SOLE DIRECTOR AND MANAGER OF A SRL

The sole and chief executive officer of an SRL is the one who has general powers of direction, management, and representation of a Company.

In practice, he is the person who has the task of directing and organizing the business activity, making himself responsible for his actions both towards shareholders and towards third parties.

It is therefore the legal representative of the Company who, exercising the power of signature (so-called corporate signature), acts on behalf or in the name of the Company itself.

It can therefore be:

  1. An employee hired as sole director who receives a paycheck and is entitled to INPS contributions.
  2. A freelancer who works with a VAT number (external collaborator) and independently deals with the taxation of his remuneration and contributions.

SOLE AND CHIEF EXECUTIVE OFFICER: DEFINITION OF COMPANY SRL

At this point, it is appropriate to define an SRL or limited liability company.

For SRL companies we mean those whose shareholders are liable for the paid-up share capital.

They are companies that, in fact, have Perfect Asset Autonomy.

In the sense that they constitute a legal entity and therefore also an economic / patrimonial entity completely separate from the shareholders.

An SRL Company . it is suitable for small and medium-sized businesses.

That is, in practical terms, it is used when an initial and long-lasting investment is required.

We can cite different examples, that of the clothing store, IT items, even electronics for cars.

A SRL is organized in such a way that the investment the niziale or capital would be allocated all members. So, in this sense, there is the division of expenses.

Apart from this absolutely important point, it is necessary to have a non-routine amount of money to be paid. And not only in the initial phase but throughout the management.

 

SOLE CHIEF EXECUTIVE OFFICER OF A SRL: THE CONTRACT OR UNILATERAL DEED

The SRL Company must be established by contract or Unilateral Deed in the form of a Public Deed.

It is called the Constitutive Act and is governed by article 2328 of the civil code .

For the debts that are therefore contracted by the SRL, only the company itself is liable with its assets and share capital. Without any debtors being able to possibly refer to the shareholders.

Unless, as we will see later, there have been cases of fraudulent administration.

The companies often adopt this form of company (SRL).

It differs from that formed by natural persons for a type of administration that has a slightly more artificial and complex approach.

SRL companies are the most frequent forms in which economic activities are carried out in the form of a company.

They are for-profit companies that work with the aim of carrying out economic activities to divide the profits.

 

REGULATION OF THE APPOINTMENT AND ROLE OF SOLE AND DELEGATED DIRECTOR OF AN SRL

The regulation of the appointment of the director, in the most general sense of the term, is dictated by law.

Even if, within the Statute and the Constitutive Act, the role or position of a third party external to the Property can be removed.

We can therefore say that the role of director of an SRL can be covered by various subjects.

  1. Single person.
  2. Plurality of subjects that will be called the board of directors in a more general sense.

We can affirm that by whatever figure it is represented, the Administrative Body of the SRL plays an absolutely central role and of primary importance for the life of the company.

  • The law establishes the guidelines that must be followed by the figure and which imply, conceptually speaking, the functions and powers of the administrator of an SRL
  • The statute dictates further tasks to the Director, regardless of whether he is represented by a single person or by the board and therefore several individuals.

DUTIES AND FUNCTIONS OF THE ADMINISTRATOR SRL

We can outline below the functions of the SRL administrator within the company structure:

  1. Management of the company’s ordinary and extraordinary activities.
  2. Representation of the company towards third parties.
  3. The power to conclude contracts, sign procedural documents, sign any type of deed that constitutes its effects.

In addition to these, we have the exclusive responsibility of the administrator:

  1. Preparation of the draft financial statements for the year.
  2. Drafting of the management report.
  3. To intervene in the spin-off and merger operations.
  4. The decision to impose a capital increase against payment or to respect the deadlines in the reduction of the capital.
  5. Act against defaulting in the execution of the contribution.
  6. Call the meeting in the cases provided for by law.
  7. Presentation to the board of statutory auditors.
  8. Avoid performing injurious acts.

The statute has the duty to limit or extend the above functions to other shareholders of the company in addition to the role of director.

In the event that it is unique in the SRL it also has the task of calling the assembly. And proceed to send the consultation and set the agenda.

DUTIES AND DUTIES OF MEMBERS WITHIN THE COMPANY

We can affirm that with regard to some functions in the administration of the Company, the intervention of the shareholders is important.

