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Introduction

Urgency of a theme of research. The operating Civil code of the Russian Federation [1 [2] regarding the first contains general provisions about grazhdansko - legal responsibility of members of controls of economic societies.

Accepted according to the Civil code of the Russian Federation (further - the Civil code of the Russian Federation, GK the Russian Federations) the Federal act «On joint-stock companies», the Federal act «About societies with limited liability» [3], «About an inconsistency (bankruptcy)» [4] develop the Federal act and supplement general rules about responsibility of the specified persons.

Economic societies require appropriate management of them and in control of their activity. The last, however, is impossible without participation of physical persons which are a part of controls of economic societies. Acting as independent subjects of civil law, members of controls bear responsibility for the actions which run counter to interests of other subjects of law - economic societies. Thereof the sphere of application of norms about civil responsibility of members of controls of economic societies extends, and their importance - increases.

On July, 30th, 2013 Plenum of the Supreme Arbitration Court of the Russian Federation has accepted the Decision № 62 «About some questions of the indemnification the persons who are a part of bodies of the legal person» [5] in which explanations on some questions arising in judiciary practice concerning the indemnification have been made, caused by actions

(Inactivity) of the persons who were entering or a part of bodies of the legal person. Meanwhile, some ways of the decision of problems of impeachment of the specified persons offered in the named Decision are disputable, and on separate questions and answers have not been given.

The federal act from 05.05.2014 years № 99-FZ «About modification of chapter 4 of a part of the Russian Federation first the Civil code and about a recognition become invalid for separate positions of acts of the Russian Federation» [6] had been brought having great value with reference to a case in point of the amendment to item 53 GK the Russian Federations «Bodies of the legal person», new item 53.1 is entered. GK the Russian Federation «Responsibility of the person, authorised to speak on behalf a name of the legal person, members of the collegiate bodies of the legal person and the persons defining actions of the legal person». Special attention of the legislator to the questions connected with a legal status of bodies of legal bodies, and also responsibility of their members is expressed not only in acceptance of the specified law, but also in working out of the bills directed on reduction of the Federal act «On joint-stock companies» and the Federal act «About societies from limited liability» according to new edition of chapter 4 of the Civil code of the Russian Federation.

At the same time, introduction of new legislative guidelines, unfortunately, does not exclude the available blanks of legal regulation generating inconsistent judiciary practice, that, in turn, considerably complicates attraction to civil responsibility of members of controls of economic societies.

Research of problems of civil responsibility of the specified persons draws attention of the increasing quantity of scientists.

Today attempts of detailed theoretical analysis of questions of civil responsibility of members of bodies of legal bodies are undertaken, there is a reconsideration before the stated ideas, the analysis of the foreign legislation is led.

Meanwhile, discussions about the nature grazhdansko - legal responsibility, about the subjects made accountable, about the basis and conditions of its approach still proceed. The question on interest of the legal person which is broken at tort fulfilment, about the enterprise risk which is relieving from a member of controls of responsibility is not up to the end developed.

Presence of the specified problems, absence of the system approach in their research, and also requirement of the detailed analysis of theoretical workings out and practice of their application have predetermined an urgency and a choice of a theme of research.

Degree of a readiness of a theme of research. Questions of responsibility of members of bodies of legal bodies interested pre-revolutionary Russian researchers. As acknowledgement that is served by works of domestic scientists

A.I.Kaminki [7], D.I.Meyer [8], K.P.pobedonostseva [9], V.I.Sinajskogo [10], I.T.Tarasova [11], G.F.Shershenevicha [12] and others.

In civil jurisprudence of the Soviet period the attention of scientists has been mainly concentrated to consideration of the legal nature of bodies of legal bodies which carried or to representatives of the legal person, or to a part of the legal person. Among the domestic scientists who were engaged in research of the legal nature of bodies of legal bodies, it is possible to name S.N.bratusja, O.S.Ioffe, G.K.Matveeva, V.A.Rjasentseva, B.B.Cherepahina and others. Questions of civil responsibility of members of bodies of legal bodies were mentioned also in works of scientists of this period of A.G.Gojhbarga [13], M.N.Izraelita [14], I.S.ha with to go [15] and others.

In dissertational works of last years questions of civil responsibility of legal bodies, members of controls of legal bodies were anyhow considered by K.M.Alievoj (2005) [16], A.V.Bogdanovym (2012) [17], E.N.Bychkovoj (2000) [18], J.D.Zhukovoj (2013) [19], I.L.Ivanov (1999) [20], I.G.Kasaevym (2005) [21], O.N.Kondratevoj (2012) [22], A.E.Molotnikovym (2005) [23], K.P.Pavlovoj (2013) [24], V.V. Prohorenko (2006) [25],

A.A.Serebrjakovoj (2005) [26], I.A.Smirnovoj (2013) [27], E.V.Tychinsky (2010) [28], S.V.Fedoseyev (2012) [29], E.V.Filippovoj (2014) [30], V.I.Hnykinym (2005) [31] and others.

