Supreme Court of Russia refused to attract the director to the subsidiary liability due to the confusion with timing

Supreme Court of Russia considered the case on the complaint of the former director and participant of the debtor on bringing him to the subsidy.  The corresponding claim was filed by the manager, who indicated the director’s inaction, which was expressed in the failure to file a bankruptcy petition.

The court of first instance dismissed the claim, the appeal and the district, on the contrary, sided with the applicant, and the Supreme Court of Russia supported the judge of the first instance, indicating that it was not correct to equate the timing of the occurrence and fulfillment of obligations.

The manager's arguments were based on the fact that before the debtor filed for bankruptcy, the latter had already had the signs of insolvency. They, in particular, were expressed by the fact of presence of two arrears under the decisions of the arbitration court. The court orders were issued prior to the initiation of the bankruptcy case.

According to the court of first instance, during the disputed period, the debtor had not yet had the signs of insolvency, which in turn indicated the impossibility of bringing his director to subsidiary liability.

The next two instances, on the contrary, considered the manager's arguments convincing, pointing out that during the disputed period, two judicial acts were issued on the collection of a large amount of debt, and the director should had filed for bankruptcy during this period.

However, the Supreme Court of Russia supported the position of the judge of the court of first instance, indicating that the obligations on which the judicial acts issued against the debtor were based had arisen long ago, and the debtor was much earlier aware of the need to fulfill them.

Thus, the highest court reminded that it is incorrect to equate the term of occurrence and the term of performance of the obligation, and at the time of the occurrence of the obligation, the company did not yet meet the signs of insolvency (decision № 305-ES21-7572 of August 23, 2021 in case № A40-6179 / 2018).