Information about the sole executive body of your organization. Sole executive body

(eng. individual executive body) - in civil law RF person who solely exercises the functions of a management body of a commercial or non-profit organization, reporting to its highest management body and carrying out ongoing management of the activities of the relevant organization. Legal regulation education and activities E.i.o. carried out by the Civil Code of the Russian Federation*, federal laws on certain types of legal entities and other legal acts of the Russian Federation.

The main purpose of E.i.o. - execution of decisions of the highest management body of the organization. As a rule, in laws on certain types of organizations and in the constituent documents of legal entities, E.i.o.

is established in such a way as to exclude the possibility of this body exercising certain powers of the supreme management body of the relevant organization. For example, in a society with limited liability E.i.o. (general, etc.) is elected by the general meeting of participants of the company for a period determined by the charter of the company. E.i.o. of the company can also be elected not from among its participants (Article 40 of the Federal Law “On Limited Liability Companies”**). S.i.o.: a) acts on behalf of the company without a power of attorney, incl. represents his interests and performs; b) issues powers of attorney for representative offices on behalf of the company, incl. powers of attorney with the right of substitution; c) publishes the appointment of company employees to positions, their transfer and dismissal, applies incentive measures and imposes disciplinary action ; d) exercises other powers not included in the competence of the Federal Law “On Limited Liability Companies” or the company’s charter general meeting

The legislation of the Russian Federation on joint stock companies establishes similar e.i.o. joint stock company (Article 69 of the Federal Law “On Joint Stock Companies”**).

Large legal dictionary.

Akademik.ru.

2010. - See what “Sole executive body” is in other dictionaries: Sole executive body executive

2010., acting on behalf of the organization on the basis of the Charter and having the right to exercise the legal capacity of this organization on all issues not within the competence of other bodies of the company. Usually the sole executive... ... Accounting Encyclopedia

- (English: individual executive body) in the civil law of the Russian Federation, a person who solely exercises the functions of the management body of a commercial or non-profit organization, accountable to its supreme management body and exercising current management... ... Accounting Encyclopedia

Encyclopedia of Law Executive agency

- (English: individual executive body) in the civil law of the Russian Federation, a person who solely exercises the functions of the management body of a commercial or non-profit organization, accountable to its supreme management body and exercising current management... ... Executive body of the company - This article or section describes the situation in relation to only one region (Russia). You can help Wikipedia by adding information for other countries and regions. The executive body of the society is about ... Wikipedia- a company body that carries out direct operational activities in managing a business company. Russian law divides: sole

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an official acting on behalf of the company on the basis of the Charter... ... Wikipedia Accounting Encyclopedia

See Sole executive body; Executive activities; The collegial executive body... Large legal dictionary

Collegial executive body- (English collegial executive body) in the civil law of the Russian Federation, a body formed from several persons that implements the functions of managing a commercial or non-profit organization, is accountable to its supreme management body and carries out the current ... ... Accounting Encyclopedia

Sole governing body- see Sole executive body... Government- Body (control) (in joint stock company or limited liability company) one of four possible bodies provided for by law

Russian Federation about joint stock companies and limited companies... ... Wikipedia Sole executive body

legal entity

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

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

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

In addition, constituent documents can assign the duties of a manager to several persons at the same time (paragraph 3, paragraph 1, article 53 of the Civil Code of the Russian Federation). In this case, they can function both jointly and independently, i.e., as separate executive bodies.

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

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

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

There are 2 approaches to the procedure for forming the name of a leadership position:

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

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

How is the sole executive body formed in LLCs, JSCs and other organizations?

The governing body in different organizations is formed in almost the same way: it is elected by the organization’s participants at a general meeting with subsequent adoption of the minutes of the general meeting or by a collegial body, if the latter is given the appropriate powers. The procedure is regulated by the constituent documents, the Civil Code of the Russian Federation and other laws, depending on the type of business entity. At the same time, certain nuances are characteristic of different organizations (we will discuss them later).

Business societies

In a limited liability company, the manager can only be an individual or individual entrepreneur. In a joint stock company, the powers of the executive body can also be transferred to the management organization, as mentioned earlier.

Production cooperative

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

Unitary enterprises

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

Non-profit corporate organizations

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

Non-profit unitary companies

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

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

Directly to third parties, confirmation of the powers of the sole executive body can be made using one of the following documents:

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

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

Registration of a manager for a position usually occurs in the following order:

1. The highest (or collegial) body of the business company makes an appropriate decision.
2. Consists:

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

The person authorized to sign a civil or employment contract on the part of the organization is the chairman of the meeting or one of the participants.

