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Appendix No. 2 to rule (standard) No. 33
EXAMPLE
CONCLUSIONS FROM THE RESULTS OF THE REVIEW WITH EXPRESSION
UNCONDITIONALLY POSITIVE OPINION
Conclusion on the results of the review
financial (accounting) statements
"We have conducted a review of the attached financial (accounting) statements of business entity "YYY" for the period from January 1 to December 31, 20(XX) inclusive. The financial (accounting) statements of business entity "YYY" consist of:
balance sheet;
profit and loss statement;
appendices to the balance sheet and profit and loss account;
explanatory note.
Responsibility for the preparation and presentation of these financial (accounting) statements lies with the executive body of the business entity "YYY". Our responsibility is to express an opinion on these financial statements based on our review.
We conducted a review in accordance with:
Federal Law “On Auditing Activities”;
Federal Rule (Standard) of Auditing No. 33;
internal rules (standards) of auditing activities (specify the accredited professional association);
rules (standards) of the auditor's audit activities;
regulatory acts of the body that regulates the activities of an economic entity.
The review was planned and performed to obtain limited assurance about whether the financial statements are free from material misstatement. A review is limited primarily to inquiries to the entity's employees and the performance of analytical procedures regarding financial (accounting) statement data, and as a result, it provides less assurance than an audit. We have not conducted an audit and, accordingly, do not express an opinion on the reliability of the financial (accounting) statements and the compliance of the accounting procedure with the legislation of the Russian Federation.
In conducting our review, nothing has come to our attention that would cause us to believe that the accompanying financial statements do not present fairly, in all material respects, the financial position of the business entity as of December 31, 20(XX) and the results of its financial and financial performance. economic activities for the period from January 1 to December 31, 20(XX) inclusive in accordance with the requirements of the legislation of the Russian Federation regarding the preparation of financial (accounting) statements (and/or indicate documents defining the requirements for the procedure for preparing financial (accounting) statements reporting). "XX" month 20(XX)
The head (or other authorized person) of the audit organization (performing the review) or an individual auditor (last name, first name, patronymic, signature and position).
Head of the review (last name, first name, patronymic, signature, number, type of auditor qualification certificate and its validity period).
Auditor's seal."
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A sample legal report on verification of a counterparty and step-by-step instructions for drawing up regulations for verifying a counterparty for the legal department.
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A significant portion of a company’s lawyer’s working time is spent coordinating and signing contracts. An integral part of this work is verification of the counterparty, which, as a rule, is built according to a standard scheme: a sample regulation for checking the counterparty is created and a certain package of documents is requested and checked.
Considering the volume of work and the importance of promptly obtaining a qualified legal opinion, it is advisable to formalize this activity. This will allow the company to create an orderly database of copies of constituent documents of counterparties, promptly identify legal risks and minimize the need for litigation, and, if necessary, confirm to the tax service the exercise of prudence when choosing a counterparty.
If a company enters into agreements with a significant number of counterparties, it makes sense to develop a form of legal opinion, which is drawn up in accordance with the regulations for checking counterparties and is updated in relation to each counterparty when concluding a deal with him. Or when concluding a new transaction after a certain period of time, if we are talking about a counterparty with whom a long-standing relationship has been established.
A legal opinion allows you to establish regulations for checking the counterparty’s documents, record the result of the analysis of documents and, in addition, help the legal department employee check the contents of documents according to a certain scheme (according to control points), and not just formally verify their presence. This is achieved due to the need to include references to the relevant provisions of documents, paragraphs, etc. in the legal opinion.
Urgent message for a lawyer! The police came to the office
How to develop a conclusion form for a counterparty
A convenient sample legal opinion and regulations on how to fill it out can be developed independently, taking into account the specifics of the counterparty verification procedure adopted in a particular company. This article is based on the form used by the bank’s legal service. However, it can be successfully applied in companies of any other fields of activity.
Reminders for legal department employees
What should be in the form of a legal opinion
1. Purpose of drawing up a conclusion
The purpose is the contract that is expected to be concluded with the counterparty. It is convenient if detailed information about the planned contract is transmitted to the legal service in the form of an explanatory note drawn up by the manager responsible for negotiations with a specific client. The same line indicates the number of the request for a legal opinion.
