Article 265 (1) of the Company Law stipulates the scope of senior management personnel of the company, i.e., senior management personnel refer to the manager, deputy manager, financial person in charge of the company, the secretary of the board of directors of the listed company and other personnel specified in the articles of association of the company. So whether the marketing director we are talking about is also a senior manager of the company, and how should the salary of the director be calculated when the enterprise enters bankruptcy proceedings? The following is a judgment that illustrates this issue.
In the case of a dispute over the confirmation of the bankruptcy claims of an intelligent technology company in Guangdong, the Intermediate People's Court of Guangzhou City, Guangdong Province, held (excerpt) that the issue of wages and economic compensation was on the issue. Hu Mouqiang asserted that his monthly wage standard was 20,000 yuan, based on the "Labor Contract" and "Bank Statement" submitted by him, although Saiyi Company did not confirm it, it did not submit any evidence to refute it, so it was not improper to calculate the arrears of wages and economic compensation according to the wage standard in the first instance. As for Saiyi's appeal, Hu Mouqiang is a senior manager stipulated in Article 113 of the Enterprise Bankruptcy Law of the People's Republic of China, and his salary should be calculated according to the average salary of the company's employees. Hu Mouqiang's position is the marketing director, not the company's manager, deputy manager, financial director, secretary of the board of directors of the listed company and other personnel specified in the company's articles of association. After accounting in the first instance, the court ordered Saiyi Company to pay Hu Mouqiang's salary of 220,000 yuan and economic compensation of 130,000 yuan from June 1, 2019 to April 30, 2020, which was reasonable and well-founded, and this court upheld it. [Refer to Case (2023) Yue 01 Min Zhong No. 29891].
Case Analysis: According to the provisions of the Enterprise Bankruptcy Law, after entering the bankruptcy procedure, the senior management of the enterprise shall be paid according to the standard of calculation of the average salary of employees instead of the salary standard agreed in the labor contract. However, in practice, it is necessary to clarify who belongs to the company's senior management. In their daily work, many people think that the company's directors belong to the company's senior managers, because these people we also call them so-and-so presidents every day, and the approval authority is also very large. However, in fact, from the perspective of company law, the director is not set as a senior manager in the sequence of senior management of the company, and only if the corresponding setting is made in the articles of association of the company, the scope of senior management of the company can be included.