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§ 3. Responsibility of the connected persons.

The important question in connection with the stated mechanisms and requirements is responsibility within the limits of relations of economic dependence. To any possibility of influence there should correspond certain responsibility.

The Russian legislation does not establish as that liability of infringement of the legislation in the field of regulation of relations with affiliated persons. In the Federal Commission on Securities Decision about disclosing of the information from 30.09.1999 ³7 [77] it was provided

Liability of infringement of the norms fixed by this decision. In new position there is no even a mention of responsibility for non-observance of its positions. We have already drawn a conclusion that a unique kind of responsibility for joint-stock companies in case of numerous or gross violation of the legislation-liquidation.

RG.Hg 323. 11.11 1999.

The German legislation. As already it has been considered above, provides the whole system of a liability of infringement of the legislation on the connected enterprises, from the penalty before imprisonment.

It is possible to tell, that the Russian legislation also should provide wider spectrum of a liability of infringement of norms about affiliated persons. Existing standard regulation does not establish practically any liability of infringement of rules of law.

Responsibility can be divided into 2 categories: an organizational liability for infringement of public duties (in the field of information disclosing, in the field of the taxation) and a liability of infringement of private-law duties (in the field of the corporate right - the rights of shareholders to the indemnification and d.)

There is a question on the universal mechanism of responsibility, whether its fastening in the legislation is possible. The decision of the given question also thinned is problematic, in connection with gem, that in a hook the mechanism it is necessary to combine both public, and private-law aspects. On nevertheless. Probably, probably to establish mechanisms of a liability of infringement of positions of each concrete area of the legislation, that basically it will be adequate for modern legal regulation.

At atom logical responsibility fastening as is represented to the organisation as a whole, a hook and its officials (on model of the German legislation).

So, «In a case if as a result of influence of the dependent organisation the damage will be caused, it should be compensated the predominating organisation». Thus doioliietelyju the presumption of influence that is, in case of an establishment of the status of the connected persons, prezjumiruetsja influence of the predominating organisation on the dependent should be established. An influence presumption in

The given case it is considered only within the limits of relations of dependence for equation of fiction legal anjunomii the dependent subject. Thus given presumption does not assume absence at the dependent person completely will. In case of dependence relations the given presumption is similar to the mechanism of "removal of corporate covers». That is in case of proceeding the court should prezjumirovat influence of the predominating organisation on activity of the dependent. The presumption should be used in cases when the nanosecond arises doubts that supervised over actions of the dependent person glavens і iujushchee.

To such situations about tnosja the gay:

1. 100-protssptios participation of one person in other;

2. Realisation by one legal body of functions edinolichnoju an executive office in other legal body.

Presumption introduction in aggregate with norms about responsibility ' will help to establish more effective mechanism from abusings the predominating person the position. Also presumptions will help to balance fiction of autonomy zavisimoju persons.

In a case zakonodatelnoju fastenings takoju positions there is excessive a regulation established by item 106 GK about dependent societies. Thereupon it will be necessary for cancelling.

For reduction of abusings concerning the parent company it is offered to change a kind its responsibility in case of the conclusion of transactions in connection with obligatory instructions: «the Predominating person otechaet subsidiarno under the transactions concluded dependent to execute obligatory instructions». And in cases when there is the influence presumption, the predominating person answers subsidiarno under all transactions made dependent. In case of bankruptcy of the dependent person predominating pesetas the subsidiary liability on hundred debts.

Within the limits of application of measures of responsibility category replacement "obligatory instructions" on a category "influence rendering" is represented also necessary. Obligatory instructions are a special case of rendering of influence, and use of exclusively country category in the legislation essentially reduces possibility of application of regulation of economic dependence. Thus given category is often used in as one of possibilities of rendering of influence, for example, in item 56 GK by persons who have the right to give

Obligatory for etoju juridicheskoju persons of instructions or otherwise have possibility to define its action... 1 ’). Judiciary practice also considers more widely the basis of occurrence of dependence, rather than simply summer residence of obligatory instructions. For example, in definition YOU the Russian Federation from 24.09.2008 X? 12254/08 on business? \47-7988/2006-Zzgk it is underlined, that for attraction to joint and several liability of the managing subject in dependence relations it is necessary to prove, that there was an influence or possibility of influence of a pas activity and acceptance of economic decisions.

We can draw a conclusion, that for application of measures of responsibility in relations of dependence the fact of obligatory instructions is only one of the bases. In case of fastening of the general approach by means of category inclusion "influence rendering" there is possible a maintenance of all-round protection, both participants of relations of dependence, and the third parties. Thus introduction of such category korrespondiruete the general concept of economic dependence which provides dependence occurrence only in case of existence of possibility of direct or indirect influence on decision-making by the dependent person.

It is necessary as to fix responsibility of officials predominating the organisations within the limits of criminal tjakpnodotgpstnja: «At deliberate abusing predominating position on
The official of a predominating society can be imposed the penalty in

The size..... Such abusings concern: an unaccordance or

False information granting in registering body, wrongful sale of actions of a dependent society, use of preference shares for voting and others ».

If once again to address to the basic problems of legislative regulation of forms of dependence it is possible to allocate the following:

• Restriction of the rights of shareholders zavisimoju societies;

• Restriction or infringement of the rights of creditors;

• access Restriction to the information:

• Creation of the latent monopolies (non-observance gosudarstvennoju economy regulations).

The decision of these problems lays, first of all, in legislative fastening of key concepts (that already was marked above ».

Infringement of the rights of creditors and shareholders is connected, first of all, with incompleteness of disclosing of the information. The duty of full disclosing of the information on coherence occurrence between managing subjects (that also was marked above) therefore should be legislatively fixed. Thus. The key should be not information granting in registering body, and disclosing of the information for interested persons, such as shareholders zavisimoju societies and its creditors.

In rules of law about the connected persons it is necessary to fix position that «shareholders of a dependent society can demand the obligatory repayment of the actions in case of occurrence the dependence relation». For creditors position that «the creditor has the right to demand the preschedule termination of the obligation of a dependent society should be provided in case there are dependence relations. Thus losses of the creditor become covered at the expense of the predominating organisation in dependence relations».

Change of legislative regulation will help to settle dependence relations, fixing thus as a number of private-law mechanisms (in corporate customs), and publichnopravonyh (the consolidated taxation, the account of the connected persons in the antimonopoly law).

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A source: Anisimov Alexey Vladimirovich. rather-legal analysis of forms of dependence of managing subjects in the Russian Federation and Federal Republic Germany. The dissertation of a pas competition of a scientific degree of the master of laws. Moscow -.

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