Their role or purpose within the company organization is that of the Right of Control. As can be seen from Paragraph 2 of article 2476 of the Civil Code.

Therefore they do not play a purely administrative role. Unless they are part of a board and therefore are themselves directors.

However, they have the prerogative of being informed by the administrator himself of the carrying out of the above procedure, social affairs and all that is matter.

This can be done either through the administrator himself or through trusted professionals.

 

SHAREHOLDERS ARE PERMITTED ONLY TWO OPERATIONS ON THE CONTROL OF THE ACTIVITY OF SOLE DIRECTOR AND CEO OF A SRL

  1. Request information on corporate administration work.
  2. Inspect in society. In particular, this control activity is carried out on the company’s books, the accounting books, and the tax receipts.

Members who are not part of a board of directors can review (inspect) contracts, important documents relating to civil proceedings and bank statements.

Members must behave appropriately and correctly.

They must also ensure secrecy regarding the social affairs of their knowledge. And on the information that adheres to this and which must remain confidential.

Otherwise, i.e. disclosure of information and therefore failure to fulfill the duties imposed on the shareholder (s) themselves, they can cause damage to the company.

 

LIABILITY OF THE SOLE AND MANAGING DIRECTOR OF A SRL

We can divide the responsibilities of the administrator into two main categories:

  • Liability in civil law.
  • Liability in criminal matters.

Liability in civil law includes all those situations in which corporate damage occurs.

Especially when it is possible to ascertain by means of documents or individuals the lack of diligence in the work of the administrator.

The damage can be classified according to the object itself injured in civil matters.

And it must be proven by the same law that regulates social affairs. In addition to the Statute which imposes other rules that must be taken into account by the director himself.

Article 1176 of the Civil Code argues that an administrator must abide by the regulations in force on the subject of law.

That is, those that give him a task that can be more or less stable and continuous.

And that requires levels of diligence appropriate to the job held.

 

CORPORATE DAMAGE

When the director in the exercise of his office fails to comply with one or more rules due to negligence or willful misconduct, he will incur corporate damage which must be paid for.

The damage can be divided into:

  • Property damage caused by the same to the detriment of the company that may directly affect the figure of a partner or a third party in economic terms.
  • Damage that is directed towards the Social Creditor.

If the director carries out acts harmful to the company, it is possible to take action against him with the aim of obtaining compensation.

Liability action that can be asserted both by the company and by the trustee, in the specific case of bankruptcy.

This action derives from non-fulfillment of obligations, it is of a contractual nature.

Therefore, if on the one hand the company or the trustee must prove the violations of the obligations, on the other the director must certify his non-imputability.

He must therefore be accountable that he has not only observed, but also fulfilled the duties and obligations imposed on him.

 

CORPORATE OFFENSES

As regards the criminal aspect, failure to comply with the rules will result in a corporate crime. This occurs in particular in:

  • Crime of false corporate communications.
  • Crime of false reports and communications from the company for unfaithful or fraudulent omitted declarations
  • The offense of operations to the detriment of creditors.

To these will be added responsibilities with regard to tax laws and offenses relating to safety at work.

They are punishable both in criminal and administrative matters.

And they involve all the responsibilities that are due to Infringements of the employer.

In fact, the employer would have the obligation to comply with certain rules that supervise the safety of the worker. And which include all the tools and measures to be taken when there are guarantees to protect it.

Shareholders have rights which are better described in article 2479. And which regulate the participation they may have in decisions regarding the organization of work and society.

They are made available in writing to all members of the latter.

The regulation of taking a position in company decisions is based first of all on the principle that there is an approval of the shareholding by the managing partners, holders of at least one third of the capital. Or when the subjects in question allow it.

The subjects or topics are the administrative rules of the board of statutory auditors, amendments to the articles of association.

And that the latter recognizes as such, matters that as already mentioned require the approval of the financial statements by the shareholders.

We want to point out that a company, as already mentioned, can be constituted by a single director or by a single shareholder.

In the second case, the duties of the director and those of the shareholder are included as a single professional figure.

 

REVOCATION OF THE DIRECTOR SRL

The sole directors or the board of directors will terminate their office for various reasons.

The revocation must be interpreted in these ways:

  • Revocation by the majority shareholders.
    It can take place at any time but, if the revocation has no just cause, compensation is paid to the administrator for a fixed period.

