THE SUPREME COURT CLARIFIED THE CRITERIA FOR RECOGNITION OF THE DEBTOR’S SUPERVISER

At the end of August, the Supreme Court considered an interesting case on bringing persons, who had direct or indirect access to the management of the debtor, to subsidiary liability.

The situation was as follows: after the legal entity was declared bankrupt by the court, its creditor together with the manager declared that the controlling persons would be held liable. Among the usually involved director and participant was named the head of the counterparty company in one person, who was not connected with the debtor in any way.

However, the court of the first instance, on the basis of a set of indirect signs, including close relationship with the head of the bankrupt, as well as the fact that the director of the bankrupt acted as a head in other legal entities, where the second affiliated person held liable was a participant, made a decision to bring them both to subsidiary liability.

Thereafter, the decision was appealed in the court of appeal and in the district court, where the subsidiary responsibility was assigned only to the official leader and participant.

However, the Supreme Court indicated the erroneousness of the position taken, since the presence of a set of indirect signs may become a reason for bringing to responsibility the person who really controls the debtor (definition No. 305-ES20-5422 (1, 2) of August 24, 2020).