Question: What is the responsibility of a person acting under a power of attorney on behalf of the CEO? ("Audit and Taxation", 2006, n 9)

"Audit and Taxation", 2006, N 9
Question: What is the responsibility of a person acting under a power of attorney on behalf of the CEO?
Answer: According to Art. 182 of the Civil Code of the Russian Federation, a transaction made by one person (representative) on behalf of another person (represented) by virtue of authority based on a power of attorney directly creates, changes and terminates civil rights and the duties of the represented. That is, a person acting by proxy on behalf of the general director must enter into transactions on his behalf (and not on his own) regardless of location trustee.
Wherein CEO does not lose its powers.
Therefore, transactions made using a properly executed power of attorney will be legal and the company’s activities will be legal.
In accordance with paragraph 4 of Art. 32 Federal Law dated 02/08/1998 N 14-FZ "On companies with limited liability"all current activities The company is carried out by the executive body (general director, president, manager).
The general director bears direct responsibility, including for transactions made by his representative, since the actions of the representative change and terminate the civil rights and obligations of the person represented.
Liability of a representative is possible if it is established that:
- he acted intentionally to the detriment of the organization;
- acted without a power of attorney;
- acted in excess of his authority or the authority of the organization.
Please note that:
1) the power of attorney can be revoked in unilaterally at any time (Article 189 of the Civil Code of the Russian Federation). The principal is obliged to notify the representative about the cancellation of the power of attorney;
2) it is necessary to understand the powers of the general director and other bodies legal entity, exclusive powers of the general meeting (Civil Code of the Russian Federation, Law "On Limited Liability Companies", charter of the organization, agreement between the company and the general director);
3) it is necessary to study the issued power of attorney and the powers specified in it;
4) you should read the organization’s charter and figure out what types of activities it can engage in (Article 173 of the Civil Code of the Russian Federation);
5) it is necessary to check whether the power of attorney is correctly drawn up (clause 5 of Article 185 of the Civil Code of the Russian Federation).
Specialists
law firm
"Turov and partners"
Signed for seal
31.08.2006

SHOULD THE REGISTRATION OF THE AUTHORITY OF A REPRESENTATIVE ALWAYS BE CONTAINED IN A SEPARATE DOCUMENT (POWER OF ATTORNEY)?

Answer: In accordance with the legal position of the Supreme Court Russian Federation(hereinafter referred to as the Supreme Court of the Russian Federation), a power of attorney must be understood as a written authority issued by one person to another person for representation before third parties1. At the same time, the Supreme Court of the Russian Federation emphasizes that the authority to represent interests in court can be contained both in a separate document (power of attorney), and in an agreement, and in a decision of a meeting, unless otherwise provided by law. Thus, if the contract, along with its terms, contains written authorization of an employee of the organization to represent the interests of a legal entity, signed by the general director, a power of attorney in the form separate document no need to register.

However, to represent the interests of an organization in a number of government bodies, a separately issued power of attorney is required. The obligation of the organization to issue its employees a power of attorney to represent interests in tax office And off-budget funds directly enshrined in federal laws2.

As for representing the interests of a legal entity in court, in accordance with the arbitration procedural legislation the powers of the representative can be expressed in a statement by the person being represented, made at the court hearing, as indicated in the minutes of the court session3. Thus, for a company employee to participate in legal proceedings to represent the interests of a legal entity, it is necessary either written power of attorney, certified by the signature of the general director, or the general director has the right to verbally declare at a court hearing about the vesting of powers of this employee represent the interests of the organization in court. It should be noted that a power of attorney for the right to participate in the consideration of a case does not require notarization 4 .

CAN A POWER OF ATTORNEY BE ISSUED TO REPRESENT THE INTERESTS OF THE CLIENT BY SEVERAL REPRESENTATIVES AT THE SAME TIME?

Answer: According to the Supreme Court of the Russian Federation, the legislation allows one person to issue a power of attorney to several persons5. It is necessary to take into account that if the power of attorney does not contain an express clause on joint representation, the representatives exercise their powers separately. In this case, the refusal of the powers of one of the representatives or the cancellation of his powers by the represented entails the termination of the power of attorney only in relation to the specified representative. The power of attorney for other representatives is valid.

If the power of attorney contains a condition that the powers must be exercised jointly, then the refusal of one of the representatives entails the termination of the power of attorney as a whole6. In addition, in the case when a power of attorney joint implementation powers are provided for devolution, its implementation is possible only by all representatives jointly7.