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

Can an employment contract be a confirmation of the authority of the manager?

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

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

Nuances of labor relations with the head of the organization

Such relations are regulated by Ch. 43 Labor Code RF and its other norms. So, between the enterprise and the manager, according to Part 2 of Art. 59 and art. 275 of the Labor Code of the Russian Federation, a fixed-term employment contract is concluded for a period determined by the constituent documents or by agreement of the participants. At the same time, a managerial employee cannot be a part-time worker unless there is consent of the supreme body or the owner of the enterprise, and bears full financial liability to the company for actual damage caused to its property.

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

1. Due to the commencement of bankruptcy proceedings of the enterprise and the removal of the manager.
2. Due to the adoption by the highest body of the company of a decision to terminate the powers of the manager.
3. For other reasons provided for in the employment contract.

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

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

IMPORTANT! If there is an employment relationship between the director and the company in the case where the director is its the only participant, he is obliged to make all tax and extra-budgetary deductions for himself as an ordinary employee (letter from the Federal Social Insurance Fund of the Russian Federation “On the taxation of payments...” dated December 21, 2009 No. 02-09/07-2598P).

Principles of activity of the executive body and its functions

The head of the enterprise is elected for a certain period established by the constituent documents of the business company. The powers of the sole executive body include issues that do not fall within the competence of the supreme and collegial management bodies. The list of powers is established both at the legislative level and at the organizational level (by constituent documents).

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

• makes transactions on behalf of the organization;
• represents the interests of the enterprise to third parties;
• issues powers of attorney;
• issues administrative documents, including personnel documents (on hiring, dismissal, etc.);
• carries out other actions provided for by the constituent documents.

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

• ensures that the company fulfills its public legal functions (tax, administrative, etc.);
• carefully selects contractors and supervises personnel.

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

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

Responsibility of the sole executive body

If during the period of his activity the manager violated the principles of good faith and reasonableness and this led to losses for the company, he may be brought to civil liability. However, we should not forget that not all losses can be the result of intentional mistakes of the director - perhaps this is the result of normal business risk (clause 1 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation “On some issues of compensation for losses...” dated July 30, 2013 No. 62).

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

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

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

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

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

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

General information

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

Normative base

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

1. Federal Law "On Limited Liability Companies".
2. Labor Code of the Russian Federation.
3. Federal Law "On Joint Stock Companies".
4. Civil Code of the Russian Federation.
5. Federal Law "On State Registration of Individual Entrepreneurs and Legal Entities".
6. Law No. 161 “On municipal and state unitary enterprises”.

Civil Code

The Civil Code establishes that any organization receives its rights and bears responsibilities through its own bodies. They act on the basis of the provisions of the law, including other regulations. The latter, in particular, include constituent documentation. It defines the procedure for electing or appointing the management of the company. This provision is enshrined in Art. 53 Civil Code.

Specifics of a leadership position

Any legal entity must have its own. This can be one entity or a group of citizens. Management's competence includes operational activities, control and organization of the company's work. It is it that receives the rights and bears the corresponding responsibilities of the company. The Federal Law “On Limited Liability Companies” defines special rules for the management staff. First of all, they relate to the procedure for managing the company’s activities. In Art. 32, clause 4 of the said Federal Law, it is determined that the management current work of an enterprise is carried out by the sole executive body of a legal entity independently or jointly with a collegial structure. All entities included in the management apparatus of the company are accountable to the general meeting and the supervisory board. One of them elects the management of the enterprise. The founder, who is also the general director, signs an agreement with the organization. On her behalf, the signature is placed by the subject who chaired the general meeting where the election took place. The charter may transfer this right to the supervisory board. A subject who is not a member of the organization can also act as a manager.

Director: powers

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

Specifics of election

The procedure according to which the sole executive body of a legal entity is created is fixed by a local act of the company. The election of a leader, as well as his early removal from office, is carried out by the general meeting. His competence also includes transferring the powers of the director to the manager, approving the latter and concluding an agreement with him. The relevant decision is made by a majority vote. A different amount may be determined by the charter. The same document may include the resolution of the above issues within the competence of the supervisory board.

