Subsidiary Liability in the Legislation on Legal Entities: Issues of Legal Regulation and Legal Nature

Abstract

The article deals with theoretical and practical issues of legal regulation of subsidiaryliability in the legislation on legal entities. It is noted that the norms on subsidiary liabilityin the legislation lack a system approach. They do not provide clear answers to a numberof key questions: applying subsidiary liability including the nature and size of claims whichmay be set by creditor for the subsidiary debtor; on the grounds of such claims (illegalbehavior of the principal debtor or a wrongdoing of a subsidiary debtor); the conditionsof lodging a claim and the conditions of meeting such claims; the procedural status ofthe principal debtor and involving it to the action against subsidiary debtor; confirmingthe lack of property or money as to the principal debtor as a condition of meeting claimstowards the subsidiary debtor; the nature and size of regressive claims of the subsidiarydebtor against the principal one; the grounds of changing or terminating subsidiaryliability etc. The legislation on legal persons does not contain general provisions onsubsidiary liability in corporate relations. However, in the legislation on legal persons thisinstitute is mentioned frequently. Unfortunately, the current decision of the RF SupremeCourt Plenum lacks the provisions about applying the legislation on subsidiary liability.The court practice is not developed. Besides, it is often inconsistent and controversialone. Due to this, the paper studies separate most significant issues of subsidiary liabilityin the legislation on legal persons. An analysis of these issues draws conclusions aboutdiversity of subsidiary liability, which essentially includes three completely different legaleffects: (1) one of the types of obligations with plurality of persons; (2) a special devicefor securing the performance of obligations; (3) a kind of civil liability. The article gives ageneral description of each of these types of subsidiary liability. It concludes emphasizingthe need to separate the legal regulation of these types of subsidiary liability in the RussianCivil Code and the legislation on legal entities.