Subsidiary Liability Research Articles

О возможности признания публично-правовых образований и лиц, выступающих по их специальному поручению, контролирующими должника и привлечении их к субсидиарной ответственности

One of the central legal concepts of insolvency (bankruptcy) as a complex branch of legislation in Russia is the so-called “controlling debtor”, which appears in disputes on bringing to subsidiary liability in bankruptcy proceedings. Traditionally, legal science and judicial practice consider as such individuals and legal entities that may determine the debtor’s behavior by virtue of legal or actual affiliation with the debtor. However, public-law entities and persons acting on their special instructions in the debtor’s management bodies escape from the field of view of doctrine and practice. In this connection, the authors in this article analyze the possibility of bringing public-law entities and persons acting on their special instructions to subsidiary liability within the framework of the Federal Law “On Insolvency (Bankruptcy)”. In the course of the study, the authors come to the conclusion that it is necessary to distinguish between subsidiary liability of public legal entities and persons acting on special instructions in the debtor’s management bodies. on special assignment in the debtor’s management bodies. In addition, the authors give a negative assessment of the possibility of bringing to subsidiary liability persons acting in the management bodies of the debtor by special order and on behalf of publiclaw entities, since there is no guilt - one of the mandatory elements of the offense. The relevance of the article consists in revealing the peculiarities of bringing to subsidiary liability of persons acting on special assignment on behalf of public-law entities.

Division and spin-off as legal forms of disaggregation of economic organizations

The article highlights the issues of division and spin-off as legal forms of disaggregation of economic organisations, provides legal regulation of these forms in Ukraine, the EU, foreign countries (Germany, Poland) and the relevant analysis of court practice. The author identifies the general (common) features of division and spin-off of economic organisations according to the following criteria: subject composition, purpose, legal form of disaggregation, basis for legal relations; documentation of property transfer, rights and obligations; universal legal succession; and subsidiary liability. The author distinguishes special (distinctive) features of division and spin-off of economic entities according to the following criteria: legal result; legal consequences; and the moment of procedure completion. It is substantiated that it is advisable to regulate the basic concepts and essential characteristics of disaggregation of economic organisations by means of division and spin-off in the Commercial Code of Ukraine or, in the future, in the Economic Code of Ukraine. In this regard, the author provides the wording of the relevant definitions of division and spin-off, which is proposed to be enshrined in parts 4 and 5 of Article 59¹ ‘Termination of an Economic Organization by Reorganisation’. It is found that the analysis of court practice regarding the essence of reorganisation in the form of spin-off shows a difference in approaches, which are fundamentally opposite in nature, when: (1) spin-off is not recognised as a type of termination or reorganisation of a legal entity; (2) spin-off is defined as a form of reorganisation of a legal entity. The author proves that such ambiguity of court practice affects the consideration of a case on the merits, in particular, when changing the subject composition in land lease agreements in the event of a lessee's reorganisation by way of spin-off. The author proposes, taking into account the legislation of foreign countries (Germany and Poland) and EU law, to introduce the following legal forms and constructions into the current legislation of Ukraine: (1) ‘division by acquisition’ (simultaneous use of the forms of division and accession), (2) ‘spin-off by acquisition’ (simultaneous use of the forms of spin-off and accession); (3) ‘separation’ (for JSC, LLC, ALC) - by the formation of a new company and by acquisition.

Институт субсидиарной ответственности в делах о несостоятельности (банкротстве)

This article is devoted to the study of the institution of subsidiary liability in insolvency (bankruptcy) cases with a comparison with the general principles of civil liability in domestic law, identifying similarities and differences taking into account law enforcement and judicial practice. The conclusion is stated that subsidiary liability in bankruptcy law currently has the features of an independent type of liability, for which a corresponding justification is given.

