People\ncreating a legal entity to conduct business often believe that liability for\nobligations will be borne solely by society itself within its property. However, not everyone knows that in the\npresence of conditions specified by law, the debts of the company can be\nrecovered from the head or founder of it.<\/p>\n\n\n\n
Such\na mechanism is provided for by Chapter III.2. of the Bankruptcy Law\n\u201cResponsibility of the Head of the Debtor and Other Persons in the Bankruptcy\nCase\u201d.<\/p>\n\n\n\n
If full repayment of creditors’ claims is not\npossible due to the actions and (or) inaction of the controlling debtor of the\nperson, such a person bears subsidiary liability for the obligations of his\norganization.<\/p>\n\n\n\n
According to Federal Resources, in the third\nquarter of 2018, every third statement on bringing to subsidiary liability was\nsatisfied by the court.<\/p>\n\n\n\n
The\nlaw classifies the persons controlling the debtor as individuals or legal entities\nthat have or had no more than three years before the appearance of signs of\nbankruptcy, the right to give binding instructions or the ability to otherwise\ndetermine the actions of the debtor organization, including on the completion\nof transactions and the determination of their conditions.<\/p>\n\n\n\n
The\nBankruptcy Law establishes the presumption of control of the debtor\norganization. A person is recognized as\ncontrolling if:<\/p>\n\n\n\n
\u2022 was the head of the debtor, a member of\nthe executive body of the debtor, a liquidator, a member of the liquidation\ncommission;<\/p>\n\n\n\n
\u2022 had the right to dispose, including\ntogether with interested parties, more than 50%<\/p>\n\n\n\n
\u2022 voting shares<\/p>\n\n\n\n
\u2022 votes in the general meeting of\nparticipants of a legal entity,<\/p>\n\n\n\n
\u2022 share of authorized capital;<\/p>\n\n\n\n
\u2022 had the right to appoint the head of the\norganization;<\/p>\n\n\n\n
\u2022 benefited from the illegal or dishonest\nbehavior of persons authorized to speak on behalf of the organization (for\nexample, the person whose payment was made to under the premises lease\nagreement concluded at the time when the debtor had actually ceased its\nactivities).<\/p>\n\n\n\n
The\nprovision on benefiting from unfair behavior is very controversial, as this can\nonly indicate the implementation of not the best business qualities of the\ncounterparty. And the presumption of\nrecognition of the person who allowed such behavior by supervisory would be\nlogical if there were concerted actions. \nBut at the present time, the counterparty to the debtor’s transaction\ncan be brought to subsidiary liability in the event that it concluded the\ntransaction on terms favorable to itself and in the absence of knowledge about\nthe dishonest actions of the debtor’s head.<\/p>\n\n\n\n
It is presumed that a person who meets one of\nthese criteria is recognized as a supervisory along with persons affiliated\nwith him.<\/p>\n\n\n\n
It\nshould be noted separately that the nominee leader (a person who formally is\npart of the governing bodies, but does not actually manage the company) does\nnot lose the status of a controlling person. \nThe nominee leader is also a person who, on the basis of a General power\nof attorney or explicit consent, provided a third party with the opportunity to\nmake key decisions in the framework of the business of organization. <\/p>\n\n\n\n
Consequently,\nthe face value does not lose the possibility to influence the activities of the\norganization, is responsible for the actions of its representative and is\njointly and severally liable with the real beneficiary.<\/p>\n\n\n\n
However,\nin order to identify real beneficiaries, a rule appeared in the bankruptcy law,\naccording to which the size of liability of a nominee leader can be reduced by\nthe court, provided that he:<\/p>\n\n\n\n
\u2022 will prove that he did not have a\ndecisive influence on the decisions of a bankrupt company;<\/p>\n\n\n\n
\u2022 will help to establish the real\ncontrolling person and \/ or find his hidden property or property of the debtor<\/p>\n\n\n\n
In\naddition, the legislation contains rules that make it possible to bring to\njustice real beneficiaries who, from a legal point of view, do not have the\nright to manage the organization.<\/p>\n\n\n\n
That\nis, the controlling person can be recognized as persons who:<\/p>\n\n\n\n
\u2022 are with these persons in relationship,\nin official relations;<\/p>\n\n\n\n
\u2022 have the right by proxy or by law to make\ntransactions on behalf of the organization;<\/p>\n\n\n\n
\u2022 occupy a specific position (acting chief\naccountant, financial director, etc.);<\/p>\n\n\n\n
\u2022 have a decisive impact on the activities\nof the organization in other ways.<\/p>\n\n\n\n
At\nthe same time, the Plenum of the Supreme Court of the Russian Federation dated\nDecember 21, 2017 No. 53 \u201cOn Certain Issues Related to Holding Persons\nControlling the Debtor for Liability in Bankruptcy\u201d (hereinafter referred to as\nPlenum No. 53) does not allow holding these persons liable only on the basis of\ntheir position. They can be recognized\nas controlling on a general basis, including using the presumptions provided\nfor by the bankruptcy law, but the advantages arising from their situation are\ntaken into account.<\/p>\n\n\n\n
