Judicial act: Resolution of the Arbitration Court of the Moscow District dated November 1, 2021 in case No. A40-313844/19.
Court's findings:
1. The plaintiff, as a party interested in collecting the debt, exercising his civil rights in good faith, should have exercised due vigilance regarding the status of the debtor during the period of unfulfilled obligations.
2. The defendant, as the general director and the sole participant of Magazin Elefantenok LLC, did not commit unfair actions aimed at maliciously evading the performance of the company's obligations to the plaintiff, but, on the contrary, took measures aimed at minimizing the losses of the company's creditors.
3. In itself, the exclusion of a legal entity from the register as a result of actions (inaction) that led to such an exclusion (lack of reporting, settlements for a long time), as well as failure to fulfill obligations, is not a sufficient basis for bringing to subsidiary liability.
4. It is required that unreasonable and/or dishonest actions (inaction) of persons lead to the fact that the company becomes unable to fulfill obligations to creditors, that is, in fact, for bringing to bankruptcy.
5. The exclusion from the Unified State Register of Legal Entities "Elefantenok Store" as an inactive legal entity by the registering authority and the failure to pay off the debt in itself cannot be indisputable evidence of the defendant's guilt in not paying this debt, and also testify to dishonest or unreasonable behavior that led to non-payment of the debt.
6. The inability to satisfy the requirements of the creditor was not artificially provoked as a result of the execution of instructions (realization of the will) of the controlling persons and was not the result of illegal actions of the former head.
7. Not any doubt in the good faith of the actions of the manager, confirmed by indirect evidence, should be interpreted against the defendant, such doubts must be sufficiently serious, that is, clearly and convincingly, with the help of consistent circumstantial evidence, confirm the absence of intentions to pay off a specific receivable. The burden of refuting the applicant's substantiated arguments lies with the person held liable.
Comment:
1. From the conclusions of the court, a number of assumptions follow regarding the issues of proving the bad faith of the counterparty in the event of its exclusion from the Unified State Register of Legal Entities. The creditor, in order to prove the bad faith of the debtor's actions, must:
1.1. Provide information proving violations by the registering authority of clauses 1 and 2 of Art. 21.1 of Federal Law No. 129 (in other words, to prove procedural violations of the registration authority itself, which had no reason to exclude a legal entity from the Unified State Register of Legal Entities, but did so);
1.2. Must provide evidence of an appeal against the actions of the registering authority to exclude the company from the register;
1.3. Provide evidence that the impossibility of repaying the debt to the plaintiff arose as a result of the unfair actions of the defendant, to which the plaintiff refers.
1.4. Provide evidence testifying to the defendant's deliberate actions aimed at evading the fulfillment of obligations to the plaintiff in the presence of sufficient funds (property), bad faith or unreasonableness in the defendant's actions that led to the default of the company's obligations
2. From the point of view of political and legal considerations, such a distribution of the burden of proof is quite justified, since the presumption of the opposite fact (exclusion from the Unified State Register of Legal Entities as a result of dishonest actions) would ultimately completely level the institution of limited liability, nullifying the desire to engage in entrepreneurial activity.
3. The downside of such a burden of proof is a fairly large number of judicial errors, since in this case, with such a distribution of the burden of proof, it will almost never lead to the protection of the rights of creditors, even when there are real grounds for bringing to subsidiary liability.
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