Determination of the ratio of the requirement to bring to subsidiary liability

04 jul 2021

When determining the ratio of the claim for bringing to subsidiary liability, controlling persons in the framework of a bankruptcy case and a civil claim for compensation for damage, it is necessary to proceed from the offset nature of these claims in relation to each other.

Senior partners of Law Office "Main Letter" Yulia Vinokurova and Stanislav Gavrichkov gave their comments on this matter.

The lawyers of the Bureau draw attention to the fact that this legal position is reflected in the ruling of the Supreme Court of the Russian Federation No. 305-ES19-17007 of 03.07.2020.

The peculiarity of the requirement to bring controlling persons to subsidiary liability is that it essentially mediates a typed claim for compensation for damage caused to creditors in connection with bringing the main debtor to bankruptcy. The allocation of the named claim due to its special application and prevalence makes it possible to standardize and simplify the proof process (including by introducing presumptions of the defendant's guilt-paragraph 2 of Article 61.11 of the Bankruptcy Law in this edition). The peculiarity of this claim in comparison with an ordinary claim for damages is also the procedure for determining the amount of liability of the guilty person (paragraph 11 of Article 61.11 of the said Law), the rules on the limitation period, etc.

At the same time, the general idea remains unchanged in the institute of subsidiary liability that the ultimate goal of presenting a corresponding claim is the need to compensate for the damage caused to creditors. This characteristic of such a claim is essential, which brings it closer to all other claims filed on the basis of the provisions of Article 1064 of the Civil Code of the Russian Federation. In this regard, when determining the ratio of these requirements, it is necessary to proceed from their offset nature in relation to each other (paragraph 1 of Article 6, paragraph 1 of paragraph 1 of Article 394 of the Civil Code of the Russian Federation), since the subject and the basis of these requirements actually coincide.