Authorized capital in a liquidated organization. What happens to the authorized capital in bankruptcy

1.1. This document defines the policy of the Limited Liability Company "" (hereinafter referred to as the Company) regarding the processing of personal data.

1.2 This Policy has been developed in accordance with the current legislation of the Russian Federation on personal data.

1.3 This Policy applies to all processes for the collection, recording, systematization, accumulation, storage, clarification, extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data, carried out using automation tools and without the use of such funds.

1.4. The policy is strictly followed by the Company's employees.

Definitions

Personal Information- any information relating directly or indirectly to a specific or identifiable natural person (subject of personal data);

operator- a state body, a municipal body, a legal entity or an individual, independently or jointly with other persons organizing and (or) carrying out the processing of personal data, as well as determining the purposes of processing personal data, the composition of personal data to be processed, actions (operations) performed with personal data;

processing of personal data- any action (operation) or a set of actions (operations) performed using automation tools or without using such tools with personal data, including collection, recording, systematization, accumulation, storage, clarification (updating, changing), extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data;

automated processing of personal data- processing of personal data using computer technology;

dissemination of personal data- actions aimed at disclosing personal data to an indefinite circle of persons;

provision of personal data- actions aimed at disclosing personal data to a certain person or a certain circle of persons;

blocking of personal data- temporary suspension of the processing of personal data (unless the processing is necessary to clarify personal data);

destruction of personal data- actions, as a result of which it becomes impossible to restore the content of personal data in the personal data information system and (or) as a result of which material carriers of personal data are destroyed;

depersonalization of personal data- actions, as a result of which it becomes impossible to determine the ownership of personal data by a specific subject of personal data without the use of additional information;

personal data information system- a set of personal data contained in databases and information technologies and technical means that ensure their processing.

Principles and conditions for the processing of personal data

3.1. The processing of personal data is carried out on the basis of the following principles:

1) The processing of personal data is carried out on a legal and fair basis;

2) The processing of personal data is limited to the achievement of specific, predetermined and legitimate purposes. It is not allowed to process personal data that is incompatible with the purposes of collecting personal data;

3) It is not allowed to combine databases containing personal data, the processing of which is carried out for purposes that are incompatible with each other;

4) Only those personal data that meet the purposes of their processing are subject to processing;

6) When processing personal data, the accuracy of personal data, their sufficiency, and, if necessary, their relevance in relation to the stated purposes of their processing, are ensured.

7) The storage of personal data is carried out in a form that allows you to determine the subject of personal data no longer than required by the purposes of processing personal data, if the period for storing personal data is not established by federal law, an agreement to which the subject of personal data is a party, beneficiary or guarantor. Processed personal data is subject to destruction or depersonalization upon achievement of the purposes of processing or in case of loss of the need to achieve these purposes, unless otherwise provided by federal law.

8) The Company in its activities proceeds from the fact that the subject of personal data provides accurate and reliable information during interaction with the Company and notifies the Company's representatives about changes in their personal data.

3.2. The company processes personal data only in the following cases:

the processing of personal data is carried out with the consent of the subject of personal data to the processing of his personal data;
the processing of personal data is carried out in connection with the participation of a person in constitutional, civil, administrative, criminal proceedings, proceedings in arbitration courts;
the processing of personal data is necessary for the execution of a judicial act, an act of another body or official subject to execution in accordance with the legislation of the Russian Federation on enforcement proceedings (hereinafter referred to as the execution of a judicial act);
the processing of personal data is necessary for the performance of an agreement to which the subject of personal data is a party or beneficiary or guarantor, as well as to conclude an agreement on the initiative of the subject of personal data or an agreement under which the subject of personal data will be the beneficiary or guarantor;
the processing of personal data is necessary to protect the life, health or other vital interests of the subject of personal data, if obtaining the consent of the subject of personal data is impossible;

3.4. The Company has the right to entrust the processing of personal data of citizens to third parties, on the basis of an agreement concluded with these persons.
Persons processing personal data on behalf of Start Law Company LLC undertake to comply with the principles and rules for the processing and protection of personal data provided for by Federal Law No. 152-FZ "On Personal Data". For each person, a list of actions (operations) with personal data that will be performed by a legal entity processing personal data, the purposes of processing, the obligation of such a person to maintain confidentiality and ensure the security of personal data during their processing, as well as requirements for the protection of processed personal data data.

3.5. If the Company entrusts the processing of personal data to another person, the Company shall be liable to the subject of personal data for the actions of the said person. The person who processes personal data on behalf of the Company is liable to the Company.

3.6. The Company does not make decisions on the basis of exclusively automated processing of personal data that give rise to legal consequences in relation to the subject of personal data or otherwise affect his rights and legitimate interests.

3.7. The Company destroys or depersonalizes personal data upon reaching the purposes of processing or in case of loss of the need to achieve the purpose of processing.

Subjects of personal data

4.1. The company processes personal data of the following persons:

employees of the Company, as well as entities with whom contracts of a civil law nature have been concluded;
candidates to fill vacant positions in the Company;
clients of LLC Legal company "Start";
users of the website of LLC Legal Company "Start";

4.2. In some cases, the Company may also process personal data of representatives of the above personal data subjects authorized on the basis of a power of attorney.

Rights of personal data subjects

5.1. The subject of personal data whose data is processed by the Company has the right to:

5.1.1. Receive the following information from the Company within the terms provided by the Law:

confirmation of the fact of personal data processing by Start Legal Company LLC;
on the legal grounds and purposes of processing personal data;
on the methods used by the Company to process personal data;
the name and location of the Company;
about persons who have access to personal data or to whom personal data may be disclosed on the basis of an agreement with Start Law Company LLC or on the basis of federal law;
a list of processed personal data relating to the citizen from whom the request was received and the source of their receipt, unless a different procedure for providing such data is provided by federal law;
on the terms of processing personal data, including the terms of their storage;
on the procedure for the exercise by a citizen of the rights provided for by the Federal Law "On Personal Data" No. 152-FZ;
name and address of the person who processes personal data on behalf of the Company;
other information provided for by the Federal Law "On Personal Data" No. 152-FZ or other federal laws.

