How to cancel an entry in the register about directorship in an LLC (+ Template of a claim for termination of employment relations)

The question of how to resign as a director is quite common when the general meeting does not decide on the appointment of another director, or, for example, if the sole owner of a legal entity has died. In this case, not only the labor rights of the individual director are violated due to the impossibility of dismissal. The director is an official, and in connection with this, additional undesirable risks may arise for such a natural person. But there is a way out, there is a fairly successful case law on recognizing employment relationships as terminated, which provides a reason to make a corresponding entry in the Unified Register of Legal Entities and Individual Entrepreneurs. Data about a person entered in the EDR regarding the directorship are considered reliable and can be used in a dispute with a third party until appropriate changes are made to them ( Article 10 of the Law of Ukraine "On State Registration of Legal Entities, Individual Entrepreneurs and Public Organizations" ). So, let's consider the algorithm of actions of a director who wants to resign.

Step 1: Application for dismissal to the founders of the LLC

As you know, according to Part 1 of Art. 38 of the Labor Code of Ukraine (termination of an indefinite-term employment contract at the initiative of the employee), the employee has the right to terminate an indefinite-term employment contract by notifying the owner or the body authorized by him in writing two weeks in advance. In the case when the employee's application for resignation is caused by the impossibility of continuing work (moving to a new place of residence; transfer of a husband or wife to work in another area; admission to an educational institution; impossibility of living in a given area, confirmed by a medical opinion; pregnancy ; care for a child until he reaches the age of fourteen or a child with a disability; care for a sick family member according to a medical opinion or a person with a disability of the I group; retirement; hiring by competition, as well as for other valid reasons). the owner or the body authorized by him must terminate the employment contract within the period requested by the employee.

According to Art. 4 of the Convention on the Protection of Human Rights and Fundamental Freedoms and Part 1, Part 3 of Art. 43 of the Constitution of Ukraine , everyone has the right to work, which includes the opportunity to earn a living by work that he freely chooses or freely agrees to. The use of forced labor is prohibited.

According to the provisions of Art. 22 of the Labor Code of Ukraine , in accordance with the Constitution of Ukraine, any direct or indirect limitation of rights or establishment of direct or indirect advantages upon termination of the employment contract depending on the type and nature of occupation is not allowed.

From the above prescriptions of the current legislation, it can be seen that an element of a person's constitutional right to work is the right to be fired. Therefore, first of all, it is necessary to write a statement of dismissal and provide it to the founders.

Step 2: Convening the general meeting of the LLC

Having understood that to resolve the issue of termination of employment relations, an ordinary appeal to the general meeting is not enough, and it is necessary to initiate a general meeting, that is, to send a notice to the founders about convening a general meeting of the company's participants and about the termination of the director's duties, in connection with the dismissal voluntarily. In the notice, it is necessary to indicate at what time and on what date the general meeting is convened and in what place. It is preferable to convene a general meeting at the address of the registered office of the company. In the message, you can propose the following meeting agenda:

1. On termination of powers (dismissal, recall) of the director of the Company.
2. On the election (appointment) of the director of the Society.
3. On making changes to information about a legal entity contained in the Unified State Register of Legal Entities, Individual Entrepreneurs, and Public Organizations.
4. On the authorization of persons to carry out state registration of changes to information about a legal entity contained in the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Organizations.

The normative rationale for such a step is presented below.

In accordance with Part 1 of Art. 29 of the Law of Ukraine "On Limited and Additional Liability Companies" , the general meeting of participants is the highest body of the company.

According to Clause 7 Part 2 of Article 30 of the Law of Ukraine "On Limited and Additional Liability Companies" , the competence of the general meeting of participants includes the election of the sole executive body of the company or the members of the collegial executive body (all or individually one or several of them), establishing the amount of remuneration for members of the executive body of the company. According to Part 3 of Article 39 of the Law of Ukraine "On Limited and Additional Liability Companies" , the executive body of the company is accountable to the general meeting of participants and the supervisory board of the company (in case of formation) and organizes the implementation of their decisions.

That is, the general meeting of participants manages the company and exercises the right of the authorized body of the company to remove a person from performing the duties of a member of the executive body at any time and for any reason.

Also, Art. 99 of the Civil Code of Ukraine , the general meeting of the company by its decision creates the executive body and establishes its competence and composition.

According to Art. 21 of the Labor Code of Ukraine , the parties to the employment contract are the employee and the owner of the enterprise, institution, organization or the body authorized by it, which is granted the right to dismiss the employee in certain cases.

Article 36 of the Labor Code of Ukraine provides grounds for terminating an employment contract, which include, in particular, termination of an employment contract at the initiative of the employee ( Article 38 ).

Step 3: Participation in the general meeting of the LLC.

Most likely, the founders will not come to such a general meeting, then the next step should be to draw up an act on non-appearance of the relevant persons for the general meeting. Such an act is recommended to be drawn up with the participation of several witnesses who, if necessary, could be contacted and who will be ready to provide relevant testimony in court in the future.

Step 4 Appeal to the court to declare the employment relationship terminated.

According to Art. 15 of the Civil Code of Ukraine , every person has the right to protection of his civil right in case of its violation, non-recognition or dispute. Every person has the right to protect his interest, which does not contradict the general principles of civil legislation.