Replacing a manager with a manager

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

Rules for JSC

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

Competence of the head of the JSC

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

The procedure for creating an executive body in a JSC

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

Information in the Unified State Register of Legal Entities

All data of the sole executive body of a legal entity must be entered into the Unified State Register. If any information changes, the entry in the Unified State Register of Legal Entities is subject to adjustment. The list of mandatory information that must be entered into the Unified State Register is determined by Art. 5 Federal Law No. 129. These include:

Labor Relations

They are regulated by the Labor Code of the Russian Federation. with a sole management body are regulated by Ch. 43 of the Code. In Art. 273 of the Labor Code explains the concept of a manager. He is a citizen who, in accordance with regulations, including local acts, manages the enterprise and performs the functions of its executive (sole) body.

Termination of an employment contract

Except common grounds, in Art. 278 TC installed additional conditions termination of the contract. These include:

Guarantees for the manager

Upon termination of the contract on the grounds provided for in paragraph 2 of Art. 278 of the Labor Code, in the absence of guilt in the actions/inaction of the director, he must be paid compensation. Its value is set to employment contract. In this case, the amount of compensation cannot be less than three times the average monthly salary. This rule is established in Art. 279 TK. Upon termination of the contract with the head of the enterprise, as well as the deputy director and chief. accountant due to a change of owner, the new owner of the company's property is obliged to pay these employees monetary compensation. Its value must be no less than 3 times the average monthly salary. This rule is established by Art. 181 TK. The head of the enterprise has the right to terminate the employment contract early. At the same time, he is obliged to notify the owner about this 1 month in advance. Notification is sent in writing.

Responsibilities

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

Explanations

When establishing the grounds and degree of responsibility of the manager, ordinary business norms and other circumstances of significant importance must be taken into account. Financial compensation is provided only if the guilt of the subject is established. In Part 1, Clause 1, Art. 401 of the Civil Code determines that a manager who fails to fulfill obligations or fulfills them improperly is liable under the law, except in cases where other grounds are provided for by the contract or other regulations. The subject may be found innocent if he took all necessary measures with the degree of prudence and care required of him to avoid damage. According to paragraph 4 of Art. 401 of the Civil Code, a pre-concluded agreement to limit or exclude liability for intentional failure to fulfill an obligation is considered void. In accordance with the law, any participant has the right to file a claim for compensation for damage caused to the organization by its leader.

Rules for applying sanctions to the manager

Within the meaning of the legislation, this person is subject to the provisions of paragraph 3 of Art. 401, unless the law or contract provides for other conditions of liability. Appropriate sanctions are applied to the entity in case of failure to fulfill its obligations, unless it proves that their fulfillment was impossible due to good reasons, force majeure circumstances (unpreventable and extraordinary in specific conditions). These cannot include, for example, violation of obligations on the part of counterparties, lack of necessary products on the market, or Money from the debtor himself.

Application of sanctions to collegial management

If an organization is managed by several entities jointly, then they bear Sanctions can only be applied to those members of the collegial management who voted for the decision that caused damage to the company. Those who abstain are also liable for losses.

Art. is devoted to the content of the status of the sole executive body of a limited liability company. 40 of the Law. The sole executive body of the company (general director, president and others) is elected by the general meeting of the company's participants for a period determined by the company's charter. The sole executive body of the company may also be elected from outside its participants.

Due to the relatively small number of participants in a limited liability company, the formation of such a body allows the company to act very dynamically. We are talking about the executive body, which is obliged to prepare and implement decisions of the general meeting and promptly resolve specific organizational, financial and economic issues. This is one person empowered on behalf of the company. The names used here are different - general director, president, executive director, etc. The Law has no restrictions on the choice of names for this body.

The executive nature of a sole body is expressed in the very procedure of its formation. This body is elected by the general meeting of the company's participants. The corresponding competence of the general meeting is established in subparagraph. 4 p. 2 tbsp. 33 of the Law, and the procedure for voting and decision-making is in paragraphs. 7, 8, 10 tbsp. 37.

The term of office and activity of the sole executive body is determined independently by the general meeting of company participants. This period must be clearly established in the company's charter, and compliance with it is mandatory for the company until appropriate changes are made to the charter. The period must be sufficient to master and fully use the competence of a single body. At the same time, it should not be excessively long. The most justified term of office of the executive body is from two to three years.

