IGUMNOV GROUP LAWYER: THE CONSTITUTIONAL COURT REALLY EXPANDS THE OUT-OF-BANKRUPTCY SUBSIDY

The head of the practice of bankruptcy and separate disputes of Igumnov Group, lawyer Vadim Makarichev, called the ruling of the Constitutional Court 6-P of 07.02.2023 significant, which interprets paragraph 1, paragraph 12 of Article 61.11 of the Bankruptcy Law (non-bankruptcy subsidiary liability). In its position, the Constitutional Court expands non-bankruptcy subsidiary liability and redistributes the burden of proof.

The essence of the matter was as follows. The sole proprietor collected money from the company, but instead of paying, the director of the company stopped submitting reports, and it was liquidated. The sole proprietor decided to involve the director in an out-of-bankruptcy subsidiary, but the courts refused for the reason that the individual entrepreneur did not confirm the grounds.

"Such an interpretation of the norms of law together gives the courts and the parties to the dispute more opportunities. Currently, out-of-bankruptcy bringing to subsidiary liability is not uncommon. Law enforcement officers are actively using the opportunities provided by Clause 12 of Article 61.11 of the Bankruptcy Law, clause 3.1 of Article 3 of the LLC Law, Article 53.1 of the Civil Code of the Russian Federation seeking to bring persons to subsidiary liability. Indeed, the conduct of such court cases is complicated by the collection of evidence of the bad faith of the persons controlling the debtor. Often, for example, applicants could not prove that when the debtor was excluded from the Unified State Register of Legal Entities, its former managers acted in bad faith on the eve of such exclusion. Perhaps this Ruling of the Constitutional Court of the Russian Federation will help overcome this practice," Vadim Makarichev stressed, commenting on the court's ruling for Rusbankrot.

According to the lawyer, such a ruling of the Constitutional Court will certainly affect judicial practice. The courts, according to the expert, can interpret the explanations of the Constitutional Court of the Russian Federation quite broadly — from more active assistance to the applicant in the case of bringing to subsidiary responsibility for collecting evidence (not excluding the independent claim of evidence by the courts) to the possible application in these cases of Part 3.1 of Article 70 of the APC of the Russian Federation.

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