RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of December 21, 2017 No. 53

About some questions connected with attraction of persons controlling the debtor to responsibility in case of bankruptcy

For the purpose of ensuring unity of practice of application by courts of provisions of the Federal Law of October 26, 2002 No. 127-FZ "About insolvency (bankruptcy)" about attraction of persons controlling the debtor to responsibility in case of bankruptcy the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make the following explanations:

The general principles of attraction of persons controlling the debtor to responsibility in case of bankruptcy

1. Attraction of persons controlling the debtor to subsidiary responsibility is the exclusive mechanism of recovery of the violated rights of creditors. In case of its application courts need to consider as essence of the design of the legal entity assuming property isolation of this subject (Item 1 of Article 48 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation), its independent responsibility (article 56 Civil Code of the Russian Federation), availability at members of corporations, founders of the unitary organizations, other persons who are part of bodies of the legal entity, broad freedom of discretion in case of adoption (approval) of business decisions and prohibition on causing harm by them to independent participants of turnover by means of unfair use of institute of the legal entity (article 10 Civil Code of the Russian Federation).

Conducting economic activity by the legal entity with entrepreneurial risk is not the basis for attraction of persons controlling the debtor to subsidiary responsibility according to obligations of such person. Persons controlling the debtor can be brought to subsidiary responsibility only if inability of the debtor to meet the available requirements is caused by their behavior which did not answer criteria of conscientiousness and rationality, including is not connected with market or other objective factors (Items 3 and 4 of Article 1, Item 1 of Article 2, Items 1 and 5 of Article 10, Item 2 of Article 56 and Item 1 of article 1064 Civil Code of the Russian Federation).

2. In case of attraction of persons controlling the debtor to subsidiary responsibility in the part which is not contradicting special provisions of the Federal Law of October 26, 2002 No. 127-FZ "About insolvency (bankruptcy)" (further - the Bankrupcy law), general provisions of Chapters 25 and 59 of the Civil Code of the Russian Federation about responsibility for violation of obligations and about obligations owing to damnification are subject to application.

Person controlling the debtor

3. By the general rule, necessary condition of reference of person to number controlling the debtor is availability at it the actual opportunity to instruct the debtor obligatory for execution or to otherwise determine its actions (Item 3 of article 53.1 Civil Code of the Russian Federation, Item 1 of Article 61.10 of the Bankrupcy law).

Implementation of the actual control over the debtor is possible regardless of availability (absence) of legallistic signs of affiliation (through relationship or property with persons which are part of bodies of the debtor, the direct or mediated equity participation or in management, etc.). The court establishes degree of involvement of person brought to subsidiary responsibility in management of the debtor, checking how considerable was its influence on adoption of essential business decisions concerning activities of the debtor.

If the transactions which changed economic and (or) legal destiny of the debtor are concluded under the influence of person which determined essential conditions of these transactions, such person is subject to recognition controlling the debtor.

Person cannot be acknowledged controlling the debtor only on the ground that it consisted in the relations of relationship or property with members of bodies of the debtor, or powers were delegated to it to making on behalf of the debtor of separate ordinary transactions, including within regular economic activity, or it replaced positions of the chief accountant, the finance director of the debtor (subitems 1 - 3 Items 2 of Article 61.10 of the Bankrupcy law). The called persons can be acknowledged controlling the debtor in accordance with general practice, including with use of presumptions, stipulated by the legislation about bankruptcy, at the same time the benefits following from their provision are considered.

4. In sense of the interconnected Article paragraph two provisions 2, of Item 2 of Article 3, of Items 1 and 3 of Article 61.10 of the Bankrupcy law for the purposes of application of special provisions of the legislation on subsidiary responsibility, by the general rule, the control taking place during the period preceding the actual emergence of signs of bankruptcy irrespective of, the valid financial condition of the debtor disappeared is considered or not, that is the three-year period preceding the moment at which the debtor became incapable to meet in full requirements of creditors including about payment of obligatory payments, because of excess of the cumulative size of obligations over the actual cost of its assets is taken into account (further - objective bankruptcy).