IS IT NECESSARY TO EXECUTE A POWER OF ATTORNEY TO THE MANAGER OF THE BRANCH OR IS THE REFERENCE TO THE ASSIGNMENT OF POWERS IN THE REGULATIONS ON THE BRANCH SUFFICIENT?

Answer: The Supreme Court of the Russian Federation in its ruling indicated that the powers of the head of a branch (representative office) must be certified by a power of attorney and cannot be based only on the instructions contained in the constituent documents of a legal entity, the regulations on the branch (representative office), or appear from the situation in which the head operates branch8.

In this case, the head of the branch can delegate his powers to another person, for example, an employee of the branch, in the case where the delegation is permitted by a power of attorney to vest the powers of the head of the branch. The provision that the transfer of trust by the head of the branch is formalized in a simple writing and does not require notarization, is a novelty civil legislation 9 .

If an agreement is signed on behalf of the company by its employee, acting on the basis of a power of attorney issued by way of substitution by the head of a branch of a legal entity, it is necessary to provide the other party to the transaction with two powers of attorney: the initial one for the head of the branch and the power of attorney issued by way of substitution.

HOW IS THE TRANSFER OF THE AUTHORITY OF A REPRESENTATIVE IN COURT PERFORMED?

Answer: By general rule transfer of powers is carried out by issuing a power of attorney to a new representative. In this case, a power of attorney issued by way of delegation must be notarized. However, taking into account the provision of arbitration legislation, according to which the powers of a representative can be determined orally or written statement principal, it must be borne in mind that the powers of the new representative can be determined in an oral or written statement of the original representative in court10.

IS IT NECESSARY TO APPLY THE ORGANIZATION'S SEAL ON A POWER OF ATTORNEY WHEN REPRESENTING THE INTERESTS OF A LEGAL ENTITY IN COURT?

Answer: In connection with the abolition of the seal of business entities11, the Supreme Court of the Russian Federation explained that a power of attorney to represent the interests of an organization in court must be certified by the seal of the organization only in two cases:

• if the federal law contains a requirement for a legal entity of a certain organizational and legal form to have a seal (for example, such an obligation is established for unitary enterprises12);
• if the constituent documents of the organization contain information about the presence of a seal for this legal entity.

IN WHAT CASES IS A NOTARIARY FORM OF POWER OF ATTORNEY REQUIRED WHEN PERFORMING TRANSACTIONS ON BEHALF OF A LEGAL ENTITY?

Answer: As a general rule, a power of attorney issued on behalf of a legal entity does not require notarization14. However, powers of attorney to dispose of registered state registers rights must be notarized15. The Supreme Court of the Russian Federation in its ruling provides sample list transactions of a legal entity, the completion of which requires notarised power of attorney. Thus, these include powers of attorney that authorize a representative to alienate property, the rights to which are registered in the register (for example, concluding contracts of sale, exchange, donation in relation to such property), as well as to establish limited real rights to it (in particular, establishing an easement or mortgage)16.

THE PERSON WHO ISSUED A POWER OF ATTORNEY IN THE ORDER OF Clause 3 OF ART. 185.1 of the Civil Code of the Russian Federation, CERTIFIED YOUR SIGNATURE?

#FOOTNOTE# Answer: In accordance with paragraph 3 of Art. 185.1 of the Civil Code of the Russian Federation power of attorney to receive wages and other payments related to labor relations can be certified by the organization in which the principal works. However, due to legal position The Supreme Court of the Russian Federation, certification of the principal’s signature consists of confirmation by the organization where the principal works that it was he who signed the power of attorney, and not some other person. Certification of his signature by the principal himself contradicts the meaning of this paragraph. The person who issued the power of attorney cannot certify his signature. Such signature verification does not guarantee to third parties, who are subsequently presented with a power of attorney, the authenticity of the principal’s signature. Thus, the signature of the employee who issued the power of attorney must be certified by the head of the organization or a notary17.

WHAT IS THE PROCEDURE FOR ISSUING A POWER OF ATTORNEY BY AN INDIVIDUAL ENTREPRENEUR?

Answer: Any person authorized to do so by a power of attorney can represent the interests of an individual entrepreneur. The procedure for issuing a power of attorney by an individual entrepreneur differs from issuing a power of attorney by a legal entity. In accordance with procedural legislation, a power of attorney on behalf of an individual entrepreneur must be signed by him and sealed with his seal. If an individual entrepreneur does not have a seal, representation of his interests is possible only on the basis of a notarized power of attorney18.

