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«getting responsibility» in the USA

General characteristic of "piercing of a corporate veil». In the right of the USA attraction of supervising participants of corporation basically is reached by means of the doctrine of "corporation ignoring» (corporate disregard), which else is "accurater" [317] is called as the concept of "piercing of a corporate mask» (piercing the corporate veil) [318] (though it not the unique form of "external" responsibility of participants in the USA) which is proved by the American researchers as the phenomenon following from the nature of the legal person.

It is interesting, that to the specified conclusion the American experts come irrespective of the fact which doctrines about an origin of corporation they adhere. The result will be one, but the substantiation will differ. Theories existing in the USA concerning essence of corporation can be shown to two cores [319]:

1. The corporation can be considered as the privilege welcomed by the state and then is an artificial subject (artificial entity). And time so the privilege [320] can be selected if it abuse and suffers the public interest.

2. From a position of the contractual theory the corporation is a complex of contracts (nexus of contract) between the different parties (participants, directors, workers, counterparts, etc.). In such paradigm the state cannot interfere with private relations of the parties of the concluded contract. At the same time «the corporate veil» can be removed, if it will appear, that with the initial contract «something has gone not so» [321].

Hence, in penetration business for a corporate curtain, with t.zr. The American pragmatism the main thing, is not a substantiation of the legal nature of the phenomenon, and result which in any case should clause about bar of claim by lapse of time of abusings and offences.

The theory of "removal of a corporate veil» is a product of the equity law [322] with rather rigid rules [323] and numerous difficulties in practical application (see § 2.3.5). Therefore if the court discretely defines, that the rights of the claimant can be restored by means of means of a general law (indemnification) and such protection will be, from it t.zr., adequate in use of means from an equity law arsenal can be given up [324].

The American researchers notice, that «the penetration concept» causes the greatest number of quarrels at law from all corporate right [325] though it does not testify to simplicity of such debates: proving by such kind of affairs is «very heavy burden» [326]. Besides, unlike England, the American corporate right actually two-level (federal and states), that influences variety of approaches.

Legal structure. In the traditional form the doctrine «piercing the corporate veil» is «the three-stage test» (tree-factor doctrine), demanding an establishment in court of below-mentioned circumstances:

1. Absence of a sufficient autonomy at corporation owing to the excessive control of the participant, or absence of signs of real existence (i.e. there are no workers, there is no own property) [327];

2. Company use ex dolo malo (for a deceit), for achievement of the unfair or other wrongful purposes (i.e. a deceit, etc.);

3. Presence of a relationship of cause and effect between abusing the form of dependent corporation and losses of the claimant.

The given classical test is applied in different states where it is known under various names. So, in state of New York and some other subjects of the USA it carries the name «instrumentality [328] doctrine [329]», and in California, Delaware [330] and other regions it is called «alter-ego doctrine [331]». Though the theory «alter ego» is formally unlike on «instrumentality doctrine» differs concrete formulations and even number of the circumstances demanding an establishment (two instead of three), on the being they are structurally similar. For comparison — in the right of California «alter ego» it is defined so:

«Piercing of a corporate veil is comprehensible, if:

1. Such unity of the property and interests takes place, that two affilirovannye corporations lose the independence, and the affiliated company becomes «the second I» the basic organisation and

2. The recognition their independent persons will promote a deceit or to lead to other unfair result. »[332]

From resulted typical for vessels of California of a case rule it is obvious, that in it there is no requirement about presence of two more elements — a relationship of cause and effect and the fact injury to the victim. However it does not mean, that such circumstances do not come under to proving by the creditor on the obshche-remedial bases within the limits of its claim to the supervising person.

Frequently courts in practice use the simplified variant of the concept of "removal of corporate covers» since the classical three-stage test specified above demands the careful analysis of the facts and circumstances that leads to «infinite confusions» in this area [333]. Practical

Alternative to a traditional rule it becomes frequent so-called «the one-factorial test» (single-factor doctrine) according to which it is necessary to establish only one of following circumstances (which two versions of the specified approach) provided that such circumstance has "scandalous" character characterise:

1. Infringement of a principle of branch (lack of separate identity) [334], or

2. Corporation use ex dolo malo, and is equal and for other wrongful purposes [335].

At the same time even application of this doctrine does not mean, that the claimant will be released from proving of other circumstances of business. For example, the factor «uses of the company for fulfilment of deceitful practices» iplitsitno means an establishment of "the excessive control» the majority participant. Besides, the doctrine of "removal of a corporate veil» is not a material remedy at law, and is faster remedial [336], therefore fact detection alter ego in itself does not give the right of action, and gives only possibility of collecting from the participant of corporation-respondent while for lack of such situation the claimant would claim damages only from the corporation.

