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§ 3. Losses

In Russia, unlike other countries, the indemnification is the unique form of the responsibility applied to members of controls of economic societies, therefore their presence at the legal person is compulsory condition of approach of civil responsibility.

It is necessary to notice, that, for example, in the Anglo-Saxon right in case of infringement by the head of a society of the duties it is possible to demand to give out the injunction on fulfilment of certain actions or on an interdiction of those, to recognise as void the unprofitable transaction for a society or to collect «confidential profit», received at execution of official duties [251].

It is very important to consider, that in attention losses of an economic society, instead of its participants (shareholders) and other persons should be accepted. Under L.L.Chanturija's fair remark, at definition of the losses which are coming under to compensation, «the property status of the society, instead of its shareholders is solving. Thus no any value has, shareholders have received or not as a result of infringement any benefit. Even if shareholders have received benefit, it cannot be recognised by indemnification of losses of a society» [252]. At execution of losses by the legal body, losses at its participants (shareholders) arise oposredovanno, indirectly. At the same time, if losses are caused directly to the participant (shareholder) there are no bases for application of item 53.1 of the Civil code of the Russian Federation.

Most often losses of the legal person come at loss of property as a result of fulfilment of wrongful acts: to shortage in cash desk of the organisation formed as a result of a non-return of money resources;

Fulfilment of transactions on unprofitable conditions without required approval of corresponding bodies of the legal person, in the presence of the conflict of interests; nonacceptance of measures on umenvsheniju or to prevention убвітков and so on. At once costs ogovoritisja, that responsibility putting on for убвітки, которвіе припиненні to the legal body default or inadequate execution objazatelvstv its counterparts, on members of controls when the last operated is innocent, it is not supposed.

Disputable D.V.Pleshkova's position which offers dopolnitv item 53.1 is represented. The Civil code of the Russian Federation definition of the term of losses - «Under losses (harm) with a view of application present statvi follows ponimatv the property losses of a society expressed in: umenynenii costs of property of the legal person; occurrence at the legal person of the duties which have been not caused by counter granting, having equivalent (equivalent) character. Equivalence it is defined proceeding from market cost of the goods, works, services; execution bolvshih expenses in comparison with the expenses, which society would incur at fulfilment similar actions which obviously could be made under these circumstances» [253].

However the given position is represented erroneous. The author is not confused with that circumstance, that the list of losses is not settled by the variants offered it. At least, the resulted list does not include reduction of cost of actions, losses from injury of business reputation, the losses which have arisen in connection with payment of penal actions for fulfilment of administrative violations.

The doubts the advantage of the resulted definition as management to an establishment of a kind of losses, but therefore does not raise no more. Necessity of the account of possibility of approach of other losses not specified in definition thus should not be lost sight.

Besides there is a general concept of losses which is provided in item 15 of the Civil code of the Russian Federation, and hardly it is necessary to enter special concept of "losses" with reference to separate civil-law institute.

Plenum of the Supreme Arbitration Court of the Russian Federation in Decision item 6 «About some questions of the indemnification the persons who are a part of bodies of the legal person» [254] has fixed the new approach to definition of the size of controls of losses compensated by members. Now the arbitration court cannot give up completely in satisfaction of the requirement about compensation by the director of the losses caused to the legal body, only on the ground that the size of these losses cannot be established with reasonable degree of reliability.

As it is represented, the given approach to the practice which has developed in vessels to refuse in impeachment of members of controls of economic societies in a kind of an absence of proof of the size of losses [255] is correct. It is impossible to refuse in the action for damages in full only for the reason, that the fact of causing of losses is proved, and their exact size is not defined. In such situation the question on the exact size of losses concerns the judicial discretion and comes under to definition by court proceeding from all circumstances of business, at the obligatory account of a principle of justice and harmony of responsibility.