At the same time, the designated problematics is developed far not completely. Despite a significant amount of the dissertational researches devoted to separate questions of civil responsibility in legal bodies, there was not mentioned a number of the problems connected with responsibility of members of controls of economic societies. Separate researches have been devoted comparative jurisprudence problems, in some works certain bodies of legal bodies are considered as subjects of responsibility, in others the attention is given responsibility of members of controls of separate kinds of legal bodies.

At the same time, among researchers there is unity in questions of definition of subjects made accountable, no legal nature grazhdansko - legal responsibility. It is not developed a uniform position concerning conditions of civil responsibility, the characteristic of illegal act, fault and relationship of cause and effect questions. Disputes concerning possibility of misuse of right by members of controls of legal bodies proceed.

The carried out analysis of the points of view on subsidiary civil responsibility of members of controls of economic societies has shown, that the given question is insufficiently developed, that explains contradictions in the developed judiciary practice.

Research objective is complex studying of the basic theoretical positions about non-contractual civil responsibility of members of controls of the economic society, coming before a economic society, revealing of modern problems of practice of application of the norms regulating the given relation, and the offer of recommendations about their elimination.

The specified purpose defines following research problems:

1. To analyse the basic concepts connected with application of civil responsibility of members of controls of economic societies;

2. To consider the basis and conditions of civil responsibility of members of controls of economic societies;

3. To investigate joint and several liability of members of controls of economic societies;

4. To study a question on misuse of right by members of controls of economic societies;

5. To consider the subsidiary liability of members of controls of economic societies.

Object of research are the guarding public relations regulated by civil law, arising in connection with attraction of the physical person who being a member of controls of an economic society and have broken a duty in relation to last - to operate it and to carry out the control over its activity, to non-contractual civil responsibility before an economic society.

As object of research norms of the Russian civil legislation on civil responsibility of members of controls of economic societies, and also practice of their application act.

The methodological basis of research is constituted by set of the applied scientific methods of research. Among the general scientific methods used by the author of research, it is possible to name the following: the analysis, synthesis, analogy, dialectic and structurally functional methods. Besides the above-named methods specially-legal methods of knowledge were applied also: legallistic, rather-legal, istorikopravovoj and others.

Theoretical basis of work are works in area grazhdansko - legal responsibility as Russian scientists (including the pre-revolutionary and Soviet periods), and зарубежнвіх. Among these ученвіх I.e. Abova, M.M.Agarkov, M.I.Braginsky, S.N.Bratusv, V.V. Vitrjansky, M.I.Gabov, B.M.Gongalo, O.S.Ioffe, A.J.Kabalkin, T.V.Kashanina, N.V.Kozlova, D.V.Lomakin, L.A.Lunts, O.A.Makarova, A.A.Makovsky, G.K.Matveev, D.I.Meyer, S.V.Mihajlov, A.E.Molotnikov, I.B.Novitsky,

V.A.Ojgenziht, K.P.pobedonostsev, B.I.Putinsky, M.A.Rozhkova, A.A.Serebryakov, E.A.Sukhanov, F.I.Timaev, JU.K.Tolstoy, G.V.Tsepov, B.B.Cherepahin, G.F.Shershenevich, I.S.Shitkina, V.S.Yakushev and others.

Standard basis of research positions operating Russian zakonodatelvstva (have constituted the Civil code of the Russian Federation, the Federal act «On joint-stock companies», the Federal act «About societies with limited liability», the Federal act «About an inconsistency (bankruptcy)», the Federal act «About a securities market» and others). In some cases norms of the foreign legislation (the USA, the Great Britain, Germany, France, Australia and others) were used.

The empirical basis of research was drawn up by statements of the Constitutional court of the Russian Federation, practice of the Supreme Arbitration Court of the Russian Federation, the Supreme Court of the Russian Federation, arbitration courts and general jurisdiction vessels.

Scientific novelty of dissertational research consists in complex theoretical judgement of problems of civil responsibility of members of controls of economic societies, in consideration of questions of responsibility for misuse of right and the subsidiary liability coming by rules of the Federal act «About an inconsistency (bankruptcy)». By the author it is proved, that grazhdansko - legal responsibility of members of controls of economic societies which comes for actus reus (inactivity) of members of the controls, causing losses to an economic society, in all named cases is non-contractual.

The substantive provisions which are taken out on protection:

1) It is proved, that at differentiation of civil responsibility of members of controls of economic societies and responsibility of the counterpart for default or inadequate execution of obligations on prisoners with an economic society to transactions, in cases when the member of controls of an economic society is the counterpart or is a part of controls of the counterpart, or is the person defining actions of the legal person (counterpart), it is necessary to find out, whether the transaction has been made according to the law and the charter of an economic society and whether the consent of the authorised bodies of an economic society is received. At default or inadequate execution of the obligation by the counterpart it is necessary to apply to it positions about responsibility by rules of the Civil code of the Russian Federation about separate kinds of obligations in case the transaction is made according to the law, the charter, and the consent of the authorised bodies is received. Responsibility for the specified person as for a member of controls of an economic society in such cases is excluded. In all other situations responsibility for it comes under item 53.1 GK the Russian Federation.

