Subsidiary Liability Research Articles

Responsibility of states for the obligations of legal entities exercising public authority in the order of delegation

The relevance of the research topic is due to the large-scale administrative reform in the Russian Federation, one of the trends of which was the delegation of public authority to legal entities. In such conditions, it is of particular importance to study the issues of civil liability of public authorities, the restorative nature of which can be used to increase the guarantees of the rights and legitimate interests of citizens and legal entities acting as a “subordinate” party in power relations.The paper criticizes the tendency to abandon the subsidiary liability of public legal entities for the obligations of created legal entities. The existence of such responsibility, according to the authors, is due to the preservation of organizational and functional ties between the subjects under consideration. The necessity of expanding the scope of Article 1069 of the Civil Code by extending it to persons exercising public authority in the order of delegation is argued; proposals are made for the use of the institute of liability insurance.

К вопросу об определении контролирующих лиц должника

This article is devoted to the analysis of such an institution of insolvency (bankruptcy) legislation as subsidiary liability of the controlling persons of the debtor.

General provisions of bringing state institutions of the Federal Penitentiary Service of Russia to subsidiary liability

General provisions of bringing state institutions of the Federal Penitentiary Service of Russia to subsidiary liability

Origin of Subsidiary Liability for the Debts of an Insolvent Legal Entity

Origin of Subsidiary Liability for the Debts of an Insolvent Legal Entity

On the issue of bringing to subsidiary liability the persons controlling the debtor in bankruptcy

On the issue of bringing to subsidiary liability the persons controlling the debtor in bankruptcy

On the issue of subsidiary liability of members of non-profit organizations

On the issue of subsidiary liability of members of non-profit organizations

Similarities and Differences of Approaches to the Legal Regulation of Subsidiary Liability of Persons Controlling the Debtor in Russian and Foreign Law

The paper constitutes a comparative legal study of some aspects of subsidiary liability of persons controlling the debtor and its foreign counterparts. Taking into account the experience of foreign countries in the regulation of these relations, the author draws parallels between different approaches to this legal phenomenon using foreign literature and judicial practice. The key aspect of the problem of liability of persons controlling the debtor is the existence of two opposite legal principles: organizational and property isolation of a legal entity and inadmissibility of abuse of the right. Bringing the persons controlling the debtor to subsidiary liability makes it possible to erase the boundaries of isolation of a legal entity and to identify its property with the property of its controlling persons for the purpose of satisfying the creditors’ claims. Thus, creditors of a legal entity have the opportunity to restore the violated right at the expense of the property of a de facto third party that is not a party to the original obligations. In foreign legal orders, the study of this ratio takes place over a long period. During this time, a certain theoretical understanding was formed, as well as law enforcement practice in this area.

PROSPECTIVE DIRECTIONS OF IMPROVEMENT OF CIVIL LIABILITY

The article is devoted to the study of such an important area of civil law as civil liability. The scientific article examines the definition of "civil liability". It is emphasized that civil liability consists of many aspects, including a sanction, a new obligation, the replacement of an unfulfilled obligation with a new one, and so on. It is supported the position that the application of civil liability is voluntary, but the possibility of using jurisdictional forms of liability is not excluded. The authors of the article agree with the approach proposed in the doctrine on the expediency of the transition to the so-called behavioral concept of guilt. The importance of the theoretical demarcation of the institution of ensuring the fulfillment of obligations and measures of civil liability is emphasized. The possibility of simultaneous application of different forms of civil liability is allowed.
 It is argued that it is appropriate to change the approach to determining and compensating of non-pecuniary damage. It is needed because compensation for non-pecuniary damage depends on the violation of a person's civil right, and not on the envisaged possibility of compensation for non-pecuniary damage in law or contract.
 The authors of the article positively perceive the position on the need for consolidate the provisions on the civil nature of the liability of officials of corporations. It is focused on the need to consolidate the subsidiary liability of members of limited liability companies in the event of bringing the failure through their fault.
 The position to the prospects of further scientific research in the field of responsibility of autonomous robots and artificial intelligence is expressed.
 It is concluded that due to the multi-vector nature of the concept of "civil liability" there is a need for further meticulous attention of the scientific community to the institution of private liability. In particular, it is necessary to develop qualitative criteria for distinguishing between the institution of abuse of subjective civil rights and the institution of civil liability; research of the peculiarities of the responsibility of such legal entities as owners of significant participation in corporations, supervisors of banking groups and other specific entities, etc.