5.1.2. Require clarification of their personal data, their blocking or destruction if the personal data is incomplete, outdated, inaccurate, illegally obtained or not necessary for the stated purpose of processing.

5.1.3. Withdraw your consent to the processing of personal data.

5.1.4. Demand the elimination of illegal actions of the Company in relation to his personal data.

5.1.5. Appeal against the actions or inaction of the Company to the Federal Service for Supervision of Communications, Information Technology and Mass Communications or in court if a citizen believes that Start Law Company LLC is processing his personal data in violation of the requirements of Federal Law No. 152- Federal Law "On Personal Data" or otherwise violates his rights and freedoms.

5.1.6. To protect their rights and legitimate interests, including compensation for losses and / or compensation for moral damage in court.

Company Responsibilities

6.1. In accordance with the requirements of Federal Law No. 152-FZ “On Personal Data”, the Company is obliged to:

Provide the subject of personal data, at his request, with information regarding the processing of his personal data, or legally provide a reasoned refusal containing a reference to the provisions of the Federal Law.
At the request of the subject of personal data, clarify the processed personal data, block or delete if the personal data is incomplete, outdated, inaccurate, illegally obtained or not necessary for the stated purpose of processing.
Maintain a Register of Personal Data Subjects’ Applications, which should record the requests of personal data subjects for obtaining personal data, as well as the facts of providing personal data on these requests.
Notify the subject of personal data about the processing of personal data in the event that personal data was not received from the subject of personal data.

The following cases are an exception:

The subject of personal data is notified of the processing of his personal data by the relevant operator;

Personal data is obtained by the Company on the basis of federal law or in connection with the execution of an agreement to which the subject is a party or beneficiary or guarantor.

Personal data obtained from a public source;

Providing the subject of personal data with the information contained in the Notice on the processing of personal data violates the rights and legitimate interests of third parties.

6.2. If the purpose of processing personal data is achieved, the Company is obliged to immediately stop processing personal data and destroy the relevant personal data within a period not exceeding thirty days from the date of achieving the purpose of processing personal data, unless otherwise provided by the agreement, the party to which, the beneficiary or the guarantor of which is the subject personal data, another agreement between the Company and the subject of personal data, or if the Company is not entitled to process personal data without the consent of the subject of personal data on the grounds provided for by No. 152-FZ "On Personal Data" or other federal laws.

6.3. In the event that the subject of personal data withdraws consent to the processing of his personal data, the Company is obliged to stop processing personal data and destroy personal data within a period not exceeding thirty days from the date of receipt of the said withdrawal, unless otherwise provided by an agreement between the Company and the subject of personal data. The Company is obliged to notify the subject of personal data about the destruction of personal data.

6.4. In the event of a request from the subject to stop processing personal data in order to promote goods, works, services on the market, the Company is obliged to immediately stop processing personal data.

6.5. The Company is obliged to process personal data only with the consent in writing of the subject of personal data, in cases provided for by the Federal Law.

6.7. The Company is obliged to explain to the subject of personal data the legal consequences of the refusal to provide his personal data, if the provision of personal data is mandatory in accordance with the Federal Law.

6.8. Notify the personal data subject or his representative of all changes regarding the relevant personal data subject.

Information about the implemented measures for the protection of personal data

7.1. When processing personal data, the Company takes the necessary legal, organizational and technical measures to protect personal data from unauthorized or accidental access to them, destruction, modification, blocking, copying, provision, distribution of personal data, as well as from other illegal actions in relation to personal data.

7.2. Ensuring the security of personal data is achieved, in particular:

determination of threats to the security of personal data during their processing in information systems of personal data;
the application of organizational and technical measures to ensure the security of personal data during their processing in personal data information systems necessary to meet the requirements for the protection of personal data, the implementation of which ensures the levels of personal data protection established by the Government of the Russian Federation;
the use of information security tools that have passed the conformity assessment procedure in the prescribed manner;
evaluating the effectiveness of the measures taken to ensure the security of personal data prior to the commissioning of the personal data information system;
taking into account machine carriers of personal data;
detecting facts of unauthorized access to personal data and taking measures;
recovery of personal data modified or destroyed due to unauthorized access to them;
establishing rules for access to personal data processed in the personal data information system, as well as ensuring the registration and accounting of all actions performed with personal data in the personal data information system;
control over the measures taken to ensure the security of personal data and the level of security of personal data information systems.
an assessment of the harm that may be caused to personal data subjects in the event of a violation of the legislation of the Russian Federation in the field of personal data, the ratio of the said harm and the measures taken to ensure the implementation of the legislation of the Russian Federation in the field of personal data.

As a rule, in the event of difficulties, participants in economic relations seek to get rid of the assets that burden them as soon as possible, especially if such assets can bring significant risks in the future. Intangible assets in the form of shares in legal entities that, for one reason or another, are burdened with accounts payable to their counterparties and the budget are no exception. In such a situation, the founders of the company seek to get rid of the troubled asset, fearing possible liability for the obligations of the company they founded in the event of its bankruptcy.

There is always a way out

Withdrawal from the membership of a company burdened with accounts payable, at first glance, is the simplest and most common mechanism for terminating participation in a company. At the same time, few understand that such actions will not only not allow avoiding the risks of the company's subsidiary liability, but may also serve as a basis for suspicion of deliberate actions by the debtor's participants to cause damage to its creditors. Moreover, as a rule, when determining guilt, the period of entry into the composition of the participants of the debtor and the period of formation of the debtor's debt to its counterparties are taken into account.

Not understanding the problems entailed by such actions, the participants, not wanting to lose the funds invested in the company, seek, by their exit from the company, to cover the withdrawal of assets and funds from it by obtaining the actual value of the share in the authorized capital of the problem company. However, the return of assets will already be a headache for the debtor's creditors and its arbitration manager. At the same time, as practice shows, it is possible to achieve a positive result and return the funds withdrawn by the participant in most cases, moreover, if the participant’s withdrawal and receipt of the actual value of his participation in the debtor’s capital were made on the eve of bankruptcy, thereby causing significant damage to the debtor and his creditors who have claims against the debtor with earlier maturities. Moreover, of no small importance in such a situation is the presence of signs of bankruptcy in the company, or their appearance as a result of paying the cost of a share in the capital of the company.