2. Package of documents from the counterparty
Typically, a standard set of documents is requested for all counterparties; in accordance with the regulations for verifying counterparties, it is advisable to immediately include the entire list of documents in the sample legal report. Then the legal service employee, when filling out the legal opinion, will indicate only the details of the submitted documents.
2.1 Documents confirming the legal capacity of the counterparty
The number of documents confirming the legal capacity of the counterparty includes:
- Certificate of state registration of the counterparty company (or individual entrepreneur) and its registration with the tax authority. The name of the organization must completely coincide with the name specified in the constituent documents.
- Extract from the Unified State Register of Legal Entities, which allows you to identify the current version of the counterparty’s charter and other information as of the date of document analysis.
The validity period of the extract for the purpose of analyzing counterparty documents can be set independently, taking into account that it should exclude changes to the Unified State Register of Legal Entities later than the date of the extract. The optimal period seems to be no more than 5-10 days before the expected date of conclusion of the contract.
Advantages of documents before discharge
Despite the fact that the extract from the Unified State Register of Legal Entities contains most of the information necessary to complete a transaction (with the exception of information about the need for approval of transactions and the fact of their approval), it is better, if possible, to still require all the documents listed in the legal conclusion.
This minimizes the risk of fraudulent activities (it is more difficult to falsify several documents in a high-quality manner than just an extract from the Unified State Register of Legal Entities). And in situations where information is included in the Unified State Register of Legal Entities against the will of a legal entity, the latter may refer to its unreliability. You should also take into account that the statement may contain typos and technical errors.
2.2. Constituent documents of the counterparty
2.4. Balance sheet
As a rule, participants in the turnover also request a copy of the counterparty’s balance sheet as of the last reporting date with confirmation of its transfer to the tax authority (allows us to determine the value of assets to determine whether the transaction is large).
In addition, failure to receive a copy of the balance sheet may lead to accusations from the tax authorities of lack of due diligence when choosing a counterparty, which are supported by the courts (Resolution of the Arbitration Court of the Ural District dated March 11, 2015 No. F09-9812,).
3. Additional documents
In addition to the main list of documents, additional ones may be needed, for which it is convenient to highlight a separate line in the legal opinion. For example, this could be a power of attorney (if the contract is signed by a representative under a power of attorney on behalf of the counterparty).
Also, some large companies ask to provide copies of bank cards with sample signatures (for comparing signatures on documents), a copy of the employment contract with the head of the company.
4. Notes
In the “Notes” column, comments on the documents are indicated if there are doubts about their authenticity and compliance with the law or the company’s internal regulations regarding the verification of the counterparty’s documents (for example, an uncertified copy is presented or the document does not contain the usual details for such documents, contradictions are identified in the contents of the documents, etc.). d.).
5. Founders (participants) of the counterparty
It is necessary to indicate the main founders (participants, shareholders) of the counterparty company. If a company has many participants (shareholders), a criterion is usually established (the minimum size of the share owned by the participant - for example, 5%), on the basis of which only participants with shares not less than this minimum size are indicated in the legal opinion.
Studying the composition of participants can be important in interested party transactions, when, according to the usual terms of turnover, it is checked who the founder of the counterparty is. In the absence of proper verification of the composition of the founders, it may be recognized that the party to the contract should have known about the interest of the other party in concluding transactions ().
Also, studying the composition of the founders is important from the point of view of tax consequences, since concluding an agreement with a counterparty that includes “mass founders” may lead the courts to think about lack of due diligence when concluding an agreement.
6. Competence of the executive body of the company
It is important to indicate the name of the executive body with reference to the corresponding clause of the charter in the next line - the competence of this body (also with references to the charter).
If the charter duplicates the provisions of the legislation, you can indicate: “in accordance with the Federal Law on LLC” or “in accordance with the Federal Law on JSC”, etc. If the competence of the sole executive body differs from that provided for in the legislation, specific differences must be indicated.
At the same time, in accordance with clause 22 of the Plenum of the Armed Forces of the Russian Federation dated June 23, 2015 No. 25, counterparties have the right to proceed from the unlimited powers of the sole executive body of the counterparty. The provisions of internal documents establishing the conditions for the exercise of powers cannot affect the rights of third parties, except in cases where the latter knew or should have known about the limitations of powers established by the constituent documents.
