8. It is better to initiate the bankruptcy procedure yourself, but this should only be done with the involvement of highly specialized lawyers with positive experience in similar cases.

A limited liability company or LLC is an organization, company, firm, the founder of which can be an individual or a group of individuals. When creating an LLC, each of the founders contributes his share to the authorized capital, expressed in monetary amount or securities, property. The founders are not liable for the obligations of the organization they created. The liability of LLC participants is within the limits of their share of the authorized capital.

Management of a limited liability company

The highest governing body of the company is the general meeting of founders. This body is a mandatory part of any LLC. The rights and obligations of the meeting of founders are determined by the current charter of the company and legislation.

The activities of the company are managed by the director. He is appointed by the meeting of founders. The legislation provides the founders with the opportunity to create the Management Board of the company and the Board of Directors.

But the creation of these bodies is not a mandatory requirement. To create or not to create them is the right of the LLC founders.

The mandatory body of the company is the Audit Commission. The composition of the commission is approved at general meeting founders. The Commission exercises control over financial activities LLC, the safety of its property.

Responsibility of LLC founders

Law No. 14-FZ of February 8, 1998 determined that the founder of the company is not liable for the unfulfilled obligations of the company. He is responsible for losses within the authorized share.

At the same time, it is believed that this is not the responsibility of the founder, but the loss of the property contributed by him as an authorized share if the LLC fails to fulfill its obligations.

He is liable for obligations only if he is directly at fault for losses incurred by the company or failure to fulfill his obligations (Article 3, paragraph 3 of the above Law). But the founder’s guilt in the company’s failure to fulfill its obligations must be proven during a court hearing.

Founders are subject to administrative liability for bankruptcy, intentional or fictitious, as well as for unlawful actions committed during the bankruptcy procedure (Articles 14.12, 14.13 of the Administrative Code). For acts qualified by the Criminal Code of the Russian Federation, the founders are responsible in the prescribed manner.

Managers

The directors of the LLC include the director, his deputies, Chief Engineer(if the company is engaged in production activities), Chief Accountant.

Everyone is responsible within their competence. The deputy cannot be punished for the actions of the chief accountant that led to losses. And vice versa.

Responsibility for the actions of a particular official is determined by current legislation and the organization’s charter. The penalties imposed may range from a verbal reprimand to dismissal, compensation for damage suffered by the company, partially or fully, by deduction from wages and full one-time repayment of the loss.

The imposition of penalties is partly within the competence of the company, partly within the competence of the court. For example, it must be proven in court that the action or inaction of a particular official led to significant material damage or bankruptcy. Criminal punishment for committing illegal actions can be applied in the general manner.

What can a director be punished for?

The activities of any organization, firm, company are built on the principle of unity of command. That is, at the head of the organization there is a person who carries out operational management and is responsible for all its activities.

In our case, a director appointed by the meeting of founders. The director can be punished for actions as a result of which the organization suffered material and, God forbid, human losses that resulted in the bankruptcy of the LLC.

Directors can be held accountable for actions that violate the organization's bylaws or laws, negligent neglect of their duties, abuse of power, and, finally, criminal liability for acts of a criminal nature.

The director is jointly responsible together with his subordinates, for example, for violations of financial discipline, violations of the technological cycle.

Depending on the violation committed by the management of the LLC or by him personally, the director may be held administratively, financially, or criminally liable.

The director is held administratively liable in cases of violation of labor safety and security standards, lack of a license or access to certain work by the organization, violation of fire and sanitary safety rules.

Material can be expressed in the form of fines or other penalties. Fines may be imposed on the director if the damage suffered by the organization is minor. In all other cases, the penalty is imposed by the court.

For unlawful acts proven by the court, damages may be recovered from the director; the director may be imprisoned, serving a sentence in a colony, with or without payment of a fine, and compensation for the damage caused. In addition, he may be deprived of the right to occupy leadership positions indefinitely or for a specified period.

Video about what the director is responsible for:

Responsibility of the founder for the debts of the LLC

The founder may be held liable if his decisions or actions led the LLC to bankruptcy or for damage incurred by the organization. In this case, the penalty is imposed not only on the authorized share of the founder, but also on personal property and funds.

