HEIRS AS FORCED PARTICIPANTS IN SUBSIDY DISPUTES

The creditor applied to the court for bringing the controlling person to subsidiary responsibility in the person of his heirs under the law - municipalities (case no. A06-759/22).

The court of first instance granted the application in part based on the fact that the defendant had not transferred the debtor's documents and property to the manager, recognizing also that the defendant's actions had made it impossible to repay creditors' claims and had brought the company to bankruptcy. 

The appeal rejected the application, pointing out that the failure to provide documentation was due to the death of the sole participant and founder. The applicant has not provided any evidence that the non-transfer of documents in any way hindered the activities of the manager. 

The Court pointed out that the applicant had not substantiated what actions had been committed by the debtor and the defendant in order to apply the presumption of bankruptcy. There is no evidence of the defendant's actions in order to harm creditors. 

The cassation sent the dispute for a new appeal, since the death of the head and the sole participant cannot be the basis for shifting the burden of proof solely to the plaintiff, since the circumstances of difficulties in clarifying the actual causes of the debtor's bankruptcy are equally independent of either the plaintiff or the defendants (heirs by law). 

Zero accounting statements can be a sign of an "abandoned business" even during the lifetime of the head and the sole participant. The debtor's complete lack of reporting assets, while initially having assets in the form of borrowed funds and receiving income from the current account (which was subsequently withdrawn under an invalid transaction), is the reason for discussing the issue of hiding real business transactions and assets from creditors during the lifetime of the deceased. 

In addition, the court of appeal did not find out what violated the rights of heirs under the law, who bear subsidiary responsibility solely within the limits of the value of the inherited property, and who are forced heirs who do not have the right to renounce the inheritance. 

 

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