It should be noted that the withdrawal from the membership of the company, including on the eve of bankruptcy, before the introduction of the monitoring procedure for the debtor, is not limited in any way. Separately, it is necessary to highlight the receipt by the participant of the actual value of the participant's share in the authorized capital of the company in the event that such payments or transfer of property leads to the insolvency of the company, causing harm to the debtor and its creditors.

The provisions of Art. 26 of the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies" provide for the possibility of a participant to withdraw from the company by alienating a share to the company, regardless of the consent of its other participants or the company, if this is provided for by the company's charter. At the same time, the withdrawal of a single participant from the company or the simultaneous withdrawal of all participants is unacceptable.

Earlier, before July 01, 2009, paragraph 1 of Art. 26 of the LLC Law established the right of a participant to leave the company at any time, regardless of the consent of other participants. Moreover, such a right of a participant could not be limited by the provisions of the charter.

However, at present, according to the current legislation, such a right of a participant may be limited by the charter and will require coordination of the exit with other participants in the company.

At the same time, the right of participants to withdraw from a company established before July 01, 2009 remains with them after this date, regardless of whether changes have been made to the charter of the company in connection with bringing it into line with the new legislation, if the charter initially contained the provision on the right of members to withdraw from the company.

If the charter of a company established before July 01, 2009 did not contain such a provision, then, starting from the named date, its participants do not have the right to withdraw from the company in the manner prescribed by Art. 26 of the LLC Law. In this case, the right to withdraw from the company can be secured by amending the company's charter (clause 21 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 135 dated 30.03.2010).

Paths and restrictions

The withdrawal of a participant from the company is possible both by alienating his share in the authorized capital to the participants in this company, to a third party, and by alienating his share to the company.

A person who alienates his share in full ceases to be a member of the company, which implies his withdrawal from the company, a particular case of which may be the alienation of his share both to the company and to a third party.

Since the introduction of the monitoring procedure in relation to the debtor (clause 3, article 64 of the Federal Law of October 26, 2002 No. 127-FZ "On Insolvency (Bankruptcy)"), the Bankruptcy Law establishes restrictions on the actions of the debtor's management bodies, in particular, to which includes a ban on making decisions on withdrawal from the founders of the debtor (paragraph 7, clause 3, article 64 of the Bankruptcy Law).

In this regard, the adoption of decisions on withdrawal from the membership during the period of the supervision procedure in relation to the debtor will violate the norms established by the bankruptcy law. And if the tax authority at the time of submission of documents on amendments to the Unified State Register of Legal Entities in relation to the change in participants will have information about the bankruptcy of the company, there will be a denial of state registration of changes in the information of the register of legal entities (Resolution of the Seventh Arbitration Court of Appeal dated March 17, 2014 in the case No. A45-17736/2013).

At the same time, the restrictions established by paragraph 7 of paragraph 3 of Art. 64 of the Bankruptcy Law, relate to those cases where, as a result of the adoption by the debtor's body of a decision, the latter has an obligation to pay the actual value of the share in the authorized capital of the company to the withdrawing participant (determination of the Supreme Arbitration Court of the Russian Federation dated January 17, 2014 No. VAS-19428 / 13).

Upon withdrawal from the membership in accordance with the provisions of clause 6.1 of Art. 23 of the LLC Law, the share of the participant passes to the company. In this case, the company is obliged to pay the participant the actual value of his share in the authorized capital of the company or transfer property of the same value. The actual share of participation is determined on the basis of the financial statements of the company for the last reporting period preceding the day of filing an application for withdrawal from the company, and is subject to transfer within three months from the date the corresponding obligation arises, unless a different period or procedure for payments is provided for by the charter of the company.

Moreover, the company is not entitled to pay the actual value of a share or part of a share in the authorized capital of the company or to issue property of that value, if at the time of such payments or the issuance of property it meets the signs of bankruptcy, or as a result of these payments, the indicated signs will appear in the company (paragraph 4 of clause 8 article 23 of the LLC Law).

The assessment of the presence of signs of bankruptcy in a company, or their appearance belongs to the evaluation category, and the occurrence of such signs is the product of many factors that must be assessed in each individual case. Therefore, when deciding on the payment of the actual value of the participation interest, you should enlist the opinion of the audit, set out in the relevant opinion.

Consequently, the law provides for restrictions on the direct payment of the actual value of the share, however, this circumstance does not prevent the adoption of a judicial act on the recovery of the actual value of the share from the company (Decree of the Arbitration Court of the Moscow District dated July 13, 2015 in case No. A40-47524 / 14).

However, the actual receipt of the actual value of the participation share in the company may be the basis for the recognition of such payments or the transfer of property as invalid upon the application of the bankruptcy trustee in the event of the bankruptcy of the company.

Moreover, the result of such requirements will determine the size of the participation interest, the ability of the participant to determine the company's decisions, the amount of the debtor's accounts payable, the actually paid value of the participation share in the company's capital or the value of the property transferred to the former participant, as well as the impact of the loss of part of the asset transferred to the participant on the introduction in relation to the debtor bankruptcy procedures and the debtor’s ability to satisfy the claims of creditors included in the register (decisions of the Arbitration Court of the North-Western District dated March 2, 2015, the Thirteenth Arbitration Court of Appeal dated November 28, 2014 in case No. A56-42328 / 2013).

The existing judicial practice shows that a participant who has the right to demand payment of the actual value of a share in the authorized capital can only rely on the transfer of property remaining after the completion of settlements with all creditors, which, as a rule, does not remain due to the nature of the bankruptcy procedure itself. Moreover, it is worth noting that such participants are not creditors of the debtor and their claims are not subject to inclusion in the register of claims (determinations of the Constitutional Court of the Russian Federation of October 19, 2010 No. 1279-O-O, of January 27, 2011 No. 75-O-O of No. 1760-O).

