Commentary by Daria Solomatina on PRObankrotstvo
The district court overturned the legal act on subsidiary liability of the founders, pointing out the objective reasons for bankruptcy and the return of funds by the founders (case No. A41-19375/2021).
The bankruptcy trustee filed a claim with the court to bring the founders to subsidiary liability for bringing the company to bankruptcy - withdrawal of funds during the period when the debtor already had significant debt to creditors. The courts of first and appellate instances satisfied the claim.
The Arbitration Court of the Moscow District overturned these judicial acts, citing the following:
- the real reason for bankruptcy is theft of cargo (for which a criminal case was initiated);
- the defendants returned funds under the contested transactions in full (the remaining outstanding claims are not significant or comparable with subsidiary liability).
Darya Solomatina, Senior Lawyer of Bankruptcy Practice at Infralex, drew attention to the fact that the cassation court once again reminded that the presumption of bankruptcy does not exclude the need to assess other material circumstances (e.g., the degree of involvement of controlling persons in the actions leading to deliberate bankruptcy, the real consequences of such actions).
In the aforementioned case, the key motive for the cancellation of the positions of the lower courts was the thesis, entrenched at the level of the Supreme Court of the Russian Federation, that when bringing to subsidiary liability on the basis of Art. 61.11 of the Bankruptcy Law, it is necessary to identify the objective reasons for the debtor's insolvency.
The district court also pointed out the need to distinguish between the qualification of the founders' liability under the Bankruptcy Law and in the form of losses.
“The cassation ruling is another step towards overcoming judicial formalism in order to protect managers and founders: before making a decision to impose full liability on them for the company's debts, a more detailed and comprehensive analysis and consideration of all the circumstances of the case is required,” commented Daria.