However, if these documents were requested from the counterparty, and the fact of familiarization with them will be clarified during the trial, then in such a situation, citing ignorance about the conditions for the exercise of powers will not help in any way, and the transaction will be declared invalid under Art. 174 Civil Code of the Russian Federation (,).
7. Transactions requiring compliance with special procedures, according to the submitted documents
It is necessary to list the transactions specified in the charter or other submitted internal documents of the counterparty, the completion of which requires compliance with any special procedures (obtaining approval, holding a competition, tender, etc.). If such transactions are defined in accordance with the law, an indication is made of the relevant provision of the law and the clause of the charter.
Recently, court practice regarding transactions requiring corporate approval has softened, and the number of transactions declared invalid has decreased.
As for large transactions, here too the courts often side with bona fide counterparties.
The courts may invalidate the transaction if the company's main asset (the only real estate) is obviously being sold. In such a situation, according to the courts, the party to the contract does not take measures to establish the actual value of the property. ().
Also suspicious are cases of extremely unprofitable transactions (). In such cases, transactions are also recognized as invalid due to the bad faith of the counterparty who entered into the agreement.
In the situation of purchasing the main assets of a counterparty (real estate, expensive equipment), as well as when there is a noticeable discrepancy between the contract price and the market price, the book value of the potential counterparty’s property should be checked.
8. Features of the legal capacity of the counterparty
If the legislation provides for restrictions for legal entities of the corresponding organizational and legal form (for example, unitary enterprises, non-profit organizations, etc.) or engaged in certain activities (banking, insurance, etc.), or occupying a certain position in the market (for example, natural monopolies), etc., appropriate restrictions must be indicated.
9. The counterparty has a license, membership in an SRO or SRO access to certain work
If the subject of the contract is related to the licensed type of activity of the contractor or the corresponding activity of the counterparty requires mandatory membership in a self-regulatory organization, you need to make the appropriate notes (for example, for work in the field of construction and construction design, a special permit for the relevant types of work issued by the SRO is required).
Despite the fact that, in accordance with paragraph 89 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 25, 2015 No. 25, the execution of a transaction by a person who does not have a license to engage in the relevant activity does not entail its invalidity, its absence may have other negative consequences.
Thus, the counterparty’s lack of a license () or permission to work from the SRO () may become the basis for declaring the counterparty imprudent and refusing to reimburse VAT and income tax expenses.
In the legal opinion, based on the documents presented, it is necessary to conclude whether an agreement can or cannot be concluded with the counterparty (taking into account the comments, risks and recommendations disclosed in the third, fourth and fifth lines of section 4).
11. Representative or body of the counterparty
It is necessary to indicate who will represent the interests of the counterparty in the transaction:
- position (if a person acts by proxy, then - “representative by proxy”);
- Full name, passport details;
- foundation and term of office.
If necessary, explanations are given - for example, if the manager’s term of office has not been extended, the representative’s power of attorney is formulated in such a way that doubts arise as to whether he has the authority to carry out a specific transaction, etc.
The power of attorney can be certified by a notary or by the organization itself with a stamp attached. If the power of attorney is certified by the organization itself, it is necessary to check the authority of the person who issued it. For example, the powers of the general director should include the right to issue powers of attorney regarding the conclusion of such an agreement.
It is also necessary to check whether the power of attorney of the person representing the counterparty has been revoked. To do this, you should use the information on the revocation of powers of attorney posted in the Kommersant newspaper and on its website.
12. The need to comply with special procedures when concluding an agreement
If for a specific transaction there is a need to comply with additional formalities (implementation of special procedures - bidding, tendering, obtaining approval, etc.), you need to list them and, if possible, disclose in detail the key points related to the noted additional requirements (specific requirements for bidding , requirements for the content of approval if the performers do not have samples or forms, etc.).
13. Risks possible when concluding a contract
It is important to name the legal risks identified by the lawyer during the analysis of documents, which may lead to the recognition of the transaction or part of it as unconcluded or invalid, significantly complicate or make execution impossible, etc.
