Judicial act: Resolution of the Arbitration Court of the Moscow District dated October 20, 2021 in case No. A41-59059/2020.
Court's findings:
1. The court needs to establish the degree of involvement of the person subject to subsidiary liability in the process of managing the debtor, checking how significant his influence was on making significant business decisions regarding the activities of the debtor (the degree of involvement is an estimated construction: based on judicial practice, it can be determined from degree of guilt, share of participation in the authorized capital, awareness of causing significant harm to his creditors by these actions, obtaining (potential) benefits from the transaction, etc.)
2. As a general rule, a necessary condition for classifying a person as controlling the debtor is that he has the actual ability to give the debtor binding instructions or otherwise determine his actions that caused the bankruptcy of the company
3. A person is recognized as controlling if the transactions that have changed the economic and (or) legal fate of the debtor are concluded under the influence of the person who determined the essential terms of these transactions.
4. A person may not be recognized as controlling the debtor only on the grounds that he was in a relationship of kinship or property with members of the debtor's bodies, or he was given the authority to conclude certain ordinary transactions on behalf of the debtor, including within the framework of ordinary business activities, or it replaced the positions of the chief accountant, financial director of the debtor.
5. Actions (inaction) of the controlling person, which led to the impossibility of repaying the claims of creditors - only such actions (inaction) that were the necessary reason for the bankruptcy of the debtor, that is, those without which objective bankruptcy would not have occurred.
Comment:
1. It is possible to formulate the following conditions that may lead to a refusal to bring to subsidiary liability:
a) Failure to prove the unreasonableness and / or bad faith of the actions of the debtor's controlling persons (in the court decision, examples of such actions are analyzed in sufficient detail: for example, the coordination, conclusion or approval of transactions on obviously unfavorable conditions or with a person who is obviously unable to fulfill the obligation ("one-day firm", etc.) .p.), giving instructions on the performance of clearly unprofitable operations, appointing persons to senior positions, the result of whose activities will obviously not meet the interests of the headed organization, creating and maintaining such a debtor management system that is aimed at systematically extracting benefits from a third party to the detriment of the debtor and his creditors, etc.).
b) Absence of a causal relationship between the actions of controlling persons and the creditor's losses.
c) A direct causal relationship between the actions of a person and the subsequent bankruptcy of the debtor: the mere fact of indicating the conclusion of transactions is not enough, it is important to have conclusions about whether these transactions were a necessary cause of the bankruptcy of the debtor
2. Of course, these are not all the grounds on which the court may refuse to bring to subsidiary liability. The issue of bringing the controlling persons of the company to subsidiary liability, of course, should be decided depending on the qualification of the actions of such persons as unreasonable and / or dishonest, i.e. on the basis of the criteria specified in clause 3.1 of Art. 3 of the LLC Law. However, within the framework of the present case, one can trace the consistent argumentation of the court, which gives hope that bringing to subsidiary liability does not occur solely on “formal grounds”, which cannot but rejoice.
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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