Disputable aspects of compensating losses and general director’s liability at a legal entity during the ongoing reform of the RF civil legislation

Abstract

This article looks into a universal way of restoring violated rights in corporate relations: compensating losses within the implementatied the provisions of the Article 53.1 of the RF Civil Code . In the period of its active reform in 2014, the Article 53.1 was introduced, which regulates the corporate liability of individual and collective bodies of a legal entity for decision-making. Analyzing the composition of a corporate offense, as well as the criteria for the onset of civil liability, the authors conclude that the assessment nature of the signs of "bad faith" and "unreasonableness,» which in turn cannot be recognized as established for the unambiguous application of these provisions of the law and the formation of uniform judicial practice. The analysis of court practice demonstrates significant difficulties in proving and bringing to corporate liability the general director, other participants who are members of the governing bodies of a legal entity, as well as beneficiaries acting on behalf of the legal entity. Bringing the general director and (or) members of the board of directors to corporate property liability defines their activities as "high-risk" due to the prevalence of the legislator’s evaluative approaches to defining managerial actions as "unfair" and/or "unreasonable." In order to improve legal regulation in the framework of the implementation of the provisions on corporate liability, the authors propose to supplement the signs of "bad faith" and "unreasonableness" with specific examples of the most common corporate offenses for which the liability provided for in the Article 53.1 of the RF Civil Code arises, as well as to refine the general approach in legal regulation by specifying the signs of "unreasonableness," "bad faith" in the context of the ongoing reform of the RF civil legislation. Due to the change in the functional status of the activity of managing and controlling persons of a legal entity as "high-risk," it is proposed to recommend a legal entity to insure its liability to other participants of commercial turnover from the losses caused as a result of illegal actions of responsible persons, to supplement the disposition of the article with a provision of the corresponding content.