In a separate line you need to provide possible ways to minimize the identified risks (if possible). For example, this may be the inclusion or exclusion of certain conditions from the contract, requesting additional documents from the counterparty in order to remove some doubts, etc.
14. Notes on changes in the legal opinion
It is advisable to make a special section for notes on changes in the legal opinion. For example, due to the submission of additional documents by the counterparty, the section on risks associated with concluding a contract, etc., may change.
Completeness of verification of the counterparty
In every company, when developing regulations for verifying a counterparty, it is necessary to find a balance between the interests of business units and the legal service.
The decision on what list of documents and in what form of copies to request from counterparties is best made collectively, taking into account all possible risks, not limited to legal ones (including taking into account the risk of losing a client, the risk of increasing time for transactions, etc. ).
The degree of completeness of the audit should depend on the price of the transaction, the position of the tax authorities in your region on the issue of due diligence when choosing a counterparty.
☆ Advice from the editor: The most complete verification of the counterparty can be done in a special service, for example.
Business reputation check
If the company’s legal service is also entrusted with the responsibility of checking the business reputation of the counterparty, then it is advisable to add a special section to the legal opinion form in which you can record the result of checking the counterparty using available Internet resources.
The required minimum information can be obtained by studying court proceedings with the participation of the counterparty (using the electronic file of arbitration cases https://kad.arbitr.ru/, information posted on the website of the Federal Tax Service of Russia www.nalog.ru).
Through the Unified Federal Register of information on the facts of the activities of legal entities, you can make sure that a potential counterparty is not in the process of bankruptcy, reorganization, liquidation, about the existence of a decision on the upcoming exclusion from the Unified State Register of Legal Entities and other important information. (https://fedresurs.ru/).
It would be a good idea to check whether the counterparty is listed in the register of unscrupulous suppliers on the FAS Russia website www.fas.gov.ru and the register of debtors on the website of the Federal Bailiff Service of Russia www.fssprus.ru. The presence of government contracts with the counterparty may serve as a sign for the court of due diligence when choosing a counterparty.
The invalidity of the passport data of the founders and management of a potential counterparty can be checked through the website of the Main Directorate of the Ministry of Internal Affairs for Migration Issues (http://services.fms.gov.ru/).
Through the information bases https://service.nalog.ru, you can also check information about the presence of disqualification and executive bodies of the counterparty, about the registration of the counterparty at the mass registration address, about the presence of the counterparty in the database of legal entities, with which there is no connection at the address specified in the Unified State Register of Legal Entities and etc.
In some cases, information about the business reputation of the counterparty can be obtained by typing the company name, as well as full name, into search engines. leader and main founders.
Attached files
- Legal opinion on verification of the counterparty.docx
Art. 59 of the Federal Law “On the State Civil Service of the Russian Federation”, adopted on July 27, 2004 under number 79-F3, as amended on April 3, 2017, provides for the possibility of conducting internal inspections in a state institution under special circumstances to determine whether an employee has committed a disciplinary offense. The Labor Code does not directly provide for such inspections, however, the initiator has the right to refer to the above-mentioned federal law when carrying out such inspections.
The procedure for conducting internal investigations and inspections at private enterprises is not regulated in any way, but no one prohibits the employer from carrying out such activities within the framework of other applicable laws and based on their common sense.
Table of contents:The procedure for conducting an internal audit
Any internal inspection can be initiated either by the employer himself or his authorized representative, or directly by an employee suspected of committing a disciplinary offense or by a trade union organization in order to protect the interests of the worker. The main objective of the inspection is to establish or refute the fact of an offense, determine the degree of guilt and the extent, as well as the nature of the harm caused, if any.
The first step in conducting an internal audit against an employee must be documenting the fact of the misconduct itself. Such recording is carried out in the form of a memo of any sample.
The employer is obliged to accept this note for execution and register it in the relevant document flow logs. The time for conducting a subsequent investigation is fixed from the moment the fact of misconduct is discovered and is one month. In addition, it is taken into account that an employee cannot be punished for a disciplinary offense more than six months from the date of its commission, or after two years if it was identified during business or audit inspections.
