EXCLUSION FROM THE UNIFIED STATE REGISTER OF LEGAL ENTITIES - PROOF OF BAD FAITH OF THE CDL

The company intended to bring the head of the company to subsidiary responsibility. Three instances refused to satisfy the statement of claim due to the fact that the plaintiff did not prove the facts of the actions committed by the head, which led to the failure of the bankrupt to cover his debt obligations.

However, the Supreme Court did not share the position of the lower courts and annulled their judicial acts (Ruling of 04.10.2023 in case no. A40-143778/2022 (305-ES23-11842)). The dispute is sent for reconsideration. The Sun explained its position as follows:

"In the case of a creditor's appeal to the court with a demand to bring the head to subsidiary responsibility, the first one should submit the relevant acts that confirm the existence of debt, as well as facts confirming the exclusion of the bankrupt from the Unified State Register of Legal Entities, and in this case the court should objectively weigh the applicant's ability to seize information and documentation about the debtor's activities.

If a bona fide creditor does not have the opportunity to obtain the above information, as well as if the CDL refuses or evades explanations about its actions (inaction) in the management of the debtor, the reasons for non-fulfillment of obligations to the creditor and the termination of economic activity, or if the testimony of the CDL is clearly incomplete, the burden of proving the absence of grounds for bringing to subsidiary liability rests on the defendant.

In accordance with Resolution No. 6-P, if KDL does not apply to the appropriate judicial authority with an application for recognition of a controlled business entity as bankrupt, does not want to bear the corresponding expenses, does not take measures to prevent the exclusion of a legal entity from the Unified State Register of Legal Entities in case of debt to creditors, then these facts indicate unfair behavior of KDL. The criterion of good faith of the KDL, in particular, is the preservation of information about the debtor's economic activities, the presentation of this information to the court upon request for compensation for damage caused by bringing the debtor to objective bankruptcy.

The lower courts did not properly assess the unequal, for objective reasons, procedural possibilities of the parties to this dispute and did not redistribute the duty of proof in accordance with the creditor's ignorance of specific evidence of the validity of bringing to subsidiary liability.

Photo: Freepik