Most often, one of the company participants is elected as the sole executive body. This allows him to better understand the affairs of society, the situation and more fully assess the mood and behavior of society participants. After all, it is precisely this type of society that is characterized by the personally open nature of the relationships between its participants.

It is possible that, for reasons of professional preparedness and business qualities, a more suitable candidate for fulfilling the competence of the sole executive body would be an outsider who is not a member of the company. The law allows for the election of such a person as the executive body of the company (Clause 1, Article 40). We can only recommend that you consider the program of activities more carefully and evaluate the real abilities of the candidate.

The stability of the relationship between the company and the directors (general director) is fully met by the agreement between them, under which in the second paragraph of clause 1 of Art. 40 of the Law implies an employment contract. An agreement between the company and the person performing the functions of the sole executive body of the company is signed on behalf of the company by the person who chaired the general meeting of the company's participants, at which the person performing the functions of the sole executive body of the company was elected, or by a participant of the company authorized by the decision of the general meeting of the company's participants.

The concept of an employment contract is defined in Art. 56, and the requirements for its content are in Art. 57 Labor Code of the Russian Federation. The specified employment contract is concluded for the period established by the constituent documents of the organization or by agreement of the parties, i.e. is urgent. Therefore, when concluding it, it is necessary to take into account the provisions of Art. 58, 59 Labor Code of the Russian Federation.

The rights and responsibilities of the head of the organization in the field of labor relations are determined by the Labor Code of the Russian Federation, laws and other regulatory legal acts, the constituent documents of the organization, and the employment contract. The specifics of regulating the work of the head of an organization are established by Art. 273-280 Labor Code of the Russian Federation.

It should be noted that an employment contract with the head of an organization can be terminated not only on the general grounds provided for in the articles of Chapter. 13 Labor Code of the Russian Federation. Article 278 of the Labor Code of the Russian Federation provides additional grounds for terminating an employment contract with the head of an organization.

An employment contract with the head of an organization can also be terminated on the following grounds:

1) in connection with the removal from office of the head of the debtor organization in accordance with the legislation on insolvency (bankruptcy);

2) in connection with the adoption by the authorized body of a legal entity or the owner of the organization’s property, or a person (body) authorized by the owner of a decision on the early termination of the employment contract;

3) on other grounds provided for in the employment contract.

In the event of termination of an employment contract with the head of an organization before its expiration, by decision of the authorized body of a legal entity or the owner of the organization’s property, or a person (body) authorized by the owner, in the absence of guilty actions (inaction) of the manager, he is paid compensation for the early termination of the employment contract with him in the amount determined by the employment contract.

In accordance with Art. 280 of the Labor Code of the Russian Federation, the head of an organization has the right to terminate an employment contract early by notifying the employer (the owner of the organization’s property, his representative) in writing no later than one month in advance. *(58) .

The law allows for alternative options for signing an employment contract with a manager on behalf of the company - either a person who was the chairman of the general meeting of participants, or a participant in the company who was instructed by the general meeting to sign the agreement. The authority to sign the latter is certified by a special decision of the general meeting.

According to the general rule, paragraph 2 of Art. 40 of the Law, only an individual can act as the sole executive body of a company. An exception to this rule is the case provided for in Art. 42 of the Law (the possibility of transferring the powers of such a body to the manager).

A limited liability company with a relatively small number of participants does not require the complex management structure inherent in large joint-stock companies. General rule of paragraph 2 of Art. 40 is designed for such business companies to create their own sole executive bodies in all or most cases.

The Law defines the powers of the sole executive body of the company (Clause 3, Article 40). Moreover, the list of its powers is set out not as exhaustive, but as partially fixed and “open”, allowing one to establish the scope of powers of such a body, taking into account the tasks and specifics of the activities of a particular company.

Sole executive body of the company:

1) without a power of attorney, acts on behalf of the company, including representing its interests and making transactions;

2) issues powers of attorney for the right of representation on behalf of the company, including powers of attorney with the right of substitution;

3) issues orders on the appointment of company employees to positions, on their transfer and dismissal, applies incentive measures and imposes disciplinary sanctions;

4) exercises other powers not assigned by the Law or the company’s charter to the competence of the general meeting of the company’s participants, the board of directors (supervisory board) of the company and the collegial executive body of the company.

So, the sole executive body acts on behalf of the company without any power of attorney within the competence established in the company’s charter and the corresponding employment contract. His activities include representing the interests of the company in government bodies, in court, in relations with partners, with credit and other organizations, as well as in payment and other documents emanating from the company signed by him.

