"identification" of corporation with other connected persons ("identity") and «getting responsibility»

The author of the given work considers necessary to discriminate concepts of "identification" ("identity") [93] and «getting responsibility» depending on what of two basic principles of existence of commercial corporation is deformed — a principle of branch or the limited liability beginning.

It is necessary to notice, that both specified categories of "penetration" partly are crossed owing to difficulty of carrying out of an accurate line of demarcation between base rules of activity of commercial corporation, i.e. property isolation or limited liability.

If preservation of a principle of branch leads to consequences which break a conscientiousness rule in objective sense, courts of many countries can identify the formally legally isolated persons as the uniform subject of law [94]. As a result one person gets the rights and duties of other person, and act of one subject are attributed to another as they embraced the general plan and will [95].

Proceeding from stated, in the kinds of this binary classification resulted more low, in all cases, except the first (§ 1.2.2), only one kind of responsibility represents actually «getting responsibility», its other version concerns a category of "identification" of corporation with the dominating participant, and also with other persons supervised by such participant. Such division is required for more exact otgranichenija to "getting responsibility» participants from adjacent concept which includes all remained cases «removals of corporate covers». In other words, the figurative concept of "removal of a corporate veil» breaks up to two — "identification" and «getting responsibility». Proceeding from it, "identification" includes penetration to benefit of participants, return penetration, horizontal responsibility, and also "identification" sensu stricto (in narrow sense), used for bar of claim by lapse of time fraus legi facta [96] or detour of the contract [97].

Nevertheless, there are also others t.zr.: some researchers pay attention to that circumstance, that «getting responsibility» is a version of "identification" of the legal person with the dominating participant since the participant also admits identical to the company supervised to them [98] and only thanks to it can be called to account.

Let's consider, how much the decision of this problem can be found in a plane of understanding of algorithm of action of limited liability of the participant of corporation. Such mechanism can be considered as absence of "internal" or "external" responsibility of participants of corporation for corporation acts. In a case with "external" responsibility — more or less clearly, that it mentions a branch principle. If responsibility restriction means impossibility of attraction of the participant to responsibility before the corporation like it would be necessary to say, that «getting responsibility» is a negation first of all rules about responsibility restriction, instead of a branch principle. After all here corporation existence is not ignored to such degree, that its participation in relations with the creditor is completely displaced with the supervising participant.

However, if such participant bears extraordinary expenses and there is a new duty, additional to the charter capital paid by it it in any case mentions property sphere of the supervising participant and property rights of the under control legal person, and, means, the principle of property isolation is broken always — both in case of "identification", and at «getting responsibility». From such positions any expenses (except a duty to pay ustavnyj the capital), suffered by the participant besides its will and in connection with participation in corporation, it is possible to interpret as infringement of isolation of property of corporation if, of course, such expenses are simultaneously reflected and in property sphere of dependent corporation.

At the same time substitution of "getting responsibility» "identification" can have absolutely destructive influence on a design of the legal person. If to admit, that the introduction into enterprise relations by means of dependent corporation with limited liability is a detour of the law for the purpose of evasion from personal property responsibility (namely "identification" is applied to bar of claim by lapse of time fraus legi facta) it, first, will not correspond to sense of the law owing to a collision with the delictual nature to "getting responsibility», and, in - the second, will destroy any appeal of commercial corporation. Therefore it is necessary to recognise, that we deal with very dangerous legal institution which sphere of action it is not necessary to expand needlessly.

According to the author, it is impossible to mix two categories of "penetration". Each of these designs (an identification of corporation with the supervising person and other organisations under its control and «getting responsibility») differently influences basic principles of the corporate right: « The identification »destroys first of all a branch principle (legally divided subjects"are identified") [99], and« getting responsibility »deforms a limited liability principle (limited liability turns in unlimited), and their quantitative difference consists in it. Qualitative distinction consists that the legal nature of these concepts is excellent from each other: if« getting responsibility »can be defined as a version delictual (comes for offence fulfilment) (section 1.3 see)"identification"of corporation with the supervising participant and the organisations supervised by it occupies the position close to abusing by the right (is an abusing consequence the corporate rights).


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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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