The specified provisions of the legislation do not exclude possibility of attraction of the controlling person to other responsibility for the actions made outside the called three-year period, for example, to responsibility, stipulated by the legislation about legal entities (article 53.1 Civil Code of the Russian Federation, article 71 of the Federal Law of December 26, 1995 No. 208-FZ "About joint-stock companies" (further - the Join-stock companies law), article 44 of the Federal Law of February 8, 1998 No. 14-FZ "About limited liability companies" (further - the Law on limited liability companies), etc.).

5. Participation in itself in bodies of the debtor does not testify to availability of the status of the controlling his face. The exception of this rule is enshrined in subitems 1 and 2 of item 4 of Article 61.10 of the Bankrupcy law which established the group of people concerning which the rebuttable presumption of the fact that they determined actions of the debtor is effective.

If as the head (sole executive body; further - the head) the debtor the managing company (Item 3 of article 65.3 Civil Code of the Russian Federation) acts, it is supposed, other that the faces controlling the debtor are both this managing company, and her head who by the general rule bear the responsibility specified in Articles 61.11 - 61.13, 61.20 of the Bankrupcy law is not proved yet, it is solidary (Items 3 and 4 of article 53.1 Civil Code of the Russian Federation, paragraph one of article 1080 Civil Code of the Russian Federation).

According to the subitem 2 of item 4 of Article 61.10 of the Bankrupcy law it is supposed that the member of corporation, the founder of the unitary organization is the controlling person if he and persons affiliated with it (in particular, article 53.2 Civil Code of the Russian Federation, article 9 of the Federal Law of July 26, 2006 No. 135-FZ "About protection of the competition", article 4 of the Law RSFSR of March 22, 1991 No. 948-1 "About the competition and restriction of monopolistic activities in the goods markets") has the right to dispose of 50 and more percent of voting shares (shares, shares) the debtor, or have in total 50 and more percent of votes in case of decision making by general meeting or if their voices are enough for appointment (election) of the head of the debtor. It is presumed that person answering to one of the specified criteria is recognized controlling along with persons affiliated with it.

6. The head who is formally part of bodies of the legal entity, but not exercising the actual control (further - the nominal head), for example, completely subcontracted management to other person based on the power of attorney or making key decisions on specifying or in the presence of obviously expressed consent of the third party who did not have the appropriate formal authority (the actual head) does not lose the status of the controlling person as the similar behavior does not mean loss of possibility of rendering influence on the debtor and does not exempt the nominal head from implementation of obligations at the choice of the representative and to control of its actions (failure to act), and also on ensuring proper system operation of management of the legal entity (Item 3 of article 53 Civil Code of the Russian Federation).

In this case, by the general rule, nominal and actual heads bear the subsidiary responsibility provided by Articles 61.11 and 61.12 of the Bankrupcy law, and also the responsibility specified in Article 61.20 of the Bankrupcy law is solidary (paragraph one of article 1080 Civil Code of the Russian Federation, Item 8 of Article 61. 11, paragraph two of Item 1 of Article 61.12 of the Bankrupcy law).

At the same time owing to special regulation (Item 9 of Article 61.11 of the Bankrupcy law) the extent of subsidiary responsibility of the nominal head can be reduced if thanks to the information unavailable to independent participants of turnover opened by it the actual head and (or) the property of the debtor or the actual head disappearing them at the expense of whom requirements of creditors can be met were established.

Considering question of reduction of the extent of subsidiary responsibility of the nominal head, the court considers as far as its actions for disclosure of information promoted recovery of the violated rights of creditors and compensation of their property losses (Item 1 of article 1064 Civil Code of the Russian Federation).

In case of reduction of the extent of subsidiary responsibility of the nominal head the actual head bears subsidiary responsibility in full. In that part in which responsibility of the nominal head was not reduced he answers solidary with the actual head (Item 1 of Article 1064, paragraph one of article 1080 Civil Code of the Russian Federation).

The given explanations about reduction of the extent of subsidiary responsibility of the nominal head extend as to cases of accountability for not giving (untimely giving) by the debtor of the statement for own bankruptcy, and to cases of accountability for impossibility of complete repayment of requirements of creditors (Item 1 of article 6 Civil Code of the Russian Federation, Item 9 of Article 61.11 of the Bankrupcy law).

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