CASSATION: COURTS ARE OBLIGED TO ESTABLISH THE MOMENT OF OCCURRENCE OF OBJECTIVE BANKRUPTCY

In the framework of the bankruptcy case (No. A40-34123/19), the courts considered the application of the manager for bringing the former director of the debtor to subsidiary liability. In support of the application, the manager referred to the fact that in the framework of the bankruptcy case of one of the debtor's creditors, the transaction on the transfer of funds by the debtor in favor of the creditor was challenged, this restorative claim was subsequently included in the debtor's register.

The court of first instance agreed with the arguments of the manager, noting that the defendant was obliged to apply to the court for bankruptcy of the debtor under his control no later than the date of entry into force of the ruling on the recognition of the transaction invalid.

This approach was not shared by the appeal, noting that, even after the entry into force of the said judicial act, the debtor continued to conduct business and receive income, that is, was not in a state of objective bankruptcy.

The cassation sent the case for a new hearing, pointing out that the courts of both instances, drawing conclusions about the emergence of the defendant at a certain moment of the obligation to apply to the court for bankruptcy of the debtor, did not establish the moment when such an obligation arose.

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