Thus, the current legislation does not restrict the right of a participant on the eve of bankruptcy to make a decision to withdraw from the founders of the company.

At the same time, the receipt by the participant of the actual value of the share of participation in the company carries significant risks of recognizing such payments as invalid with a corresponding requirement to return the funds received to the bankruptcy estate of the company in case of its bankruptcy. Moreover, one should not forget that a judicial assessment of the invalidity of the actions of the company and its participant in paying the cost of participation in the company is fraught with subsequent accusation of actions that led to the bankruptcy of the company and the inability to pay off creditors. Such an accusation may form grounds for bringing the former participant to subsidiary liability for the obligations of the debtor.

Therefore, the adoption of such decisions requires a careful assessment of the risks and possible consequences.

Article 56 of the Civil Code of the Russian Federation establishes that the founder (participant) of an LLC is not liable for the obligations of the company. LLC, in turn, is not liable for its debts. Thus, it turns out that the founder of an LLC is liable only within the limits of the authorized capital.

As for the JSC, its members are liable within the limits of the amounts contributed by paying for shares. This provision is provided for in Art. 2, p. 1, FZ-208 of 1995.

If an organization is solvent, pays taxes to the state on time, payments to counterparties, then it cannot be attracted for debts. Therefore, the townsfolk, who are little familiar with the laws and the changes that have taken place in them, create a false idea for themselves that the founders and participants of an LLC, JSC have no real responsibility.

But the algorithm for bringing to responsibility, for example, participants in an LLC is as follows: while the company is operating, limited liability is valid. If the company is in the process of bankruptcy, the founders may be held to a subsidiary type of liability, as well as to additional.

Article 3 of 14-FZ of 1998 speaks about the possibility of imposing a subsidiary type of liability on these persons.

Responsibility of a legal entity and LLC participants

127-FZ is called upon to protect the rights of creditors. Its provisions are aimed at the application of one or another method of protection within the framework of bankruptcy, and compensation and liability depend on the degree of guilt of the founder.

The legal consequences of a guilty act can be eliminated in certain ways. For example, within the framework of recognizing the transactions made by them as illegal: in this case, according to the Civil Code, provisions on the invalidity of the concluded contracts will apply to such legal relations.

In addition, there is the option of bringing these persons to different types of liability.

Leader and founder in one person

This person is liable within the authorized capital of the company. In addition, subsidiary liability, if initiated by him or the creditor, another interested person, the bankruptcy procedure.

Norm 56 of the Civil Code of the Russian Federation states that a participant or owner of a company is not liable for the obligations of an LLC, just as a company cannot be liable for the founder's debts. But, as usual, there are exceptions to this rule. They are reflected in article 56, paragraph 3: the bankruptcy of a legal entity occurred because of its founders, as well as other persons who have the right to determine the work of the company.

Free legal advice:

In this case, these persons may be assigned subsidiary liability, including the head and the founder in one person. The provisions that confirm the norms of the Civil Code are contained in 14-FZ of 1998, 208-FZ of 1995, 161-FZ of 2002.

Conditions within the authorized capital

The conditions under which the founder of the company is liable for debts within the amount of the authorized capital are determined by the Civil Code of the Russian Federation and 14-FZ. In the event of liquidation of a company or its bankruptcy, the founder is solely responsible for the property of the organization, its assets.

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

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

Settlements for debts

Bringing the guilty person to responsibility for the shortfall of money in the treasury of the state cannot release him from the payment of subsequent amounts. Responsibility for arrears within the limits of the legal entity is borne by its officials (general director, chief accountant), in addition, the legal entity itself may be the subject of liability (except for criminal liability).

Free legal advice:

For tax evasion

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

Loans

LE loans are issued by banks. If the borrower violates the loan agreement or its individual provisions, the bank has the right to file claims with organizations aimed at eliminating the violations.

Since credit relations imply a mandatory out-of-court procedure for considering a contentious issue, banks first send a claim. You need to make sure that it is considered by the second party.

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

In case of bankruptcy

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

Free legal advice:

collectively owes creditors the amount of rubles (taxes and fees to the state treasury are also included in this amount);
the company has violated the terms of payments: more than three months does not pay creditors;
employees of the enterprise (organization) were not paid wages, severance pay.

The LLC itself, as well as other persons interested in this process, can start bankruptcy:

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

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

Since 2107, changes have been introduced regarding bringing the founders and participants of a legal entity to the type of liability in question. The new liability conditions include:

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

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

Free legal advice:

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

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

Criminal penalty

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

Engagement procedure

Until the legislator deems it necessary to amend the Criminal Code of the Russian Federation by amending it with regard to bringing an LLC or JSC to criminal liability, the Code of Administrative Offenses applies to it. It is in this law that we can see all the penalties that are currently provided for legal entities:

Fine.
Withdrawal (paid).
Confiscation.
Revocation of a license.
Recovery of the price of goods or vehicles.

Many lawyers say that in the practice of legal entities it is advisable to introduce such punishment as a warning. But in the present period of time, the most common punishment is a fine. It can be different in size: it all depends on the guilty act.

Free legal advice:

A fine is a financial punishment. At the same time, the provisions of the Code of Administrative Offenses do not cover other situations that can be considered as punishment for legal entities. These are circumstances such as:

suspension of the enterprise;
change in the enterprise quota regime.

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

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

In addition, there are a number of grounds on which it is possible to forcibly liquidate a legal entity. For example, this is Art.FZ of 1998, in which a legal entity is liquidated if it is engaged in drug trafficking.

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

Free legal advice:

CopyrightZnayBusiness.Ru Portal for entrepreneurs

Copying materials is allowed only when using an active link to this site.

What is the responsibility of the founder of an LLC in 2017

The responsibility of the founder for the activities of an LLC is one of the aspects that is often cited as one of the advantages of choosing this organizational and legal form compared to a sole proprietorship. The founders, as a general rule, are not liable for the debts of a legal entity, while individual entrepreneurs bear full responsibility for their business. Everything seemed to be obvious. However, in recent years, the founders (participants) of an LLC are increasingly transferring debts that were formed during the period of the company's activities and which cannot be repaid at the expense of its property and funds.

