Stories of bankruptcy, 2017
In July 2017 the Federal law from 26.10.2002 № 127 – FZ "On insolvency (bankruptcy)" (further – "law on bankruptcy") have been made changes and additions relating to issues of attracting controlling individuals to vicarious liability (the Federal law from 29.07.2017, No. 266 – FZ). The essence of these stories is to create the most optimal conditions for the protection of the interests of creditors of the debtor by means of the "working" circuits meet the requirements due to regulatory entities.
If informed subject of vicarious liability of controlling persons was addressed in one article 10 of the Federal law on bankruptcy, but now the legislator has developed a Chapter III.2, which regulates in detail the procedure of bringing to responsibility of the debtor and other parties in the bankruptcy case.
So, the Federal law of 29.07.2017, No. 266 – FZ significantly expanded the limits of the concept "controlling the debtor's person". In particular, increased time interval during which the person was entitled to give binding instructions to the debtor or otherwise to define actions of the debtor, and on which depends the possibility of a person controlling the debtor. Before making any changes under the controlling of the debtor's face fell a person who has, or had within less than three years prior to the adoption of the arbitration court statement declaring the debtor bankrupt the right to influence the appropriate method on the activity of the debtor. From July 2017, the period during which needs to be instructed has been calculated taking into account not more than 3 years since the actual occurrence of signs of bankruptcy, and also include the period of time after their occurrence and before the arbitration court statement declaring the debtor bankrupt. In our view, in a new edition by the legislator used the more correct and logical approach to the definition of controlling person of the debtor, as in practice, quite often the steps to bring the person to a state of bankruptcy actually occur much earlier than in arbitration court receives a statement declaring the debtor bankrupt. Count 3-year interval from the date of filing of such application the court allowed the debtor's controlling persons to avoid responsibility. It seems that a name change should eliminate this problem.
For the first time in Federal law on bankruptcy in order to facilitate the process of proving guilt controlling person introduces the Institute of rebuttable presumptions. In particular, such a legal mechanism is provided for resolving the issue of recognition of the person in control of the debtor (paragraph 4 of article 61.10), and establishing the impossibility of full repayment of the creditors (paragraph 2 of article 61.11). Thus, by controlling parties of the debtor, unless proven otherwise, be automatically included: the head of the debtor organization or management of the debtor; the person having the right either alone or in conjunction with interested parties to dispose of 50% or more percent of voting shares, or more than half shares of the Charter capital of a limited (additional) responsibility, or more than half of the votes in the General meeting of participants of the legal entity or were entitled to appoint (elect) head of the debtor, etc.
Under clause 2, article 61.11 FZ about bankruptcy, it is presumed that full repayment of the creditor's claims is impossible as a result of actions (inaction) of the controlling persons in any of the following cases:
— caused substantial harm to property rights of creditors against transactions involving a controlling person;
— submitted documents of the accounting reporting and (or) accounting or they lack information about the property, or this information is distorted, which essentially complicates carrying out of the procedures applied in business about bankruptcy;
— has entered into legal force court decision on attraction of the debtor or his head to criminal, administrative responsibility or liability for committing a tax offence and requirements for such acts exceed 50% of the total amount of claims of creditors of the third stage;
— there are no documents, possession of which was mandatory under the guidelines of "corporate" law, or distorted information;
in the corresponding register is not made subject to obligatory reflection information, or submitted false information on a legal entity.
As can be seen from the above cases, the difficulty of proving the impossibility of full repayment of creditors as a result of actions (inaction) of the debtor, the controlling person can still arise in the case of using the base specified in the first paragraph. Law on bankruptcy does not contain the concept of "substantial harm to property rights of creditors" and the common criteria evaluation. Accordingly, in each particular dispute, this fact will be established by the court based on "their own internal beliefs".
As the innovation it is also necessary to note the rate of release of the controlling entity from vicarious liability or reduce the amount of such liability. To implement this rule must meet simultaneously two conditions: 1) the person must prove that it is not actually exerted a decisive influence on the activities of the legal person (acting on the nominal control); 2) the person must provide identifying data about virtually controlled the debtor entity, and (or) to find the last hiding property of the debtor and (or) controlling persons (item 9 of article 61.11, law on bankruptcy). At first glance, the rule pursues a good purpose – to determine the culprit in bringing the person to bankruptcy and identify the property to the bankruptcy estate through cooperation. However, it is worth to note that the legislator has provided the court of arbitration only right to take a decision about reducing the size of subsidiary responsibility or exemption from it, and not enshrined in law an unconditional basis for changing "negative" consequences for the controlling person. Accordingly, the conditions for such cooperation appears to be patchy. Therefore, it is unlikely in practice, this rule will be widely used. In addition, if we consider the normal from reverse, it may be concluded that in case of failure of at least one of these conditions, controlling of the debtor entity may be subject to vicarious liability. This interpretation of the rule indicates a possible "distortions" when deciding on the case of the involvement of the supervising debtor of persons to vicarious liability.
At the same time I would like to note that now the legislator allocates in a separate article, and in more lurid detail several types of liability of controlling persons under the bankruptcy and outside its framework: 1) vicarious liability for impossibility of full repayment of the creditors (article 61.11); 2) vicarious liability for failure to file (late filing) the application of the debtor (article 61.12); 3) liability for violation of legislation of the Russian Federation about insolvency (bankruptcy) (art. 61.13); 4) liability in damages caused to the debtor (article 61.20), etc.
In summary, it can be concluded that the legislator made a good attempt to improve and strengthen the mechanism to attract controlling persons of the debtor to subsidiary responsibility. However, without "flaws" has not done and, as always, law enforcement practice over time will make adjustments to flaws.