“On bringing persons controlling the debtor to subsidiary liability” — article by Tatiana Tereshchenko for “Theoretical and Applied Jurisprudence”
Keywords: subsidiary liability of persons controlling the debtor, clause 3.1 of Article 3 of the Federal Law on LLC, Resolution of the Constitutional Court of the Russian Federation, bad faith, evasion of responsibility.
The article by Tatiana Tereshchenko, head of the analytical department of Prime Advice, touches on the problem of attracting persons controlling the debtor in the light of the reservation on the interpretation of Clause 3.1 of Article 3 of the Federal Law "On Limited Liability Companies", which was made by the Constitutional Court of the Russian Federation in Resolution No. 20-P. dated May 21, 2021.
In particular, the Constitutional Court pointed out that the conclusion made in the Decision of the Constitutional Court of the Russian Federation related to the subject of consideration in this case cannot in itself be considered as excluding the application of the same approach to the distribution of the burden of proof in cases where the creditor is a subject other than an individual, the company's obligation to which arose not in connection with the creditor's entrepreneurial activity.
Illustrating the grounds for a double interpretation laid down in such a phrase, the author concludes that a narrow approach is still preferable, when the reservation is interpreted in favor of only such a creditor, which is "another entity, the obligation of the company to which arose not in connection with the implementation of entrepreneurial activity." According to Tatiana Tereshchenko, such a conclusion not only corresponds to the idea of fairness in the distribution of the burden of proof in terms of the status of creditors, but also generally agrees with the general prohibition to take advantage of unfair behavior.