Issues of proving the conditionality of the harm caused by the behavior of the persons controlling the debtor

Issues of proving the conditionality of the harm caused by the behavior of the persons controlling the debtor. Arbitrage practice.

Subsidiary liability of persons controlling the company is a measure of civil liability, the function of which is to protect the violated rights of the company's creditors, to restore their property status.

However, in practice, situations are not uncommon when the claims of creditors remain unsatisfied only because of the “unproved” grounds for bringing the person who controlled the debtor to subsidiary liability.

Case plot:

By a court decision, 1.5 million rubles were recovered from EVM VAM LLC in favor of BT Lighting Solutions. unjust enrichment, as well as 29 443 RUB. court costs. Then, on January 15, 2020, enforcement proceedings were initiated. However, six months later, an entry was made in the Unified State Register of Legal Entities about the termination of the activities of the EVM VAM company as an inactive legal entity. The court's decision was never implemented.

In this regard, LLC applied to the court with these requirements to Kashavsky M.The. in a subsidiary manner (since he is the General Director and the only participant of LLC "EVM VAM" excluded from the Unified State Register of Legal Entities).

The courts of first instance and appeal left the claims unsatisfied due to the failure to prove the grounds for bringing Kashavsky to subsidiary liability.

In the cassation appeal of BT Lighting Solutions LLC:

1. Refers to the incorrect distribution of the burden of proof by the courts.

2. Failure to file an application for declaring a legal entity insolvent (bankrupt) by persons controlling the debtor is an unlawful inaction.

3. The absence of guilt is proved by the person who violated the obligation.

4. The response of the Federal Tax Service Inspectorate about the absence of financial statements of the EVM VAM company may indicate the unfair behavior of the persons controlling the debtor, the intention to hide transactions / financial transactions.

Judicial act: Resolution of the Arbitration Court of the West Siberian District of November 11, 2021 in case No. A45-33390/2020.

The conclusions of the court that canceled the judgments of the lower courts:

1. The exclusion of an inactive legal entity from the Unified State Register of Legal Entities by decision of the registering authority is a forced measure that leads to the loss of legal capacity by a legal entity, bypassing the liquidation procedures necessary, including for the protection of the legitimate interests of its creditors.

It cannot serve as a full-fledged replacement for the fulfillment by the participants of the organization of obligations to liquidate it, including for the purpose of fulfilling the obligations of the organization to its creditors, especially in cases where the claims of the creditor against the organization have already been satisfied by the court and, accordingly, included in enforcement proceedings.

2. In itself, the fact that the plaintiff, who is the creditor of the company, did not use the opportunity provided by law to file a reasoned application to prevent the company from being excluded from the unified state register of legal entities, does not mean that the plaintiff loses the right to compensation for losses.

3. The defendant’s failure to liquidate the company if at the time of exclusion from the Unified State Register of Legal Entities the company’s debts to creditors may indicate a deliberate neglect by the person controlling the company of his duties, an attempt to avoid the risks of being held subsidiary liable in the bankruptcy case of the company.

4. The conclusion that there are no legal grounds for bringing the defendant to subsidiary liability was made by the courts of both instances with an incorrectly distributed burden of proof and incompletely investigated circumstances that are essential for the correct resolution of the dispute.

Comment:

1. The court stated that the debt arising from subsidiary liability is subject to the same legal regime as other debts related to compensation for damage to the property of participants in the turnover. Therefore, when bringing to subsidiary liability, it is necessary to have all the elements of a civil offense: unlawful behavior, harm, a causal relationship between them and the offender's guilt.

2. It is objectively difficult for a creditor to prove the unreasonableness and bad faith of the actions of persons who controlled an inactive legal entity excluded from the register. The creditor, as a rule, is deprived of access to documents containing information about the economic activity of the company, and does not have other sources of information about the activities of the legal entity and its controlling persons.

3. The presentation of claims to the plaintiff related to proving the conditionality of the harm caused by the behavior of the persons controlling the debtor, obviously entails an inequality in the procedural possibilities of the plaintiff and the defendant, since the plaintiff is required to provide evidence, the very existence of which he may not be aware of due to his non-involvement in corporate legal relations.

4. Consequently, the plaintiff must provide evidence of the existence of losses, and the duty of the defendant is to give explanations regarding the reasons for the exclusion of the company from this register and provide evidence of the legitimacy of his behavior: to prove that, with the degree of care and diligence that was required of him under the usual conditions of business and taking into account the entrepreneurial risks associated with the activities of the company, he acted in good faith and took all measures both for the fulfillment by the company of contractual obligations to the plaintiff and for the execution of a judicial act on the recovery of the disputed debt.

Please note that in 2020 the law firm Vetrov & Partners was marked by the industry rating of law firms Pravo.ru-300 in the nominations Arbitration Proceedings, Dispute Resolution in Courts of General Jurisdiction and is one of the regional companies throughout Russia in these nominations.

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