Subsidiary Liability of Actually Controlling Persons in Cases of Bankruptcy: Theory and Judicial Practice

Abstract

Currently, the problem of subsidiary liability of controlling persons is complicated by the specifics of the status of persons who are not in legal relations with the debtor, but actually control it. The identification of actually controlling persons is difficult due to the insufficient certainty of the signs of actual control. It is important to note that the degree of certainty of the signs of actual control at the level of legal regulation affects the accuracy of the qualifications of persons as controllers when considering specific court cases. The purpose of this article is to formulate theoretical conclusions on the identification and prosecution of actually controlling persons on the basis of judicial practice. Research objectives: assessment of the legal regulation of subsidiary liability of controlling persons; assessment of situations of actual control; identification of signs of actual control. This article is based on general scientific methods (systemic, functional, a group of logical methods such as deduction, induction, analysis, synthesis) and special legal methods (formal legal, legal modeling method). As a result, it was concluded that the definition of controlling persons includes both persons who are in legal relations with a legal entity (nominal control), and persons who are not in legal relations with a legal entity, but nevertheless have the ability to provide actual the control. Since the signs of actual control are insufficiently defined at the level of legal regulation, problems of subsidiary liability of actually controlling persons arise in judicial practice. It was revealed that the courts qualify actual control due to circumstances that indicate either the exercise of specific powers of the debtor's bodies directly by the actually controlling persons; or that the powers of the debtor's bodies are exercised by nominal controlling persons, but their will is formed by actually controlling persons.