Besides the specified approaches courts in the USA will involve also other receptions within the limits of the concept «piercings of a corporate veil». The Total of these theories impresses. In pravoprimenitelnoj to practice quite often resort to the concept of "a functional identification» companies (enterprise doctrine) [337], and also to such rather new to "ways of penetration» as "kvaziagentirovanie" (quasi-agency) (see § 1.3.3), "current of trade" (stream-of - commerce) in the integrated marketing [338] and even procedural doctrines of "identification" of the user and the legal owner in franchajzingovyh relations.

Differentiation of creditors. Elasticity of the North American approach and relative simplicity (in comparison with the right of Germany, the Netherlands or England) «getting responsibility» have induced [339] applications of the doctrine judiciary practice «to undertake some steps» in a direction of restriction of this concept by means of an establishment of differentiation of the rights of some categories of creditors, whose «trunk-call possibilities» give the chance to protect preventively the interests to protect itself from material losses. Such feature has found the reflexion in working out of the split approach and allocation of two categories of creditors [340]:

1. Creditors, «possessing a weak trunk-call position» (it is a question about injured with injury by the company, workers, consumers) and

2. Creditors, «having strong trunk-call possibilities» (i.e. all other counterparts of the company on prisoners with it to contracts).

Practically everywhere in the USA the right of the first category to certain privileges admits proving under claims about «piercing of a corporate veil» [341], proceeding from a principle of protection weak. The logic of differentiation consists that the counterpart (from the second group) before contracting with the company could demand granting of corresponding maintenance (a guarantee, pledge, etc.), or take care of the interests at the expense of increase in the price or transition to advancing system (if he sold the companies the production), to means of careful studying of a financial condition of the counterpart, etc. Differently when dominating participants of corporation face threat such «social costs», they should aspire to limit spheres of such activity [342]. In the American right it — including the mechanism of stimulation of social responsibility of corporations.

Distinctions between two specified groups of creditors are erased only in conditions when concerning the creditor deceitful practices (fraud or misrepresentation are made) and it is misled concerning a financial position of the debtor as in such situation the creditor is deprived possibility adequately to estimate risk of default of obligations from the debtor [343]. Some researchers call the given campaign in question, referring on results of judicial statistics [344]. However the reasons of that in practice the second category of counterparts is more successful in a presentation of the claims, can depend on other circumstances (possibility to hire more expensive and qualified lawyers and so forth).

One more feature which influences probability of "penetration", is the size of corporation. According to the American jurists, the less company of the debtor, the is more probability, that the court will allow «to remove a corporate curtain» [345]. However value of such conclusion does not need to be overestimated, since the small companies are often badly financed, that is why the key role is played here nedokapitalizatsija, instead of by «the size of business».

Proving. The American rules of substantive law in many respects are based on remedial rules, in a separation from which the first can appear paralysed. So happens in Italy which retsipirovala many norms about responsibility of groups of the companies (item 2497 GK of Italy and others [346]), however in practice it has appeared the claimant cannot prove presence of preconditions for satisfaction of the requirement [347]. It has occurred because the claimant, more often being "outsider" of intracorporate communications and relations of the respondent and the company dependent on it, could not get access to demanded proofs. In the United States such complexities are considerably levelled because of presence of special remedial institute of disclosing of proofs (discovery), all litigation occupying the most part and in detail settled [348].

Other mechanisms of restraint of corporate abusings. It is necessary to underline again, that the American courts as a whole extremely reluctantly and cautiously apply the doctrine «removals of a corporate veil», many of them demand thus presence of any exclusive circumstances. For example, creation of the legal person for the only purpose leaving from personal responsibility in itself is not the basis for application of this doctrine, hence, the corporation can be created only for this purpose [349].