2) It is proved, that the persons who are members of different controls

The economic societies participating in decision-making, caused losses to the legal body, bear the share civil-law

Responsibility. The size of share responsibility is defined proceeding from degree of participation of each controls in acceptance of such decision. The members of controls who are a part of one body of an economic society, bear solidary civil responsibility.

3) the conclusion that at an establishment of causally - investigatory communication between unlawful conduct of a member of controls and the come consequences it is necessary to apply theory positions about the previsibility of losses used in the international private law Is given reason. It is proved, that at the decision of a question on the size of compensated losses it is necessary to take into consideration those losses which the person not only expected, but also should expect.

4) By results of the carried out research the conclusion about impossibility of impeachment of a member of controls of an economic society under item 10 of the Civil code of the Russian Federation for misuse of right becomes. Realisation of the rights by a member of controls to the detriment of an economic society should be qualified as illegal act (default or inadequate discharge of duty to operate the legal body and to carry out the control over its activity), responsibility for which fulfilment is covered item 53.1 of the Civil code of the Russian Federation.

5) It is proved, that at an inconsistency (bankruptcy) of an economic society responsibility of its individual executive office for duty infringement on bringing a case before the court of the statement for a recognition by insolvent (bankrupt) in terms and in cases, statutory, and also for a recognition of the debtor insolvent (bankrupt) in case of non-presentation of documents of book keeping and (or) the reporting in statutory term or if such documents do not contain the obligatory information, or such information is deformed, therefore carrying out of the procedures applied in business about bankruptcy is essentially complicated, is not subsidiary in relation to responsibility of an economic society before creditors. Responsibility of an individual executive office has independent non-contractual character. The term "subsidiarnost" in considered situations is applied with a view of definition of the size of responsibility.

6) the conclusion that the attraction basis to civil responsibility of members of controls also are the actions (inactivity) discrediting business reputation of the legal person and causing to last losses is drawn. In research it is proved, that that concern not only the actions connected with realisation on behalf of the legal person of activity as its bodies, but also other actions, including concerning a private life.

7) In research the criterion of differentiation grazhdansko - legal responsibility and materialvnoj is offered responsibility on norms of the law of master and servant of members of controls the business executive of societies, namely: whether the specified person on its own behalf or on behalf of an economic society operates. If a member of controls of an economic society ввіступает in legal relation on its own behalf it is involved to materialvnoj responsibility. If the member of controls ввіступает on behalf of the legal person, that, at causing to the last убвітков, it bears civil-law otvetstvennostv.

8) In rezulvtate the carried out research Russian and foreign zakonodatelvstva it is offered to make changes in item 53, item 53.1 of the Civil code of the Russian Federation.

The theoretical and practical importance of research. In

To dissertational work theoretical questions grazhdansko - legal responsibility of members of controls of economic societies through a prism pravoprimenitelnoj experts are considered. The author had been used package approach to the decision of theoretical and practical problems of realisation of the norms regulating civil responsibility of members of controls of economic societies.

The received conclusions can find application in teaching of training courses of civil law and the corporate right. Results of the carried out research can be used in pravoprimenitelnoj activity, and also form a basis for entering of respective alterations into the current legislation.

Degree of reliability and approbation of results of research.

The dissertation is executed on chair of civil law of the Ural state legal university where its reviewing and discussion are spent.

The formulated conclusions and offers scientifically обоснованві also are given reason. Rezulvtaty researches обеспеченві znachitelvnoj theoretical and empirical base.

Dissertation positions obsuzhdalisv at two scientifically-practical conferences: Scientifically-practical conference of students, post-graduate students and молодвіх ученвіх «right Evolution - 2012», taken place at the Moscow state university of M.V.Lomonosova on October, 13th, 2012, VII International scientifically-practical conference of students and post-graduate students: «Актуалвнвіе проблемні the Policy of Law: natsionalvnvsh and international правоввіе aspektn і», taken place in Kazan (Privolzhsky) federalvnom university on November, 16-17th, 2012.

Основнвіе Theoretical positions of research отраженві the author in опубликованнвіх stattjah and исполвзованві in prepodavatelvskoj dejatelvnosti.

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A source: Nazarova Elena Nikolaevna. Civil responsibility of members of controls Economic societies. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg 2015. 2015

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  2. INTRODUCTION
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  5. INTRODUCTION
  6. approbation and introduction of results.
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  15. PRACTICAL INTRODUCTION OF RESULTS OF WORK