SUBSIDIARY LIABILITY MAY BE LIMITED BY A CORPORATE AGREEMENT

By the courts in the framework of the bankruptcy case (No. A40-214997/18), the bankruptcy trustee filed an application for bringing the beneficiaries to subsidiary liability for the debtor's obligations. Based on the results of the consideration of the claim by the court of first instance, the application was partially satisfied.

The judicial act was left unchanged by the higher courts. Disagreeing with the definition and decisions of the appeal and cassation, the founder filed a complaint with the Supreme Court of the Russian Federation.

In substantiation of the complaint, the cassator pointed to the fact that despite the size of her participation in the debtors (more than 39%), she was not a controlling person due to the provisions of the corporate agreement.

Thus, according to the terms of the contract, her competence was limited only to scientific activities, and she did not have any rights and preferences that would allow her to influence and/or otherwise determine the actions of the debtor.

The cassator drew special attention to the fact that the courts correctly established the circumstances of making unprofitable transactions on behalf of the debtor: all of them were made by the general director and the debtor's supervisor during the relevant period, while her signature is not available in any of the contracts.

The Supreme court agreed that these arguments deserve attention, which is why the case, together with the complaint, was transferred for consideration at the court session of the Board of Economic Disputes, the court session is scheduled for August 11, 2022.

 

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