By and large all rules existing in the American right and authorising application «penetrations for a corporate veil», are reduced to inadmissibility addiktsii from other person at decision-making (instrumentality, alter ego, lack of separate identity) and visibility creations expressio falsi [350] (nedokapitalizatsija and a deceit). At the same time the variety of applied legal approaches allows to avoid rigidnosti in concept application «piercing of a corporate mask».

Besides the doctrine «removals of a corporate veil» in the USA are applied also other mechanisms, allowing to reach the purposes similar pursued by "getting responsibility». Among them it is possible to allocate tort liability of the supervising person, in particular, in a case when such person has created false visibility of credit status of the under control corporation. Other way — subordinirovanie the rights of requirements in bankruptcy procedure (full or partial fall of turn of the creditors connected with the debtor). Such way has appeared in the right of the USA already to beginning HH century [351] Methods of definition of necessity of such ranging are quite often adhered to already considered rule about «instrumentality test» (though it — not the unique basis of ranging of requirements): if the bases for «getting responsibility» the requirement of the creditor goes down are established, and in some cases bankruptcy of one company can be extended and to its affiliated persons [352]. In the latter case by consideration of a question on "extension" of procedure of bankruptcy interests of creditors of the person which property is supposed to be included in the bankrupt's estate are taken into consideration.

Thus, «piercing of a corporate veil» in the right of the USA differs a variety of the remedial approaches laying in its basis which can be reduced to that the deceit of creditors of corporation in a combination to its dependence represents the main basis for attraction of dominating participants of the company-debtor to «getting responsibility». The given concept has the remedial nature and is, as well as in England, an equity law product. It was generated on the basis of practice of vessels of the different states which approaches differ. With a view of restriction of relative freedom «penetrations for corporate covers» (in comparison with other considered laws and orders) in the American right depending on their trunk-call possibilities to limit potential of "penetration" the concept of differentiation of the rights of creditors has been developed for creditors with «the strong

Trunk-call position »since they have other mechanisms of preventive protection of the rights. The most part of cases of" removal of a corporate veil »is applied by vessels, that naturally enough, in connection with intragroup relations of legal bodies, instead of with the companies supervised by one physical person.

2.2.

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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

More on topic «getting responsibility» in the USA:

  1. Chapter 2 the Maintenance of institute of civil responsibility for the harm caused owing to lacks of thegoods (works, services) in the right of Russia, England and the USA
  2. Halin the Novel Vasilyevich. CIVIL RESPONSIBILITY FOR the HARM CAUSED OWING TO LACKS of the GOODS, WORKS And SERVICES IN the RIGHT of Russia, England And the USA: rather-LEGAL RESEARCH. The dissertation on competition of a scientific degree of the master of laws. Kursk - 2018, 2018
  3. Tugushev Rustam Rashidovich. Diminished responsibility: criminally-legal value and problems otgranichenija from responsibility and the limited responsibility. The dissertation on competition of a scientific degree of the master of laws. Saratov -,
  4. 1.2. Professional responsibility as a civil responsibility version, its concept, signs and kinds
  5. similarities and differences of administrative responsibility for infringements in sphere of taxes and tax collections in the Russian Federation from other kinds of legal responsibility
  6. §3. Criteria of responsibility. Legal (psychological) criterion. The intellectual moment. Responsibility and free agency: history and the present.
  7. responsibility of directors of corporation and its responsibility Participants
  8. the International legal analysis of the concept of "divided responsibility» (shared responsibility) in a context of a liability of infringement of the obligations following from norms jus cogens
  9. §2. The legal nature of insurance of professional responsibility. A parity with indemnity against liability under the contract and otgranichenie from insurance of non-contractual responsibility of subjects of professionalwork
  10. the Chapter I. ADMINISTRATIVE RESPONSIBILITY In SYSTEM of LEGAL RESPONSIBILITY FOR FULFILLMENT of GROUND OFFENCES In the RUSSIAN FEDERATION
  11. the Chapter II. Tax responsibility as a kind of legal responsibility
  12. "behavioural" responsibility and responsibility owing to the fact Prevailing participation
  13. §2. Criteria of the limited responsibility. Medical criterion of the limited responsibility.
  14. §2. Criteria of diminished responsibility. Medical criterion of diminished responsibility.