It would be desirable to notice, that of possibility of contractual regulation of the size of losses compensated by the managing director there are two opposite points of view. According to one of them, position of item 3 of item 53 PS the Russian Federation «about the indemnification is optional, it can be changed

Or it is completely cancelled not only the law, but also the contract ». The similar position is apprehended by A.P.Judenkovym and V.P.Mozolinym [256 [257]. On another - change of volume of responsibility under the contract is excluded. So, Ivanov And. L considers:« the mandatory provision of item 2 of item 71 of the Law Having special character on joint-stock companies completely excludes contractual regulation of the bases of civil responsibility of managing directors before joint-stock company »[258]. A.V.Molotnikov who specifies, that« the contract concluded between joint-stock company and the person, exercising administration adheres to the similar point of view, cannot change civil responsibility key parametres »[259 [260].

As an example of restriction and an exception of responsibility of directors

Abroad it is possible to result position of the Law on corporations of staff Delaver,

The USA. According to item 102 (b) (7), in corporation constituent instruments

Conditions about an exception or restriction of the personal can contain

Responsibility of the director before corporation or its shareholders for losses, for

Exception of the following: 1) for any infringement by the director of a duty

Loyalty to corporation or its shareholders; 2) for infringement of the fiduciary

Duties of the director provided that such positions do not exclude or

Limit responsibility of the director, for acts or omissions,

Made unfairly or for deliberate wrongful acts or

Conscious law-breaking; 3) for illegal payment of dividends, purchase

Or sale of actions; 4) for any transaction from which the director himself has received

Personal benefit. And such restriction extends also on persons,

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A part board of directors.

Accepted by the Federal act № 99-FZ from 05.05.2014 years position of item 5 of item 53.1. The Civil code of the Russian Federation provides, that the agreement on elimination or restriction of responsibility of persons for fulfilment of unfair actions, and in a public society - for fulfilment of unfair and unreasonable actions - it is insignificant. The given position has cleared up a question on impossibility of contractual regulation of the bases and the size of responsibility in public societies. At the same time, the law supposes the conclusion of agreements on elimination or restriction of responsibility of persons for fulfilment of unreasonable actions in not public society.

Such freedom of contractual regulation of the bases and the size of responsibility is possible only at regulation of unreasonable actions of a member of controls of not public economic society. In such agreements with a member of controls of not public society it is possible to provide the following, for example: 1) directly to list cases when the member of controls bears responsibility, and in all others - responsibility to exclude; 2) to provide cases when responsibility is excluded, and in all others - the member of controls bears responsibility; 3) to establish, that for fulfilment of unreasonable actions responsibility does not come; 4) to limit responsibility of a member of controls in the certain size.

It is represented inadmissible in the contract with a member of controls to provide such actions (inactivity) in which relation it is established, that they are diligent and reasonable with a view of responsibility avoidance. Such conditions should be treated by court taking into account legislative criteria of diligent, reasonable behaviour in interests of the legal person. If such conditions in the contract with a member of controls are actually directed on elimination of responsibility and actually are unfair and unreasonable, these conditions should admit court void.

Considering what to differentiate unfair and unreasonable actions (inactivity) of members of controls rather difficult, such position of the rule of law can become the basis for its wrong qualification and, accordingly, wrong application. Optimum would be to include a condition about impossibility to enter into the agreements eliminating or limiting responsibility in any legal bodies, without the relevancy to the public or not public legal body. In COMMUNICATION C by it, and. 5 items 53.1. The Civil code of the Russian Federation to state in the following edition: «the Agreement on elimination or restriction of responsibility of the persons specified in points 1-3 of present article, is insignificant».

As considered responsibility comes before the legal body, it is necessary to recognise, that its such forms as compensation of the harm caused to a life or health, and indemnification of moral harm in this case are unacceptable. Proved statement of a question on possible causing by a member of controls of harm of business reputation of the legal person however is.

