THE CASSATION CONSIDERED THE CASE OF THE SUBSIDIARY OF THE HEAD OF THE LIQUIDATED COMPANY

On July 31, 2023, the AC of the North-Western District issued a Ruling on the complaint of Konstantin Gusev, to whom the lower courts denied the claim against Anton Sokolov (case no. A56-82601/2022). The case was about bringing the former CEO of Deasoft to subsidiary liability in the amount of 350,604.14 rubles.

The source of the long-term litigation was the relationship between the company "LainTV" and the company "Deasoft", which was engaged in the development of computer programs (case no. A56-1213/2016). Sokolov was the sole founder and director of the company, which owed more than 133 thousand to LainTV. In June 2017, the arbitration added another 150 thousand to this amount to pay for the legal services of a representative.

In August 2019, LainTV assigned the right to claim 283,826.34 rubles to Konstantin Gusev. In the trial, the replacement of the claimant was also made. Since the money was never paid, in May 2021, about 66,777 rubles were collected from Deasoft as interest for using other people's money and expenses for state duty.

In October 2021, Deasoft was excluded from the Unified State Register of Legal Entities. The basis was false information about Anton Sokolov as the head of the company. The corresponding entry about this appeared in the registry back in April 2020.

Gusev appealed to arbitration with a claim to attract Sokolov to the subsidiary. He considered that it was the unfair actions of the head that led to the exclusion of the organization from the state register of legal entities.

However, the arbitration of St. Petersburg and the Leningrad Region in October 2022 refused the plaintiff, citing the lack of evidence of Sokolov's bad faith. An appeal in February 2023 upheld the court's decision in this case.

Amendments to the Law on Limited Liability Companies (Clause 3.1 of Article 3) concerning the subsidiary liability of the head of a legal entity excluded from the Unified State Register of Legal Entities entered into force only on June 28, 2017. The debt of Deasoft arose back in 2015. The Court considered that the law is not retroactive and cannot be applied to the resolution of this dispute.

However, the AC of the North-Western District, where Gusev complained, judged differently. The cassation drew attention to Sokolov's actions in 2018. It turned out that the entrepreneur transferred his business activities to the company "MVK", where his wife was the head, and he himself was the founder. In October 2018, the company was renamed "Deasoft" along with a change in the main type of activity.

The lower courts were not confused by the fact that the business was transferred to a company with the same brand name and unreasonably demanded proof of Sokolov's dishonesty from Gusev. In addition, Sokolov's explanations about the reasons for the deletion of the organization's record from the Unified State Register of Legal Entities were not heard. The courts limited themselves to formal instructions, but did not investigate the actual circumstances.

Pointing to this, the cassation annulled the acts of the courts. The case on the imposition of subsidiary liability on Sokolov was sent for a new review. At the same time, the judges noted in the Ruling that the plaintiff retains the right to damages provided for in clause 3.1 of Article 3 of the Law on LLC.

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