Leave with a nose. How employees cheat on business owners

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Leave with a nose. How employees cheat on business owners

Anastasia Stefanova Forbes Contributor

Negligent top managers for nothing to appropriate the company’s assets, pay themselves huge bonuses, lead customers away and create problems with the tax. What schemes are used by scammers and how to punish them?
Asset misappropriation is the most common type of economic crime in Russia in 2018. At the same time, the number of illegal actions among top managers is increasing . Owner this leads to various troubles: reduction or loss of assets, losses, personal liability to tax authorities and other creditors.

The most common abuse

• Conflict of interests of the director (or his affiliates) and the company

Top managers are required to act in the interests of the legal entity in good faith and reasonably. If the director has violated this obligation, then at the request of the company or owner, he is obliged to compensate for the losses incurred. It is possible to recover them in court if it is possible to collect a massive evidence base, confirming the existence and size of the losses, the wrongfulness of the manager’s actions, the causal relationship between the first and second, the director’s guilt for the improper performance of obligations.

A manufacturing company leased a BMW X6. After two years of using the machine, the director, without the knowledge of the owners, bought it at a residual leasing cost of 45,000 rubles. The court conducted an examination of the market value of the car, according to the results of which it ordered the former director to recover losses in the amount of 4 million rubles.

• Director abuse of labor rights

If the manager paid himself a bonus, but at the same time he did not have any authority, the company can recover losses from him caused by unreasonable bonus. In judicial practice, such cases are common. The director of the trading company, without the decision of the sole owner, paid himself an incentive bonus of 7 million rubles. The company in court proved that the information about the payments was hidden from the owner, the payment itself was not justified, since it was not provided for by the local regulatory acts of the company or the employment contract, so the court recovered the losses from the director in full.

In another matter, due to the lack of control, the director drove commodity flows several times through affiliated companies, thereby spinning up quantitative indicators of his efficiency (“turnover”). In the form of efficiency bonuses, he withdrew 5 million rubles from the company. In court, the owner was able to prove that the transaction was not economically feasible, and the director returned all the bonuses paid.

• Luring customers

Some directors create a "parasitic" business. They register a new company for themselves or for affiliates - wife, friend, etc., transfer to this company a client base, conducting business in their interests. The process may be accompanied by sending letters to the counterparties with inaccurate information (about changing the company name, address, termination of the company, etc.) and a proposal to conclude an agreement with a new legal entity. As a result of fraud, the first company loses profit.

In one case, the director not only performed all the above actions, but also violated the company's exclusive right to the company name - created a “double” with a similar name. At the same time, the manager informed the buyer of the goods that the charter allegedly changed in the company and renegotiated the contract. After the discovery of irregularities, the director in court recovered the lost profit of all deliveries under an agreement with this buyer in the amount of 3 million rubles.

• Withdrawal or misappropriation of assets

The withdrawal of assets can take place in various forms. For example, concluding contracts with one-day firms or overstating fees for the use of intellectual property.

The hired top manager registered as an individual entrepreneur, assigned the company’s trademark, and then entered into a licensing agreement with her, setting excessive remuneration for using the company’s trademark. The court managed to prove that the director did not notify the owners of the transaction in the prescribed manner, the transaction itself is economically inexpedient and unprofitable. The top manager was charged losses in the amount of all payments under the contract.

How best to hold directors accountable
To simplify the recovery of losses, directors are usually held criminally liable. This option is convenient because the company only needs to facilitate the investigation. State bodies must prove the corpus delicti: prosecutors, preliminary investigations and inquiries. They have special powers to obtain the necessary evidence in a short time. If the court finds the director guilty, then after the entry into force of the court decision, significant circumstances (unlawfulness of actions, causal relationship between actions and losses, existence and amount of losses incurred) no longer need to be established by the arbitration court. He will only take a judicial action for damages.

If the owner doubts the use of such a mechanism and has enough evidence, the company can bring a civil lawsuit for damages. But such disputes are very complex and last at least six months.

Avoiding Abuse
To prevent abuse, owners should take the following measures.

Limit the powers of the director:

- set the maximum price of contracts that the director can conclude without the approval of the general meeting of LLC participants;

- limit the scope of decision-making (for example, to leave the conclusion of transactions of purchase and sale and transportation of goods, to remove the conclusion of loan agreements);

- determine the terms of contracts that the director is entitled to conclude (prepayment, installment plan, deferred payment).

Supervise the activities of the director:

- free access and regular verification by the owner of the accounting base;

- establish information security standards to prevent commercial espionage (regularly create encrypted copies of information databases, install special software);

- attract an external consultant-auditor to check the activities of the top manager;

- develop the rules for all transactions (coordination with the legal department, accounting, security services).
Leave with a nose. How workers cheat business owners. Photo | Business | Forbes.ru