<<
>>

destruction of a design of the legal person

It is difficult to overestimate value of the legal person for modern economy. eksplitsiruja dependence of economic activities on this legal design, pertinently to give known words of one American judge about importance of corporations for a trade turnover «...

Almost all enterprises in this country which demand the big capital investments, are carried out by corporations. They do business, build and send the ships in swimming., build houses, deliver products of the earth and the sea to the market, they shine our streets and houses, extract ore, deliver water in our cities, build railways, erect churches, schools and theatres, open factories...» [575]. Not challenging the stated statement, it is necessary to notice, that the told concerns generally large "public" corporations, basically incorporating a considerable quantity of participants and using an arsenal of tools of public placing of the securities. For such large organisations, especially if the structure of the joint-stock property is sprayed and it is a question about menedzherizme («domination of the director»), the problem of impeachment of executive powers, instead of supervising persons [576] is more characteristic. «Getting responsibility» (as well as the "identification" concept) gets a special urgency concerning the companies of one person (which can be as the physical person, a family, and a corporate group of persons), and also their most harmful version — fictitious legal bodies who, as a rule, only emit real economic activities, so-called "firms-something ephemeral".

Really, uncontrolled and intensive attraction to "external" responsibility of participants (benefitsiarov, supervising persons) does impossible continuation of normal existence of a design of the legal person, especially for lack of accurate criteria of differentiation of the fictitious and real organisation, and also abusing delimitation by the corporate rights and lawful behaviour. At the same time such thesis represents in a sense apagogiju. After all, first, nobody speaks about granting of unlimited possibility «removals of corporate covers» and its erection in the absolute. Offers that the concept of "getting responsibility» should be absolutised, are not present even in the country where «removal of a corporate veil» is most extended, i.e. in the USA (in comparison with the considered laws and orders). Presence of an interdiction of misuse of right (the item 10 GK the Russian Federation) has not led to death of the civil legislation though such fears were, especially if the requirement (principle) of diligent behaviour to interpret rasprostranitelno. On the contrary, from basic positions of item 10 GK the Russian Federations gradually took shape other norms which version, for example, partly are norms about suspicious transactions (III. 1 of the Law on bankruptcy) [577].

It is necessary to underline, that the rule about inadmissibility of misuse of right (item 10 GK the Russian Federation) should carry out a role of extreme means [578] in the same way, as well as a rule about «getting responsibility». In connection with stated the author cannot accept argument about occurrence of threat of the concept of the legal person for this argument should be denied as argumentum ad absurdum [579]. Giving due respect of a legal design of corporation, it is necessary to avoid at the same time transformation «fiction of the legal person in reductio ad absurdum» [580].

Supervising persons cannot allow uncontrolled vyholashchivanie to a legal design of the legal person. It is necessary to agree with a conclusion, that the corporation admits the right as the independent person with definite purposes [581] about what it is not necessary to forget. It is possible to discuss concerning such purposes, but, using apofatichesky a method, it is possible to approve with confidence, that such purposes anyway cannot be creation of legal bodies for the purpose of a deceit of creditors or detour of lawfully established restrictions.

Secondly, the fictitious company, «the corporate veil» which out of any doubts should be subject to "piercing" de lege ferenda simply enough to distinguish in practice [582]: such organisation often has no real office, does not mete dividends [583], has no real property, suitable for conducting enterprise activity, i.e.

nedokapitalizirovana, it is involved in doubtful trading operations, not having on that of necessary resources, does not pay taxes or, that is equivalent, pays them in the symbolical size, etc. Hardly pertinently to offer for such cases flexibility of regulation, having fixed the accurate list of criteria of fictitiousness in a positive law. Such requirements will interfere only with diligent businessmen as it is known from attempts of the Russian tax organs to fix in administrative instructions of a different sort the factors testifying, in their opinion, on fictitiousness of the organisation. At the same time reduction of examples of such order in instructions VS the Russian Federation would be useful with reference to norms of Chapter 111.2 of the Law on bankruptcy, and also to item 49 GK the Russian Federation under condition of entering into it of corresponding corrective amendments which are offered above.

And the last: really, in protection of limited liability it is a lot of arguments, and they very weighty, but they are not so serious to make branch and limited liability principles absolutely insuperable. Even the hottest supporters of the neutralist approach do not deny possibility of attraction of participants of corporation to responsibility, let and in the subsidiary form at bankruptcy, or under other circumstances. And time so difference of the interventional approach consists only in means of achievement of the same purpose and the costs connected with these means. As it is represented, in consideratione legis and with t.zr. Judiciary practice always it is necessary to aspire to making remedies at law as much as possible productive, and the costs connected with them, minimum. Otherwise, proceeding from a rule ibi jus, ubi remedium [584], ineffective forms of protection lose the sense.

In other words, «getting responsibility» and "identification" do not bear danger to a design of the legal person under condition of their reasonable application in quality ultima ratio.

1.2.2.

<< | >>
A source: BYKANOV DENIS DMITRIEVICH. «GETTING RESPONSIBILITY» In the FOREIGN And RUSSIAN CORPORATE RIGHT. The dissertation on competition of a scientific degree of the master of laws. Moscow — 2018. 2018

More on topic destruction of a design of the legal person:

  1. a design of the legal person in the legislation, theories and pravoprimenitelnoj to practice of pre-revolutionary Russia: concept and signs of the legal person, the legal capacity and capacity, occurrence and the termination, classification.
  2. the Chapter II. Interconditionality of a design of the legal person its organizational unity
  3. § 3. Features of the person of the criminal making deliberate destruction or damage of another's property
  4. § 3. The strong-willed certificate (decision) of the collegiate body of the legal person as the form of a rule of the behaviour constituting will of the legal person
  5. Kontsept the collective subject of law with reference to the electronic person (the legal personality of a unit of the artificial intellect, correlated (sootnosimaja, comparable) with the legal personality of the legal person)
  6. Essence of the legal person. Concept and system of signs of the legal person under the operating Russian legislation
  7. Chapter 1. Function of the strong-willed certificate (decision) of the collegiate body of the legal person in the course of formation of will of the legal person
  8. the APPENDIX 1 Sights of opponents of the design approach and modern vision of design management
  9. Kontsept the individual subject of law with reference to the electronic person (the legal personality of a unit of the artificial intellect, correlated (sootnosimaja, comparable) with the legal personality of the person)
  10. 5.3 Design procedure of design data of the pneumochamber pump
  11. §2. Concept of the mechanism of criminally-legal regulation as interbranch legal design
  12. Teoretiko-legal research of a parity of concepts «the person,« the physical person, "citizen", "person", "individual", "Everyone"
  13. Chapter 2. The maintenance of a legal design «a legal generality in absolute property civil matters»
  14. the basic conceptual approaches to legal regulation of working out, manufacture, programming, a turn, application (involvement), functioning, self-training and self-development, the termination of ability to live (destruction) and recycling of units of an artificial intellect
  15. Legislativnye the signs forming a legal design Uniform technology
  16. § 2. The maintenance of a design of legal regulation at level of the subject of the Russian federative state
  17. studying of dependence of  destruction of cages M smegmatis from time of interaction with hitozanom
  18. 3.1. Character and volume of the legal capacity of joint-stock company. 3.1.1. The domestic civil doctrine about the legal personality of the legal person.