Whether such an action led to damage or bankruptcy must be proven in court. The court also determines the penalty that should be imposed on the culprit. If the founder is also the head of the organization, then he bears full responsibility for his actions with personal property, including the authorized share.

Subsidiary liability of the LLC founder

The founders are responsible with their authorized capital. They are not responsible for the current obligations of the LLC.

The subsidiary liability of the founders arises if their interference in economic activity resulted in the bankruptcy of the LLC or caused significant damage to the organization. In this case, he compensates for the damage with his personal property.

In the Civil Code Russian Federation is determined when subsidiary liability arises and the procedure for its application (Articles 56 and 399, paragraph 1, respectively). At the same time, it is indicated that it is necessary to prove that it was the actions of the founder that led to bankruptcy or loss. If this is not proven in court, then subsidiary liability does not arise.

Liability in bankruptcy

In the event of bankruptcy of an LLC or its liquidation, the founder is liable for the obligations of the organization only to the extent of his authorized share. Unless, of course, it is proven in court that it was his actions that led to bankruptcy. If the authorized share of the company participant is not paid in full, then the remaining amount is collected additionally.

Video: debts of founders and LLC should be separated

I assume that every businessman knows: the “standard” liability of an LLC participant is limited to the size of his contribution to the authorized capital. In the worst case, it could be ten thousand rubles - not a big risk. However, we should not forget that the founder is a person who has the right to make decisions that directly affect economic activity enterprises. And if there is a right, then there must be a responsibility corresponding to it. And it exists. A member of the company faces punishment if, for example, it turns out that, while making transactions on his instructions, the company suffered significant losses and even found itself on the verge of loss.

On the other hand, everyone remembers the truth that commercial activity is carried out at your own peril and risk, therefore the participation of the company in transactions that subsequently turned out to be unprofitable, in itself cannot become a reason for punishing the founder. But be that as it may, in such a case the legislation provides for additional or subsidiary liability for the owners of the company. It consists in the fact that if a company is declared bankrupt due to the fault of its participant, the latter will be liable with all personal property for the amount of accounts payable outstanding by the debtor enterprise.

But in order for the rule of subsidiary liability to take effect, the arbitration judges, as well as the bankruptcy trustee, must prove that it was the behavior of the founders that brought the office to bankruptcy, and explain exactly how this happened. I’ll tell you how this happens, using the example of one trial.

Beginning of the End

It all started with the fact that the entrepreneur, having transferred an advance payment in advance, received low-quality glass-aluminum structures from the supplier company. He notified the seller about this, and the latter promised to eliminate the defects as soon as possible. The buyer had to wait quite a long time, and after some time the incident began to turn from the stage of complaint correspondence into a conflict. This is where one of the founders of the supplier company came into play. At first, she took part in negotiations with a dissatisfied customer, and with a Finnish company producing low-quality goods, and even handed over to the buyer’s representative a large sum cash in order to settle monetary demands.

Quite often, the difficulty arises in the fact that the owners of the company, already anticipating its bankruptcy, do not initiate this procedure themselves, as required by law, but try to avoid possible liability. To do this, they sell their shares in the company and thus replace the founders and then the director...

However, as it turned out later, these issues were not the only ones the founder decided. At the same time, she took part in changing the head of her native company with the sale of full participation in the business to the latter.

After some time, due to the debtor’s failure to fulfill his obligations, the dissatisfied buyer went to court. As could be expected, the applicant's claims were satisfied. The advance payment and, in addition, damages (totalling about eight and a half million rubles) were recovered in favor of the plaintiff. Time passed, but the defendant was in no hurry to transfer the money. And when the former partner’s patience ran out, he again appealed to the arbitration court with an application to initiate bankruptcy proceedings against the unfortunate enterprise. In addition to the former business partner, the second creditor of the company was the budget. The total amount of the enterprise's debt amounted to twelve million rubles.

Come to a disagreement

By decision of the court of first instance the company was declared bankrupt. In addition, the bankruptcy trustee asked the arbitrators to hold an overly active ex-participant of the enterprise to subsidiary liability for the obligations of the debtor company.

