The Supreme Court will establish the amount of liability of the heads of bankrupt companies

The Supreme Court of the Russian Federation (SC) will determine the limits of liability of directors of bankrupt companies. After collecting losses from one of the leaders, the right to claim the debt was sold for a small amount. But the creditor decided to bring the director to subsidiary liability as well. In practice, the parallel presentation of such claims is not uncommon, and the courts satisfied the claim. But lawyers consider it unreasonable, since the amount of damages awarded exceeded the total amount of debts of the bankrupt.

The Supreme Court will figure out in which case the demand to bring to subsidiary liability the persons controlling the debtor (CDL, most often they are former managers and owners of the company) can be denied. As part of the bankruptcy case of KS-COM LLC, its bankruptcy trustee in 2020 obtained a court decision to recover 11.5 million rubles from the ex-director of the debtor Alexei Semenov. losses. The reason was the unjustified withdrawal of money from the company’s accounts by the head in 2010-2015.

The bankrupt’s only creditor, SpetsStroyStandart Construction Company LLC, voted for the sale of the right to claim against the director at the bankruptcy auction, approving the low initial price. As a result, the right was bought by an individual for 140 thousand rubles. Later, the creditor, who owed 4.8 million rubles to the bankrupt, filed a new lawsuit against the ex-director – to bring him to subsidiary liability for bringing the company to bankruptcy and the impossibility of repaying all debts. “SpetsStroyStandart” referred to the same withdrawal of money, as well as to the failure to transfer documents to the manager.

Arbitration courts of three instances rejected claims for withdrawal of funds as identical to the basis for the recovery of damages. But the courts agreed to involve the director in a subsidy for 4.8 million rubles. for non-transfer of documents and assets.

Aleksey Semenov appealed these decisions to the Supreme Court, considering it unlawful to bring him to justice after the recovery of damages. The ex-director refers to the fact that the grounds for both claims are almost the same. In addition, the amount of damages awarded by the court significantly exceeded the amount of the bankrupt’s debt, but SpetsStroyStandard itself approved the sale of this claim for a much smaller amount. Thus, according to Mr. Semenov, the actions of the creditor deprive him of the right to seek subsidiary liability. Based on these arguments, the case was referred to the Economic Collegium of the Armed Forces.

Elena Myakisheva, a lawyer for Yakovlev & Partners, considers the position of the Supreme Court important, since “the courts make different decisions on this issue.” She notes that the situation when several requirements are presented to the CDL in parallel is “typical of bankruptcy cases”: “This increases the chances of creditors to recover funds.”

The arbitration manager Sergey Domnin explains the difference between losses and subsidiary liability by the fact that the latter comes for actions to cause harm to creditors that caused bankruptcy or made it inevitable. Losses usually involve lesser harm. There is also a difference in the amount of responsibility. Damages are recoverable in the amount of specifically caused damage, and the amount of subsidiary liability depends on the amount of the bankrupt’s registered debt that remains outstanding.

Mr. Domnin believes that it is impossible to recover losses first, and then bring to subsidiary liability (or vice versa), if the claims against the CDL are identical. According to RCT senior lawyer Diana Vardanyan, in the KC-COM case the claims coincide, and the non-delivery of documents to the manager looks like “a formal reason aimed at creating the appearance of other grounds.”

The possibility of filing a second claim, according to Sergei Domnin, is also affected by the amount awarded in the first claim. If it is equal to or exceeds the bankrupt’s registered debt, this “assumes that the creditors’ rights have been restored”, although it does not mean that they actually received all the funds: “The creditor himself chose the method of disposing of the claim for losses from the director in the form of a sale at auction, approved a low price, therefore , bears the risk of not receiving the amount.

The fact that the bankruptcy estate was replenished by only 140,000 rubles “cannot be imputed to the director, it is explained by the defect of the manager and the short-sightedness of the creditor,” Ms. Vardanyan agrees.

The creditor himself could buy the right to claim losses from the director and recover them even after the completion of the bankruptcy, but did not do this, emphasizes Vladislav Kryukov, INTANA Legal lawyer, who also considers the increase in the liability of the ex-manager unreasonable.

Anna Zanina