“Subsidiary responsibility: it’s better to get over it” — an article by Denis Khimilyayne for a special issue of Delovoy Peterburg
It would seem that all owners and directors have heard about subsidiary liability, but customers continue to surprise us and address us at a time when the problem of non-fulfillment of obligations to a small creditor results in the bankruptcy of a company belonging to the group, challenging transactions and the threat of personal responsibility. The fact that they can come for you personally is still a surprise.
However, statistically, not only the number of claims for subsidiary liability is growing, but also the percentage of their satisfaction. Therefore, it is important to carry out entrepreneurial activity with an eye to formally legal risks, among which the following are indicative.
What is justified in practice is not encouraged in court
Some operations common in the business environment may be legal and considered normal until the company goes into bankruptcy. For example, it is quite common practice to "transfer" funds from the accounts of one company to the accounts of another company in the group, including for replenishment of working capital. However, if things in the group suddenly deteriorate so much that at least one of the companies goes into bankruptcy, then the attitude of practicing lawyers and courts to such operations changes to the opposite. Since the idea of corporate responsibility and the removal of the corporate veil looms behind the attraction to subsidiary liability, the actions of any bankrupt society begin to be viewed through the prism of independent responsibility. Therefore, if a company participating in a group does something in the interests of the whole group or a particular person, but does not receive anything in return, then the entire group or a person who makes a profit should be held accountable. This is based on the use of such "fashionable" legal terms as "profit center" and "loss center".
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