RusBankrot
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16/09/2024
Monday
THIS DAY IN HISTORY:
16 September 
1970 "Black Wednesday" of the British pound sterling.
1970 The Montreal Treaty for the Protection of the Earth's Ozone Layer was signed.
1970 Mexico declared independence from Spain.
16 September
1970 "Black Wednesday" of the British pound sterling.
1970 The Montreal Treaty for the Protection of the Earth's Ozone Layer was signed.
1970 Mexico declared independence from Spain.
IT IS IMPOSSIBLE TO INVOLVE A SUBSIDIARY ONLY ON THE BASIS OF THE ARGUMENTS OF THE MANAGER
The manager appealed to the court with an application to bring the controlling persons to subsidiary liability (case no. A32-9377/20).
Partially satisfying the application, the courts of two instances proceeded from the fact that the defendants, being persons simultaneously controlling the debtor and the company, implemented a scheme to transfer funds to the latter under a transaction that they initially did not intend to execute. These circumstances, as well as subsequent inaction on non-collection of debt from the company, in the opinion of the courts, caused harm to the creditor in the form of inability to satisfy his claims based on a settlement agreement, and the onset of signs of objective bankruptcy in the debtor. The courts agreed with the arguments of the manager that the defendants, concluding a settlement agreement with the creditor, did not intend to execute it, but wanted to give their illegal actions a well-intentioned appearance.
The cassation sent the dispute for reconsideration, pointing out that the settlement agreement with the creditor was executed, including by force. The courts did not evaluate the relevant arguments and the evidence presented in support of them, and therefore made an erroneous conclusion based on an incomplete assessment of the evidence in the case materials that the debtor, concluding a settlement agreement, did not really intend to execute it.
The judgment of the courts, blamed on the defendants, that they did not take measures to recover the debt from the company under their control and initiated a legal dispute with this person at a time when the debtor's claims obviously could not be satisfied, is premature.
The courts did not establish the fact of consistency of the defendants' actions, the direction of their will to harm the debtor. The case materials do not contain evidence of the defendants receiving any benefit based on unfair behavior, as well as the commission by the latter of guilty and illegal actions to intentionally create the debtor's insolvency. The contrary conclusions of the courts are based solely on the explanations of the manager, which are not supported by documentary evidence. The adoption of a number of anti-crisis measures by the defendants has not been evaluated and has not been taken into account by the courts.
Partially satisfying the application, the courts of two instances proceeded from the fact that the defendants, being persons simultaneously controlling the debtor and the company, implemented a scheme to transfer funds to the latter under a transaction that they initially did not intend to execute. These circumstances, as well as subsequent inaction on non-collection of debt from the company, in the opinion of the courts, caused harm to the creditor in the form of inability to satisfy his claims based on a settlement agreement, and the onset of signs of objective bankruptcy in the debtor. The courts agreed with the arguments of the manager that the defendants, concluding a settlement agreement with the creditor, did not intend to execute it, but wanted to give their illegal actions a well-intentioned appearance.
The cassation sent the dispute for reconsideration, pointing out that the settlement agreement with the creditor was executed, including by force. The courts did not evaluate the relevant arguments and the evidence presented in support of them, and therefore made an erroneous conclusion based on an incomplete assessment of the evidence in the case materials that the debtor, concluding a settlement agreement, did not really intend to execute it.
The judgment of the courts, blamed on the defendants, that they did not take measures to recover the debt from the company under their control and initiated a legal dispute with this person at a time when the debtor's claims obviously could not be satisfied, is premature.
The courts did not establish the fact of consistency of the defendants' actions, the direction of their will to harm the debtor. The case materials do not contain evidence of the defendants receiving any benefit based on unfair behavior, as well as the commission by the latter of guilty and illegal actions to intentionally create the debtor's insolvency. The contrary conclusions of the courts are based solely on the explanations of the manager, which are not supported by documentary evidence. The adoption of a number of anti-crisis measures by the defendants has not been evaluated and has not been taken into account by the courts.
16.08.2024