The employer issues an order to conduct an internal audit based on an internal memo or other document, namely:
- Statements from the employee himself;
- Complaints from customers or counterparties;
- Act on shortage of goods;
- Inventory report or audit report;
- Written and oral appeals from third parties and organizations containing information about the employee committing a disciplinary offense.
A commission is being formed to conduct an official investigation. Traditionally, any committee includes a representative of the employer, a disinterested person from within or outside of the company, and a representative of the employee. However, since the conduct of internal audits is not regulated in any way, the final decision on the composition of the commission is made by the employer.
The employer sends a notice to the employee against signature about the need to draw up an explanatory statement of his misconduct. If they refuse to accept it, a corresponding act is drawn up signed by two witnesses. A registered letter may also be sent with a notification of delivery or refusal and a description of the contents. The time frame within which an employee can draw up an explanatory note is two days.
The commission may request copies or originals of documents that could confirm or refute the facts of guilt in committing an offense.
Based on the commission’s conclusion, the employer decides whether or not to apply it to the employee who committed the offense.
In the event of a disciplinary sanction, the employer draws up an appropriate order and brings this order to the attention of the employee.
Drawing up a conclusion on an internal audit
Since there is no legislative regulation of internal audits, there is no established form for the conclusion on such an audit. However, the norm is to create a conclusion consisting of:
Certain nuances of conducting internal audits
Participation of all persons in an internal audit can be exclusively voluntary - the employer is obliged to obtain their written consent. During the inspection, a psychophysiological examination may also be carried out with written consent. It is not prohibited to involve third parties on a contractual basis in conducting inspections.
If an internal investigation has revealed the presence of signs of a criminal offense, all information regarding this investigation must be provided to the internal affairs authorities by decision of the employer.
An important fact is that an internal investigation cannot include activities related to the life of an employee suspected of committing an offense outside the enterprise or outside the performance of work duties.
Conducting an internal audit is not mandatory for either the employer or the employees, but it can be a decisive factor in subsequent legal proceedings regarding the application or non-application of disciplinary sanctions to the employee, in particular termination of employment relationships and dismissal at the initiative of the employer.
AUDIT COMMISSION
ACCORDING TO THE RESULTS OF AN INVESTIGATION OF FINANCIAL AND ECONOMIC ACTIVITIES
PJSC "AK-TRANS" for 2014
The Audit Commission, acting on the basis of the Regulations on the Audit Commission, conducted another audit of the financial and economic activities of the Company for the period from January 1 to December 31, 2014, based on the results of which this report was prepared.
The main issues of auditing the financial and economic activities of PJSC AK-TRANS for 2014 were:
Verification of the competence of decisions made by the management of the Company,
in terms of compliance with current legislation and the Company’s Charter.
Verification of the legality of contracts concluded on behalf of the Company, transactions made and settlements with counterparties;
Checking documents on property inventory, accounting and ensuring the safety of material assets;
Checking the correctness of financial reporting;
During the inspection, the Commission was presented with the following primary administrative and reporting documents:
Orders issued by the Company in the reporting year, including the current order “On Accounting Policy”;
Selectively contracts concluded by the Company;
The Commission selectively familiarized itself with the Protocols of the inventory commissions based on the results of the planned inventory of the Company’s property for 2014 in the following categories: fixed assets, small business enterprises, inventory. During the audit of accounting and ensuring the safety of material assets, including basic ones, no violations were identified; the results of the inventory are reflected in the accounting records.
Checking the accounting status and correctness
preparation of financial statements based on the results of 2014.
The subject of the audit was the issues of reflecting the completeness, reliability and compliance with the requirements established by law for the preparation of the Company's financial statements.
Information sources when conducting an audit of activities
The company had financial reporting forms for 2014, namely the balance sheet of the enterprise as of December 31, 2014, a statement of financial results, a statement of cash flows, and a statement of equity.
The check was carried out to confirm the absence of significant errors in them. The correctness of the numerical data and explanations contained in the accounting reports was confirmed on a sample basis.
During the reporting period, all business transactions carried out in the company were reflected in accounting in accordance with the methodology provided for by the Law of Ukraine “On Accounting and Financial Reporting of Ukraine”, as well as the Conceptual Framework for Financial Reporting according to International Standards.
