VOLUNTARY USE OF SEALS

23 November 2017 the President of the Republic of Belarus signed the Decree №7 that grants businesses, both legal entities and individual entrepreneurs, a right to operate without seals.

Will entry into force of the above-mentioned Decree and legalization of the right to work without seals really make it possible for businesses to refuse to use it?

The Civil Code (http://etalonline.by/?type=text&regnum=HK9800218#load_text_none_1_) imposes no specific requirements for using seals by business entities. However, it's worth paying attention to the imperative norm of Article 186 clause 5 «Power of Attorney», which provides: «Power of Attorney issued by a legal entity shall be signed by the director of such an entity or other person authorized to do so by the constituent documents, and affixed by the seal of such an entity.».

The Law of the Republic of Belarus «On business entities» (http://www.pravo.by/document/?guid=3871&p0=v19202020), from our point of view, comprises another imperative norm, which we should keep in mind: «Absentee ballot of a legal entity, having a right to participate in the general meeting, shall be affixed with a seal of such a legal entity.» (Article 46«Absent voting»).

Clause 18 of the Instruction on documentation management in state authorities and other organizations approved by the Resolution of the Ministry of Justice of the Republic of Belarus from 19.01.2009 №4 (hereinafter – the Instruction) (http://www.pravo.by/pdf/2009-42/2009-42(028-079).pdf) determines the following mandatory requisites the document shall have to be deemed validated:

- name of a company and (or) business division,

- document date,

- registration number.

- signature.

A seal is an additional requisite, which is required to be affixed only to certain types of documents to validate them (part six of clause 18 of the Instruction).

In accordance with part two of clause 62 of the Instruction «Seal» shall be affixed to the documents, which require special authentication. The list of documents to be affixed with a seal shall be determined by a company itself pursuant to applicable law of the Republic of Belarus (part five of clause 62 of the Instruction). A seal shall be affixed to original documents and their copies, including facsimile ones, certifying the rights, freedoms and (or) legal interests of citizens, rights and obligations of legal entities, and authorizing  expenditure of monetary resources and material valuables (part five of clause 62 of the Instruction).

According to the regulatory legal acts, there is no unified list that specifies the types of documents required to be affixed a seal.

Review of the above-mentioned statutory provisions allows for the conclusion that since before the effective date of the Decree of the President of the Republic of Belarus №7 from 23.11.2017 business entities have had a right independently to determine the list of documents to be affixed with a seal, taking into account, of course, legislative requirements.

To our opinion, a seal is a formal requisite used for no other reason than the relevant legislative requirements.

Discretion of legal entities in deciding whether to have a seal is restricted by legislative requirements to affix a seal to certain documents. The following personnel documents are required to be sealed:

  • Labor contract. According to part one of Article 18 of the Labor Code of the Republic of Belarus a labor contract shall be concluded in writing, in two copies and signed by the parties. This legal norm does not provide for attaching a seal to an employer’s signature. A model form of a labor contract approved by the Resolution of the Ministry of Labor of the Republic of Belarus from 27.12.1999 № 155 stipulates for such requisite as a «Seal»; a model form of a contract between an employer and an employee approved by the Resolution of the Council of Ministers of the Republic of Belarus from 02.08.1999 № 1180 – doesn’t. It has become established practice in HR records keeping to affix a seal of an employer to all types of labor contracts.
  • Employment record book. The instruction on procedure for keeping employment record books approved by the Resolution of the Ministry of Labor and Social Protection of the Republic of Belarus from 16.06.2014 № 40 «On employment record books» provides for affixing an employer’s seal to the first (front) page of an employment record book (clause 25), to a record entry of dismissal or resignation (clause 44) and in other cases. The respective records in an employment record book of an individual entrepreneur acting without a seal shall be certified by the registering authorities’ seal where such an individual entrepreneur was registered;
  • Receipt for an employment record book issued to an employee (part five of clause 79 of the procedures for keeping employment record books approved by the Resolution of the Ministry of Labor and Social Protection of the Republic of Belarus from 16.06.2014 № 40 «On employment record books»);
  • Register for employment record books (part seven of clause 79 the procedures for keeping employment record books approved by the Resolution of the Ministry of Labor and Social Protection of the Republic of Belarus from 16.06.2014 № 40 «On employment record books»)
  • Full financial liability agreement. A model form of a full individual financial liability agreement approved by the Resolution of the Council of Ministers of the Republic of Belarus from 26.05.2000 № 764 «On approval of the model list of positions and work held or performed by employees, with whom employers may conclude written agreements for full individual financial liability, and the model form of a full individual financial liability agreement», stipulates for such requisite as a «Seal». However, the model form of a joint liability agreement approved by the Resolution of the Council of Ministers of the Republic of Belarus from 14.04.2000 № 54 «On approval of the Regulations on joint financial liability, the model list of works which can be subject to joint financial liability, the model form of a joint financial liability agreement», - doesn’t;
  • Confirmation/reference letters (letters confirming the place of work, position held, period of work, earnings, etc.) (clause130 of the Instruction).

Therefore, business entities will be actually required to have and use a seal until the laws and regulations that establish the requirements to affix seals to certain types of documents are brought in line with the Decree of the President of the Republic of Belarus №7 from 23.11.2017.

Certified lawyer NATALLIA LESINA

E-mail: lesina@collegia.by