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"internal" and "external" responsibility of participants of corporation

Pursuing the aims of restriction of abusings and offences from the participants who have received limited liability of the companies which essentially is challenged now by nobody [40], laws and orders of many states develop and improve one of two types of responsibility or their combination.

The basic damnifikatsionnymi steel models "internal" responsibility [41], i.e. responsibility of supervising participants before the legal body, and "external" [42] responsibility of supervising participants before creditors of the company. In both from the specified cases the dominating participant can be involved in the answer, including under requirements of creditors of the legal person or under the claim operating the bankrupt's estate. However, if in the first situation responsibility of participants before creditors has the mediated, indirect character (actives address in favour of the company, thereby giving to creditors legal possibility to receive satisfaction of the claims) [43] in last case responsibility of participants a straight line — the creditor gets direct access to property of the supervising participant (benefitsiara business).

It is necessary to notice, that both specified types of responsibility to a certain extent knock the beginning of limited liability [44]. In additives, they mention also action of a principle of branch that gives the basis to qualify these two types (model) of responsibility as penetration «for corporate covers» sensu lato (in a broad sense) [45]. According to the author, however, only cases of "external" responsibility concern actually «getting responsibility», as qualifying attribute of such relation — the right of the creditor of the company to demand a satisfaction directly from the supervising shareholder, getting through «a corporate veil».

Supporters of "internal" corporate responsibility start with that message, that the best patronage of creditors consists in preservation for them the solvent debtor and while the dominating participant of the debtor remains solvent, the company supervised by it theoretically cannot come to an inconsistency [46] at all. The concept of "internal" responsibility has received the Most consecutive fastening in the German right where it and has arisen [47]. In particular, it takes place at making contract about submission (Beherrschungsvertrag) between the basic and affiliated societies. At such design of responsibility of the right of creditors of the associated company are protected only indirectly [48].

With t.zr. The author of the given work, the consecutive combination of "internal" and "external" responsibility is the most preferable variant as they, supplementing action each other (influencing proaktivno and reaktivno), strengthen sanifying effect which is received by the dependent legal body and its creditors. Meanwhile it is necessary to approach in the most attentive image to working out of positions about "internal" obligations of the supervising person in relation to the dependent organisation, not having admitted occurrence of gaps in law, a superfluous heap of standard regulation, and the main thing - increases in administrative loading at supervising authorities which will be urged to watch observance of norms about "internal" responsibility (such control is assigned usually or on minoritarnyh participants, or to supervising bodies).

The separate problem is represented by a question on, whether it is necessary to carry responsibility of participants of corporation in which they are involved within the limits of procedure of bankruptcy (bankruptcy proceedings), to "external" or "internal" type of responsibility. The majority of the Dutch scientists adhere to the first t.zr. [49], while some of them (P.Shilfgarde (P. Van Schilfgaarde) and Dr. Mayer (J.M.M. Maeijer)) stand on positions of that is "internal" responsibility [50]. The second point of view is occupied also with some Russian scientists [51]. Recognising specificity of such responsibility in inconsistency procedure, the author nevertheless joins opinion of the first group of researchers as competitive process is inherently the class action in interests of creditors [52].

Thus, though "internal" and "external" responsibility of supervising participants of corporation represent two kinds «removals of a corporate veil» in wide value of this word, however only its "external" form is «getting responsibility» in close sense as she allows the creditor of dependent corporation to receive directly satisfaction and to show claims to the person supervising corporation-debtor.

1.1.3.

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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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