Unable to pay the LLC - the owners of the enterprise are held liable first of all. This right is directly given to creditors by legislative provisions that fall under exceptions from the general provision on the absence of liability of founders (participants) for the obligations of a legal entity.

Free legal advice:

Holding the founders (participants) of legal entities liable as a modern trend

The issue of the need to tighten the requirements and responsibility of the founders (participants) of commercial legal entities became particularly relevant in the late 2000s. The mass appearance of one-day firms, the registration of companies as nominees, the active use of various alternative liquidation schemes, the falsification of reporting and information in the Unified State Register of Legal Entities - all this entailed serious losses for creditors. At the same time, the bankruptcy of enterprises became a very good option for the owners, which led both to the liquidation of the company with debts and to the cancellation of any outstanding debts. Despite the existence of provisions in the Civil Code of the Russian Federation and other laws that allow the founders (participants) of legal entities to be held vicariously liable, these rules have rarely been applied in judicial practice.

In 2010, the criminal law was tightened. Bankruptcy laws have also changed. Subsequently, some changes in terms of the responsibility of the founders were made to special laws relating to the activities of certain forms of legal entities.

In total, today the founder (participant) of an LLC can be attracted:

To subsidiary liability for the debts of the company that arose as a result of actions (inaction) of the persons controlling the debtor and led to its bankruptcy, in case of insufficient property of the LLC to cover all debts.
To criminal liability - if the actions (inaction) of the founder (participant) contain corpus delicti (we are talking, first of all, about crimes in the field of economic activity).
To administrative responsibility, including tax, which is relevant mainly for cases of combining the status of a participant and head of an LLC.

Features of responsibility

The liability of the founders (participants) of an LLC differs by type and grounds for occurrence. But in any case, none of the owners is immune from financial and other claims related to the company's activities.

The main feature of the founder's liability is that it is possible only if there are certain actions (inaction) that directly led to negative consequences (bankruptcy), or contain the composition of an administrative or criminal offense. Responsibility does not in itself follow from the status of the founder. And in this case, the provision that the LLC is responsible for all its obligations on its own directly applies.

Free legal advice:

It should distinguish between the responsibility of the founder and the participant of the LLC. The first is the one who created the company and subsequently became a member of it or did not become, for example, without paying his share or leaving the LLC in the course of its activities. Participants are former or current owners (owners) of shares, who by no means always stood at the origins of the company's creation. Despite the difference in statuses, this does not particularly affect responsibility, but it is taken into account when analyzing its grounds and limits.

General liability of the LLC founder: within the authorized capital

The fundamental provisions on the liability of the founders (participants) of an LLC are given in the LLC Law, according to which:

the founders are obliged to pay their share within the established period in accordance with the founding agreement;
participants who have paid their share in full are liable for the losses of the company solely within the limits of their share;
participants who paid the share in part are jointly and severally liable for the obligations of the LLC within the unpaid amount of the share;
the charter of an LLC or a unanimous decision of all participants may provide for additional obligations;
additional responsibilities can only be assigned to a certain member of the company, which is decided by 2/3 of the votes, subject to voting for such a decision by the member himself or giving his written consent.

Subsidiary liability of the founder (participant)

The possibility of bringing an LLC participant to subsidiary (additional) liability for the obligations of the company, as a rule, is considered in cases of bankruptcy, moreover, when the decision on this has already been made by the arbitration court, and the debtor's assets are not enough to pay off all the debts of the LLC.

The bankruptcy law does not consider subsidiary liability only in relation to LLC participants - we are talking about all persons controlling the debtor. These include any persons who, during the last 3 years prior to the adoption of the bankruptcy petition by arbitration, could give instructions binding on the LLC or otherwise determine the actions of the company. The law expressly recognizes as persons controlling the debtor, a participant in an LLC who owns more than 50% of the shares in the capital of the company, and the head of the company.

For vicarious liability to occur, 4 conditions are necessary:

Free legal advice:

Declaring an LLC bankrupt.
Recognition of the founder (participant) as the controlling person of the debtor.
The presence of such actions of the founder (participant) or inaction that led to bankruptcy.
Adoption by the court of a decision on bringing to subsidiary liability.

The presence of a causal relationship between the actions (inaction) of the participant and the bankruptcy of the LLC is recognized by default if there is at least one of the following circumstances:

a participant, with his approval or in his favor, has made a transaction (transactions) that caused damage to the property rights of creditors;
the participant was responsible for the maintenance (preparation, storage) of accounting (reporting), and by the time the supervision was introduced into the LLC or the company was declared bankrupt, there are no accounting documents, mandatory information is missing or distorted, which seriously complicates the implementation of procedures related to bankruptcy;
the participant was the head of the LLC, during the period of his activity in this status, he or the company was brought to criminal (administrative, tax) liability, and as a result of the offense and the sanctions applied, a debt was formed related to the claims of creditors of the 3rd priority, which, as of the date of closing the register creditors' claims exceed 50% of all claims of this queue (only the principal debt is taken into account, without penalties and other things).

The presence of these circumstances does not require evidence from the person who intends to bring the LLC participant to subsidiary liability. The burden of proof to the contrary lies with the defendant. In addition, he may try to prove his absence of guilt in the bankruptcy of the enterprise, as well as the absence of other circumstances that give grounds and create conditions for bringing to subsidiary liability.

Several controlling persons may be held vicariously liable. Usually here we are talking about all or several participants, as well as the head of the LLC. In this case, all persons will be jointly and severally liable.

Limits of subsidiary liability - all claims of creditors included in the register, declared after its closure and arising from current payments in the course of the bankruptcy procedure, which cannot be repaid at the expense of the property of the LLC, including as a result of the sale as part of bankruptcy proceedings. When considering a claim related to bringing to responsibility, the amount of liability may be reduced by the court in comparison with the stated requirements. For example, this is possible if the defendant can prove that the harm (damage) caused by his actions (inaction) is less than the amount that the plaintiff requires to recover.

