RusBankrot
We know everything about bankruptcy
28/04/2024
Sunday
THIS DAY IN HISTORY:
28 April 
1970 World Labor Safety Day
1970 World Labor Safety Day
1970 The Italian dictator Benito Mussollini and his lover, Clara Petacci, were executed
1970 The Italian dictator Benito Mussollini and his lover, Clara Petacci, were executed
1970 The capture of Milan by the troops of Suvorov
1970 The capture of Milan by the troops of Suvorov
28 April
1970 World Labor Safety Day
1970 World Labor Safety Day
1970 The Italian dictator Benito Mussollini and his lover, Clara Petacci, were executed
1970 The Italian dictator Benito Mussollini and his lover, Clara Petacci, were executed
1970 The capture of Milan by the troops of Suvorov
1970 The capture of Milan by the troops of Suvorov
THE FACT OF THE RECOVERY OF FUNDS BY THE COURT DOES NOT INDICATE COMPENSATION FOR DAMAGE
The arbitration manager filed an application to the court to bring the beneficiaries of the debtor organization to subsidiary liability.
The position of the first instance and the appeal
The application was refused by the courts of the first and appellate instances. Arguing its position, the court of first instance was based on the manager's omission of the statute of limitations.
The court of Appeal additionally pointed out that the debt owed to a certain creditor cannot be considered as unconditional proof that the head of the debtor has an obligation to apply to the court for recognition as insolvent.
The position of the District Court
The cassation annulled the judicial acts of lower instances and sent a separate dispute for a new hearing to the court of first instance (Decision of the AC of the North Kazakhstan Region dated December 14, 2023 in case No. A15-5558/16).
Forming its position, the district court presented the following arguments:
Insisting on bringing the defendants to subsidiary liability, the manager pointed to the debtor's transactions recognized by the court as invalid, which, in the opinion of the manager, were the cause of the debtor's bankruptcy.
The status of a member of the company in order to bring a person to subsidiary liability implies the possibility of having a significant impact on the debtor's activities. At the same time, the approval by the participants of a substantially unprofitable transaction in itself is not sufficient to establish his guilt in the inability to repay creditors' claims and bring him to subsidiary liability. The person who initiated the commission of such a transaction and (or) received (potential) benefits from its commission shall be held liable. In this regard, it was also necessary to determine the degree of involvement of each of the defendants in the process of withdrawing the disputed asset of the debtor and their awareness of the significant harm caused by these actions to his creditors, which the courts did not do.
By itself, the fact that the court has recovered funds does not indicate that the named persons have compensated for the damage caused to the debtor.
In addition, it does not follow from the manager's report on his activities available in the case file that the funds recovered as a result of challenging the debtor's transactions entered the bankruptcy estate, therefore, the conclusion of the court of appeal that the funds were returned to the bankruptcy estate is not based on the case materials.
In addition, judicial acts on invalidation of transactions do not contain conclusions about the presence or absence of interest of counterparties in relation to the debtor.
Photo: Freepik
The position of the first instance and the appeal
The application was refused by the courts of the first and appellate instances. Arguing its position, the court of first instance was based on the manager's omission of the statute of limitations.The court of Appeal additionally pointed out that the debt owed to a certain creditor cannot be considered as unconditional proof that the head of the debtor has an obligation to apply to the court for recognition as insolvent.
The position of the District Court
The cassation annulled the judicial acts of lower instances and sent a separate dispute for a new hearing to the court of first instance (Decision of the AC of the North Kazakhstan Region dated December 14, 2023 in case No. A15-5558/16).Forming its position, the district court presented the following arguments:
Insisting on bringing the defendants to subsidiary liability, the manager pointed to the debtor's transactions recognized by the court as invalid, which, in the opinion of the manager, were the cause of the debtor's bankruptcy.
The status of a member of the company in order to bring a person to subsidiary liability implies the possibility of having a significant impact on the debtor's activities. At the same time, the approval by the participants of a substantially unprofitable transaction in itself is not sufficient to establish his guilt in the inability to repay creditors' claims and bring him to subsidiary liability. The person who initiated the commission of such a transaction and (or) received (potential) benefits from its commission shall be held liable. In this regard, it was also necessary to determine the degree of involvement of each of the defendants in the process of withdrawing the disputed asset of the debtor and their awareness of the significant harm caused by these actions to his creditors, which the courts did not do.
By itself, the fact that the court has recovered funds does not indicate that the named persons have compensated for the damage caused to the debtor.
In addition, it does not follow from the manager's report on his activities available in the case file that the funds recovered as a result of challenging the debtor's transactions entered the bankruptcy estate, therefore, the conclusion of the court of appeal that the funds were returned to the bankruptcy estate is not based on the case materials.
In addition, judicial acts on invalidation of transactions do not contain conclusions about the presence or absence of interest of counterparties in relation to the debtor.
Photo: Freepik
20.12.2023