IN tax code In the Russian Federation, changes have been made according to which invoices issued on behalf of an entrepreneur have the right to be signed by another person who is authorized by a power of attorney on behalf of an individual entrepreneur, indicating the details of the certificate of state registration this individual entrepreneur19. However, when representing the interests of an individual entrepreneur in the tax authority, including when signing invoices by another person, due to clarifications of the Supreme arbitration court Russian Federation, it is necessary to issue a notarized power of attorney20.

IN WHAT CASES DOES A POWER OFFER TERMINATE ITS VALIDITY?

Answer: The power of attorney terminates if the term of the power of attorney has expired, if the power of attorney is canceled by the principal or the attorney refuses it, as well as in cases provided by law.

Current legislation does not limit the validity period of a power of attorney. However, if the power of attorney does not indicate its validity period, it is valid for a year from the date of its execution21. Upon expiration of the period for which the power of attorney was issued, its validity is terminated.

During the validity of the power of attorney, the principal has the right to cancel it. In accordance with the norms of civil law, the power of attorney is canceled by publication in official publication, in which information about bankruptcy is published22. In this case, third parties are considered to be notified of the cancellation of the power of attorney after a month from the date of said publication, if they were not notified of the cancellation of the power of attorney earlier.

However, in the case where a power of attorney was issued to carry out a transaction with a specific counterparty, in addition to publishing the cancellation of the power of attorney, the legal entity must simultaneously notify this counterparty that the power of attorney has been cancelled.

The Supreme Court of the Russian Federation also clarified that the rules on publishing a notice of the revocation of a power of attorney also apply when revoking a power of attorney to represent interests in court. During judicial trial the interested party has the right to refer to the presence of such a publication. However, the court, in the absence of an appropriate reference interested person when checking the powers of representatives, there is no obligation to check for publications on the revocation of the power of attorney. The court takes into account the fact of termination of the powers of the representative only upon receipt of notification of the revocation of the power of attorney23.

As for the termination of powers by way of delegation, with the termination of the main power of attorney, the delegation also loses force24. However, the Supreme Court of the Russian Federation emphasized that if a third party is presented with a power of attorney issued by way of delegation, the termination of which he did not know, the rights and obligations acquired as a result of the actions of the person whose powers were terminated remain valid for the represented person and his legal successors25.

By force of law, the power of attorney expires from the date of introduction of the procedure external control. In accordance with bankruptcy legislation26, the powers of the debtor’s manager are terminated from the date of introduction of external management, and with the opening bankruptcy proceedings The powers of both the head of the debtor and other management bodies are terminated. In connection with this, the validity of powers of attorney issued by these persons to represent the interests of a legal entity is also terminated27.

It should be noted that the registration of powers of a representative of a legal entity without taking into account those specified in this article the position of the Supreme Court of the Russian Federation may entail a number of legal risks. Thus, if the procedure for issuing a power of attorney is violated, the transaction may be declared invalid due to its execution by an unauthorized person. Government authorities may also refuse to provide the requested information if it is requested by a person with improperly formalized authority. That's why competent design the authority of an attorney to represent the interests of the company will save time and money on processing additional documents.

Telephone consultation 8 800 505-91-11

The call is free

Representative by power of attorney responsibility

A third hearing has been scheduled on the claim from the LLC, the representative of the LLC does not have a power of attorney, and the witnesses and employees of the LLC also do not have powers of attorney. Photo and video materials were presented to the court in violation of the regulations of Article 55, paragraph 2 of the Code of Civil Procedure. Russian Federation, filming was not carried out authorized person. Is it legal for a judge to consider a case with such shortcomings? How should I behave in court in this situation? Can I challenge the court, the plaintiff’s representative, and the witnesses?

Good afternoon Victor, in your case of Civil Procedure Code The Russian Federation and the Civil Code of the Russian Federation do not provide for challenges to representatives of the parties; you have the right to object to a request to call a witness, and the judge also has the right to challenge them! Witnesses do not need powers of attorney to participate in court; they are called by the court.

Hello, Victor! Yes, submit a written challenge to the judge. If the decision is nevertheless made, it must be appealed.

Regarding challenges, there is no point, since you cannot challenge the representative of the plaintiff and witnesses, and the challenge of the husband must be motivated. If there are no powers of attorney, then the interests of the plaintiff must be represented by a person authorized to act without a power of attorney (director or founder according to an extract from the Unified State Register of Legal Entities). If these persons do not fulfill their obligations under the Civil Procedure Code, then you can declare that the plaintiff is acting as an unauthorized representative, without a power of attorney. On this basis, the claim should be denied.

Can a representative of the debtor-LLC, by proxy, sign a claim on behalf of the bankruptcy trustee to appeal the transaction under a special procedure? Grounds for bankruptcy.

