THE CASSATION RECALLED THE RULE ON THE DISTRIBUTION OF THE BURDEN OF PROOF

The AC of the Moscow District in early August 2023 issued a Ruling on the insolvency of Stoik Company (No. A40-255719/2020). It was about attracting Alexey Lebedev, the founder and head of the organization since October 2014, to a subsidy in the amount of 242,824,642,05 rubles.

Earlier, the courts of two instances refused the DIA state corporation, which demanded to apply this sanction against the businessman on behalf of the bankrupt Credit-Moscow bank. In February, the Metropolitan Arbitration Court (AS GM) issued a ruling on the refusal to hold Lebedev accountable. In April, his verdict was upheld by the appeal (9th AAC).

The district court took the opposite position, canceling both judicial acts. According to the AC of the Moscow District, in the bankruptcy case, the courts made unsubstantiated conclusions that the organization does not have any assets. The judges reminded the lower instances of the distribution of the burden of proof of the grounds in cases where the persons controlling the bankrupt organization (CDL) refuse or evade their procedural duties.

The reason for the bankruptcy of Stoik was the debt to the Credit-Moscow JSCB as a guarantor under the agreement on opening a credit line for the Titan company, in which the guarantor had a 50% stake. The Stoic Company had no other assets at that time and later.

The contract was concluded in April 2016. In November 2019, by the decision of the Moscow Regional Court, the amount was recovered. This led to the fact that in December 2020, the Stoic Company initiated its own bankruptcy. As the arbitration court noted, for the previous three years, the company had not carried out any transactions and had no receivables.

In April 2022, the insolvency case was terminated. The arbitration did not find the organization's property necessary to continue the process.

However, the cassation, deciding who exactly should prove the absence of grounds for imposing subsidiary liability, drew attention to a special rule (paragraph 2 of Article 61.11 of the Bankruptcy Law). Since Lebedev did not submit to the court documents characterizing the economic activity of the Stoic company for the three years preceding the introduction of surveillance, it was he who had to bear the burden of proof. As a result, the case of recovery of subsidiary liability was sent for a new review.

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