Возложение субсидиарной ответственности на наследников контролирующего должника лица

Inheritance relationships have always been a challenging private law sphere. The problems concerning inheritance of debts have lately added to the discrepancies related to the regulation of these relationships. Such situation is caused by the introduction of some novelties in Russian laws and the adoption of key judicial acts by the Supreme Court of the Russian Federation and other judicial authorities. One of such novelties is inheritance of a debt arising out of subsidiary liability of parties controlling the debtor in the course of a bankruptcy procedure. The Supreme Court of the Russian Federation has actually broadened the range of subjects that may be brought to subsidiary liability. The court has established that upon acceptance of property by heirs of the parties controlling a debtor, they also inherit the testator's debt to the creditors of the bankrupt legal entity under the testator's control (by virtue of the interpretation of the legal nature of subsidiary liability by the Supreme Court of the Russian Federation). It causes a number of questions concerning right protection means, violation of creditors' rights by minors, limits of acknowledgment of a citizen as a party controlling a debtor, etc. One of the key actions within the framework of inheritance relationships in the notarial practice is not only determination of the range of heirs, but also identification of the testator's property and assurance of its safety. The mentioned position of the Supreme Court of the Russian Federation establishes the amount of subsidiary liability as an estate part (broadly speaking, property), which may raise a number of problems in notarial activities.

LEGAL CONNECTION OF THE ORGANIZATIONAL AND LEGAL FORM OF A LEGAL ENTITY WITH THE PECULIARITIES OF ITS CIVIL LIABILITY

The article analyzes a number of problematic issues related to the mechanism of application of civil liability to legal entities of private law in modern civil law. Particular attention is paid to the emergence and legal regulation of subsidiary liability, the possibility and procedure for filing recourse claims against the person guilty of the offense. The author draws attention to the presence of a number of problems in the practical implementation of the rules on subsidiary civil liability of legal entities and the rules governing the institution of recourse. The opinion is expressed on the expediency of bringing the rules of subsidiary liability of members of a production cooperative with the liability of members of a limited liability company, so it is necessary to agree on the liability of members of a production cooperative of the same type. It is concluded that the enshrinement in the legislation of special rules governing the recourse procedure for the protection of civil rights, would solve the situation. The author points out the important negative consequences of the lack of legislation and doctrine of a clear vision of the legal nature of corporate responsibility, its main features and relationship with other types of civil liability (contractual and tort). A general description of the practical difficulties in applying the rules of subsidiary liability is given. It is stated that the independence of civil liability of business associations is limited by a number of cases when the obligations of the company are also the responsibility of its members (founders). It is argued that in relation to non-profit companies, the legislator consistently adheres to the concept of this type of legal entities, and does not provide for the possibility of acquiring ownership of the company’s property, and therefore there is no corporate liability of non-profit companies and their members.

ON THE INEXTRICABLE LINK BETWEEN THE PERSONALITY OF THE PARTICIPANT AND THE SOCIETY ON THE EXAMPLE OF LAW ENFORCEMENT PRACTICE ON BRINGING THE DEBTOR'S CONTROLLING PERSONS TO SUBSIDIARY LIABILITY

The purpose of the research. Bankruptcy proceedings increasingly involve not only controlling persons but also members of their families. The reason for this is the conflict of interests of the family and creditors. The development of bankruptcy legislation leads to a reduction in the possibilities of preserving the property of family members from collection under the obligations of the controlling person of the debtor. Until recently, one of these methods was the alienation of property in favor of a minor, which undoubtedly led to a violation of creditors' interests. The need to protect creditors' interests gave rise to new specific forms of lawmaking by the higher courts, in particular, bringing the children of the controlling debtor to responsibility. This decision seems to be controversial. This is the exhaustion of the theory of independent legal personality of a legal entity and the lack of a theoretical justification for the implementation of entrepreneurial activities of citizens in the form of participation (membership) in a legal entity. The article aims to identify sources of legal uncertainty in bringing the children of the controlling debtor to respond within bankruptcy procedures. The article analyzes the judicial practice in cases of bringing family members of a controlling debtor, including children, as controlling beneficiaries, to subsidiary liability for society's obligations through the prism of the conscientiousness of the exercise of parental rights and the conscientiousness of a minor. Results. It is proposed to introduce into legislation two presumptions: a refutable presumption of the conscientiousness of a parent and an irrefutable presumption of a child's good faith as a tool to save a minor from civil death through the fault of the parents.