In item 152 of the Civil code of the Russian Federation positions about protection of honour, advantage and business reputation of the citizen contain. Item 152 GK the Russian Federation about protection of business reputation of the citizen, except for positions about indemnification of moral harm corrected, are applied to protection of business reputation of the legal person. In point 7 of the Decision of Plenum of the Supreme Court of the Russian Federation from 24.02.2005 № 3 «About judiciary practice on affairs about an honour and dignity protection of citizens, and also business reputation of citizens and legal bodies» [261] the example discrediting business reputation of the citizen or the legal person of data is by way of illustration resulted are data which contain statements about infringement by the citizen or the legal body of the current legislation, fulfilment of a dishonest act, wrong, unethical behaviour in a personal, public or political life, unconscientiousness at realisation of industrial-economic and enterprise activity, infringement of business ethics or customs of a business turn.

Negative consequences of infringement of business reputation of the legal person are obvious. It is possible to carry possible loss of profit, execution to them убвітков in connection with decrease buyers from whom demand, umenvshenie client base, refusal of cooperation with сторонні counterparts, umenvshenie costs of actions and others.

Operating zakonodatelvstvo does not give possibility взвіскания to indemnification of exemplary damages from belittling of business reputation of the legal person. Meanwhile, the right trebovatv compensation убвітков for the legal body remains. Not penetrating into a subtlety of legal disputes on the given question, hotelosv otmetitv the following. The constitutional Court of the Russian Federation considering the complaint of applicant V.A.Shlafmana, recognised, that to the legal body can бвітв припиненні not tolvko убвітки (realvnvsh a damage and missed ввігода). The organisation has the right «to make demands about indemnification of losses, including non-material, caused by belittling of business reputation, or the non-material harm having the own maintenance (distinct from the maintenance of the moral harm caused to the citizen)...» [262]. It is necessary to notice, that after acceptance of the specified definition, judiciary practice has gone on a way of collecting non-material reputatsionnogo harm. As an example a number of judicial decisions [263] can serve that.

However, after coming into force of the Federal act from July, 2nd, 2013 N 142-FZ «About modification of subsection 3 of section of I part of the first

The Civil code of the Russian Federation »266 edition of item 152 GK the Russian Federation has changed, and for the today, the given norm does not allow to use such way of protection of the right as collecting of indemnification non-property (reputatsionnogo) harm in favour of legal bodies. In this connection, judiciary practice on data вопросу267 has changed.

At impeachment of members of controls in connection with causing of harm of business reputation of the legal person by them, harm comes under to compensation by rules of item 53.1 and item 152 of the Civil code of the Russian Federation.

By vessels are quite often considered cases about injury the business

Reputations of the legal person in connection with distribution discrediting and not

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Corresponding to the validity data on its member of controls. Distribution of such data is the most frequent is carried out through mass media. In the presence of good causes judgements on such affairs impose on the respondent (edition, the editor-in-chief, the journalist) a duty of a refutation of such data and compensation of the caused losses.

Opinions of arbitration courts in the given occasion were divided on two groups. One courts believe, that the legal body can address for protection only in the event that data concern activity of the legal person and its director as an individual executive office, instead of concern personal qualities of the director as physical person as the director in the latter case has the right to address itself for judicial protection of the прав269. In sh the federal act «About modification of subsection 3 of section of I part of the Russian Federation first the Civil code»: [feder. The law: it is accepted gos. The Duma 21 ijun. 2013: as of April, 1st, 2015].//the Russian newspaper. - 2013. - on July, 05th.

sh the Decision of Arbitration court of the Moscow district from 26.03.2015 № Ф05-2628/2015 on business № А40-66364/14//Union of Right Forces "ConsultantPlus". 2015.; the Decision of Arbitration court of the Moscow district from 23.03.2015 № Ф05-1531/2015 on business № А40-54340/14//Union of Right Forces "ConsultantPlus". 2015.; the Decision of the Fourth arbitration appeal court from 19.03.2015 № 04АП-7158/2014 on business № Al9-2571/2014//Union of Right Forces "ConsultantPlus". 2015.; the Decision of the Ninth arbitration appeal court from 30.03.2015 №09АП-6414/2015-ГК on business № А40-69753/14//Union of Right Forces "ConsultantPlus". 2015.