Bringing to subsidiary liability may occur as part of bankruptcy proceedings or after the completion of all procedures and the liquidation of the company. In the first case, the collected funds are included in the bankruptcy estate. In the second, each claim is filed and considered individually, and the amount recovered, respectively, is due to a specific plaintiff. In fact, the general procedure for recovery, including forced recovery, will be applied here.

Free legal advice:

Recovery within the framework of subsidiary liability is carried out at the expense of the founder's personal assets, if he is an individual, or the assets of a legal entity, which may also be a member of an LLC.

In the event of insufficient property or insolvency of the founder, he, if there are grounds, has the right to apply for bankruptcy - just like the LLC, of which he is or was a participant.

The bankruptcy of the founder of an LLC is an independent process, but it can take place in parallel and overlap with the bankruptcy of an LLC. If, as a result of the declaration of insolvency, the debts arising from vicarious liability remain outstanding, they will be canceled.

Administrative and criminal liability

The founders (participants) of an LLC are brought to administrative and criminal liability quite rarely, in isolated cases. This requires a clear set of offenses:

specific illegal actions (inaction) entailing criminal (administrative, tax) punishment;
assignment by law of the founder (participant) to the subject of a specific offense;
fault of the founder (participant);
violation of the rights (interests) of third parties, damage, other negative consequences, as well as their causal relationship with the actions (inaction) of the person held liable.

In most cases, the administrative or criminal liability of an LLC participant is associated with his/her managerial status in the company. It often arises due to falsification of documents, reports, provision of false information to the tax and other government agencies, due to illegal transactions, non-payment, tax evasion and other obligatory payments, financial violations, etc.

Free legal advice:

Bringing to administrative or criminal liability may occur at the initiative (application) of any interested person. Often such offenses are detected by law enforcement agencies independently as part of operational-search activities. Sometimes tax and other regulatory authorities apply with an application.

Other types of liability of the LLC founder

The founders (participants) of an LLC have rights and obligations established by law and statutory documents. Abuse of rights, failure to perform or improper performance of duties may result in harm, violation of the rights and interests of the LLC, other participants and third parties. In these cases, liability is also possible. Any person, even the company itself, as an independent legal entity, has the right to bring a claim against the founder. As a rule, such issues are initially classified as corporate disputes, and damages are recovered in the usual manner - as part of claims proceedings in an arbitration court.

On the responsibility of the founders and managers of LLC

A limited liability company or LLC is an organization, company, firm, the founder of which can be an individual, as well as a group of persons. When creating an LLC, each of the founders contributes to the authorized capital their share, expressed in a sum of money or securities, property.

The founders are not liable for the obligations of the organization they have created. The liability of LLC participants is within the limits of their part of the authorized capital.

Free legal advice:

Management of a limited liability company

The supreme 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 company is managed by a 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, 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 Company's obligatory body is the Audit Commission. The composition of the commission is approved at the general meeting of the founders. The Commission exercises control over the financial activities of the LLC, the safety of its property.

Responsibility of founders of LLC

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.

Free legal advice:

He is liable for obligations only in the event of his direct fault in the losses incurred by the company or failure to fulfill its obligations (Article 3, paragraph 3 of the above Law). But the guilt of the founder in the failure of the company to fulfill its obligations must be proven during the court session.

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

Leaders

The directors of an LLC include the director, his deputies, the chief engineer (if the company is engaged in production activities), and the 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 one or another official is determined by the current legislation and the charter of the organization. Imposed penalties can be, starting with a verbal reprimand and ending with dismissal, compensation for the damage suffered by the company, in part or in full, by deduction from wages and full one-time repayment of the loss.

Free legal advice:

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 an official led to significant material damage, bankruptcy. Criminal punishment when they commit unlawful acts can be applied in a general manner.

What can a director be punished for?

The activity of any organization, firm, company is built on the principle of unity of command. That is, the head of the organization is a person who exercises operational management of it and is responsible for all its activities.

In our case - the director appointed by the meeting of founders. The director can be punished for actions that caused the organization to suffer material and, God forbid, human losses that led to the bankruptcy of the LLC.

Directors can be held accountable for actions that violate the statutory norms of the organization or the norms of the law, negligent neglect of their duties, abuse of office, and, finally, to criminal liability for acts of a criminal nature.

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

Free legal advice:

Depending on the violation committed by the management of the LLC or by him personally, the director may be held administrative, material, criminal liability.

The director is brought to administrative responsibility in cases of violation of labor protection norms, regime norms, the absence of a license or admission from the organization to certain works, violation of fire and sanitary safety rules.

Material can be expressed in the form of fines or other penalties. Penalties may be imposed on a director if the damage suffered by the organization is small. 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, with a sentence served in a colony, with or without a fine, with compensation for the damage caused. In addition, he may be deprived of the right to hold leadership positions indefinitely or for a certain period.

Video about what the director is responsible for:

Liability of the founder for the debts of LLC

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

Whether such action resulted in damage or bankruptcy must be proven in court. The court also determines the penalty to be imposed on the perpetrator. If the founder is also the head of the organization, then he is fully responsible for his actions with his personal property, including the authorized share.

Subsidiary liability of the founder of LLC

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

Free legal advice:

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

The Civil Code of the Russian Federation determines 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 occur.

Learn more about the responsibilities of a Purchasing Manager.

Liability in bankruptcy

In case of bankruptcy of an LLC or its liquidation, the founder is liable for the obligations of the organization only within the limits of his authorized share. Unless, of course, it is proved in court that it was his actions that led to bankruptcy. If the authorized share is not paid in full by a company participant, then the balance of the amount is collected additionally.

Video: you should separate the debts of the founders and LLC

Free legal advice:

The founder -OOO- had problems with bailiffs on debt not related to the company. Can bailiffs seize the authorized capital and withdraw funds to pay off the debt.

Hello, this is the situation. LLC owned the store and operated under the HomeMI brand, was its representative in the region. they were sued for money for defective goods. However, the company refuses to pay the money, referring to the liquidation and termination of activities. At the same time, the Stores both worked and work. However, as it turned out, now they are owned by IP. is it possible to recover any money from the director of the LLC, who is also the founder? Since, apparently, the termination of activities occurred intentionally, so as not to pay according to court decisions.

