RusBankrot
We know everything about bankruptcy
30/01/2026
Friday
THIS DAY IN HISTORY:
30 January 
1970 Same-sex marriages were legalized in Belgium.
1970 Gay marriages were legalized in Belgium
1970 The Shekel currency was introduced in Israel.
1970 Charles Richter proposed the Richter’s scale for measuring earthquakes magnitude.
1970 Charles Richter proposed the Richter’s scale for measuring earthquakes magnitude
1970 Charles Darwin's book on natural selection was published in Russia.
1970 Charles Darwin's book on natural selection was published in Russia
30 January
1970 Same-sex marriages were legalized in Belgium.
1970 Gay marriages were legalized in Belgium
1970 The Shekel currency was introduced in Israel.
1970 Charles Richter proposed the Richter’s scale for measuring earthquakes magnitude.
1970 Charles Richter proposed the Richter’s scale for measuring earthquakes magnitude
1970 Charles Darwin's book on natural selection was published in Russia.
1970 Charles Darwin's book on natural selection was published in Russia
OBJECTIVE BANKRUPTCY AS A CONDITION OF SUBSIDIZATION: WHAT SHOULD I PROVE TO THE CREDITOR?
The creditor requested that the controlling persons be held vicariously liable for the debtor's obligations (case no. A41-85625/22).
The court of first instance found that one of the defendants failed to fulfill the obligation to transfer documentation regarding the debtor's financial and economic activities. In this regard, the named defendant was brought by the court to subsidiary liability for the obligations of the debtor on the basis of the provisions of the article on subsidiary liability.
The court of first instance proceeded from the fact that the presence of outstanding debts to individual creditors (counterparties for transactions) for a certain period does not in itself indicate that the company has signs of insolvency and (or) insufficient property, and does not confirm that the company's participant has an obligation to file an appropriate application to the arbitration court.
The court also found that the bankruptcy creditor did not specify which obligations arose after the expiration of the time limits provided for by the bankruptcy law. In this regard, it is impossible to determine the amount of subsidiary liability on this basis.
The Court of Appeal did not agree with the conclusions of the court of first instance regarding the involvement of co-defendants in subsidiary liability for the debtor's obligations for failure to fulfill the obligation to file an application for declaring the debtor bankrupt.
In refusing to satisfy the application regarding bringing the defendants to subsidiary responsibility for failure to file a bankruptcy petition for the debtor, guided by the provisions of the articles of the bankruptcy Law, the court of first instance proceeded from the fact that the applicant had not confirmed the occurrence of signs of objective bankruptcy in the company on the stated date.
The reason for initiating bankruptcy proceedings against the debtor was the fact of non-fulfillment of a judicial act that entered into force in another case, which invalidated the transaction. Taking into account the provisions of the bankruptcy Law, the persons controlling the debtor had to apply to the court no later than a certain date. The debtor's bankruptcy proceedings were initiated on the basis of an application from the other party to the dispute. The co-defendants, as the only participants in the debtor, acting in good faith and reasonably, should have been aware of the debtor's financial condition, however, they did not take the decision to apply to the court for bankruptcy of the debtor.
The cassation upheld the ruling of the first instance and pointed out that, in refusing to satisfy the application for holding the defendants vicariously liable for failure to file a bankruptcy petition for the debtor, guided by the provisions of the bankruptcy law, the court of first instance proceeded from the fact that the applicant had not confirmed the occurrence of signs of objective bankruptcy in the company on the stated date. This conclusion of the court was not refuted by the arbitration Court of Appeal, with a reasoned reference to the evidence available in the materials of the separate dispute.
Also, in the opinion of the cassation, the court of first instance legitimately proceeded from the fact that the debtor's mere presence of formal signs of bankruptcy is not a sufficient basis for concluding that the debtor's head is responsible for not fulfilling the obligation to file an application with the court in accordance with the article of the bankruptcy law, since the occurrence of accounts payable by an economic entity is not Confirms the arrival of such a critical moment, which bankruptcy legislation relates to the dependence of the initiation of insolvency proceedings and the subsidiary responsibility of the debtor's head (controlling person).
Thus, the court of first instance established that the applicant did not prove the moment of the debtor's objective bankruptcy. The opposite does not follow from the materials of a separate dispute and has not been established by the court of appeal.
In addition, as correctly stated by the court of first instance, it is erroneous to identify the debtor's insolvency with the non-payment of a specific debt to an individual creditor. This circumstance in itself does not indicate objective bankruptcy, and therefore cannot be considered as unconditional evidence confirming the need for the head to apply to the court for bankruptcy.