According to Part 1 of Art. 16 of the Civil Code of Ukraine , every person has the right to apply to the court for the protection of his personal non-property or property right and interest.

In the decision of the Supreme Court of July 3, 2019, in case No. 520/11437/16-ts , in which the issue of termination of employment relations between a business company and its manager was resolved, the Supreme Court established a violation of the plaintiff's rights to terminate employment relations and satisfied the manager's claim for termination labor relations. According to the circumstances of the case, the head of the business partnership could not exercise his right to terminate labor relations, provided for in Article 38 of the Labor Code of Ukraine , due to the non-appearance of the sole member of the business partnership at the general meeting. According to the charter of the business company, the resolution of the issue of dismissal of the manager belongs to the exclusive competence of the general meeting of the company. Having exhausted all possibilities provided by the law, the manager appealed to the court with a lawsuit, in which he asked to be dismissed from the position of director and obliged to take certain actions.

Therefore, an effective way of protection is to recognize the employment relationship between the plaintiff (director) and the company (defendant) as terminated.

According to the provisions of Clause 4, Part 1, Article 1 of the Law of Ukraine "On State Registration of Legal Entities, Individuals - Entrepreneurs, and Public Organizations", state registration is official recognition through state certification of the fact of creation or termination of a legal entity, changes to information contained in the Unified State Register register of legal entities, natural persons - entrepreneurs and public formations, about a legal entity.

The procedure for making changes to information about a legal entity is determined by the Procedure for Registration of Legal Entities, Individual Entrepreneurs, and Public Organizations, approved by the Order of the Ministry of Justice of Ukraine dated February 9, 2016 No. 359/5.

A special law regulating relations in the field of state registration of legal entities is the Law of Ukraine "On State Registration of Legal Entities, Individuals - Entrepreneurs and Public Organizations".

However, in accordance with the provisions of the specified Law and the Procedure for State Registration of Legal Entities, Individual Entrepreneurs and Public Organizations that do not have the status of a legal entity, approved by the Order of the Ministry of Justice of Ukraine N 359/5 dated 09.02.2016, such a registration action as "remove from the register " - is absent, it is only possible to carry out the registration action "change of information contained in the Unified State Register", so it should be taken into account that the court decision to terminate the employment relationship will be the document that will allow to make a corresponding mark in the UDR.

Yes, the list of documents submitted for state registration of changes to information about a legal entity contained in the Unified State Register, including changes to the founding documents of a legal entity, is established Part 4 of Article 17 of the Law on State Registration of Legal Entities, Individual Entrepreneurs and Public Organizations.

Part 1 of Art. 25 of the Law "On State Registration of Legal Entities, Individuals - Entrepreneurs and Public Organizations" states that state registration and other registration actions are carried out on the basis of documents submitted by the applicant for state registration or court decisions that have entered into legal force and entail a change information in the Unified State Register, as well as received in electronic form from the court or state executive service in accordance with the Law of Ukraine "On Executive Proceedings".

Thus, in accordance with the specified norms of current legislation, on the basis of a court decision that has entered into force, or by a decision of a collegial body of a limited liability company, it is possible to make changes to the information about a legal entity contained in the Unified State Register.

In case of submission of documents for the registration of changes to information on a legal entity, the applicant is an authorized representative of the legal entity in accordance with Clause 8, Part 1 of the Law "On State Registration of Legal Entities, Individual Entrepreneurs and Public Organizations" .

At the same time, it should be noted that the court does not have the right to interfere in the activities of the body - the subject of state registration, obliging it to enter any information into the Unified State Register, and the court's decision to terminate employment relations in itself, according to Item 25 of the Law of Ukraine "On State Registration of Legal Entities, Individual Entrepreneurs, and Public Organizations" is the basis for entering relevant information into the Unified State Register of Legal Entities, Individual Entrepreneurs, and Public Organizations. A similar legal position is set out in the Supreme Court's decision dated 12.24.2019 in case No. 758/1861/18 .

Thus, according to the legal conclusion made in the decision of the Supreme Court of December 24, 2019 in case No. 758/1861/18 : "... the Court of Appeal mistakenly satisfied the claimant's request to exclude from the EDRPOU the entry about the director of Slaf Reagent LLC, PERSON_1, because the court not have the right to interfere in the activities of the state registration service body, obliging it to enter any information into the unified state register. At the same time, the satisfaction of such a requirement did not affect the correctness of the resolution of the dispute by the appellate court on the merits, and therefore cannot be a sufficient reason for annulment of the contested court decision. At the same time, the Supreme Court took into account the fact that the fact of the termination of the powers of the director as an official is connected by the legislator with the moment of making the corresponding entry in the EDRPOU, and therefore such conclusions of the appeal court are such that they correspond to the tasks of civil justice, which consists in fair and impartially resolved cases with the aim of effective protection of violated rights, since in all cases justice and fairness take precedence over a strict understanding of the law...".

Create A statement of claim for termination of employment in theInstaco designer using the link . To create, you only need to enter the necessary data in the designer.

The statement of claim for termination of employment was prepared by lawyer Natalya Krasnokutska (Instagram @advocate_knn , Facebook instaADVOCATE ) .

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