Last year’s reform of the Institute of vicarious liability immediately gave the expected result
– Reform of the Institute of vicarious liability, held in the year 2017, immediately gave the expected result. At the end of the year sharply increased the number of claims to the beneficiaries and managers of bankrupt companies, and increases the proportion of satisfied claims.
Federal law 266-FZ in July 2017 added a Chapter on the responsibility of supervising the debtor entities in the bankruptcy law: it was clarified the concept has been included in the violations was made possible the bringing to justice after the completion of bankruptcy proceedings. The effect of her appearance was almost immediate: in the fourth quarter of 2017 was recorded a real surge in the number of cases of vessels bringing to justice the beneficiaries and managers of bankrupt companies. Their number increased to 360, which is 2 times higher than in the same period of the previous year, follows from the data of “Medresurs” (the Uniform Federal register of data on bankruptcy, bankrot.fedresurs.ru).
For the last quarter of 2017 had about a third of such cases. Just last year the courts attracted vicarious liability companies in bankruptcy 923 controlling person. This is 1.8 times more than in the previous year, although the number of corporate bankruptcies increased by only 8%.
With the General increase of activity of the plaintiffs significantly increased the percentage of successful applications by the courts on the prosecution of the controlling entities. If in 2016, the figure was 16%, in 2017, it rose to 22%.
“The increase in the percentage of claims of claims for the imposition of vicarious liability in bankruptcy, as indicators on the number of cases filed can be attributed to the reaction of creditors, insolvency administrators and judges on the activity of the legislator in this sphere”, – said the “Interfax” judge of the Supreme court retired associate Professor of law Rustem miftahutdinov.
Vicarious liability is the more common way of protecting the interests of creditors than the recovery of damages from the controlling entities. “the Mechanism of vicarious liability in more detail and described in detail in the bankruptcy law, especially after amendments in 2017, so arbitration managers use it more often than normal recovery of damages”, – said the head of the project “Medresurs” Alexey Yukhnin.
But the second mechanism is used increasingly. In 2017 415 people – the owners or managers of bankrupt companies were brought to liability in form of damages. This is 2.3 times more than in 2016.
Large – more than 1 billion rubles – the amount, the courts ruled to collect in the fourth quarter of 2017 with the Supervisory entities. 12 this includes current managers, former managers and owners of bankrupt companies.
During the quarter, the maximum amount of 5 billion roubles, the Arbitration court of the Moscow region recovered from Vladislav Demushkin, the CEO of the company “Prodservis”, which had a wholesale trade with meat and meat products in 2012 had a revenue of 4.9 billion rubles at a very modest payables (1.99 billion roubles), and then collapsed.
The statement about bringing Demushkin to vicarious liability, the court applied the arbitration managing Director Dmitry Bubnov. It was based on the fact that the CEO didn’t give him the accounting and other financial documents of the company.
The court considered it a serious violation. “Withholding of the documents ruled out the possibility of identifying specific assets which could satisfy the claims of creditors and the current expenses of the bankruptcy Trustee,” – said in the Arbitration court of the Moscow region.
The attempt of the Manager to challenge the decision in the appeal was not successful.
Record the size of subsidiary responsibility remains unsurpassed. As reported, the largest the size of subsidiary responsibility, awarded to one person, was recorded in 2016 and amounted to 13 billion rubles.
The prospects of vicarious liability
One of the most important innovations of the law 266-FZ is the ability to sue for the imposition of vicarious liability outside of the bankruptcy process, says Yukhnin. Now a significant number of insolvency proceedings are terminated in connection with the lack of funds for the procedure (7.3 per thousand to 20.6 thousand in the first half of 2017), and to the emergence of the aforementioned rules lenders and managers lose the opportunity to address the claims of the beneficiaries and managers of bankrupt companies. Now it is.
266 third law contains many provisions designed to counteract evasion of vicarious liability, and special arrangements. Among them, the extension of the concept of a controlling entity , the introduction of new presumptions, the possibility of individual enforcement decisions and consideration of the claim.
However, it is impossible to say that in 2017 there was one only tighter regulation of vicarious liability. According to Miftakhutdinova, the legislator stressed that the person is not subject to vicarious liability if it acted according to the usual conditions of civil turnover, in good faith and reasonably in the interests of the debtor, its owners, without violating the property rights of creditors.
This situation has developed, the Supreme court in its decision of 21 December 2017 n 53 “About some questions connected with attraction of supervising debtor of persons to responsibility in case of bankruptcy”. “This document States that the involvement of the supervising debtor of persons to vicarious liability is the sole mechanism of restoration of violated rights of creditors in which you need to consider the essence of design is a limited liability legal entity” – recalls miftahutdinov.
This impulse on the part of the armed forces, he believes, on the one hand, should lead to a reduction of the total number of applications and claims concerning the imposition of vicarious liability. On the other hand, given the purpose of the new provisions of the law on counteraction to evade responsibility, will have to increase as a proportion of claims, and percentage of feasibility of such solutions.