Public administration of the process of autonomy of medical institutions in the context of health care reform

The main mechanisms of state management of the process of autonomy in the field of health care are considered in the article; the legislative provision of autonomy of medical institutions in Ukraine is investigated; the mechanism of transformation of CHC from a budgetary institution into a municipal non-profit enterprise is considered; an analysis of the financing of the health care system of Ukraine was conducted; directions of improvement of the state management of process of autonomy of medical establishments in the conditions of reforming of system of public health services are developed. Proposals for improving public administration in the process of autonomy of medical institutions are formed in three areas: improving public administration in the organizational and legal direction; improvement of public administration in the direction of personnel policy of autonomous medical institutions; improvement of public administration in the direction of resource provision through the introduction of public-private partnership. In the organizational and legal direction, a model of state management of the process of autonomy of medical institutions has been developed, the main stakeholders of the process and their role at each stage of autonomy have been identified. In the direction of personnel policy, changes and updated requirements for the management and medical staff of health care facilities have been identified. The main vectors of professional development of medical staff have been formed, which are a mandatory requirement in the conditions of reforming the medical sector. In the context of health care reform and the autonomy of medical institutions, cooperation between state and municipal medical institutions and business is important. The current practice of interaction between the state and business is reviewed, forms of cooperation with different degrees of private sector involvement are proposed. The state partner bears subsidiary liability for the obligations of such enterprise or business company in accordance with the agreement concluded within the framework of public-private partnership.

EXECUTION OF A JUDICIAL ACT ON BRINGING PERSONS CONTROLLING THE DEBTOR TO SUBSIDIARY LIABILITY

This article deals with the problems of execution of judicial acts on bringing persons controlling the debtor to subsidiary liability in a bankruptcy case. The conducted research indicate the need for improvement of the enforcement of the law. The author comes to the conclusion that the effectiveness of restoring the violated rights of creditors by bringing to subsidiary responsibility the persons controlling the debtor can be realized by ensuring the enforcement of the relevant judicial act.

Взыскание задолженности с учредителя (учредителей) некоммерческой организации

The article discusses the types of debt of non-profit organizations. Judicial practice of debt collection of non-profit organization from its founder (founders) is analyzed. The provision according to which from the founder (founders) of the non-profit organizations it is possible to collect judicially only accounts payable is proved: debt for goods or services; for the issued bills; debt on payments in the budget and off-budget payments; for compensation; for the received advances. The conclusion is substantiated that it is possible to recover the debt from the founder (founders) of a non-profit organization only with subsidiary (additional) liability provided for in some forms of non-profit organizations: in private institutions, associations and consumer cooperatives. It is proved that in other forms of non-profit organizations to collect the debt from its founder (founders) is not provided by law.

General And Limited Partnerships: Features Of Legal Regulation In Ukraine And European States

The article focuses on one of the corporate forms of entrepreneurial activity - general and limited partnerships. Limited liability companies and joint stock companies are among the most popular legal forms of companies. However, the development of Ukrainian legislation moves in the direction of creating a system of different forms of entrepreneurship, which are aimed at different needs and interests of their founders. Such forms of entrepreneurship exist and operate successfully in Europe. Carrying out a comparative analysis in the article allows the author to confirm the existing thesis that there is no single vector in European countries concerning the legal status of these partnerships. Some states define these partnerships as legal entities, others - as a form of joint business activity.
 It is emphasized in the article that the European legal space is characterized by the use of the concept of defective legal entity. The author perceives any of these European approaches, but points to the need for its consistent reflection in all legal acts that determine the status of general and limited partnerships. The article supports the assertion formed in the scientific literature about the criticism of domestic legislation on general and limited partnerships. Such criticism concerns to those norms of Ukrainian legislation, which use untypical provisions for legal entities. All existing researches are directed to one aim - to develop a single vector in the regulation of general and limited partnerships. They should be regulated either as legal entities or as forms of joint activity on the basis of an agreement.
 The author states that the main attention in granting general and limited partnerships the status of a legal entity should be focused on clear boundaries between the liability of a legal entity and the subsidiary liability of its members.
 The article supports leading scholars’ critical assessment of the legislative definition of general partnerships as an association of persons for joint business activities. Based on the analysis of the definitions of a general partnership in EU law (for example, France), it is proposed to define a general partnership as an association of persons engaged in business activities through joint contributions of all participants (full partners) and their subsidiary liability for the company’s obligations. This wording indicates that the partnership itself carries out business activities, and not its members.
 The author also does not deny the possibility of introducing general and limited partnerships as associations of persons on the basis of an agreement on joint activities. At the same time, it is noted that all norms of national legislation should consistently adhere to such concept.

Руководитель и иные контролирующие должника лица как субъекты субсидиарной ответственности в процессе банкротства: понятие и квалифицирующие признаки

The article is devoted to the study of the procedure existing in domestic practice for the application of subsidiary liability of supervisory authorities for the debtor's debts, namely, the determination of persons who control the debtor. The authors dwell on the signs of a controlling debtor, analyze judicial practice and the position of the Federal Tax Service of the Russian Federation on bringing such persons to subsidiary liability. In addition, the article discusses rebuttable presumptions that will facilitate proving that a person has the status of a controller. Also, in order to eliminate the collision identified in the clarifications of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 53, the authors propose a new presentation of par. 3 clause 7 of the said Resolution.