Enterprise reporting for 2014 prepared in accordance with International Financial Reporting Standards.
An audit of the accounting of inventories of material assets established that during the reporting period their accounting was carried out on the basis of primary documents at the purchase price. The facts of acquisition are confirmed by invoices, cash orders, and receipts. As of December 31, 2014, industrial inventories were listed on the company’s balance sheet in the amount of UAH 3 thousand.
No violations were identified in accounting for the acquisition, sale and write-off of materials for production purposes.
2.2 . Cash accounting.
Accounting and documentation of cash transactions in the Company complies with the requirements of the “Regulations on the conduct of cash transactions in the national currency of Ukraine”. Maintaining and documenting transactions on a current account complies with the “Instructions on non-cash payments in national currency in Ukraine.” Checking cash and bank documents was carried out using the list method. All funds received from the bank are credited to the cash desk in full. There are no discrepancies between bank statements and accounting data. The approved cash balance limit is maintained. No violations were identified in the management and documentation of cash transactions and current accounts.
The formation of information on accounts receivable in accounting and its reflection in financial statements was carried out in accordance with the requirements of the Accounts Receivable Standard.
Accounts receivable, which are accounted for in the balance sheet by maturity, are classified as current debt.
As of December 31, 2014, current accounts receivable amounted to UAH 284 thousand, incl.
For services performed – 8.0 thousand UAH;
Compensation for utility services provided to tenants – UAH 176.0 thousand.
For paid advances for utilities – 98.0 thousand UAH.
No irregularities in accounting or reporting of accounts receivable were identified.
3. Accounting for liabilities.
Accounting for liabilities in the reporting period was carried out in accordance with the requirements of the Liabilities Standard.
Calculations for wages, social insurance, with accountable persons, and the budget correspond to the data of synthetic and analytical accounting registers, which is the basis for confirming their reliability. Throughout the reporting period, wages were accrued and paid on time. No arrears to the company's employees regarding payment of wages were identified.
5. Accounting for equity.
The authorized capital in the reporting period remained unchanged and amounted to 883 thousand 585 hryvnia 75 kopecks.
The uncovered loss is reflected in the amount of UAH 340 thousand.
No violations were identified in the accounting of equity capital and its reflection in the balance sheet.
6. Accounting for financial indicators and use of profits.
Income from the sale of services and other activities in the statement of financial results (form No. 2) was reflected in accordance with the requirements of the “Income” Standard.
Data on the sale of services corresponds to primary documents and is reliable.
Accounting for costs of operating activities in the reporting year was carried out in the manner determined by the relevant standard “Expenses”. A random check did not reveal any violations in the accounting of costs that relate to the production process.
The determination of balance sheet profit was carried out in accordance with the requirements of International Financial Reporting Standards, tax profit - in accordance with the current tax legislation.
According to accounting data, as of December 31, 2014, the balance sheet profit amounted to UAH 518.0 thousand, the uncovered loss taking into account previous periods was UAH 340 thousand. No distortions were identified in the reflection of the financial result.
The financial and economic activities of the Company are fully reflected in the established reporting forms. The indicators in the forms of the balance sheet and income statement as of December 31, 2014 correspond to the primary documents of analytical accounting.
Conclusions of the commission based on the results of the inspection.
The results of the audit of the Audit Commission of financial and economic activities in 2014 give grounds to assert that:
1. When carrying out financial and economic activities, AK-TRANS PJSC generally adheres to the requirements of the legislation of Ukraine.
2. Financial statements fairly and reliably reflect all aspects of the Company’s financial condition, cash flows, and inventory.
3.Assets and liabilities in the balance sheet for the reporting period were reflected without distortion in accordance with the requirements of established accounting standards.
4. The reliability of the financial statements for 2014 was confirmed by the auditing firm "Yurholding - Audit".
In accordance with the above, the Commission recommends approval of the report and conclusions of the Audit Committee.
