Statute of the manager
Nomination of the manager
Body of nominationlimited liability company is directed by one or more natural persons. The managers can be selected apart from the associates. They are named by the associates, in the statutes or by a posterior act, under the conditions envisaged with the article L. 223-29 of the code of the trade, i.e., adopted by one or more associates representing more half of the partnership shares. (50% +1). If this majority is not obtained and except contrary stipulation of the statutes, the associates are, according to the cases, convened or consulted one second time, and the decisions are made in the majority of voted, whatever the number of the voters. The statutes can envisage a stronger majority. The manager can be in a majority or minority. Management is majority when the managers together have more than 50% of the partnership shares.
Who can be manager?
- an associated natural person or not except contrary mention in the statutes; but it does not have the quality of Trading.
- a émancipé minor, a titular foreigner of the chart of foreign tradesman (nonnecessary for a person of a Member State of the EEC) can be managers.
- It does not have there age limit except mention in the statutes.
- There does not exist prohibition, of forfeiture, incompatibility particular except for the regulated activities or provisions in the statutes.
- It with the possibility of being re-eligible.
- It can cumulate its function with an employee job. That requires the existence of a subordination connection (what cannot be if it is majority) and of an effective work (different from management). This office plurality is however interdict with a manager majority but authorized with an associated minority manager and a nonassociated manager. Under its work contract, it is subjected in all connections with the statute of paid (term of notice, dismissal indemnity). In the event of revocation of the functions of managers, it preserves the benefit of the work contract.
Suspension of the functions
- Expiry of the duration (so given in the statutes) if not it is named for the duration of the company
- personal Evènement preventing the manager from exerting his functions (death, incapacity, forfeiture,…)
- Revocation for right reason :
Capacities of the manager
With respect to the associatesIn the relationship between associates, the capacities of the managers are determined by the Statut S. In the absence of statutory clause, according to the L221-4 article of the commercial law, each manager can make all the acts of management in conformity with the social interest. By acts of management, one understands the acts of administration and the acts of provision (sale, loans). The notion of social interest is interpreted in the light of article 1832 of the Civil code i.e. research of best the profit.
In the event of plurality of managers, each one can act separately except the right for the others to be opposed to any not yet concluded operation.
With respect to the thirdsIn the relationship with the thirds, each manager is invested the widest capacities to act as any circumstance in the name of the société.
The company is committed even for the acts:
- which does not return in the social object, except if it proves that the third knew that the manager exceeded the social object
- which exceeds the statutory clauses limiting the capacities of the managers: these clauses are incontestable with the thirds
In the event of plurality of managers, each one can act separately. The opposition formed by a manager to the acts of another manager is without effect with regard to the thirds unless it is established that they were informed of it.
The problem of conventions
- prohibited Conventions
- free Conventions
- regulated Conventions
- opinion sent by the manager to the Auditor (if there exists)
- report/ratio of the manager or the auditor, if there exists, at the general meeting reporting the contents of the convention
- approval by the assembly. The manager or the associate concerned does not take share with the vote and its shares are not taken into account for the calculation of the quorum and the majorité.
The defect of approval does not involve nullity of convention. But its possible detrimental consequences for the company are put at the load of the associate concerned.
Responsibility for the managers
- Case of responsibility
- individually or jointly according to whether the made fault is personal with the one of the managers or commune to several among eux
- with regard to the company, of associated or the thirds which underwent a préjudice
- faults resulting:
- non-observances of the laws and payments (ex: granting of a loan to a associate or a manager, defect of setting in payment of the dividends)
- violation of the statutes (ex: contract which required the prior agreement of associated) the
- bad management (of the simple negligence until the fraudulent schemes)
Action of responsibility
- by any associate whom can justify of a personal injury (individual action)
- by a third having suffered a personal injury but only if it is about an intentional fault of the manager of an exceptional gravity (detachable fault of its functions) - by one or more associates when it is a question of making good the damage undergone by the company (social action) either by an individually acting associate, or by a group of associated representing at least the tenth with the capital
Famous any clause of the statutes resulting in subordinating is not written the exercise of the preliminary action of the general meeting or which would comprise by advance renunciation of the exercise of the action.
The action of responsibility against the managers as well social as individual by 3 ans.
is prescribed In the event of file for bankruptcy of the company, the managers can then be obliged to contribute to the payment of the social liability and to be subjected to certain prohibitions and forfeitures.
Criminal responsibilityThe managers can be continued in front of the magistrates' courts in the event of public emission of transferable securities, distribution of fictitious dividends, presentation of false balance-sheets, treason of the social interests with a personal aim or to support another company in which the manager is interested.
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