THE CASSATION RECLASSIFIED THE SUBSIDY INTO LOSSES

THE CASSATION RECLASSIFIED THE SUBSIDY INTO LOSSES

THE CASSATION RECLASSIFIED THE SUBSIDY INTO LOSSES
On December 20, 2022, the arbitration of the North-Western District published a Resolution on the insolvency of the company "Basis". Prior to that, the courts refused to involve Elena Popova and Andrei Selyuzhitsky, who were engaged in the sale of commercial vehicles of the company at low prices, in the subsidiary.

In the complaint filed by the bankruptcy trustee of "Basis", Yulia Lukina referred to the proven facts of commercial contracts that were subsequently invalidated in the bankruptcy process. In addition to restitution, the complaint also contained a demand to recover damages from the defendants who controlled the company's activities on the eve of its bankruptcy. It was this circumstance that the cassation court turned its attention to.

According to the published materials of the court, Elena Popova served as the general director of the company from the end of August 2014 to November 2016. The transactions concluded by her on behalf of the organization brought losses in the amount of more than 1.788 million. After her, the CEO of the company was Andrei Selyuzhitsky, with whom the sale of property continued. Losses from its activities were estimated at 6.6 million rubles.

The District Court drew attention to the erroneous conclusions of two judicial instances. The courts had previously concluded that it was impossible to recover money from the managers and co-owners of the company until the opportunity to execute the verdicts of the courts that invalidated the transactions was finally exhausted. In reality, as the cassation instance pointed out, judges could rely on the general provisions of civil legislation (in particular, Article 53.1 of the Civil Code of the Russian Federation) and recover damages.

The cassation recalled the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 53 of December 21, 2017. It explained that the arbitration is obliged to independently assess each specific case, deciding which sanctions should be applied: contained in the rules on damages (Articles 15 and 393 of the Civil Code of the Russian Federation) or related to subsidiary liability in bankruptcy (Article 61.11 of the relevant law).

As a result, the court ruled that the requirements of the bankruptcy trustee must be reclassified, without relying on the type of responsibility and the rules of law that he used in his complaint. The verdicts of the courts were canceled, and the requested damages were recovered from Popova and Selyuzhitsky.

Photo: Freepik


10.01.2023