Hello, he can do this on his own, but he does not have the right to sign on behalf of the bankruptcy trustee. Thank you for your contact to our website.

Hello, if he has a power of attorney similar powers. Of course it can. It all depends on what scope of rights is established in his power of attorney.

Tell me what criminal liability is borne by a representative under a power of attorney of a legal entity who fraudulent activities caused damage to a legal entity and citizens. That is, he acted for fraudulent purposes using the seal and power of attorney of a legal entity. Thanks in advance.

Good afternoon. To your question, I can give you the following answer: You need to file a statement with the police, they will investigate it and, depending on all the circumstances of the case, the person’s actions will be qualified under the appropriate article of the Criminal Code of the Russian Federation. Thank you for visiting the site.

Good afternoon, dear visitor! Criminal liability for fraud is provided for in Article 159 of the Criminal Code of the Russian Federation. All the best, I wish you good luck.

Does an individual, by power of attorney, who is a representative of an LLC company, have the right to pay the state fee when applying to the court, in accordance with Article 313 of the Civil Code of the Russian Federation?

Hello dear Ildar! You need to know that often a company has to turn to government agencies to take legally significant actions against it. For example, it is necessary to carry out state registration of changes made to constituent documents, go to court with a claim, commit notarial acts And so on. All these services charge state fee(Article 333.16 of the Tax Code of the Russian Federation). A situation may arise when the company does not have enough Money in the current account, they are not there at all, or bank accounts have been seized. There is a solution to the problem: the state fee can be paid by an authorized representative. I wish you and your loved ones good luck and success. Best regards, A.A. Bogolyubov.

You can, if you have such authority, according to the power of attorney. The problem here is different - on the part of the LLC. This will be a violation of the payment procedure, since in relation to legal entities there is a requirement for non-cash payments made in favor of other legal entities (as well as to the budget). There are quite working schemes, but I don’t know whether they work in your region. In particular, you can pay by issuing money from the cash register and then returning it to the accounting department advance report. But in this case, if you don’t have an accountant, then you will spend more time understanding this scheme.

Hello. If the plaintiff is an LLC, then payment must be made from the LLC's current account; the individual is a representative of the legal entity, but payment must be made only from the legal entity's current account.

It is possible to pay the state fee for filing to the LLC representative by power of attorney. appeal in the amount of 150 rubles?

If you convince bank employees that government payments. duties are included in other legal meaningful actions, then you can, or the power of attorney directly states payment of the state fee.

Is it possible to pay the LLC representative, by proxy, a state fee for filing an appeal in the amount of 150 rubles? Good afternoon, yes it is possible, I have never had any problems with it.

Civil case. The defendant's representative was present under a power of attorney issued through a certain LLC, which clearly states that the defendant is an employee of this LLC. The defendant won the case. At the meeting about compensation legal expenses the defendant assured the court that he had been retired for a long time and did not work anywhere (included in the protocol). Accordingly, it turns out that the representative was present at the meetings under an illegal power of attorney. The judge ignored all the arguments and ordered compensation. Now we want to appeal this ruling until the reimbursement of legal costs is denied. Please tell me which articles of the law should be referred to? Has anyone already had this practice? Maybe we can immediately ask the court to hold the defendant and his lawyer accountable under paragraph 3 of Article 327?

Hello! Yes, there is such a practice, only in in this case it is possible to reduce the reimbursement of expenses to that party to zero due to the power of attorney and the agreement.

Appeal the court's decision regarding the recovery of legal costs. If a lawyer is in an employment relationship with an LLC, then he receives a salary for his work. Regarding the issue of drawing up an appeal, I recommend contacting a lawyer in person.

Hope, document preparation legal nature Possibly for a fee. In this case, to compile private complaint- you need to see all the documents you are talking about and judicial act(definition) which you are appealing.

The question is: what responsibility does a representative have when acting under a revoked power of attorney and knowing about it?

In this case, the provisions of Art. 183 of the Civil Code of the Russian Federation: Article 183. Concluding a transaction by an unauthorized person 1. In the absence of authority to act on behalf of another person or when such authority is exceeded, the transaction is considered concluded on behalf and in the interests of the person who completed it, unless another person (represented) subsequently approves this transaction . Before the transaction is approved by the represented, the other party, by making a statement to the person who made the transaction or the represented, has the right to refuse it unilaterally, except for cases where, when making the transaction, it knew or should have known about the lack of authority of the person making the transaction or about their excess. (Clause 1 as amended by Federal Law dated 05/07/2013 N 100-FZ) 2. Subsequent approval of the transaction by the represented creates, changes and terminates for him civil rights and obligations under this transaction from the moment of its completion. 3. If the principal refused to approve the transaction or the response to the proposal to the principal to approve it was not received reasonable time