The court also legitimately proceeded from the fact that the establishment of the moment of occurrence of the obligation to file such a statement with the court is directly related to the determination of the amount of subsidiary responsibility of the head, which, as a general rule, is limited by the amount of obligations to creditors that arose after the expiration of a month period. In the present case, there is no evidence in the case file that the company had new obligations to creditors after the date of objective bankruptcy proposed by the applicant, as the court of first instance reasonably pointed out. The court of appeal has not established the opposite.
The Court of cassation noted that the conclusion of the arbitration Court of Appeal on the existence of grounds for suspending proceedings on the application regarding the determination of the amount of subsidiary liability directly contradicts the requirement of the bankruptcy law, that is, it was made with the incorrect application of substantive law.
Photo: Freepik
The court of first instance found that one of the defendants failed to fulfill the obligation to transfer documentation regarding the debtor's financial and economic activities. In this regard, the named defendant was brought by the court to subsidiary liability for the obligations of the debtor on the basis of the provisions of the article on subsidiary liability.
The court of first instance proceeded from the fact that the presence of outstanding debts to individual creditors (counterparties for transactions) for a certain period does not in itself indicate that the company has signs of insolvency and (or) insufficient property, and does not confirm that the company's participant has an obligation to file an appropriate application to the arbitration court.
The court also found that the bankruptcy creditor did not specify which obligations arose after the expiration of the time limits provided for by the bankruptcy law. In this regard, it is impossible to determine the amount of subsidiary liability on this basis.
The Court of Appeal did not agree with the conclusions of the court of first instance regarding the involvement of co-defendants in subsidiary liability for the debtor's obligations for failure to fulfill the obligation to file an application for declaring the debtor bankrupt.
In refusing to satisfy the application regarding bringing the defendants to subsidiary responsibility for failure to file a bankruptcy petition for the debtor, guided by the provisions of the articles of the bankruptcy Law, the court of first instance proceeded from the fact that the applicant had not confirmed the occurrence of signs of objective bankruptcy in the company on the stated date.
The reason for initiating bankruptcy proceedings against the debtor was the fact of non-fulfillment of a judicial act that entered into force in another case, which invalidated the transaction. Taking into account the provisions of the bankruptcy Law, the persons controlling the debtor had to apply to the court no later than a certain date. The debtor's bankruptcy proceedings were initiated on the basis of an application from the other party to the dispute. The co-defendants, as the only participants in the debtor, acting in good faith and reasonably, should have been aware of the debtor's financial condition, however, they did not take the decision to apply to the court for bankruptcy of the debtor.
The cassation upheld the ruling of the first instance and pointed out that, in refusing to satisfy the application for holding the defendants vicariously liable for failure to file a bankruptcy petition for the debtor, guided by the provisions of the bankruptcy law, the court of first instance proceeded from the fact that the applicant had not confirmed the occurrence of signs of objective bankruptcy in the company on the stated date. This conclusion of the court was not refuted by the arbitration Court of Appeal, with a reasoned reference to the evidence available in the materials of the separate dispute.
Also, in the opinion of the cassation, the court of first instance legitimately proceeded from the fact that the debtor's mere presence of formal signs of bankruptcy is not a sufficient basis for concluding that the debtor's head is responsible for not fulfilling the obligation to file an application with the court in accordance with the article of the bankruptcy law, since the occurrence of accounts payable by an economic entity is not Confirms the arrival of such a critical moment, which bankruptcy legislation relates to the dependence of the initiation of insolvency proceedings and the subsidiary responsibility of the debtor's head (controlling person).
Thus, the court of first instance established that the applicant did not prove the moment of the debtor's objective bankruptcy. The opposite does not follow from the materials of a separate dispute and has not been established by the court of appeal.
In addition, as correctly stated by the court of first instance, it is erroneous to identify the debtor's insolvency with the non-payment of a specific debt to an individual creditor. This circumstance in itself does not indicate objective bankruptcy, and therefore cannot be considered as unconditional evidence confirming the need for the head to apply to the court for bankruptcy.
The court also legitimately proceeded from the fact that the establishment of the moment of occurrence of the obligation to file such a statement with the court is directly related to the determination of the amount of subsidiary responsibility of the head, which, as a general rule, is limited by the amount of obligations to creditors that arose after the expiration of a month period. In the present case, there is no evidence in the case file that the company had new obligations to creditors after the date of objective bankruptcy proposed by the applicant, as the court of first instance reasonably pointed out. The court of appeal has not established the opposite.
The Court of cassation noted that the conclusion of the arbitration Court of Appeal on the existence of grounds for suspending proceedings on the application regarding the determination of the amount of subsidiary liability directly contradicts the requirement of the bankruptcy law, that is, it was made with the incorrect application of substantive law.
Photo: Freepik
22.01.2026
