IN WHICH CASES THE PARTICIPANT OF THE DEBTOR IS NOT RESPONSIBLE?

In recent years, the institution of subsidiary liability has become widespread in bankruptcy proceedings. In case of bankruptcy, it may become clear that the property of the debtor is not enough to pay off the debts. In this situation, an attempt to recover the remaining part of the funds from the participant and the founder of debtor might be made.

However, it is important to remember that the persons, mentioned above, do not have to pay for everything. Recently, an arbitration court considered a dispute, in which the arbitration manager announced the need to bring both participant and founder of a debtor to a subsidiary liability.

There are several reasons for it:

• the founder of debtor should be brought to a subsidiary liability, because he did not transfer the documentation of the debtor to the arbitration manager, did not file a petition for declaring the debtor’s bankruptcy  in time, made a bad unprofitable transaction, as a result of which the part of the debtor's property was withdrawn, and due to the fact that he was the founder and  the participant of other companies that were excluded from the Unified State Register of Legal Entities ;

• the participant of debtor should be brought to a subsidiary liability, since he did not file for bankruptcy of his company in time.

The district court refused to bring the participant of the debtor to subsidiary liability by its decision, indicating that filing a bankruptcy petition was not his area of responsibility.

When it comes to the founder of debtor, he was brought to liability only because the debtor’s documentation was not transferred to the arbitration manager. The rest of the allegations turned out to be unfounded (case No. A40-23466 / 2016).