, the other party has the right to demand that the unauthorized person who made the transaction perform the transaction, or has the right to refuse it unilaterally and demand compensation for losses from this person. Losses are not subject to compensation if, when making a transaction, the other party knew or should have known about the lack of authority or about its excess. Can a foreign citizen be a representative by power of attorney? Russian organization (LLC) in court? Formally, the Constitution of the Russian Federation speaks of the existence of all procedural rights in foreign citizens , and the Code of Civil Procedure does not say that representatives in court must necessarily be “citizens of the Russian Federation.” Are they included in procedural rights

foreign citizens, the right to represent the interests of other persons in the courts of the Russian Federation? (not as a lawyer, but just as a person) If it is located on the territory of the Russian Federation on legally

and he has a work permit, then yes.

In a purchase and sale agreement, one of the parties is an LLC represented by a representative by proxy. Is it necessary to register that the LLC is represented by the Director (data and acting on the basis) and how to correctly register the signatures of the parties.

Hello. In this case, there is no need to register a director. A representative by power of attorney is registered everywhere.

Indicate the representative under the power of attorney (position and full name) and details of the power of attorney. His position and full name are in the signature of the parties

A representative of the LLC (the power of attorney was for concluding an agreement and acting on it) transferred money to another representative of the LLC under this agreement, BUT from an individual’s card to an individual’s card, in December 2014, a month ago he filed a lawsuit, the court LOST filed an appeal and won it , tell me to motivate him further in order to somehow formulate that he is wrong, since the money was credited to the cash register of the LLC and he demanded it on appeal that the individual overtook the individual and in return supposedly did not receive anything from the individual, neither services nor goods. Well, like an erroneous payment.

Please contact us for a consultation in person with documents.

Judicial representative worked under a power of attorney issued by the plaintiff to LLC..., and the agreement for the provision legal services for debt collection is registered in the name of another legal entity. Payment was made under the same agreement, but by a company unrelated to the case. Can the plaintiff recover the amount to pay for the services of a representative for this agreement?

To be precise and follow the letter of the law, then no LLCs can be representatives in court at all.

it does not matter who represented the interests if your contract allows for the possibility of subcontracting. Collect from the LLC with which the agreement was concluded. The fundamental value will be: did you sign the certificate of completion of the work. If yes, then your chances are near zero; if not, then, if there are obvious shortcomings in the work of lawyers, feel free to file a claim using the provisions of the Federal Law “On the Protection of Consumer Rights” and the Civil Code of the Russian Federation.

LLC bought a car, I am a representative by proxy, I need the LLC seal to put a stamp on the transfer acceptance certificate.

Hello! No, you are acting on the basis of a power of attorney.

I am the owner of a share in an LLC, I would like to be represented in the LLC, being my representative by proxy, an individual or a legal entity. How to do it? Thank you.

Hello. Execute a power of attorney for an individual, or enter into an agency agreement with a legal entity

If a purchase and sale agreement for equipment was signed by a representative by proxy on behalf of the LLC. There is no signing authority in the power of attorney. Is the transaction legal? And can it be challenged?

You can challenge it.

One founder is missing (representative of the legal entity by proxy) - the legal entity’s share in the LLC is 5% (legal entity registered in Cyprus) of the two founders, we want to carry out the liquidation procedure. There is actually no representative (location unknown, no contact with him). What to do? Perhaps through the court?

Does this legal entity have one founder and he is also the general director?

If the founder who is absent has only a 5% share in authorized capital, then you can general meeting the founders decide to liquidate the enterprise, because you have a 95% share, and liquidate. According to the law on LLCs, the decision to liquidate is made by a majority of votes; 5% does not play a role. Therefore, liquidate yourself calmly without his consent. And on the issue - liquidation of LLCs is not carried out through the court. there in judicial procedure There will be another procedure, but not liquidation.

The representative of the defendant LLC participates in the court hearing by proxy, the wife of the director of the LLC. The court received a request from a representative to interrogate the director in his capacity. Can the defendant be a witness?

The defendant is the LLC, not its director. So the director may well be a witness.

I am a representative of the LLC by proxy, for the 3rd court hearing I want to invite a witness who conducted pre-trial settlement the issue of the defendant's debt. This is an employee of the LLC, is it enough to petition the court to call a witness or should he be given a power of attorney from the LLC, he comes with me right away or the court invites him. Can the court not call him?

