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«getting responsibility» and its application in the corporate The right of Russia

«Getting responsibility» in the law. «Getting responsibility» has appeared in a domestic positive law more recently (item 5.8 of item 10 of the Law on the bankruptcy, operating from 28.06.2017) [498], and right after coming into force has been again changed (podp.

1 items 12 of item 61.11 and item 4 of item 61.20 of the Law on bankruptcy) [499]. Acceptance of the given norm was preceded by the scientific discussion which has especially quickened after a number of decisions, accepted YOU the Russian Federation (see further).

As follows from the review of features of "external" responsibility in the various laws and orders considered in the present work, the problem of responsibility of the supervising person arises in the exclusive

Circumstances which are reduced to cases of intervention of supervising persons in operative activity of under control corporation which harms creditors more often. Even at primary nedokapitalizatsii the companies the question on responsibility arises not when the company is created without necessary property base, and when the such

nedofinansirovannaja the corporation at will of the supervising person starts to be engaged in activity for which it has not enough means, and enters legal relations with other participants of the civil circulation. In this connection the conditions of the responsibility fixed in specified norms, extend to supervising person a responsibility mode, characteristic for intracorporate relations (item 53.1 GK the Russian Federation), namely — the supervising person does not come under to attraction to the subsidiary liability if it operated according to usual conditions of the civil circulation honesty and reasonably in interests of corporation-debtor (item 10 of item 61.11 of the Law on bankruptcy).

It is necessary to underline, that the requirement of preliminary reception of the judicial certificate about absence at the primary debtor of money resources, sufficient court costs for a covering on bankruptcy procedure, gives to "getting responsibility» in the domestic law subsidiary character. At a current stage of development of the Russian society, considering known problems in law-enforcement system in whole and in courts of justice in particular, the legislator reduces judicial discretion possibilities, establishing certain formal terminators. With this t.zr. It is possible to pay compliments short stories podp. 1 item 12 of item 61.11 and item 4 of item 61.20 of the Law on the bankruptcy, giving to the creditor the direct claim (the claim out of bankruptcy procedure) to persons, «the standing up for legal body» which have finished the organisation to such condition, that at it are absent any means, even what are necessary for a covering of court costs on procedure of own bankruptcy.

At the same time the mentioned short stories lift a number of practical questions from which we will note only some.

1. Not clearly remedial parity "vneprotsedurnogo" the claim on the basis podp. 1 items 12 of item 61.11 and item 4 of item 61.20 of the Law on bankruptcy with business about bankruptcy which can be initiated after giving of such claim: whether manufacture under the direct claim comes under to leaving without consideration or trial will be continued in parallel with business about bankruptcy?

2.

The legal status of the creditors who have not joined the claim the creditor, declared in an order established by a short story is not clear: whether other creditor as the co-plaintiff has the right to join? Whether the new creditor, «late in process» can, to demand from the first creditor to transfer a part collected (it especially actually if the late creditor under item 134 of the Law on bankruptcy possesses higher priority)?

3. Even if to assume, that the legislator used terms «supervising person» (item 61.10 of the Law on bankruptcy) and «the person having actual possibility to define action» (item 1 of item 61.20 of the Law on bankruptcy), as synonymous (that is not so obvious) the reasons of an assumption of simultaneous application of the competing legislative approaches applied to attraction of supervising persons and persons, having actual possibility to define action of the debtor, remain not clear. The main contradiction consists in responsibility volume: in procedure of bankruptcy the size of responsibility of the supervising person is equal to the cumulative size of requirements of creditors, and in a case with "vneprotsedurnym" the requirement responsibility of an equivalent only to the size of the proved losses (item 4 of item 61.20 of the Law on bankruptcy). Thus, the size of responsibility of "supervising persons» in bankruptcy procedure potentially can appear more size of responsibility of those persons which «had possibility to define actual actions of the debtor» and have admitted full loss of actives of the company (means do not suffice even for the payment of expenses on liquidation). Last circumstance should cause surprise.