Subsidiary liability of members of management bodies in case of administrative exclusion of an organization from the Unified State Register of Legal Entities

SUBSIDIARYLIABILITYOFMEMBERSOFMANAGEMENTBODIESINCASEOF ADMINISTRATIVEEXCLUSIONOFANORGANIZATIONFROMTHEUNIFIEDSTATE REGISTEROFLEGALENTITIES The article is devoted to the possibility of bringing controlling persons to subsidiary liability, established in the legislation on limited liability companies, in the event that the company is excluded from the Unified State Register of Legal Entities in an administrative manner by decision of the registering authority. The paper analyzes the current positions of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation, as well as the Constitutional Court of the Russian Federation in order to identify problems in the application of the institution of bringing to subsidiary liability of persons controlling a company excluded from the Unified State Register of Legal Entities.

Neposredna odgovornost proizvođača za nesaobraznost proizvoda u evropskom i srpskom pravu

According to the Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees the seller is solely responsible for non-conformity. The majority opinion was that there was no need to establish producer's direct liability by the legislation of the EU. However, due to its minimalistic legislative approach, the Directive enables Member states to maintain or introduce more stringent rules in order to achieve higher level of consumer protection, including rules on producer's direct liability for non-conformity. A relatively smaller number of member states used this opportunity to maintain or introduce regulation on producer's direct (or subsidiary) liability for non-conformity. Producer's direct liability is not envisaged by the new Directive (EU) 2019/771 either. In the Serbian law the Consumer Protection Act from 2010 envisaged producer's subsidiary liability for non-conformity. The Act from 2014 replaced this with the rule on the seller's right to claim redress from the producer in the distribution chain for the obligations performed towards the consumers on the grounds of non-conformity. This approach is supported in the new Act from 2021. The lack of the producer's direct or subsidiary liability puts the consumer in a precarious position in which he or she may not enforce the rights based on non-conformity, if the seller had ceased to exist or had become insolvent, especially taking into account that as of 2005, the producer's guarantee became voluntary. Such a state of regulation may be considered inappropriate. In this paper a proposal is made to (re)introduce the producer's compulsory guarantee for technical goods, supplemented by producer's subsidiary liability for non-conformity. As an argument in favor of the proposal the example of the Hungarian law may be posed, in which the producer's compulsory guarantee and the producer's (direct) liability for non-conformity exist in parallel and well-synchronized. Both the producer's compulsory guarantee and their subsidiary liability for non-conformity should be limited to defects and other causes of non-conformity that fall within the producer's sphere of control. Similarly to the Hungarian law, the producer's liability should be limited to repair or replacement of the defective or non-conforming product, which are the consumer's primary remedies.

The problem of insufficient debtor’s property during bankruptcy

The purpose of the study is to determine the key factors affecting the occurrence of insufficiency of debtors’ property in modern conditions, as well as to formulate the main directions of overcoming them. The methodological basis of the research was the dialectical method of scientific knowledge, general scientific (analysis, synthesis, modeling), and special scientific methods (formal and legal, statistical). The result of the work was the formulation and substantiation of tasks, the setting of which is necessary for further scientific research aimed at increasing the number of satisfied creditors’ claims. In addition, the authors identified the elements of the legislatively enshrined bankruptcy mechanism, which require changes to resolve the indicated problem. In particular, the measures proposed by the authors will make it possible to increase the degree of filling the bankruptcy estate by modernizing the procedure for selling the debtor’s property, stimulating a more active position of the arbitration administrator to challenge the debtor’s transactions, and bringing his controlling persons to subsidiary liability. The novelty of the work lies in the identification of key factors influencing in modern conditions the appearance of signs of insolvency, the quality, and quantity of debtors’ assets, the insufficiency of their bankruptcy estate. Among them, objective economic reasons, imperfection of bankruptcy legislation, dishonesty of key participants in legal relations related to bankruptcy (debtor, bankruptcy administrator, majority creditors), unwillingness to use the institution of bankruptcy rehabilitation mechanisms, and the epidemiological situation are highlighted.

Subsidiary liability of the persons controlling a debtor

This article gives a general description of Chapter III.2 of the Bankruptcy Law and considers the issues related to the moratorium on bankruptcy. Attention is drawn to the changes that have been introduced in recent years in the legislation on bringing to the subsidiary liability of persons controlling a debtor for the inability to pay creditors’ claims in full, as well as the obligation to apply for the debtor and the liability for failure to do so (untimely application). The author, on the basis of the study, concludes that it is necessary to further improve the legislation on the liability of the head of the debtor and other persons in bankruptcy cases.