If, on the other hand, the administrator is for an indefinite period, he is not owed anything except ample notice.

  • Expiration of the terms imposed by the articles of association by decision of the director when he himself chooses to renounce the office they deliver the resignation.
  • Revocation following a violation of the rules.
  • For forfeiture when, in terms of law, the director has exhausted the time available to him to exercise the office.
  • In the event of the death of the administrator.

In any case, the matter can be regulated in the articles of association, including the limit of the power of revocation.

 

THE CHIEF EXECUTIVE OFFICER: DUTIES

The CEO is a figure present all over the world who has a great responsibility.

It can also be called by other names.

The most common term is in English and is the Chief Executive Officer (CEO), while in France it has the meaning of General Manager.

However, we can designate him as the director of the company that directs the same and the Board of Directors.

Its role is highlighted above all in the joint stock company or spa.

He can play the same role he has in a spa company in another in which he has the task of evaluating certain aspects or problems that are delegated to him.

In some states, such as Germany, he heads the Management Board.

While, in Italy, we simply call him Manager or even head of the Board of Directors and his role is to manage the company.

This assignment can be entrusted to a single person.

Or there may be several subjects each of which is delegated to deal with some particular problems that are not managed by other figures.

The role of the chief executive officer is regulated by article 2381 of the Civil Code .

Here are various points, including the Delegations of the tasks of the CEO arranged by an executive committee.

And the limits with the exercise of the same rules in which the figure of the CEO is also dealt with with his duties and obligations.

ROLE AND FUNCTIONS OF THE CHIEF EXECUTIVE OFFICER

The role of the CEO takes concrete form in the organization of the company itself.

In addition to administration management or accounting management and planning, analysis of strategic plans, merger and demerger projects with other companies.

CEOs adopt various methodologies to manage a company.
And they intervene to delegate other members for particular sectors by giving them tasks.

It is very important at this point to say that the various delegates work by creating themselves strategic plans of actions in the various compartments that the CEO will analyze.

He will therefore always be informed on the work of the various components of the company and on the trend in operating performance.

The director is not an employee of the Company but is accountable only to members and shareholders.

Therefore he must know all the rules of company law, tax obligations, making use of consultants and those relating to the management of the company itself.

A possible crisis in the sector that forces it to close but does not depend on its actions will not allow the shareholders to take action against the administrator.

 

INCORRECT BEHAVIOR

The director must not assume improper behavior towards shareholders in particular he must not:

  • Carry out competing business.
  • Carry out transactions individually that are to his advantage without board approval.
  • Exploit information or data that can give a third party its own advantage, thus recognizing an income.
  • Issue shares disproportionate to its share capital.
  • Purchase shares of the company under administration without observing the law or underwriting them in violation of the law
  • Granting loans or guarantees that allow the purchase of shares in your company thus helping the buyer.
  • Representing the shareholders in the assembly and in some way exploiting the opportunities to obtain consents that lead to a majority in the assembly.
  • Give money not appropriately earned or otherwise not approved by the budget.

BEHAVIOR OF THE NEW DIRECTOR TOWARDS A DEBT POSITION

A new administrator often takes over the management of a business.

And, sometimes, he finds himself having to deal, in the true sense of the word, with a debt situation left as an “inheritance” by the previous administrator.

In other words, he may find himself facing a bad management of the previous administrator of which he is the successor and he is also called to answer for the past.

In fact, it is very risky, in some particular situations, to assume the office of director.

In fact, we may find ourselves faced with unmanageable situations or situations that are difficult to heal that can “so to speak” extinguish the initial enthusiasm of the new office.

In addition to interrupting the good intentions in which the administrator finds himself managing.

The new manager may be faced with debt situations and may also have to answer for crimes committed in the past by others.

The debt situation can occur, for example, when a company is sold and the buyer has debts that are defined as mandatory by means of the accounting books.

Debts, according to the law, can arise from the sale of a commercial and non-commercial company. And they are divided into tax debts and debts deriving from work.

Sometimes the new owner is faced with a debt situation deriving from previous management.

And it will have to be refunded unless the parties (assignor and assignee) disagree on this point.

FOR A MOMENT LET’S LEAVE THE NON-COMMERCIAL COMPANY SIDE

In this regard it must be said that the small entrepreneur, the agricultural enterprise and the simple enterprise do not have the obligation to keep accounting records.

 

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