«Getting responsibility» in the doctrine. In a modern domestic science has developed two approaches to a discussed question. The scientists, dealing with this problem, it is conditionally possible to divide on

The "interventionists" who are paying compliments more active intervention in

Property sphere of participants of corporation (O.R.Zajtsev [500], A.A.Ivanov [501], etc.), and "nejtralistov", sights adhering to more cautious in this respect, especially with reference to a situation of use of a "classical" judicial variant of the concept of "getting responsibility» (A.A. G oltsblat, A.A.Makovsky, E.A.Sukhanov [502], etc.). So, during A.A.Goltsblat's Third Petersburg international legal forum, speaking about «the concept of removal of a corporate veil», has noticed, that «the similar institutes which have been not formalized in the Russian right, to apply proceeding from doctrines of other jurisdictions not absolutely truly, it can lead to destruction of the concept of individuality of the legal person and institute of restriction of responsibility that is inadmissible» [503] (an original punctuation is kept. — a bus comment) . In the same key A.A.Makovsky who believes has expressed, that «if we do not want the total loss of a design of the legal person for concepts affilirovannosti persons and removal of a corporate veil limits of their application» [504] should be put in the legislation.

At the same time, if not to contrast a judicial variant of the concept of "penetration" legislative it is possible to establish, that as a whole for the domestic doctrine prevalence of the positive relation to the concept to "getting responsibility» and «removal of corporate covers» [505] is characteristic. In the legal literature importance and an urgency of this problem is underlined, positivity of the tendency expressed in liberalisation of judicial-arbitration practice, admitted some forms of "removal of corporate covers» ("identification" of the legal bodies connected among themselves for specific goals means), and also short stories in legislations on economic societies and on an inconsistency is marked. The thesis is mentioned, that to private creditors, unlike public [506], the smaller attention of what some scientists do not indisputable conclusion is paid, that it calls into question a rule about equal protection of all proprietors (item 4 of item 212 GK the Russian Federation) [507].

However in the scientific literature give and more conservative estimates to a "penetration" problem. The risks connected with eventualnoj by devaluation of a legal design of the legal person if to such approach will resort inexcusably often [508] are marked. For the sake of justice it is necessary to notice, that some scientists express fears and concerning concept of the subsidiary liability already used by the Russian legislator [509]. Other researchers and at all abstain from any estimations [510].

Concerning nature definition «getting responsibility» among many domestic lawyers certain scepticism [511] is observed. It it is no wonder if to take into consideration, that an arsenal of means of "getting responsibility» are poorly used in the domestic law, and discussion about necessity of introduction in practice of such doctrine is led not so long ago, after comprehension of practical need in additional means of restraint of unfair behaviour in corporate relations. Moreover, this legal design has Anglo-American roots, and many domestic works are based on general law positions in this area that does not promote correct qualification of the specified doctrine as as practice shows, the approaches developed in systems of a case law, "are badly acquired" by the European continental laws and orders.

With t.zr. The author, it is necessary to use institute «getting responsibility» in the Russian right as the important regulator and counteraction means to corporate offences. Flexible and adapted (for domestic realities) the rule of law in this area could not only promote formation of a diligent business turn, but also warn erosion of a legal design of the legal person. For lack of clear legal reference points and effective ways of struggle against behaviour mala fides participants of the companies separate courts can continue ignore any way available corporate element (as it has been made in judicial certificates of Moscow City Court — section 3.1.3 see) that will cause bolshy harm to the civil circulation.

As it is represented, development of nestling close responsibility should develop in Russia in two basic directions:

1. The reference to such responsibility is admissible only in a case when the legal investigation about bankruptcy is ceased (bankruptcy notice left without consideration) in connection with absence of the money resources necessary for a covering of expenses on procedure of an inconsistency. On this way the domestic legislator has gone. Till now in this sphere the obvious blank was observed.

2. The second way causes the greatest quantity of discussions in connection with absence of accurate criteria of "penetration". It is a question of development of such responsibility along with other kinds of corporate responsibility and its application as extreme means in case of a deceit from the dominating participant with use of under control corporate structures (evasion from execution of obligations) when other legal means are absent or have appeared inefficient.