Hope, you are asking a lot of questions about the same thing. legal dispute. Collecting different opinions on the Internet you will not come to the desired result. A legal entity is quite capable of paying paid consultation lawyer. Do not abuse the right to free consultations Online.

Sold 100% share of the LLC to a representative foreign company, acting under a general power of attorney. There is a clause in the purchase and sale agreement that at the time of concluding the contract I received all the money due to me and I have no claims against the buyer. The contract was signed, but there was a verbal agreement that payment would be made after re-registration in the Unified State Register of Legal Entities. The re-registration has passed, there is no money, the buyer refuses to pay, but also does not have a receipt for receiving money from me. Is it possible to terminate such an agreement?

/If your patronymic is Vladimirovich, you are disingenuous

How can a representative by proxy enter into an agreement for the donation of a share in an LLC if he does not have the right, according to the law, to sign an application form 14001

Interesting question. The transaction can also be completed by power of attorney, which specifies what exactly to give. And the application can only be signed by the participant alienating the share, but this is in accordance with the LLC Law. The Law on State Registration has a slightly different wording and it allows both the applicant and the notary to be an applicant. Tax authorities At first, it was believed that the applicant in Form 14001 should be a notary. Therefore, in my opinion, if the application is signed by a notary who certifies a transaction concluded under a power of attorney, then everything will be correct from the point of view of common sense. However, this position is not supported in practice, as far as I know. Therefore, there is a gap here. In addition, the applicant participant can also be understood as a person acting on the basis of a notarized power of attorney. FEDERAL ARBITRATION COURT OF THE WEST SIBERIAN DISTRICT DECISION of June 7, 2011 in case No. A27-11029/2010 Thus, in accordance with Article 21 of the Federal Law “On Limited Liability Companies” and subparagraph 1.4 of paragraph 1 of Article 9 of the Law on State Registration the proper applicant when registering changes in information about a limited liability company contained in the Unified State Register of Legal Entities in connection with the transfer of shares in the authorized capital of the company is the seller of the share or a notary. FEDERAL ARBITRATION COURT OF THE MOSCOW DISTRICT DECISION dated May 12, 2011 N KG-A40/3631-11 In accordance with paragraph 1.4 of Article 9 of the Federal Law "On State Registration of Legal Entities and individual entrepreneurs"(as amended by Federal Law No. 312-FZ of December 30, 2008) when making changes to the unified state register of legal entities regarding the transfer of a share or part of a share in the authorized capital of a limited liability company, the applicants may be a participant in the company, a founder (participant ) a liquidated legal entity - a participant in the company, having real rights on his property or rights of obligation in relation to this liquidated legal entity, the legal successor of the reorganized legal entity - a participant in the company, the executor of the will and the notary.

Please, can a representative by power of attorney, a citizen of the Russian Federation not registered as an individual entrepreneur or LLC, but only representing interests under an agreement for the provision of legal services, claim in court for representation expenses? What documents need to be submitted to the court as evidence, and of course besides (power of attorney, service agreement, receipts for expenses incurred)?

Vera, hello. U individuals There should be no receipts. Or a bank account statement, or a receipt. What else needs to be proven, and, most importantly: by whom?

What responsibility does the representative under the plaintiff's power of attorney bear in court? Can the defendant or the court make any claims against the representative if the claim is lost or the defendant files a counterclaim?

Dear Mikhail! The powers of the party's representative under a power of attorney are clearly described in the power of attorney, a copy of which is in the case materials and which you can review. Personally, no demands can be made against the representative, since he represents the interests of the principal (the plaintiff in your case) by proxy.

The representative of the LLC under the General Power of Attorney can affix his signature on the document round stamp organizations? What is the need for this?

Dear Katerina, your question is not clear; in a power of attorney you usually specify what powers you want to give to your representative. A General power of attorney a more extensive need than usual, for example, your representative at the tax office and you need to sign some documents.

IN modern Russia relations of representation acquire special significance. This is due to the development of market relations, reform of legislation, and expansion of the sphere of civil relations.

The legal relations between the representative and the represented, as well as the formalization of their powers are regulated by Chapter 10 Civil Code RF (hereinafter referred to as the Civil Code of the Russian Federation).

The legal relationship of representation is the legal relationship between the represented and the representative, the content of which is the authority of the representative. Due to this, one person with the appropriate powers (representative) makes transactions on behalf of another person (represented), as a result of which the latter acquires, changes and terminates civil rights and obligations.

