Judicial act: Resolution of the Central District Arbitration Court dated October 20, 2021 in case No. А36-1380/2020.
Court's findings:
1. In order to recover losses, the person claiming their compensation must prove the fact of causing losses, their size, the unlawfulness of the behavior of the causer of damage and the causal relationship between the guilty actions of this person and the harm that has occurred. Meanwhile, there is no evidence of losses incurred by the company, as well as that the actions of A. G. Semykin went beyond the scope of ordinary economic activity, were imprudent, taking into account the risks of entrepreneurial activity.
2. The negative consequences that occurred for a legal entity during the period when the director was a member of the bodies of the legal entity do not in themselves indicate bad faith and (or) unreasonableness of his actions (inaction), since the possibility of such consequences accompanies the risky nature of entrepreneurial activity. activities.
3. Since judicial control is designed to protect the rights of legal entities and their founders (participants), and not to check the economic feasibility of decisions taken by directors, the director cannot be held liable for losses caused to a legal entity in cases where his actions (inaction), resulting in losses did not go beyond the usual business (entrepreneurial) risk.
4. With regard to corporate legal relations, holding a manager liable depends on whether he acted reasonably and in good faith in the performance of his duties, that is, whether he showed care and discretion and whether he took all necessary measures for the proper execution of the powers of the sole executive body.
Comment:
1. Judicial practice on the issue under consideration is established due to the resolution of this issue in the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of 2013 No. 62: within the framework of this Decree, the Supreme Court gives criteria for determining bad faith (clause 2) and unreasonableness (clause 3) of the actions of the director, also indicating to the fact that the mere fact of unprofitable activity or other negative consequences is not proof of the unreasonableness and/or dishonesty of the director's actions, since they may be the result of an unfavorable economic situation and other external factors.
2. At the same time, there is a presumption of good faith in the actions of the director, and business decisions made by the director are assumed to be made in the interests of the company itself. It is worth agreeing with this approach, since in certain situations, in principle, a manager may not be able to reliably measure the level of risk that arises when making a business decision. From the point of view of the meaning of the right itself, it would be wrong to hold the manager liable for his lawful actions that did not bring the proper result.
3. Therefore, when deciding whether to file a claim with the court for the recovery of damages from the former head, it is necessary to evaluate not so much the result of his activity as those actions (or inaction) that testify to the insufficient prudence of the person concerned - the principle of reasonableness of actions of participants in civil circulation. Every reasonable participant in civil circulation, regardless of whether the law imposes on him the obligation to perform certain actions, must use all possible levers to satisfy his requirements.
4. In the event that the decision to conclude a transaction was approved by the general meeting of participants, it does not cancel the director's responsibility for the possible consequences of its conclusion. Decisions of the general meeting of participants in themselves are not the basis for their unconditional execution by the director - it is the director who has inalienable autonomy in making direct decisions on transactions. Otherwise, limiting the director's liability to the fact that he only performed actions to implement the decision adopted by the general meeting would lead to the complete exclusion of the responsibility of the director, who would refer questions to the general meeting of participants for consideration.
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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