In support of his claim, the manager indicated that both former founders, trying to avoid responsibility for the ineffective economic activities of the company, sold their shares, and along with them, responsibility for future fate companies. Upon closer examination, it turned out that the property and documentation of the company were not actually transferred to the nominal manager and payment under the share purchase agreement was not made.

The bankruptcy trustee's application was partially satisfied - with former member the judges recovered only half of the amount that the plaintiff insisted on. And the appellate arbitrators completely sided with the defendant (resolution dated June 19, 2013 in case No. A56-41166/2010). The cassation judges decided that their colleagues made the wrong decisions and ordered the case to be sent for a new trial. However, they indicated that two questions should be clearly answered before drawing any conclusions again. Firstly, whether the bankrupt enterprise at the time of the transaction for the alienation of shares had unfulfilled obligations to other creditors. And secondly, what actions (or instructions) of the defendant party led to the bankruptcy of the debtor.

For the second round

Now the trial judges have more carefully checked the testimony of the two former founders, as well as the new director of the sinking company. At the same time, one of the ex-participants could not indicate exactly where the documentation and property of the bankrupt company were located. The situation was aggravated by the newly elected director, who suddenly admitted that the signature on the acceptance certificate was not his, but a fake. In addition, he once again confirmed that he did not pay the purchase price of shares in the authorized capital of the company to their former owners, but, on the contrary, received remuneration for providing his personal data to register several legal entities in his name, including a bankrupt enterprise. The above circumstances gave grounds to state that the former owners of the company violated the requirements of paragraph 2 of Article 50 of the Law on Limited Liability Companies, and as a result of which the company’s papers were lost.

New solution

Taking into account the newly received testimony and re-examined documents, the judges came to the conclusion that the ex-founder was well aware of the nature of her actions, and they, according to the arbitrators, were aimed at terminating the legal connection with the debtor, bypassing the norms and paragraph 1 of Article 10 of the Law about bankruptcy. The arbitrators considered invalid, due to their fictitiousness, and therefore nullity, the founder’s agreement to withdraw from the participants. But, despite the fact that these actions turned out to be legally untenable, the intention to leave the company without assets and management and all the related actions were quite real. And the withdrawal of assets from an enterprise, the deprivation of a business company of economic content and the abandonment of a legal entity in the form of a corporate shell to the mercy of fate are precisely punishable by bringing the founder to subsidiary liability, the arbitrators concluded.

On a note

Vicarious liability lies in the fact that if a company is declared bankrupt due to the fault of its participant, the latter will be liable with all personal property for the amount of accounts payable outstanding by the debtor enterprise.

The court of first instance found: the defendant, owning half of the company's authorized capital, had the opportunity and actually determined the decisions made by management. At the same time, the joint and coordinated actions of her and the second participant, who initially performed the duties general director, led to the loss of papers and property, the cessation of the financial and economic activities of the company and an increase in accounts payable. Accordingly, the arbitrators recognized that the insolvency of the company was due to the fault of the founder, and the latter is subject to liability under the rules of paragraph 4 of Article 10 of the Bankruptcy Law. Further, following the provisions of the same article, the servants of Themis determined the amount of liability, it amounted to fifty percent of the unsatisfied claims of bankruptcy creditors, and this is more than five and a half million rubles (determination of the Arbitration Court of the city of St. Petersburg and the Leningrad Region dated October 29, 2013. in case No. A56-41166/2010/z.6). The co-founder's appeal failed to change the judges' decision.

Anna Mishina, for the magazine "Calculation"

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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 states the following phrase: “an individual entrepreneur risks all his property, and the liability of the LLC founders 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 things are going well in the LLC, then all the company’s obligations (debts to suppliers, partners or the budget) are repaid by it 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 Federal Law dated 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 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, the founders (participants) of a 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 is a fine of 200-500 thousand rubles, forced labor for 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. Such types of liability can only be brought against officials, guilty of offences. At first glance, the director and chief accountant, who were hired on the basis of employment contract. 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.