We know everything about bankruptcy
24/04/2024
Wednesday
24 April 
1970 The Hubble Orbital Telescope was launched
1970 The Hubble Orbital Telescope was launched
1970 Namibia became a German colony
1970 Namibia became a German colony
1970 Sparkling water was patented in the United States
1970 Sparkling water was patented in the United States
5 Important Trends of subsidiary liability in bankruptcy
First of all, it is worth noting the points regarding the criteria for bringing to subsidiary liability. Last autumn, two definitions of the Supreme Court of Russia at once contained references to them.
Among the signs that allow satisfying an application for a subsidy liability in relation to a specific person, the following are named:
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materiality of the influence of the defendant on the activities of the debtor;
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the existence of a tangible negative impact on the debtor and its creditors as a result of the defendant exercising his powers;
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proof of participation of the defendant as an initiator, as well as a beneficiary of a substantially unprofitable transaction (it is also possible for the defendant to participate in this jointly with other persons).
Thus, only those whose actions led directly to the insolvency of company, but not any head of debtor by default, can be brought to subsidiary liability (decision of the Supreme Court of the Russian Federation dated 07.10.2021 ¹ 305-ES19-14439 (3-8)).
When considering the issue of bringing to subsidiary liability, the assessment of its size for each of the defendants is an important aspect. In such cases, the highest court considers that the courts should establish the involvement of each specific person in the transactions imputed to him/her by name.
The Supreme Court of the Russian Federation noted that the mere fact of the identity of the positions of several defendants (members of the board, for example) does not mean the same identity of their potential subsidiary liability.
In other words, the highest court encourages colleagues to understand each specific case in detail, establishing the personal influence of the involved entities in determining the scope of their liability to the debtor and creditors (decision of November 17, 2021 ¹ 305-ES17-7124 (6)).
As for the legal entities that can also be defendants in this category of cases, an interesting remark is provided for them. In the event that the court establishes the fact of labor activity of the debtor's employees in other companies, this circumstance cannot become a basis for bringing the legal entities to subsidiary liability for the debts of the bankrupt.
Thus, the fact of employment relationship of the debtor's employees with other organizations is not unambiguously decisive for establishing affiliation and, as a result, subsidiary liability of these persons (decision of MAC dated October 21, 2021, ruling dated January 13, 2022 in case ¹ A40-297262 /2018).
Last spring, the Supreme Court of the Russian Federation considered the important issue of bringing to subsidiary liability in case when several companies concluded surety agreements for a group purpose. At the same time, if we consider the scope of obligations, which are accepted by each individual legal entity, then we may say that they may well exceed its financial capabilities. But the established banking practice often requires such a collective guarantee, and companies do this based on the activities of the entire group, which will allow to repay the debt by means of the joint efforts.
In such situations, the Supreme Court of the Russian Federation urges colleagues not to rush to bring anyone to subsidiary liability, given that the mere existence of such a guarantee does not indicate bad faith or unreasonable behavior of the head of the company (decision of 03/25/2021 No. 310-ES20-18954).
Another interesting definition concerns the possibility of bringing the debtor's managers to subsidiary liability after the company is excluded from the Unified State Register of Legal Entities. It would seem that with the entry of such information in the register, both the activities of the legal entity and all claims against it and its leaders should be terminated. However, the Arbitration Court of the North-Western District expressed a different opinion on this matter. In the event that immediately after the liquidation of the company, its participants transfer all the assets to another newly created legal entity, the court should carefully examine the question of the reasons for such actions for the presence of bad faith. In some cases, there may be grounds for bringing the leaders of a company already excluded from the Unified State Register of Legal Entities to subsidiary liability (ruling of the AC NWD dated October 26, 21 in case ¹ A45-27000 / 2020).
In conclusion, we can say that the jurisprudence has taken a course towards softening approaches to the issues of subsidiary liability for conscientious leaders and managers, introducing criteria for assessing their behavior.
When considering such applications, one should, on the one hand, be guided by a number of signs that allow a positive decision to be made, and, on the other hand, approach each case individually.
As for the statistical data, since 2017 the number of applications for attracting controlling persons to the subsidiary liability has been steadily growing, as well as the total number of positive decisions on such issues. And if in 2017 the number of persons brought to subsidiary liability did not reach one thousand, then in 2020 this figure amounted to more than three thousand. Click here to view the statistics of cases on bringing to subsidiary liability in 2021.