So, a serious problem the situation when the counterpart makes the actions, represents similar mixtures to degree with swindle, however to the criminal liability of the bases it is not enough for attraction of guilty persons. Often in such situation and the victim, and even the infringer its injustice, however an available legal protection intuitively feel does not give effective result. In these conditions «getting responsibility» certainly would appear pertinent and could correct lacks of legislative regulation, having filled available blanks.

Requirements of creditors «with a weak trunk-call position». As it was marked above, in the legal literature of some countries it is offered differentsirovanno to regulate attraction of dominating participants of the legal person to «getting responsibility». In relations with certain types of creditors the legislator or vessels is recommended to apply the facilitated variant «removals of a corporate veil» (it is a question of victims because of torts, consumers, workers and other persons possessing a weak trunk-call position) [512] Such point of view has got support and among some domestic jurists [513]. This position is especially in detail shined in works of jurists in the USA (see § 2.1.5.) However it it is frequent and it is criticised in the American literature (despite presence at it many supporters). In the English literature such differentiation often is considered unreasonable and is not paid compliments, since between the victim from the tort and authorised of the contract which voluntary accepts party liable limited liability, there is no basic difference [514].

In a domestic paradigm division of responsibility of participants of corporation depending on the specified criteria which have in a sense any and aktsidentalnyj character, is represented not indisputable. Why participants of the legal person should to bear, for example, responsibility in the special order facilitated for the claimant in case of injury to health a source of the raised danger belonging to corporation? After all the personal contribution of participants (shareholders) to such situation it can not appear at all. And considering that responsibility is under such circumstances assigned to corporation as the owner of a source of the raised danger, i.e. without its fault, on the basis of a principle of causing [515], impeachment also its participants would be unfair doubly. After all the in itself principle of causing is a compromise under the formula «let harmed is not guilty, but after all the victim» [516] is even less guilty. Otherwise, if to rise on a position of supporters of "the facilitated penetration» the duty of participants of corporation-trespasser will be expressed by the formula «let the victim will receive compensation from any not privy», that is the extremely doubtful with politiko-legal t.zr.

Certainly, the resulted example with the tort liability "doubling", caused by a source of the raised danger, — only a tort liability special case. And in other conditions, in relations with the creditors having weak trunk-call positions, any negative influence from participants of corporation can not be at all. After all the company can experience financial difficulties for various reasons (market conditions change, the crisis phenomena in economy, unfair or unreasonable actions of an executive office or workers, etc.) . And how to be in a situation when at the moment of detrimenting to the creditor in corporation there was one supervising participant, and during suing this corporate control has passed to other participant [517]? Who from such participants "is more awarded" to be a party liable? Objective imputation in a situation of "getting responsibility» is inappropriate, and after all to it and pushes in practice the differentiated approach.

The main reason of an inaccuracy of supporters of differentiation is covered in distinctions between the approach accepted in the USA, and continental. The idea about division of creditors into two categories not casually was born in the American doctrine. In the countries of the general the right there are no rigid requirements to the charter capital of the companies, and their counterparts care of decrease in the risks [518] (a principle caveat emptor [519]), demanding maintenance of execution of obligations or reduction of price. The differentiation of creditors in the American right plays a role of the terminator of excessively frequent application of the doctrine «removals of a corporate veil» (see § 2.1.5), instead of pursues "weakness" protection (such social aspect is a by-effect of the differentiated restriction of penetration) as a main objective. Not casually English jurists are not supporters of such position, after all at them the concept of "penetration" and so has the limited application. In the continental law such approach is poorly justified because of other understanding of corporation and requirements shown to it, and the main thing — because of rule action ultima ratio.

