“Presumption of business guilt” — Anna Volynets for the Legal Information Agency
Managers and owners of companies that owe money to citizens should be held accountable even after the actual liquidation of legal entities. At the same time, they are considered guilty until they prove the reasonableness and validity of their actions. This decision was made by the Constitutional Court of Russia.
Anna Volynets, attorney-at-law, project manager of Prime Advice:
In fact, the Constitutional Court of Russia has established a new presumption: until it is established otherwise, it is considered that it was the inaction of the head or the main participants of the LLC that led to the inability to fulfill obligations to the plaintiff. This "presumption" is refutable – the controlling persons are not deprived of the opportunity to prove the absence of their guilt in the inability to repay the debt by the company.
With regard to the cases of "consumer citizens", in my opinion, the position of the Constitutional Court of Russia is balanced and corresponds to the general principle of protecting their rights as a weaker party in legal relations with business. In addition to the consumers themselves, the new resolution grants the right not to prove the guilt of the controlling persons of the LLC and other citizens whose claims are not related to the implementation of their business activities. For example, former employees of a liquidated company who did not receive wages, various benefits and compensation.
It is likely that the resolution will try to use not only private, but also corporate creditors of LLC excluded from the Unified State Register of Legal Entities. In the ruling itself, the Russian Constitutional Court made a reservation and pointed out that its conclusions in this case do not in themselves exclude the application of the same approach to the distribution of the burden of proof in "other cases". I believe that until the relevant norms are enshrined in federal law or at least clarified by the Supreme Court of Russia, it is unlikely that lenders – legal entities will be able to take advantage of the "privilege" of consumers and employees.
It should be noted that until now, the arbitration courts have almost always refused to bring the managers and owners of the LLC to subsidiary liability, pointing to the lack of evidence of their unreasonable or unfair actions that led to non-performance of obligations. Although on February 16 of this year, the Supreme Court of Russia adopted a ruling in which, we can say, a "vector" was set for the protection of the applicant-a citizen. The highest instance indicated that the defendant should have refuted the bad faith or unreasonableness of her actions, which led to the inability to pay the citizen an allowance. Now, in more detail, this problem of the distribution of the burden of proof is fixed in the decision of the Constitutional Court of Russia.