In\neach case, the court determines how strong the influence of the person was on\nthe adoption of significant business decisions.<\/p>\n\n\n\n
Thus,\nthe legislator bases the recognition of a person as a controlling one on the\nbasis of actual control over the debtor organization, and makes it possible to\nhold the real leaders of the organization accountable.<\/p>\n\n\n\n
If\na person is recognized as controlling, then the presumption of bad faith\napplies to him, that is, the full repayment of the organization\u2019s debt is\nimpossible if the following circumstances exist:<\/p>\n\n\n\n
1)\nsignificant damage was caused as a result of the commission or approval by this\nperson of significant transactions of the debtor<\/p>\n\n\n\n
2) documents of accounting and (or) reporting\nare missing or do not contain information about objects established by law or\nare distorted, as a result of which it is difficult to conduct bankruptcy\nproceedings.<\/p>\n\n\n\n
3) claims of creditors arising from an offense\nexceed 50% of all claims of creditors<\/p>\n\n\n\n
4) the documents, the storage of which was\nmandatory in accordance with the legislation on joint-stock companies, the\nsecurities market, etc. are missing or distorted;<\/p>\n\n\n\n
5) as of the date of initiation of bankruptcy\nproceedings, no information or false information about the legal entity was\nentered into the Unified State Register of Legal Entities and EFRS.<\/p>\n\n\n\n
Based\non judicial practice, in order to bring to subsidiary liability, circumstances\nsuch as the absence of documents that prevent the bankruptcy procedure from\nbeing properly conducted (the most common case is failure to transfer the\norganization\u2019s documents to the arbitration manager) and the absence of fixed\nassets that, according to the balance sheet, were held, are taken into\naccount debtor.<\/p>\n\n\n\n
As\nfor the size of liability, it is equal to the total size of claims of all\ncreditors. If the debtor’s registry\nincludes claims in the amount of 100 million rubles, respectively, the general\ndirector and (or) founders, as well as other controlling persons, will be\njointly and severally liable with their own property.<\/p>\n\n\n\n
It\nis also possible to bring to subsidiary liability for non-filing (untimely\nfiling) of the debtor’s declaration of bankruptcy in court. These provisions apply, in particular, in\ncases where the manager knows that the company does not have enough funds to\npay off all debts, but does not file for bankruptcy. Such behavior is also regarded as dishonest,\nbut the amount of liability in this case is equal to the amount of debt that\narose after the onset of these circumstances.<\/p>\n\n\n\n
In\nAugust 2018, our employee updated the record for the amount of responslibility\nin a single case (excluding credit institutions). In the bankruptcy case of LLC \u201cBTK\u201d, a\nstatement on bringing four citizens to subsidiary liability in the amount of\nRUB 13,787.6 million was satisfied. The\nprevious record for the amount of liability in a separate case (excluding\nbankruptcy cases of credit organizations) was recorded in 2016 and amounted to\n12.9 billion rubles.<\/p>\n\n\n\n
Employees of MCBA \u201cBureau of Lawyers \u201cDe jure\u201d\ncarry out, among other things, the protection of former owners and business managers\nin the framework of cases of bringing to subsidiary liability.<\/p>\n\n\n\n
Plenum\nN 53 emphasizes that subsidiary liability is the exclusive mechanism for\nrestoring violated rights of creditors. \nPersons who have lost the game under the name of \u201cbusiness\u201d cannot be\nheld accountable if they acted in good faith, reasonably and in accordance with\nthe usual conditions of civil circulation.<\/p>\n\n\n\n
Authors are lawyer Vadim Makarichev and lawyer\nassistant Taisiya Radchenko.<\/p>\n","protected":false},"excerpt":{"rendered":"
People creating a legal entity to conduct business often believe that liability for obligations will be borne solely by society itself within its property. However, not everyone knows that in the presence of conditions specified by law, the debts of the company can be recovered from the head or founder of it. Such a mechanism…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[111],"tags":[],"_links":{"self":[{"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/posts\/33150"}],"collection":[{"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/comments?post=33150"}],"version-history":[{"count":1,"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/posts\/33150\/revisions"}],"predecessor-version":[{"id":33151,"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/posts\/33150\/revisions\/33151"}],"wp:attachment":[{"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/media?parent=33150"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/categories?post=33150"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/tags?post=33150"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}