The grounds for the establishment of a representative office are legal facts, with which civil law connects the emergence of legal relations of representation between the subjects of representation, or, in other words, legal facts with which the law connects the recognition of one person as a representative of another person. The legislator in paragraph 1 of Art. 182 of the Civil Code of the Russian Federation establishes the following legal facts that are the grounds for the establishment of a representative office: power of attorney, indication of the law, act of the authorized government agency or organ local government. A transaction completed by a representative directly creates, changes or terminates the civil rights and obligations of the represented person, provided that the representative had the appropriate powers. Authority is a right granted by established by law order for one person to carry out transactions on behalf and in the interests of another person as his representative. The legislator determined that the powers of a representative can be defined in a power of attorney. So, in accordance with Art. 185 of the Civil Code of the Russian Federation, a power of attorney is a written authority issued by one person to another person for representation before third parties.

The word “power of attorney” is the same root as “trust” and “entrust.” The presence of trust, however, does not exclude dishonest behavior representative The task of protecting the rights of the person who issued the power of attorney is solved by the norm of paragraph 3 of Art. 182 of the Civil Code of the Russian Federation, namely the direct prohibition established in it.

In accordance with paragraph 3 of Art. 182 of the Civil Code of the Russian Federation, a representative cannot make transactions on behalf of the represented person in relation to himself personally. He also does not have the right to make similar transactions in relation to another person, whose representative he is at the same time, except in cases commercial representation. Transactions of this kind are void.

For example, one of the spouses cannot act as a representative under the power of attorney of the represented third party and on his behalf acquire property in the name of his spouse, since the property of the spouses is joint property, unless otherwise provided marriage contract(v. 33 Family Code RF), therefore, in this case the transaction will be concluded by the representative in his personal interests, i.e. in relation to yourself personally.

However, it is necessary to distinguish between cases when a representative can make a transaction on behalf of the represented person and on his own behalf if their interests coincide. For example, when a representative acts on behalf of the represented and on his own behalf while simultaneously alienating their shares in the common law shared ownership on property. In this case, both parties to the transaction have common goal- sell at a profit the property that is in their common shared ownership, and their interests coincide.

As noted in the Concept for the Development of Civil Legislation of the Russian Federation (approved by the decision of the Council under the President of the Russian Federation for the codification and improvement of civil legislation dated 07.10.2009): “The norm on transactions of a representative in relation to himself personally or in relation to a person whose representative he is at the same time (p 3 Art. 182 Civil Code), received wide application in practice and, as a rule, such transactions are declared void by the courts. At the same time, this provision is aimed solely at protecting the interests of the represented person from possible infringement of them by the representative in conditions of a conflict of interest. Insignificance such a deal should be considered an unnecessarily harsh consequence of the violation.

Clause 3 of Art. should be supplemented. 182 of the Civil Code of the Russian Federation indicating that the person represented, in advance or after the conclusion of the transaction by the representative, in relation to himself personally or in relation to the person whose representative he is at the same time, can express consent to the specified transaction.

Here it is necessary to provide that a transaction made in violation of the interests of the represented person, contrary to the restrictions established by this paragraph, may be declared invalid at the request of the represented person.

Thus, the choice of a representative, his conscientiousness when making transactions, these are the main guarantees of the protection of the rights and interests of the represented person.

Chief specialist-expert state registrar A.A. Borodaenko

Problem

I work part-time as a courier in a company without employment, a strange office, three people in total, they say that they investment company. I deliver and receive at the bank various documents. This is the power of attorney for me.

“With this power of attorney, LLC “UK P.”, represented by General Director I.I.I., authorizes to represent the interests of the company in any credit and non-credit organization V.P.V. for the purpose of opening a current (brokerage and other) account or notifying about changes that have occurred, in connection with which he is given the right to submit sets of documents for opening a settlement (brokerage) account, to receive certificates of opening accounts, agreements on an open account, the general director delegates the authority to manage the attorney again open account: cash deposit. funds, withdrawing cash from an account, carrying out transactions to write off non-cash funds from a current account, obtaining information, incl. on paper media about the movement of money. funds in the current account, as well as receive any document in the name of the LLC with the right to sign the documents necessary for this." I shortened some things, but this is the gist.

The power of attorney is not notarized. I'm not good at law, help me figure it out. What confuses me is that this office is located in the center of Moscow, three people sit in the office, they buy shares worth tens and hundreds of thousands of rubles, there is almost no information about them on the Internet, they do almost nothing themselves. They have two societies, I understand that they are there where I work just for show. Occasionally I take documents to the bank and go to the post office. I work two to three hours a day, they pay decently. Help me figure out what they do? Can they set me up as a courier, what should I not do under this power of attorney so as not to get screwed? And in general, does this power of attorney imply any responsibility on me? If I open accounts for this LLC by proxy, deposit funds, write off non-cash funds and so on. by proxy, am I risking something?

