On the Issue of Bringing a Controlling Person to Subsidiary Liability for the Obligations of an Inactive Limited Liability Company That Has Ceased Its Activities

Abstract

The article discusses the issues of bringing to subsidiary liability provided for in clause 3.1 Article 3 of the Federal Law “On Limited Liability Companies”, designed from the end of 2018 to provide additional guarantees for the protection of the rights and legitimate interests of creditors in the event of exclusion of the company from the unified state register of legal entities as an inactive legal entity on the basis of an administrative act of the registering authority, bypassing liquidation procedures, in accordance with Article 21.1 of the Federal Law “On State Registration of Legal Entities and Individual Entrepreneurs”. In the work, the authors made an attempt to determine the nature and place of this responsibility in the civil law system, as well as to offer recommendations for unifying the practice of its application. As a result of a comparative legal analysis, the authors of the work came to the conclusion that subsidiary liability is a measure of civil liability for a tort, and the norm enshrined in clause 3.1 Article 3 of the Federal Law “On Limited Liability Companies” is an exception to the general rule on the termination of an obligation by liquidation of a legal entity (Article 419 of the Civil Code of the Russian Federation). Due to the similarity of this liability with subsidiary liability in case of insolvency (bankruptcy), the authors propose to apply by analogy the provisions of the provisions of Chapter III.2 of the Federal Law “On Insolvency (Bankruptcy)” and the clarifications of the Supreme Court of the Russian Federation, enshrined in the Resolution of the Plenum of December 21, 2017 No. 53 “On some issues related to holding persons controlling the debtor liable in bankruptcy”.