Доказывание добросовестности как способ защиты контролирующего должника лица от привлечения к субсидиарной ответственности

The article analyzes the protection of persons controlling the debtor from subsidiary liability for the debts of an insolvent organization by proving their good faith. The article explores the challenges faced by individuals held liable in demonstrating the good faith of their actions, depending on the grounds for such liability. It examines current judicial practices and academic sources on the subject. The issue of the fair distribution of the burden of proof regarding good faith in cases involving subsidiary liability is considered. Conclusion dwells upon the fact that it is necessary to introduce into the current bankruptcy legislation a standard for proving the good faith of controlling persons, including specific means of proof, which will bring legal certainty to the resolution of disputes about bringing to subsidiary liability and will allow the formation of sustainable judicial practice.

Конкуренция требований налогового органа и конкурсных кредиторов к взаимозависимому с несостоятельным налогоплательщиком лицу

The article deals with the situation of competition in the practice of arbitration courts of the tax authority's claim for the recovery of arrears, presented simultaneously to the person controlling the debtor in a separate dispute on bringing to subsidiary liability in a bankruptcy case of a taxpayer in the manner of Chapter 3.2. of the Bankruptcy Law, and claims against the same person as an interdependent with an insolvent taxpayer in a separate claim proceeding, on the basis of paragraph 1, paragraph 3, Article 45 of the Tax Code of the Russian Federation. The author believes that in the situation under consideration there is an identity of claims, as a result of which the rights of other creditors of the debtor who are not involved in the distribution of funds received by the tax authority from the controlling debtor bypassing the competitive procedure are violated.

Jurisdiction of Russian Courts over Cases on Subsidiary Liability

Jurisdiction of Russian Courts over Cases on Subsidiary Liability

Special Aspects of and the Procedure for Bringing the Debtor’s Manager to Subsidiary Liability in Case of Bankruptcy

Special Aspects of and the Procedure for Bringing the Debtor’s Manager to Subsidiary Liability in Case of Bankruptcy

O‘ZBEKISTON RESPUBLIKASI FUQAROLIK HUQUQIDA SUBSIDIAR JAVOBGARLIK MASALALARI

This article provides a comprehensive analysis of the concept of subsidiary liability and its significance in legal systems. Subsidiary liability mainly ensures the creditor’s ability to address an additional liable person if the primary debtor fails to fulfill their obligations. This mechanism is aimed at protecting the rights of the creditor and ensuring fairness between the debtors. The article provides a detailed description of the legal foundations of subsidiary liability, its emergence and development, as well as its specific features in various legal systems. The Civil Code of the Republic of Uzbekistan clearly defines the legal basis of subsidiary liability and specifies the procedure for lodging a claim by the creditor against the main debtor. The article analyzes the role and significance of subsidiary liability in regulating relations between creditors and debtors. The international experience of subsidiary liability and the significance of this mechanism on a global scale were also studied by comparing it with legal systems in different countries. Detailed information is provided on how subsidiary liability is applied in various legal systems and legal practices in this regard. The role of subsidiary liability in the legislation of the Republic of Uzbekistan and its practical application are also discussed

Capitalized payments in the amount of subsidiary liability of persons controlling the debtor for the legal entity's obligations

Capitalized payments in the amount of subsidiary liability of persons controlling the debtor for the legal entity's obligations

Current Tasks and Issues of Judicial Financial and Economic Examination in Bankruptcy Cases in Criminal and Arbitration Proceedings

The author examines current issues of the appointment and production of judicial financial and economic examinations in bankruptcy cases. The article provides statistics on the consideration of bankruptcy cases in the Russian Federation, considers data on the initiation of criminal cases, appeals to the court to declare the debtor bankrupt, as well as other cases (challenging transactions in bankruptcy, bringing persons controlling the debtor to subsidiary liability). The conceptual apparatus of the judicial financial and economic examination in bankruptcy cases is considered, the goals are defined, the concepts of the task of the judicial financial and economic examination in bankruptcy cases are revealed, a list of questions is developed and justified for each specific task. The general tasks of forensic economic examinations are defined, as well as typical tasks related to financial and economic examination in bankruptcy cases. A list of questions for the following expert tasks has been developed and justified: study of the financial condition of the organization, study of the solvency and financial stability of the organization and the impact of individual operations on it, study of the organization and the impact of individual operations on it, identifying the presence (absence) of signs of deliberate and fictitious bankruptcy, identifying the presence (absence of) signs of deliberate and fictitious bankruptcy of the organization. The article discusses issues of competence of an expert in bankruptcy cases, distinguishes between issues of forensic accounting and financial and economic examination in bankruptcy cases. Recommendations for formulating questions before an expert economist in bankruptcy cases have been systematized. Typical errors in formulating questions to an expert are considered, and the inadmissibility of raising legal questions to an expert, as well as questions related to the assessment of the actions of officials, is noted.

