Russian legislation provides for additional liability of the Director and other controlling persons for the company's debts.
This liability is possible in the absence of funds from the company.
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Subsidiary liability is the responsibility of the director and founders to creditors and the state for the debts of the firm. If a legal entity cannot settle its obligations on its own, the debt falls fully financially on the shoulders of persons became subject to subsidiary liability. It can be assigned to the director, founder, chief engineer or chief engineer, to the person who made the decision and was responsible for the debtor 's activities. Resolution of the Plenum of the Supreme Court of Arbitration of the Russian Federation of 30.07.2013 No. 62 " On Certain Issues of Compensation by Persons belonging to Bodies of a Legal Entity.»
A new term has been introduced – « the person controlling the debtor». This person who actually directed the activities of the firm, gave instructions or determined the actions of the perpetrators. It is not necessary to be legally associated with the firm; If governance is established and proven, subsidiary liability is inevitable. Persons who actually controlled the activities of the firm are subject to subsidiary liability:
Directly gave mandatory instructions;
By persuading or forcing officials to act through them;
Influenced the manager and other decision makers. At the same time, the fact of giving orders or the fact of exerting influence is considered for a period of up to three years before the company is declared bankrupt.
Paragraph 3. Article 53 of the Civil Code of the Russian Federation states that a person who is a member of the bodies of a legal entity is obliged to act in the interests of a legal entity in good faith and reasonably. In case of violation of this obligation, the director at the request of the legal entity and (or) its founders (participants), to whom the right to submit a corresponding claim is given by law, shall compensate the legal entity for the losses caused by such violation.
Subsidiary liability of the founder and director according to the law arises only if there are losses at the established company. If the assets are sufficient to satisfy creditors 'claims, no one can be held subsidiary. At the same time, it should be understood that the director can not be held accountable if his decisions did not go beyond the usual business (entrepreneurial) risk.
Bad faith of actions (inaction) of the director is considered proven, including if the director knew or should have known that his actions (inaction) at the time of their commission were not in the interests of the legal entity, for example, he made a transaction with a person known to be unable to fulfill the obligation ("One-day Firm," etc.).
The unwise act (omission) of the director is considered proven. In particular, when the director has performed a transaction without following the internal procedures normally required or accepted in the legal entity to perform similar transactions (e.g., coordination with the legal department, accounting, etc.).
In case of unfair and (or) unreasonable performance of duties on selection and control of actions (omissions) of representatives, counterparties under civil law agreements, employees of a legal entity, as well as improper system of management of a legal entity, the director is responsible to the legal entity for losses caused as a result of this (Clause 3 of Article 53 of the Civil Code of the Russian Federation).
Importantly, integrity and reason in the performance of the duties assigned to the director consists in taking the necessary and sufficient measures to achieve the purposes of the activities for which the legal entity is established, including the proper performance of the public legal obligations imposed on the legal entity by the current legislation, as well as the payment of taxes by the legal entity. If losses occur in this value, they can be recovered from the director.
Above we have cited only private cases of prosecution of persons who are members of the bodies of a legal entity. The grounds on which such persons could be brought to justice were quite wide.Romanchuk L.E.