The Supreme court (SC) of the Russian Federation will decide in which cases the Manager must answer for the debts of the company which is liquidated without bankruptcy. In economcally sun transferred the complaint to the Director of the enterprise brought to subsidiary liability for failure to file a petition in bankruptcy. Lawyers hope that the sun will distinguish between civil and bankruptcy of the Foundation of the accountability of managers of the debtors and help the creditors to choose the right way to protect their rights.In economcally sun transferred the case on the issue of liability, Director and owner of OOO “Grand Pegasus” Eugene Minaev for the debts of the company, which, after passing the stage of bankruptcy, was liquidated. The fact that the “Grand Pegasus” in favor of “microcredit company “OTC-Credit”” in March 2017 was collected debt in the amount of 1.43 million rubles, but the obligor thereon is not paid, and in may 2018, according to the decision of FNS were excluded from the register as a dormant organization. Failure to file a petition in bankruptcy of the company in the court (article 61.12 bankruptcy law) knowledge of the Director about the availability of debt, in the opinion of lender, is the basis for attraction of the head to vicarious liability. Such claims was set out in the complaint “OTC Loan”.The arbitration court of the Kaliningrad region in April 2019 declined to bring the Director to justice. According to the court, it is not proven that the actions (inaction) Eugene Minaev has led to the inability to repay the debt to the plaintiff. The appeal and cassation overturned this decision, finding that Mr. Minaev still liable for payment of the debt, because you have not filed a bankruptcy statement to the court: in the case of insolvency of the company to test the availability of funds for the conduct of the procedure itself and the possibility of finding money for debt repayment.Mr. Minaev did not agree with the conclusions of the courts and appealed the decision to the Supreme court. According to the former leader, bringing him to justice is unwarranted, fault in causing him losses of microcredit company “OTC-Credit” is not proven. Eugene Minaev believes that the lender to protect their rights could challenge the decision of tax specialists about the exclusion of the debtor from the register, and to initiate the bankruptcy “Grand Pegasus”. In addition, the Director alleges that from April 2018 itself was in bankruptcy as the individuals, and therefore could not Finance the insolvency process-controlled organization. On his complaint the case was submitted to economcally sun, the hearing is scheduled for August 18.The founder of the legal company A. T. Legal Nikolay Titov said that in recent time the courts are on the path of broad interpretation of the concept of “controlling the debtor’s person” and the range of actions that can serve as a basis for bringing to subsidianoi responsibility. The problem is that the judicial practice sometimes confuses the provisions of bankruptcy (in this case article 61.12 concerning the imposition of vicarious liability for failure to file a petition in bankruptcy) and civil (article 3 of the law on vicarious liability for non-performance of obligations by the company, is excluded from the register as invalid, and article 53.1 of the civil code for damages caused to the legal person) laws.Bankruptcy lawyer directions, Vegas Lex Valery Tikhonov explains that the prosecution for failure of a debtor application for bankruptcy is possible only in the framework of the bankruptcy case, after its completion, or in the event of termination of production due to lack of funds to Finance the procedure. “If the debtor’s bankruptcy petition was served, to bring its controlling persons is possible only on the basis of the provisions of the civil code and legislation on ulicach”— sure, Ms. Tikhonova. For responsibility under article 3 of the law on LLC, says the Lord, the Anointed, must be installed a set of conditions: exclusion of companies from the register as a dormant legal entity, failure to fulfill obligations excluded by society, and what led to it that is unreasonable or unfair actions (inaction) of the head.Valery Tikhonov expects that the position of the sun in the case of Eugene Minaev contribute to the distinction between ordinary and special (bankruptcy) grounds for liability of controlling persons, and will also help the creditors in choosing the right way to protect their rights.Ekaterina Volkova
