26/12/2024, Tatiana Tsepkina shared with the readers of the Advocate Newspaper her view on the case of bringing to “extra-bankrupt” subsidiary liability, which was considered by the Supreme Court of Russia.
The main feature of the case is that the Judicial Board did not find dishonesty in the defendant’s behavior when the company was excluded from the register of legal entities by decision of the registering authority in the presence of receivables.
The courts disagreed in assessing the actions of the company’s director and in determining the statute of limitations. Thus, when considering the case by the court of first instance, the court considered the statute of limitations to be missed by the plaintiff, and also took into account the fact that the defendant was taking all possible measures to maintain the solvency of the organization. However, the courts of higher instances approached the issue of calculating the limitation period differently and gave a different legal assessment of the circumstances of the case, imputing unfair behavior to the defendant.
Canceling the judicial acts of the courts of verification instances and leaving the decision of the court of first instance in force, the Supreme Court pointed out that there were no reasons to postpone the initial date of the limitation period, and the exclusion of the debtor from the register of legal entities administratively in case of existing debt was not a direct confirmation of the dishonesty of the controlling persons.
“In its ruling, the Judicial Board of the Supreme Court cited the legal position of the Constitutional Court, according to which one of the conditions for bringing controlling persons to subsidiary responsibility is to establish the fact that the outstanding debt arose as a result of the unreasonableness and dishonesty of controlling persons. The case under consideration has complemented the gradually developing fair judicial practice of comprehensively assessing the actions of former managers when bringing them to subsidiary responsibility,” says Tatiana Tsepkina, head of the Insolvency and Bankruptcy Practice at L&P, adding her comment for the main publication of the Russian law community.