Insolvency (Bankruptcy) Procedure: Quo Vadis?

The paper examines the conceptual role of the insolvency (bankruptcy) procedure and the emerging trend towards the dominance of this legal mechanism over other (basic) legal categories. Three key categories are given as examples: the institute of non-interference in private affairs, which in the opposite case is transformed into intervention; the institute of limited liability of the founder (participant) and their legal entity, which presupposes a clear separation of the property masses of these subjects; and the institute of limitation period. It is proved that the bankruptcy procedure modifies the perception of the mentioned categories. Intervention becomes acceptable, which finds expression, for example, in the admissibility of challenging transactions and analyzing the debtor’s economic activities. The boundaries of the assets of a legal entity and an individual are blurred out in the context of the institution of subsidiary liability in bankruptcy. Only the statute of limitations, due to current court practice, is still subject to fewer changes, which are nevertheless present.The author concludes that it is unacceptable to consider the institution of bankruptcy as an instrument of unlimited suppression of other legal structures in favor of the interests of the creditor community. An attempt has been made to demonstrate that the legal essence of the institution of insolvency is much broader than is commonly believed. This, in turn, explains the inadmissibility and danger of perceiving bankruptcy proceedings as a kind of «sacred» legal phenomenon.

Субсидиарная ответственность в гражданском праве: ответственность или обязательство?: дискуссионные вопросы

Введение: Активная деятельность по рассмотрению сущности и определению содержания субсидиарной ответственности в российском гражданском праве началась ещё во второй половине 1990-х гг. Цель: рассмотреть дискуссионные вопросы относительно гражданско-правовой сущности субсидиарной ответственности (что она представляет собой: ответственность или обязательство?). Методологическая основа: правовой анализ понятия «субсидиарная ответственность», совокупность диалектического, системного и структурно-функционального методов исследования, а также логический и юридический подход. Результаты: аргументирована авторская позиция относительно сущности субсидиарной ответственности в контексте современного российского гражданского права. Выводы: субсидиарная ответственность – это субъективно обусловленная, установленная законом, иными правовыми актами или условиями обязательственного правоотношения обязанность (необходимость) третьего лица в плане осознанного и добровольного обеспечения удовлетворения требований (претензий) кредитора в случае отказа или невозможности исполнения должником взятых (возложенных) на себя в отношении него [кредитора] обязательств.

Роль экспертизы в спорах о привлечении контролирующих лиц к субсидиарной ответственности

The article analyzes the legal problems associated with the use of expertise in disputes on bringing controlling persons to subsidiary liability.

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

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”.

Regime de grupo corporativo na Colômbia: comparação da responsabilidade subsidiária na Coreia do Sul e no Japão

This paper develops a comparative law exercise between the legal systems of Colombia, South Korea and Japan in relation to the regulation of corporate groups, for which the research object of this paper focuses on the legal problem of whether the current Colombian regulation on subsidiary liability favours the parent companies over the controlled companies in the event of insolvency of the latter. To this end, the concept of business groups, Chaebol and Keiretsu is explored in order to delimit the object of research and determine their main similarities, such as control, the search for common objectives and a hierarchical structure, as well as their differences, such as the cross-shareholding schemes of the Chaebol and Keiretsu, and the influence of family structures in decision-making; Finally, subsidiary liability is addressed, where, based on the regulation of business groups in Colombia, the Chaebols in South Korea and the Keiretsu in Japan, it is observed that Colombian legislation is much more restrictive in terms of business groups than the regulations in South Korea and Japan.