Attraction to the raised responsibility of supervising participants of corporation in relation to "weak" creditors will mean in one cases — responsibility for another's fault, and in others — risk transposition on by-standers. Hardly such position can be recognised by proved. It is impossible to punish somebody simply that it has appeared not at that time and not in that place. The civil liability though contains an element of punishment (punishment), but mainly carries kompensatornyj character. The point of view about granting of such privileges to persons «with a weak trunk-call position» destroys logic of "getting responsibility», and therefore is denied by the author of the given work. The aspiration to protect weakness is often defensible approach, but in a case with «getting responsibility» it will mean aspiration «to do much good for another's account».

Return calculation. The separate problem is represented by a question on, whether has the supervising person who has paid shown claims, the right of action about the subsequent compensation from the under control legal face (recourse)?

On the one hand, the payer is made accountable for the wrongful and guilty act, therefore it as the trespasser should bear itself risk of the behaviour, and other position would contradict the nature of delictual relations [520]. On the other hand, if at the under control legal person in the subsequent the property it would be wrong to allow to be enriched to other persons at the expense of the supervising person is revealed. However speech can go only about enrichment of the dependent organisation (and as consequence — it minoritarnyh participants). Enrichments of the creditor who has already received a satisfaction from the controller-delinkventa, here do not occur (as believes V.A.Savinyh) since the creditor requirement will be extinguished by payment

The supervising person. V.A.Savinyh proves the point of view that the creditor receives two requirements — one of the tort of the supervising participant, and the second of the initial obligation with under control corporation [521]. The sense of "penetration" just also consists that claim of the creditor, overcoming «a corporate cover» corporations - of the debtor, is addressed to directly dominating participant who according to the Russian Law on bankruptcy (item 61.11 item 1) becomes

Additional [522], instead of the independent debtor on the separate basis.

As some lawyers, consider as an underside of the unanimity of repaying action, according to which payment of the subsidiary debtor (as well as solidary obliged) should release from a duty of the primary debtor, is that the payer should grant the automatic right to the recourse [523] requirement (cessio legis) to the principal debtor for return calculation. Differently, consequences will be in that case similar to clearing of a debt by the guarantor [524] or the guarantor on an independent guarantee. According to the author, such analogy here is hardly pertinent, as it is a question of different relations — contractual and corporate. This position is based on so-called « Concepts of the employer »according to which participants of corporation are responsible for actions of the under control company as the employer is responsible for actions of the workers. At the same time assimilation of participants of corporation with employers leads to the unlimited liability of the first for actions of the dependent legal person which has harmed (see § 2.3.3) while ratio legis theories of" getting responsibility »consists in impeachment of the persons guilty of injury to creditors of under control corporation.

In this connection it is represented, that the domestic legislator has made the unreasonable decision, having established, that the person involved in the subsidiary liability has the right of the return requirement (recourse) to the debtor at a rate of the paid sum, which subordinirovano to other requirements (it is satisfied after other requirements included in the register of requirements of creditors, or coming under to inclusion in it) (item 3. 61.15 Laws on bankruptcy). Possibility of such recourse can «untie hands» to vessels and lead excessive "interventsionizmu" while the right of regress damnifikanta to the bankrupt as a matter of fact is deprived sense [525]. In a case of unexpected detection at "primary debtor" of any property (that in general it is difficult to present to itself practically), the judicial certificate about collecting of losses from «the subsidiary debtor» can be reviewed under new facts (the item 309 agrarian and industrial complexes of the Russian Federation [526]) that is why the person supervising corporation does not require double protection by way, de lege ferenda not the comprehensible.

Thus, in spite of the fact that efforts on implementatsii in Russia a judicial variant of the concept «penetrations for a corporate curtain» de facto have failed, as well as attempt of inclusion of positions about «getting responsibility» in GK the Russian Federation, separate elements of this concept nevertheless managed to be introduced in the Law on bankruptcy (not in the last instance it has occurred because of broad support from the legal doctrine). Thanks to this approach the domestic variant of "getting responsibility» possesses such specific lines as subsidiary character [527] and impossibility of its application concerning the companies which do not possess bankruptcy signs, despite fulfilment by persons, their supervising, it is obvious deceitful practices to the detriment of creditors of the company.

3.1.3.

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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

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