PROLONGED BANKRUPTCY JUSTIFIES TRAVEL BAN FOR CDL

The bank's governor applied to the court for interim measures in the form of a temporary restriction on the controlling person's departure from the Russian Federation pending the execution of a judicial act on a dispute over subsidiary liability (case no. A72-3615/12).

In rejecting the application, the courts of two instances proceeded from the disproportionality of the interim measures claimed, the failure of the managers to provide evidence that the citizen was going to leave the Russian Federation or periodically leaves the Russian Federation, as well as evidence of his possible citizenship of foreign states and property in other countries, as well as the fact that his possible departure from the Russian Federation A citizen can harm creditors, or create prerequisites for concealing previously acquired assets and alienating them.

The cassation granted the application, noting that in this case the debtor's bankruptcy procedure takes a long time (since 2012), creditors have been waiting for their monetary claims to be satisfied for many years, therefore, if the court satisfies the application for subsidiary liability, it is necessary to ensure the timely replenishment of the bankruptcy estate at the expense of subsidiary debtors. Otherwise, the economic sense of bringing the debtor's controlling persons to subsidiary responsibility is lost.

One of the ways to ensure the protection of creditors' rights in such a situation, recognized by the rule of law, is the institution of interim measures, the timely and reasonable application of which removes obstacles to the execution of a court ruling in the future, thereby achieving the goal of justice.

The establishment of a ban on leaving the Russian Federation has the legal nature of interim measures, which also relate to enforcement measures, that is, measures that stimulate the execution of a judicial act. The possibility of temporary restriction of a citizen's right to leave the Russian Federation in case of evasion from fulfilling obligations imposed on him by the court is aimed at protecting constitutionally significant goals and cannot be considered as violating the constitutional rights of the debtor.

In the case under consideration, at the time of filing the application for interim measures and at the time of the ruling by the court of first instance, the citizen had already been found guilty of bringing the bank to bankruptcy, only the question of the final amount of his liability remained unresolved.

When applying for interim measures, the manager pointed out that failure to take them could lead to the departure of a citizen from the Russian Federation, the withdrawal of assets and, as a result, the impossibility of executing a judicial act to recover funds from him in the order of subsidiary liability, which would cause significant damage to the bank and its creditors. 

In refusing to take the requested interim measures, the courts proceeded from the failure of the bankruptcy trustee to provide evidence of a real threat of non-enforcement of the judicial act, in fact, requiring him to confirm with a high degree of reliability that the citizen is committing or preparing to commit acts to conceal property or transfer assets outside the Russian Federation. 

However, the courts did not take into account that interim measures are an expedited and preliminary means of protection, therefore, the rules for proving their grounds are not similar to those used to prove the circumstances of the merits of a court dispute, when the party is required to provide clear and convincing evidence of the circumstances of the case or evidence prevailing over the evidence of the procedural opponent.

    

Photo: Freepik