In the Supreme court (SC) of the Russian Federation transferred case, the results of which will be decided the question whether the last head of the company to answer for its debts, if it withdrew the notice of debtor’s bankruptcy at the initiative of the Board of Directors. The signs of insolvency of the company appeared before the appointment of the Director. Lawyers note that, formally, the last leader still has not fulfilled its obligation to initiate bankruptcy, prescribed by law, but the amount of its liability should be limited.For the consideration of economically forces transferred to the case of vicarious liability of Gary Prilutsky, the last Director of JSC “goszemkadastrsyemka” — Vishay (declared bankrupt in November 2017). A lawsuit filed by a bankruptcy Trustee of the company, demanding to prosecute the previous head of the debtor Grigory Smirnov and founder of JSC “Roskartografiya”. The courts of three instances of the Moscow district dismissed the claim of the owner of the bankrupt, but satisfied the requirements for both Directors (the size of the liability not yet determined).Courts consider that managers should be held accountable for failure to file declarations of bankruptcy law requires them within a month to come up with a statement with the appearance of signs of insolvency of the company. In judicial documents it is noted that in 2012 “the debtor meets the signs of insufficiency of property”, but the Director has not filed a timely bankruptcy petition, thereby causing “significant harm to property rights of creditors in the form of unjustified increase in accounts payable, without the obvious means for its payment”. If the previous Director to appeal the decision on bringing him to justice did not, then Mr. Prilutsky reached the sun and got a referral to a Board. From the circumstances of the dispute, it follows that the application for recognition of a bankrupt was filed by her previous Director on 7 August 2014. However, on 21 August, the acting Director General appointed Gary Prilutsky, who recalled a statement by the Board of Directors of the company dated 3 October 2014 (the bankruptcy Trustee refused to bring the members of the Board of Directors as co-defendants).In fact, the opinion’s statements occurred two days after on October 7 bankruptcy in the court filed by one of its lenders — LLC “publishing center”. However, the courts reacted negatively to the opinion, finding that Mr. Prilutsky “personally contributed to the termination of already initiated bankruptcy proceedings of the debtor in the presence of signs of insolvency.” Now the fate of the Director depends on the decision of the armed forces. Session on business is appointed to July 20.Lawyers note that, formally, the last Director has not fulfilled the obligation��be prescribed by law. Lawyer AB “Andrey Gorodissky and partners” Dmitry Yakushev believes that instead of a withdrawal of a Declaration of the debtor’s bankruptcy Mr. Prilutsky should have asked the court to reject the claim of the creditor and continue to consider the application on behalf of the company. KA lawyer “Yukov and partners” Anna Kremnev considers that at the time of the withdrawal of Mr. Prilutsky might not know that the bankruptcy of the company has filed its creditor, but by the fact of review, the Director still “hurt creditors.” According to her, the fact that the initiator of the recall petition in bankruptcy has become by the Board of Directors does not exempt the Director from liability, as the obligation to apply to the court in the presence of signs of insolvency lies on it.Dmitry Yakushev notes that the courts, pointing to the increase of accounts payable due to the failure of the bankruptcy petition, did not specify what new obligations after this arose from the debtor. Thus the lawyer underlines that the Director can not be responsible for debts incurred by the company prior to his appointment to the position.If signs of bankruptcy in legal entities occurred prior to the arrival of the new Director, he within a reasonable time should find out whether there are grounds for initiating the bankruptcy, explains MS Kremneva. And if such grounds are, but the head fails to apply for bankruptcy, it is responsible for the company’s debts, which appeared after this reasonable time, the lawyer added. If new obligations of the debtor have arisen, concludes Mr. Yakushev, the Director may not be subject to vicarious liability.Ekaterina Volkova
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