PRACTICAL PROBLEMS OF PROVING THE ABSENCE OF GUILT OF A DEBTOR’S CONTROLLING PERSON BROUGHT TO SUBSIDIARY LIABILITY
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Author(s): | Sidorov A. V., |
| Number of journal: | 4(69) | Date: | November 2024 |
| Annotation: | The basis for bringing the debtor’s controlling persons to subsidiary liability is a delict. Both from the provisions on liability for breach of obligations and from the rules on liability for causing harm (delict) it follows that the absence of guilt is proved by the person who has breached the obligation or caused harm (Clause 2 of Article 401 and Clause 2 of Article 1064 of the Civil Code of the Russian Federation). A similar approach to the presumption of guilt is used by the legislator to hold the person controlling the debtor liable in a bankruptcy case. In accordance with paragraph 2, clause 10 of Article 61.11 of Federal Law No. 127-FZ of October 26, 2002 On Insolvency (Bankruptcy), the absence of guilt of a controlling person is evidenced by actions in accordance with the usual conditions of civil turnover, in good faith and reasonably in the interests of the debtor, its founders (participants), without violating the property rights of creditors, and if he proves that his actions were taken to prevent even greater damage to the interests of creditors. The article analyzes practical problems arising in proving the absence of guilt of a debtor’s controlling person. The author comes to the conclusion that several controlling persons brought to liability may have unequal opportunities of proof, which mainly comes from the period of control and access to the debtor’s document flow. Based on the conclusions made, the author formulates the suggestions about evaluation of the innocence’s evidence. The conclusions obtained by the author can be used in law enforcement practice to form and justify the position of the person brought to subsidiary liability, the bankruptcy trustee of the debtor, as well as for further study of the institute of guilt in civil law. | ||
| Keywords: | bankruptcy, insolvency, a person controlling the debtor, subsidiary liability of persons controlling the debtor, subsidiary liability for impossibility of full repayment of creditors’ claims, subsidiary liability for failure (untimely filing) of the debtor’s application, grounds for subsidiary liability of persons controlling the debtor, fault of persons controlling the debtor, bringing to bankruptcy, objective bankruptcy |
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| For citation: | Sidorov A. V. Practical problems of proving the absence of guilt of a debtor’s controlling person brought to subsidiary liability. Biznes. Obrazovanie. Pravo = Business. Education. Law. 2024;4(69):196—200. DOI: 10.25683/VOLBI.2024.69.1128. |
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