Solution

Good afternoon

Civil Code of the Russian Federation(Civil Code of the Russian Federation) > Part One > Section I. General provisions> Subsection 4. Transactions. Meeting decisions. Representation > Chapter 10. Representation. Power of attorney

Article 182. Representation

1. A transaction made by one person (representative) on behalf of another person (represented) by virtue of authority based on a power of attorney, an indication of the law or an act of an authorized state body or local government body, directly creates, changes and terminates the civil rights and obligations of the represented person.

Article 185. General provisions on power of attorney

1. A power of attorney is a written authorization, issued by one person to another person or other persons for representation before third parties.

Article 185.1. Power of attorney

1. Power of attorney for transactions requiring notarial form, to submit applications for state registration of rights or transactions, as well as to dispose of rights registered in state registers must be notarized, except for cases provided for by law.

Here it is important to understand who, as a result of your actions, becomes a party to the contract. If you act under a power of attorney, it means that you represent the interests of this particular LLC, which means that all legal relations subsequently arise not for you personally, but for this LLC (since I understand that you are acting on behalf of this LLC, and not on your own behalf)

And what if, let’s say, they carry out some kind of fraud and deals, and then disappear. and I’m the only one who appears everywhere. This LLC has had 5 directors over the past 5 years,

Did I understand correctly, if I open an account for an LLC under a power of attorney or cash out (deposit) money into it under a power of attorney, then in any case I do not answer, even if this company is doing some kind of fraud?

Solution

Hello, Peter!

If you work as a courier, then labor Relations should be formatted somehow:

1. employment contract Articles 16, 56, 57, 67 of the Labor Code of the Russian Federation.

Let me remind you that, in accordance with Article 67 of the Labor Code of the Russian Federation, an employment contract that is not drawn up in writing is considered concluded if the employee began work with the knowledge or on behalf of the employer or his representative.

2. GPC agreement(at least such an agreement)

It all depends on what the result of such a power of attorney can lead to.

On the one side, you just brought and dropped off the documents, but it also states that you are withdrawing money from your accounts. And this is already financial responsibility, which must be formalized in an agreement on full individual responsibility(Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 N 85 “On approval of lists of positions and work replaced or performed by employees with whom the employer can enter into written contracts about full individual or collective (team) financial liability, and standard forms agreements on full financial liability”).

In general, in this situation, the employer himself is at risk, because the money may disappear, and you are not a registered employee, there is no agreement on financial responsibility. Also, the employer is responsible for the fact that the employee works in “menial” jobs:

For violation labor legislation the employer bears administrative responsibility according to Article 5.27 of the Code of Administrative Offenses of the Russian Federation.

Criminal liability for understating the tax base and non-payment or incomplete payment of taxes under Article 199 of the Criminal Code of the Russian Federation, and administrative liability under Article 122 of the Tax Code of the Russian Federation.

Article 47 of the Federal Law of the Russian Federation dated July 24, 2009 No. 212-FZ provides for liability for non-payment or incomplete payment of insurance premiums to the Pension Fund as a result of understating the base for calculating insurance premiums, other incorrect calculation of insurance premiums or other misconduct(inaction) of insurance premium payers in the form of a fine in the amount of 20 percent of the unpaid amount of insurance premiums. And if these acts were committed intentionally, they will entail a fine in the amount of 40 percent of the unpaid amount of insurance premiums.

On the other hand, the employer may, in a situation where the money has disappeared, contact the police so that a criminal case can be initiated, which is no longer in your favor.

So, everything will depend on the situation that arises.

And also, an employee who works in a “black” job is deprived of many guarantees of the Labor Code of the Russian Federation - vacation, benefits, insurance experience, insurance contributions to the Pension Fund, etc.

Article 847. Certification of the right to dispose of funds in the account

1. The rights of persons carrying out orders on behalf of the client for the transfer and withdrawal of funds from the account are certified by the client by submitting to the bank documents provided for by law, established in accordance with it banking rules and a bank account agreement.

2. The client can give instructions to the bank to write off funds from the account at the request of third parties, including those related to the client’s fulfillment of his obligations to these persons. The Bank accepts these orders provided that they contain in writing the necessary data that allows, upon presentation of the corresponding request, to identify the person entitled to submit it.

3. The contract may provide for certification of disposal rights sums of money on the account, by electronic means payment and other documents using analogs in them handwritten signature(clause 2 of Article 160), codes, passwords and other means confirming that the order was given by an authorized person.