Good day. Thank you very much for the video. Question. The director (LLC Ivan. Ivanych) signed a loan agreement with himself (individual Ivan Ivanovich) up to a million for half a year, not one transaction, only a loan. When this director (I.I.) came, the LLC had no debts. The accountant is on order and it seems that there is no contract, only an order was given. How to be a teacher? Make a decision to change the director with the wording about not trusting I.I. And about creating a comedy.?

Good day. Thank you very much for the video. Question. The director (LLC) signed a loan agreement with himself (individual Semyon Semenych) up to a million for half a year, not one transaction, only a loan. When this director (I.I.) came, the LLC had no debts. The accountant is on order and it seems that there is no contract, only an order was given. How to be a teacher? Make a decision to change the director with the wording of no confidence

interesting, but there is a question: I registered an LLC, opened a current account, concluded a sale and purchase agreement and a work contract, completed the work, received money to the account, spent everything as a salary and bonuses. and decide not to pay VAT and personal income tax for anything and for no one. I have formed a debt on VAT taxes (6-13%) personal income tax, etc. a couple of years maximum and they file me for bankruptcy of the Federal Tax Service, I agree, let me be bankrupt, I will lose my authorized capital. And HERE IS THE QUESTION: nothing threatens the founder, but the head and the director allowed such a situation, what kind of responsibility threatens them? Thank you for your attention

Free legal advice:

Victor, contact a lawyer on the spot - it is better to take any steps in such a situation deliberately, understanding what they can lead to. If you can prove that this curb was laid exactly in this place by your counterparty, and the examination proves that this particular curb was made at your enterprise, then the question arises for your counterparty - where did he get it from (if he does not have documents)? In this situation (as a version), it can be assumed that your counterparty stole the border from your enterprise. Maybe it makes sense for you to meet with the head of this organization and resolve the issue without bringing it to court? But in any case, consult with a lawyer (with the provision of full information and documents).

I won’t confirm it with documents, there are witnesses .. They took a curb for landscaping - the curb lies .. Does it make sense to intimidate them with Article 159 and a complaint to the Investigative Committee and the prosecutor's office?

Victor, I just want to say first of all - how did you allow this to happen and why didn’t you attend to this issue earlier? . . but let's start with what we have. Your task in this situation is to collect evidence (in the form of documents and testimonies of witnesses) of the delivery of goods to the specified counterparty.

Good day! Such a question - 2 years ago, our LLC delivered the goods to another LLC for, the documents (invoice, bargaining12) were transferred by the manager and did not return back, i.e. we do not have our copies signed by the counterparty. After 2 years, they receive a call from their accountant demanding a refund, since they did not receive anything from us, there are no goods and supporting documents, too, with threats to sue .. my actions as the director of an LLC?

Aslan, so that there are no problems, you should find an opportunity to pay the fine on time or challenge this fine if you think (and can prove it) that it was imposed unfairly.

But what if a fine is imposed on the LLC, the amount of which is many times greater than the value of everything that is on the balance sheet of the LLC?

It is not easy for us Directors, all decisions are made by the founders and we execute them, and we bear responsibility for this.

what responsibility do I have as a director

The director will always be to blame for all the troubles of an LLC, and every director knows this. And I would advise you to have a competent lawyer on the side, and not inside the enterprise.

We all know that an LLC bears its responsibility within the limits of its authorized capital and property on its balance sheet. The liability of the founders, also (with the exception of proven deliberate actions by the court) does not go beyond the size of the authorized capital, is within its share. Therefore, I want to give advice, if your organization enters into an agreement with some company for a large amount, look at the balance sheet of this company. If the authorized capital is only 10 thousand rubles, and there is no property on the balance sheet of the company, do not enter into agreements for large amounts. Such transactions are not secured by anything.

The director of a company is only liable under the law if he is just a pawn, a hired worker to cover up the one who is really guilty.

If an LLC, having taken a loan from a bank, cannot repay it, who is responsible for this, the founder or director, and with what property, authorized capital or personal property?

We are also suing the LLC, for almost a year it has not been delivering goods and has not returned the money. The writ of execution is on hand, but the bailiffs cannot take anything. the authorized capital is only 10 thousand. So, in addition to, 4 companies also suffered! And they are also waiting for payments, but to no avail. Maybe a collective complaint to the prosecutor's office will help? Has anyone encountered a similar situation?

I sued one LLC, I never saw the director, a representative spoke everywhere. The company has been listed in the tax office for a long time, before that it did not arouse suspicion. According to the writ of execution, the bailiff does not work, tk. they can’t recover anything, the debt is about half a million, and the authorized capital is 10 tr. In addition, the interests of the director are always and everywhere represented by the same person by proxy. The address of the LLC is fictitious, the summonses were sent to the debtor's home address, again received by their representative. The bailiff is inactive, the property for two years of my going to the bailiffs has already been transferred from LLC to a representative. What to do?

That's about responsibility. I think many have heard about the constant debate about the possibility of introducing criminal liability not only for managers and their deputies (depending on duties), but in general for a legal entity, in particular an LLC. It is also a very interesting question.. Since not only a director, but several people can lead to bankruptcy by their coordinated actions.. But, I'm afraid, our legislator will not soon develop a new rule.. Alas.

Tell me what responsibility a manager can bear if wages are paid with delays at our enterprise. How can such a question be resolved? I don’t know if it’s worth contacting the labor inspectorate, because it will threaten with dismissal. It is now difficult for an employee to communicate with managers, since they often have one answer: “if you don’t like it, quit.” It is difficult to find a well-paid job in our city, especially for women.

I do not quite agree with the opinion of Svetlana. The founder can also be held responsible for the actions of the director. Nevertheless, the director is appointed by the general meeting of the founders, which means they agree with him in responsibility and trust him.