Chairman of the commission___________
Members of the commission ___________
Familiarized:
Chief Accountant ________________
The content of the article that we offer you, dear readers, arose from the appeal of an insulted and humiliated person, and the “conclusion of an internal audit” that appeared in his address. And the events developed as follows:
02.05.09. in store No. 142 in the city of Azov, it was revealed that the administrator attempted to remove unpaid goods after finishing work. This is exactly how the act called “conclusion of an internal audit” began, and the said act ended with the fact that the administrator must be fired, all stores in the network should be notified of the decision made, and as a result, the administrator had an entry in his work book: “Dismissed for committing guilty actions, giving grounds for loss of trust.”
God forbid that we should come to this, especially at the beginning of our careers.
If one of us has a similar entry in our work book, everyone will seek protection of their violated rights.
So Ivanova came to us to protect her violated labor rights. We wrote a statement of claim and filed it in court. The application was accepted for consideration.
On the appointed day, at the preliminary hearing, having received from the responding party copies of all the documents that were the basis for the dismissal, we began to study them, and...
There was no end to the surprise! It turned out that the representative of the security service, who detained the “nonsense,” is the person who has the right to order an inventory; he was “AUTHORIZED” to do this by the director of the company, which was written down verbatim in the issued power of attorney.
An authorized security officer appointed and carried out an inventory at night (the store closes at 23.00), the results of the check were certified by an accountant and other persons.
Based on the documents presented to the court, the inventory was carried out within 30 minutes after the store closed.
This is the number, the reader will think, investigative actions in a criminal case at night are carried out with a special permit. But here it’s just a civil relationship, and operational activities are carried out on them at night. At the very least, this already looks strange and makes us doubt the plausibility of what happened. Doubts increased when subsequently, at a court hearing, the defendant’s representative, when asked a question about how the accountant arrived at the store at night to carry out an audit, received the answer: “the accountant who signed the inventory was not present in the store at night.”
How should the statement be treated? The question immediately arises: was there an inventory? Who, when and most importantly what kind of check was carried out at night?
Inventory is the compilation of lists of the property of an enterprise and the preparation of an inventory of inventory.
An audit is an examination of the financial and economic activities of an enterprise or official in order to verify the correctness and legality of actions.
This question did not arise out of simple curiosity, and requires an answer.
Based on the results of the inspection, the security officer received written explanations from Ivanova, and the next day an order was issued to conduct an inventory of inventory items by an approved commission.
The plaintiff was lucky enough to receive comments on the incident from an honest store manager. The director wrote the truth: “I checked the funds and goods and materials for the commodity item “first grade chicken egg”, using the operational database “material accounting of store No. 142 (Azov)”, reconciling the readings of cash register equipment, and as a result the fact of removal of unpaid goods (one dozen chicken eggs, grade 1) by administrator Ivanova has not been established.”
What does all this mean, guess at once.
The judge who heard the case is a very cheerful person. The meaning of her expressions was something like this: “I’ll take the document from you very carefully”... After which, taking the “attitude of an honest director”, she included it in the materials of the civil case.
As a result, the denouement of the entire tragicomedy came. Time for business, time for fun!
The judge and the prosecutor intervened in the case. Interrogating a witness, a security officer, they established that no one took inventory in the store at night.
And the act that appeared appeared to be falsified. This is exactly what the prosecutor suggested. The security officer in his story began to fantasize that he saw, sitting in his car, how the administrator was putting goods out of her bag. I, as one of those present in the process, felt funny at what I heard, because sitting in the car, it is impossible to see the actions taking place in the store. Judge for yourself. The person sitting is at a height of about 1 meter, and the windows and doors of the store are located at a height of at least two meters, if we also take into account the height at which the cash register itself is located inside the store where the unpaid goods were found... In addition, near In store No. 142 there are a large number of trees, blocking almost all visibility. Thus, we have even more confidence that we are right. The witness who testified lied that he saw the manager putting eggs out of a bag. I had to take photos of the store (its entrance). Evidence in the form of photographs refuting the testimony of the witness was asked to be added to the case file.
And without comments everything is clear.
And the work in progress continued, and everything went to its logical conclusion.
Only one thing came to mind.
A person who bears full financial responsibility for a shortage of goods, even if he takes something out of the store, will still pay for it. And why then would the store security officer check Ivanova? Such a security service will lead to the fact that the leader himself will be brought to criminal liability for falsifying evidence in a civil case. And there is something to be afraid of in reality.