Subsidiary liability of controlling persons for obligations of a company excluded from the Unified State Register of Legal Entities

The paper examines the issues of bringing controlling persons to subsidiary liability for the obligations of a company excluded from the Unified State Register of Legal Entities. The article determines the judicial procedure for holding controlling persons accountable for claims of creditors. It analyzes the provisions of Russian legislation and judicial practice regarding the grounds for prosecution under paragraph 3.1 Article 3 of the Law on Limited Liability Companies.The research reveals the effect of this rule of law over time and it essence, which excludes the use of the construction of limited liability of participants in a business company. An overview of the legal positions of the Constitutional Court of the Russian Federation on the issues under consideration including the circle of responsible persons, distribution of burden and circumstances of evidence is provided. The paper distinguishes characteristics of good faith and reasonable behavior of creditors and controlling persons as well as legal presumptions corresponding to the circumstance of the case. The conclusion is formulated on the recognition of subsidiary liability by inheritance of debts of a corporate organization. The paper investigates the competence of the court considering disputes on bringing to subsidiary liability of persons controlling a corporation and distinguishes between the corporate (under the general rules of litigation) and bankruptcy (under the rules of class action) proceedings. The characteristics of the powers of creditors acting in the interests of their civil law community are given. The research allows to ensure uniformity of judicial practice at interpreting the applicable rules of law.

Корпоративные долги наследодателя

The article is dedicated to the study of the issue of bringing heirs of parties to corporate relations to liability. The author performs a systemic analysis of the relevant judicial practice to single out the main forms of the testator’s liability under corporate obligations and study special aspects of debt transfer to heirs by way of universal succession. Testator’s corporate debts are reviewed from three key standpoints: 1. obligations of the testator as a corporation member; 2. obligations of the testator as the corporation leader; 3. obligations of the testator as a surety on transactions of the corporation. The author proves that the liability of heirs under testator’s obligations can go beyond the limits established by Art. 1175 of the Civil Code of the Russian Federation. Thus, in certain cases, heirs (including minors) can be brought to the subsidiary liability under testator’s debts. Consequently, creditors’ claims can be satisfi ed by using personal property of heirs.

Grounds for bringing persons controlling the debtor to subsidiary liability in a bankruptcy case

Grounds for bringing persons controlling the debtor to subsidiary liability in a bankruptcy case

Concession contracts: analysis of the subsidiary liability of the public administration for labor debts

Management and concession contracts, of which public-private partnerships are a type, have become the most dynamic form of state action in the economy. Given the trends of today's capitalism and the official public policy announced, they should multiply, in line with the announced Growth Acceleration Program (PAC) 2023. It is expected that, in the event of default by employers, it will be inevitable to ask, in court, whether the state can be held jointly or severally liable for labor debts. Therefore, the aim of this article is to verify the extent to which public administration liability occurs in concession contracts. The methodology applied is based on the deductive method and the research is qualitative in nature, with the data source based on documentary, bibliographical and case law research. It should be noted that the majority of case law recognizes that the public administration is subsidiarily liable for the debts of so-called "management contracts", a reasoning that should be extended to the labor debts of concessionaires, including in public-private partnerships.

Actual Problems of the Application of Bankruptcy Legislation in Courts of General Jurisdiction

The study seems relevant because there is no uniform practice for certain categories of disputes related to the bankruptcy of individuals. The main purpose of this scientific article is to determine the features and current state of consideration of the analyzed category of disputes, identify current problems, and develop proposals for their resolution. The achievement of this goal is realized mainly through the solution of such tasks as the study of current legislation, the practice of the Supreme Court of the Russian Federation, the established judicial practice of courts of general jurisdiction, as well as arbitration courts. On the basis of general scientific and private scientific (comparative legal, technical-legal, formal-logical) methods used in this study, judicial conflicts and practice were analyzed, issues requiring legal solutions were identified, measures aimed at improving the current legislation were proposed. As a result, it will become obvious that the main issues on which such disputes arise are procedural in nature. The results of the study indicate the need to detail the legal norms on the jurisdiction of cases in the division of jointly acquired property of spouses, one of whom is bankrupt; jurisdiction of cases related to non-competitive contesting of transactions; jurisdiction of cases involving subsidiary liability when an organization is excluded from the Unified State Register of Legal Entities administratively.