Such an organizational and legal form of a legal entity as an LLC allows you to build an enterprise on the authorized capital of rubles. On the one hand, this makes the process of doing business more accessible to small companies, on the other hand, it sharply limits the liability for financial obligations. In the event of bankruptcy, it will be possible to recover funds (if any), the own property of the LLC (if any) and the authorized capital of rubles. This is often used by unscrupulous businessmen and create "one-day firms", "slip firms" to steal money, release the company from debts by concluding an assignment agreement, obtaining and non-repaying loans. Of course, all these actions are essentially illegal, and sometimes even contain signs of several elements of economic crimes. However, in fact, it is often impossible to prove this, since lawyers draw up documents very competently, and these actions are within the law. It would be necessary to legislatively increase the minimum size of the authorized capital so that shell companies do not multiply like mushrooms after rain. Of course, the director and chief accountant bear the greatest responsibility. They can be held accountable even after being fired from the LLC for a certain period.

Our LLC has two founders. I have 30%, the director has 70%. The company is engaged in timber harvesting and processing. Things are going badly. I understand that the director deliberately brings the case to bankruptcy. All conditions for the work of production are available. Things sometimes reach the point of absurdity. How can I prove later in court that the director deliberately brought the company to bankruptcy?

I have a different situation. The director deliberately bankrupts the LLC. My objections, as a participant, do not interest him. Completely removes me from participation in the work of the LLC. Attaches objects of trade, i.e. stores to another organization. However, there is no general meeting. My five appeals to the prosecutor's office at all levels give nothing. Answers only that these are intra-economic affairs of the LLC. Even my part of the authorized capital was not returned to me. Here's how it happens.

In fact, if the founder of the LLC is not an official, i.e. is not an employee or the head of this enterprise, then according to the law it is impossible to hold him accountable as an official. However, he can be held liable as a citizen. This, too, should not be forgotten. In general, a limited liability company from the point of view of doing business is a rather convenient form, since here the founders are liable for the debts of the enterprise only within the limits of their shares in the authorized capital. Which, of course, cannot be said, for example, about individual entrepreneurs who are liable with all their property.

In fact, the director of the company has the main responsibility. It is very difficult to prove the guilt of the founder. But in order to protect yourself in case you need to take unpopular decisions and measures, it is better to play it safe with the minutes of the meeting of the founders. The director has the right to send a notification letter to each requesting the need for a general meeting on any issue. Then the founders, by signing the protocol, make a decision, and the director is only an executor, and in case of questions from law enforcement or other bodies, he can always declare that he acted on the basis of the decision of the founders.

The founders invest in the development of the organization, because in order to start the process of earning money, it is necessary to invest in development. Sooner or later the need comes. The reasons for liquidation can be different:

financial difficulties;
achievement of the goals of the functioning of the organization.

Is it possible to return the authorized capital

Upon liquidation

The procedure for the liquidation of a legal entity is established in Article 63 of the Civil Code of the Russian Federation. After the decision to liquidate the company, the following actions are taken:

an announcement is published in the press;
receiving claims from creditors;
carrying out settlements with creditors who have declared their rights within the period established by law, in the order of priority in accordance with the norms of Article 64 of the Civil Code of the Russian Federation;
in case of insufficiency of funds on the company's accounts for making payments to creditors, the sale of the company's property is carried out;
drawing up a liquidation balance sheet.

According to the norms of clause 8 of article 63 of the Civil Code of the Russian Federation, that part of the property that remains after all loan payments have been made is transferred to the founders in the form of:

things (appliances, furniture, building materials, etc.);
Money.

The founders have an absolute right to receive residual funds after the liquidation of the company in accordance with the provisions of Article 67 of the Civil Code of the Russian Federation. The provisions of this article provide for the variability of the return of the authorized capital: material values or money. It turns out that, at the request of the founders, the material assets remaining after settlements with creditors can also be sold, since the founders want to receive cash.

In case of bankruptcy

In the process of bankruptcy, the founders of the company are unlikely to be able to count on the return of the authorized capital. According to the norms of Article 63 of the Civil Code of the Russian Federation, if the organization’s property is insufficient to make payments to creditors or if there are other signs of the organization’s bankruptcy (for example, no payments on accounts for more than 3 months), the liquidation commission applies to the arbitration court with a bankruptcy petition of the company (enterprise, organization) . We also note that the debts of the organization must exceed 300,000 rubles.

After filing the application, the court analyzes it for compliance with the norms of the law and an initial court session is scheduled. After the observation stage begins, which is led by the arbitration manager. During observation:

analysis of the financial condition of the company;
control of the company's activities;
acceptance of claims of creditors;
holding meetings of creditors;
analysis of creditors' claims;
making report;
actions to stabilize the situation in the enterprise.

In the absence of positive dynamics on the exit of the enterprise from the crisis, bankruptcy proceedings are appointed. At this stage, the liquidation of the enterprise due to bankruptcy is already becoming inevitable. At this stage, the following is carried out:

part of the actions similar to the previous stage;
notification of creditors about the complete liquidation of the company;
satisfaction of creditors' claims.

The most important point: in order to repay debts to creditors, the debtor uses material resources, monetary assets, including the authorized capital in full. Consequently, the return of the MC to the founders becomes impossible.

In other cases

According to the provisions of Art. 20 of the Federal Law "On" each LLC has the right. The nominal value of the shares of each founder of the company is reduced. Clause 2 of this article also states that the company does not have the right to reduce its authorized capital to amounts below the nominal minimum established by law.

The proportions of the founders' shares remain unchanged. It is clear that only the return of funds to the founders is carried out.

postings

In the process of liquidating an organization, two options for writing off the authorized capital are allowed. It all depends on the availability of funds or current assets in the company's accounts.

Option number 1 is profitable. The debit of account 99 (credit 84) reflects the profit received by the organization for a certain reporting period, and the debit 84 (credit 80) is carried out due to the presence of retained earnings of the company.
If there are losses the MC is debited from debit account 80 (credit 84). This is how the real size of the authorized capital was determined at the time of liquidation of the company.

It is important to determine the amount of payments of shares of the Criminal Code to each of the founders. Such a transaction is displayed in accounting as follows:

Dt 80 Kt 75 - reflection of the amount to be distributed;
Dt 75 Kt 50 or 51 - payment to the founders of their share of the UK.