sh For example: the Decision of Federal arbitration court of Far East district from 15.12.2009 № Ф03-7172/2009 on business № А51-14071/2007//Union of Right Forces "ConsultantPlus". 2014, the Decision of Federal arbitration court of the Moscow district from 05.09.2011 on business № А40-131158/10-143-1114//Union of Right Forces "ConsultantPlus". 2014.

sh For example: the Decision of Federal arbitration court of the Ural district from March, 10th, 2009 № Ф09-477/09-С6 on Business № А71-5630/2008-Г16//Union of Right Forces "ConsultantPlus". 2014.; the Decision Federal other cases courts recognise, that data on actions executors but go body, осуществлявмвіе in the course of authorised dejatelvnosti the legal person, directly mention reputation of the last in this connection come under

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To protection.

The question on compensation of the legal person of harm caused to business reputation at distribution of damaging evidences concerning members of controls should reshatvsja in each concrete case on the basis of the analysis of all obstojatelvstv affairs. Thus in attention should prinimatvsja, whether dejstvitelvno by such damaging evidences it is damnified the legal body. TSentralvnvsh the moment, thus, should statv an establishment of a relationship of cause and effect between distribution of data on a member of controls and come убвітками at the legal person.

When in session of the court бвіло it is established, that распространеннвіе concerning a member of controls damaging evidences correspond dejstvitelvnosti, statement of a question on impeachment of the member of controls for injury of business reputation of the legal person is possible.

Распространеннвіе Concerning a member of controls of data can бвітв связанві not tolvko from it dejatelvnostvju on behalf of the legal person, but also can otnositvsja by a private life. Consequences of distribution of such data can бвітв for the legal person аналогичнві to distribution of data about professionalvnoj dejatelvnosti persons as a member of controls of the legal person and prichinjati to the last same убвітки.

In and. 8 Decisions of Plenum Ввісшего of Arbitration court of the Russian Federation «About некоторвіх compensation questions убвітков» are provided by the persons who are a part of bodies of the legal person, that the satisfaction of [264 [265] requirements about collecting from the director убвітков does not depend on, whether imelasv compensation possibilities имущественнвіх losses of legal person C pomoshchvju different ways защитві the civil rights, for example, by application of consequences nedejstvitelvnosti transactions, reclamations of property of the legal person from another's illegal possession, взвіскания neosnovatelvnogo enrichments, and also from, whether бвіла the transaction which has entailed causing убвітков to the legal body is recognised nedejstvitelvnoj. Further position that in case the legal body has already received compensation of the имущественнвіх losses by means of other measures zashchitv і contains, including by взвіскания убвітков with direct prichinitelja harm (for example, the worker or the counterpart), in satisfaction of the requirement to the director about compensation убвітков should бвітв is given up.

However Внісший Arbitrazhnvsh the Court of the Russian Federation has disregarded a situation, at which legal body, having received compensation from the director, polvzuetsja invshi in the ways zashchitv і, obrashchajasv to counterparts with requirements about a transaction recognition nedejstvitelvnoj, about взвіскании

neosnovatelvnogo enrichments etc. Sledovatelvno, the situation when legal the person can receive satisfaction twice is possible: having received the indemnification, having collected them from the director, and having returned property after a recognition of the void transaction with the counterpart and applications of consequences of such invalidity.

In such cases, it appears, to the director and other members of controls should be accorded a right to address with a petition about judicial decision revision about collecting from it losses under the new fact (analogy and. 2 ch. 4 items 392 of the Civil code of practice of the Russian Federation which provides, that to the new fact concern a recognition the judicial decision which has entered validity of court of the general jurisdiction or arbitration court of the void transaction which have entailed acceptance of the illegal or unreasonable judicial decision on the given case).

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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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