PRESUMPTION IS THE BASIS FOR ATTRACTION TO A SUBSIDIARY

The Vinat Company sent an application to the court to bring the general director and the sole participant of TeploEnergoRemont, G.I. Muzhanovskaya, to subsidiary liability, but the courts of two instances refused to satisfy the plaintiff's claims. When considering the cassation appeal, the Arbitration Court of the Far Eastern District annulled the judicial acts of lower instances and sent the dispute for reconsideration to the first instance (Resolution of the Far Eastern Court of Arbitration dated October 04, 2023 in case No. A37-1714/22).

LLC "Vinat" appealed to the Arbitration Court of the Magadan region with a claim to the head and sole participant of LLC "TeploEnergoRemont", Galina Ivanovna Muzhanovskaya, about bringing her to subsidiary liability for the obligations of LLC "TER" and collecting about 2 million rubles from the CEO. Vinat based its claims on the fact that the opportunity to repay the debt of TER LLC confirmed by a judicial act was lost as a result of the defendant's unfair actions.

The first instance refused to satisfy the claims of the Plaintiff, citing the lack of evidence within the framework of this dispute of the grounds for bringing Muzhanovskaya to subsidiary liability, since Vinat did not provide evidence of committing unfair actions to conceal property or obstructing settlements with the plaintiff. By itself, the debt of TER LLC to the plaintiff, confirmed by the relevant judicial act, cannot be irrefutable proof of the guilt of the CEO. The Court of Appeal fully supported the conclusions of the first instance.

The cassation instance did not agree with the lower courts, canceled their judicial acts and sent the case for reconsideration to the first instance, citing the following arguments:

• During the judicial review of this dispute, specific facts indicating the presence or absence of a causal relationship between the actions of the Director General and the non-repayment of the debt were not established by the lower courts.

• The apparatus of the courts did not take exhaustive measures to properly notify the defendant of the court proceedings initiated against him.

• Judicial acts on this dispute were adopted in violation of the norms of substantive and procedural law.