When preparing the case for court, I had to deal with the fact that the opposite side, having decided to take the initiative into its own hands, tried to outwit the plaintiff and his representatives.
A call came from the police department. We were invited to a conversation. The interlocutor turned out to be an employee involved in offenses in the consumer market. The call was due to the fact that Ivanova had received a statement about bringing her to criminal and administrative liability for attempting to remove unpaid goods from the store. The application was accompanied by inspection reports falsified by the head of the company.
In fact, if all this were true, it would be impossible to do without drawing up an administrative protocol. But the only thing is that the material sent to the court was collected and presented to the court “one-sidedly.” It did not present the position of the plaintiff's side.
It was also necessary for the police department employees to provide “the attitude of an honest store director,” and in it, as I remember, during the inspection it was not revealed that there was a shortage of one dozen chicken eggs, first grade.
It turned out as in the proverb “their fat and in their own faces.” Namely, the police, having collected the material, made a legal decision on it: “to refuse to initiate a criminal case.” The basis was the absence in the actions of the store administrator of the corpus delicti provided for in Article 160 of the Criminal Code of the Russian Federation. No corpus delicti of an administrative offense was identified. We received a copy of this resolution and submitted it to the court.
In principle, how did the participants in the process react to this resolution at the meeting?
it would be superfluous to tell.
Although it was still far from the end of the hearings in this case, and the claims remained unclear to the judge, all the evidence in the case was refuted and the collected materials were completely declared to be falsified.
Previously, our newspaper published an article entitled “Was there an inventory?”
Let us recall its meaning.
Unlawful dismissal following the conclusion of an audit.
A certain security officer, who later turned out to have
authority to conduct audits and inventory, including at night, detained a store employee who was “trying” to take 10 first-grade chicken eggs out of the store.
But when asked whether this was the case, the court and the investigative body clearly said no.
The meaning of the word inventory is
Having received at the court hearing from the opposite party an act of conducting
inventory, and even at night, the plaintiff’s side simply stared in amazement.
Why count at night, in a store, chairs, tables, counters, and so on? Even more
The astonishment was caused by the established fact that there was no inventory in the store at night.
Having changed his testimony, the defendant stated that the inventory of the ball would be taken the next morning. Thus, the tactics chosen by the defendant and his behavior in court were changed. But the store did not close. And by inventory we meant an audit. And the balances were reduced to only one position; first grade chicken egg.
How can you carry out an audit without sealing the cash register, and even when the store is open?
At the same time, manage to call it an audit, an inventory. Malicious intent or thoughtlessness? These issues were clarified in court. They arose precisely from the fact that it is necessary to spend at least a day on an audit of a small store, taking into account the fact that it will be carried out by 10 people.
The defendant did not focus on the fact that the eggs in the store were not only the first, but also the highest grade.
And under such circumstances, the selective audit did not give a correct idea of the existence of surpluses or deficiencies.
He voiced the main position chosen by the defendant in his statements, which he sent to the internal affairs bodies of inquiry. In each of them they call for the “nonsense” to be prosecuted. And he began to write statements only when he saw the statements of claim in court.
The efforts were in vain; the body of inquiry found no reason to charge an innocent person. Despite the fact that this happened several times. The defendant did not calm down. He wrote and wrote that a dozen eggs had disappeared from the store, and not by accident.
And the body of inquiry issued a ruling that the employee had nothing to do with the attempt to steal eggs. And each time, at the request of the court, I had to bring to court a new resolution refusing to initiate a criminal case.
From the fact that the court examined almost all the facts and it remained to make a decision, it proclaimed it.
In the effective part:
The court decided:
That the decision comes into force from the moment of its adoption. Pay wages for the period of forced absence in the amount of more than 30 thousand rubles. Reimburse pre-representation expenses. Collect the amount of state duty from the defendant.
The moral of this article is that if an illiterate employee draws up an audit act, calling it an inventory act or not conducting an audit, the inventory declares that they were and so on, there will be legal chaos. Violation of the law is punishable. This is exactly what the court says in its decision, not without the help of the prosecutor who came to the defense of the plaintiff. And the body of inquiry, through its decisions, adheres to this opinion.
Postscript: And what kind of eggs would the reader choose for himself; first or highest grade?