The sole executive body concludes contracts and makes other transactions, opens current and other accounts in banks, manages the property and financial resources of the company within its competence.

To assess the legality of decisions of the sole executive body on transactions, it is useful to use the explanations contained in paragraph 32 of the Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Court Arbitration Court RF dated July 1, 1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation.”

The sole executive body ensures the preparation and submits to the board of directors (supervisory board) or the general meeting of participants an annual report, an annual balance sheet, proposals for the distribution of net profit between participants, informs about current financial and economic activities, organizes the implementation of decisions of the general meeting, the board of directors (supervisory board) council).

The sole executive body may be elected to the board of directors (supervisory board), but does not have the right to head it. He manages the company’s personnel, approves the organizational structure and staffing table, organizes accounting and ensures the preparation and timely submission of accounting and statistical reports on the company’s activities to the tax authorities and state statistics authorities.

One of the rights of the sole executive body is to issue powers of attorney for the right of representation on behalf of the company. This may be necessary if the body itself is unable to directly fulfill certain powers or if there is a desire to ensure broader and more flexible activities of the society “outside”. The above also applies to a power of attorney with the right to delegate to one or another person the corresponding powers to perform specific actions and sign documents. On representation and power of attorney, see Art. 182-189 Civil Code of the Russian Federation.

The powers of the sole executive body in the field of labor relations are especially highlighted. This is explained by his position as a person in charge of the personnel service in the company and directly resolving a number of issues in organizing labor relations. We are talking about such powers as appointment, transfers, dismissal, application of incentive measures, and disciplinary measures. All these actions are determined by orders or other local acts of the executive body and must strictly comply with the rules introduced by the Labor Code of the Russian Federation *(59) .

Unfortunately, in practice, violations of labor legislation in commercial organizations are not uncommon, when employment contracts are not drawn up when hiring, labor safety rules, working hours and rest hours are not observed. Such cases in Lately are increasingly becoming grounds for bringing perpetrators to legal responsibility.

The sole executive body is allowed to exercise powers other than those listed in clause 3 of Art. 40 of the Law. If a set of fixed powers is mandatory and cannot be ignored or narrowed, then the range of “other” powers makes it possible to reflect to the maximum extent the specific conditions of the activity of the company and its sole executive body. One condition must be observed: it is unacceptable to include in the competence of the sole executive body powers that fall within the competence of other bodies of the company - the general meeting of company participants, the board of directors (supervisory board) and the collegial executive body of the company. To do this, you should carefully read Art. 32-39 of the Law and the provisions of the company’s charter regulating the activities of these bodies.

In this regard, it is appropriate to refer to Art. 91 Civil Code of the Russian Federation. IN

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

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

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

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

However, as practice has shown, this requirement established by 44-FZ has raised a lot of questions and difficulties in understanding, both on the part of customers and on the part of suppliers. Moreover, cases of rejection of participants’ applications due to the absence of tax identification numbers of the founders, members of the collegial executive body, or the person performing the functions of the sole executive body of the procurement participant have become more frequent.

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

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

Registration of individuals who are not individual entrepreneurs, but pay taxes, for example, property or land tax, is carried out by the tax inspectorate “in absentia” on the basis of information provided by the Civil Registry Office, the State Traffic Safety Inspectorate, the passport and visa service, the registration chamber and other bodies listed in Article 85 of the Tax Code of the Russian Federation. These citizens no obligation, unlike IP, receive a TIN certificate, they can only get it if they want.

But there are people who, not being individual entrepreneurs, must receive this certificate, due to their professional responsibilities. These are civil servants, business managers, chief accountants and a number of other categories of workers.

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

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

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

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

If the required TINs are indicated in the Unified State Register of Legal Entities extract, then it would be logical not to indicate them again, however, if the customer provides a certain form with the corresponding column, then this information must be duplicated in the form.

What if this form doesn’t exist?

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

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

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

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

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

If there is no TIN, and the application is rejected, then wouldn’t this be a restriction of competition?

Bye judicial practice and there are no official explanations from the FAS on this issue, one can only guess in which cases an application in the absence of a TIN should be considered meeting the requirements, and in which not? Indeed, such a problem currently exists, and it requires official clarification.

P. S.: What do you think about this? If you have your own opinion on this matter or come across any official document regarding this issue, then be sure to share your comments below on this article. I will be grateful to you.

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