SUBSIDIARY AFTER EXCLUSION FROM THE UNIFIED STATE REGISTER OF LEGAL ENTITIES: THE DEFENDANT NEEDS TO JUSTIFY HIMSELF

On February 7, 2023, the Constitutional Court (CC) issued a Resolution (No. 6-P) on the complaint of an individual. It was about checking compliance with the basic law of the country of several legislative norms (including paragraph 1, paragraph 12, Article 61.11 of the bankruptcy Law). And although there were no contradictions with the Constitution of the Russian Federation in the norms themselves, the Constitutional Court explained to the judges exactly how they should be applied.

The law deals with the possibility of collecting subsidiary liability from the debtor's CDL (persons controlling the debtor) in the event that the insolvency was the result of their actions (or omissions). But what to do in cases when there are no funds for conducting judicial procedures, and the organization is liquidated?

This is exactly the situation that happened in the history of citizen Pokul. The company, which owed him a large sum of money (more than 5 million), was excluded from the Unified State Register of Legal Entities, since it did not conduct activities, and there were no funds for its bankruptcy.

The citizen tried to recover subsidiary liability from the CDL, especially since the sole owner and head of the organization was the same person. However, the courts denied the claim, since the plaintiff did not prove the existence of legal grounds.

According to Pokul, such a position in practice may mean that the burden of proof is entirely on the creditor. He has no opportunity to prove anything in a situation when the bankruptcy process is completed (that is, there is no need to hope for the help of an arbitration manager), and the organization itself has been liquidated.

The COP agreed that in such cases, the burden of proof should be distributed in accordance with a different logic, taking into account the resulting procedural inequality. That is, if someone claims that the defendant acted in bad faith (confirming this with judicial acts proving the existence of unfulfilled obligations), and the debtor organization has already been excluded from the Unified State Register of Legal Entities, then it is the court that should assess the possibilities of obtaining information about the debtor's economic activities.

Now the case of citizen Pokul will have to be reviewed by the courts. For creditors, the conclusion of the CS is disappointing. Now they will need to prove themselves that there are no grounds for their involvement in the subsidy. According to experts, this Decision of the Constitutional Court is the second time when this instance is considering the issue of the distribution of the burden of proof between the participants in civil proceedings.

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