The national creative legislators came up with a new attack, with far-reaching consequences. As I already wrote RBC, on 1 January 2016 we have began a quiet revolution in the registration of legal entities. Explanations and bylaws, as usual, slightly late, and only now the effects start to show in full. But they are interesting.
Our client for confidentiality let’s call him Sergei, professional Manager, lead more than 10 years successful company. He decided to register a new firm. The founders of large companies that have long operating in the market. Sergey — Director. What was his surprise when, in IFNS was obtained refusal to register with reference to article 23 of the Federal law “On state registration of legal entities…” ? 129-FZ.
It turns out that two years ago was a registered company, where Sergey was a supervisor who was removed from EGUL as invalid entity. And now when I try to register a new legal entity it will be given a waiver. Thus, in fact, Sergey is disqualified as a leader and entrepreneur for the events of two years ago. Only the disqualification of some half-hearted. Nobody prohibits to guide now led them by the company.
Is it legal?
From the point of view of the law “On state registration of legal entities …” the waiver is proper. The norm is formulated very clearly, but the suspension is one of the types of administrative responsibility. And according to article 3.11 of the Code of administrative offences, a person may be disqualified by the court. Moreover, according to the administrative code, a person can be prosecuted only on the basis of the law in force at the time of the offence. The law is not retroactive. This is one of the fundamental principles of the legislation.
Imagine this situation. A month ago, you were speeding 5 km/h. the Penalty for this was provided, but small. Today, for instance, has enacted a law that imposed a forfeiture for this violation. And you have right away. If you knew that speeding by 5 km/h you can select the right, you would most likely be traveled carefully. It is the goal of the legislation on administrative offenses: to prevent the wrongful act, under penalty, not to collect fines from the people at any cost. Although sometimes it seems that the goal is the opposite.
Three years ago Sergey with partners urgently needed to register a company for a new project. While there was registration, the need for new operative legal entity disappeared. The firm did not even open a Bank account. As is often the case, once the firm was not working safely forget about it and your report is not handed over. Of course, from the point of view of the law, it offense. The owners bear the burden of maintaining your property and reporting you need to pass regardless of the activities of the firm. But for the non-delivery report provided only a penalty but not a disqualification of the head. Later, the firm was excluded from the registry as inactive entity. Then Sergei this was seen as a benefit, because they do not have to bear the costs in connection with the liquidation of a legal entity. Together with Sergey actually disqualified and the founder, who owned the ill-fated operative legal entity that has a 70 percent share. His fault what? Responsibility for the non-delivery report rests solely with the head.
I must say that thus may be excluded from the registry and running a company that does not give statements and make account transactions. We have been approached by a client that the firm was decorated property, where he long conducted the repairs at its own expense. The statements are handed over and account transactions not conducted because there was no income. On exclusion of the company from the register found out by accident when I tried to fix accounting and to surrender it in tax. There he was pleased that his company anymore.
The process of elimination inactive company provides only the placement of ads about the upcoming registration in the Bulletin of state registration and making an entry in EGRUL. Many of us are reading this Bulletin before bed? Terms of appeal against the decision was ignored. Procedure already it was not possible to restore the firm to the registry.
The severity of punishment and the degree of guilt
In article 3.11 of the administrative code stipulates that a person may be disqualified for a period of 6 months to three years. At appointment of administrative punishment to the physical person are taken into account the nature of the committed administrative offense, the identity of the perpetrator, his financial situation, circumstances, and the circumstances aggravating administrative responsibility (articles 4.1. Of the administrative code).
In this case, the court would have to establish all the circumstances and determine the measure of punishment, by setting the period of Ineligibility. Sergey is a Director with years of experience. Now he has of the Directors to go into sales? Why deprive him of opportunity to earn money that he can? Or we have so many professional managers?
The law on the state registration in fact, it prohibits a person to be the head or founder of a new legal entity within three years since the exclusion of legal entities from the registry. Then there is the liability does not depend on the circumstances of the offense and the identity of the perpetrator. It turns out, the law “On registration of legal entities” violates the constitutional rights of citizens and fundamental principles of legislation on administrative offenses.
I understand that the task of the state is to limit the ability of unscrupulous persons to create a broken company, not to take statements and do not bear any responsibility for it. It really needs to be done. But you need to give the ability to separate unscrupulous leaders from the perpetrators once the minor offence and now prosecuted retroactively. The principle of “chop wood — chips fly” don’t have to justify ill-conceived actions of the legislators.
We offered Sergey to fight for his rights and to overturn the actual ban, but he decided to take the path of least resistance and we re-filed the documents for registration of a legal entity, putting a different Director. As it happens, Sergei will be the actual head and in the registry will be claimed by another person. It seems that against such schemes and are designed to fight the new rules.
The authors ‘ point of view, articles which are published in the section “Opinions” may not coincide with ideas of editorial.