Is it possible to avoid vicarious liability in case of personal bankruptcy
The question about the possibility of "stalling" controlling the debtor's person, including his head, from vicarious liability for the obligations of the debtor, it is always interesting for the "injured party" in the bankruptcy case (creditors with unsatisfied claims) and unfair performed its obligations of persons entitled to give binding instructions or otherwise influence the actions of the debtor. In this regard, many it is important to understand whether bankruptcy, for example, head (Director General) as individuals avoid the actual execution of this "punishment".
Until 01 October 2015, this "chance" was actually enshrined the norm of article 212 of the Federal law from 26.10.2002 № 127-FZ "On insolvency (bankruptcy)" (further – "law on bankruptcy") (as amended from 29.09.2015). So, as a General rule after completion of calculations with creditors the citizen recognized by the bankrupt, is released from further performance of creditors ' claims, declared during the procedures applied in business about bankruptcy. As an exception to the Federal law on bankruptcy directly mentioned requirements are inextricably linked with the identity of the creditor, regardless of whether they were declared in bankruptcy or not, and they were not satisfied fully or partially. In addition, a creditor, whose claims were not satisfied during the consideration of the bankruptcy case, retained the right in case of revealing facts of concealment of the bankrupt citizen of the property or illegal transfer of the last property to third parties to bring a claim on foreclosure on such property (item 3 of article 212).
It should be noted that court practice has been amended regarding the application of the rules on exemption from debts. In fact, the list of the above-mentioned exceptional cases was added to the right of the arbitral Tribunal in rendering a decision on completion of bankruptcy proceedings to indicate non-use against the citizen – the debtor, the rules of clause 1 of article 212 of the Federal law on bankruptcy (as amended from 29.09.2015). This right was granted to the arbitration court in a situation when in case of bankruptcy of the citizen established signs of intentional or fictitious bankruptcy or other circumstances, evidence of abuse by the debtor of their rights and other obviously unfair behavior to the detriment of the creditors (for example, taking on certainly not enforceable obligations, the Bank providing false information when obtaining a loan, concealment or intentional destruction of property, withdrawal of assets, breach of court directions to provide information etc.) (paragraph 28 of the Resolution of Plenum of the RF from 30.06.2011, № 51; The decision of the Twentieth arbitration appeal court from 03.09.2015 year in the case of N A23-23/2010; Definition of the SAC dated 29.10.2013 No. YOU 7572/13 on business № A13-6572/2010).
As seen from the above provisions regarding exemption of the citizen the bankrupt from the performance of the obligations, requirements on subsidiary liability of the head for the obligations of the debtor – organization belonged to the General creditors, and were considered annulled upon completion of the bankruptcy proceedings.
From 01 October 2015 came into effect significant changes to the bankruptcy legislation Federal law dated 29.09.2015 year № 154-FZ, including in the exemption from debts. The data "corrections" that are applied at present. Now, a list of requirements which are still in force after the end of proceedings on bankruptcy of a citizen, complemented by requirements:
• the involvement of the citizen as a controlling person vicarious liability (article 10 of the Federal law on bankruptcy);
• the citizen compensation of losses caused by a legal person, a member or was a member of the collegial organs of the citizen (articles 53 and 53.1 of the civil code), intentionally or by gross negligence;
• on compensation for a citizen of losses which are caused intentionally or by gross negligence as a result of default or improper performance by him as liquidator of his duties in the bankruptcy case;
• on compensation for damage caused to a citizen intentionally or by gross negligence;
• about application of consequences of invalidity of the transaction, recognized as invalid on the basis of article 61.2 or 61.3 of the Federal law on bankruptcy (paragraphs 5, 6 213.28 article of the Federal law on bankruptcy).
Accordingly, the personal bankruptcy of a Director may not serve as unconditional grounds for his release from the performance requirements on its vicarious liability as a controlling person for the obligations of the debtor (decision of the Eleventh arbitration appeal court from 13 December 2016 in the case of N A49-8012/2015).
Note that if the specified requirements are included in the register of creditors ' claims, but were not satisfied upon completion of settlements with creditors, the arbitration court issues a writ of execution on such claims under the General rules of procedural law (p. p. 5, 6 213.28 article of the Federal law on bankruptcy). Moreover, the creditors to whom the writ is not issued by the court considering a bankruptcy case, do not lose the right to submit their claims to the debtor after the proceedings in bankruptcy in the manner prescribed by the procedural legislation (item 44 of the Resolution of Plenum of VS Russian Federation from 13.10.2015 year No. 45).
If the requirements are not stated in the course of procedures of bankruptcy of the citizen, then they remain valid and can be submitted after the end of the proceedings in the outstanding part thereof.
In addition, I would like to note that paragraph 10 of article 14 of Federal law dated 29.09.2015 year № 154-FZ established the retroactivity of the law. In particular, enshrined the rule that the norms of article 213.28 FZ about bankruptcy exemption of the citizen from the obligations also apply to liabilities incurred before October 1, 2015. Therefore, these provisions are used by the courts in considering and resolving the cases of bankruptcy of citizens filed until the specified date has not ended to date.
Thus, the legislature "closed the loophole" in bankruptcy law for "unfair" controlling debtor entities (including the managers) for avoiding vicarious and other liability by means of "private bankruptcy".