Vladimir Isaenko commenting on PRObankruptcy
Failure to transfer documents without damage to creditors excludes subsidiary liability
Case No. A40-243772/22: under the management of the controlling person, the company entered into two unprofitable and obviously unenforceable contracts. The top manager received cash advances without depositing them into the cash register, created the appearance of starting work on the contracts, and appropriated the funds. After the company showed signs of bankruptcy, the controlling person transferred the business to a nominal manager.
The courts of first and appellate instances granted the bankruptcy trustee's application to bring the real and nominal managers to subsidiary liability on two grounds: causing damage to the property rights of creditors by transactions and failure to transfer documentation.
The Arbitration Court of the Moscow District agreed with the findings of the lower courts regarding damage caused by transactions, but recognized the imposition of liability for failure to transfer documents as erroneous due to the lack of evidence of this affecting the impossibility of settlements with creditors.
According to Vladimir Isaenko, an attorney of Insolvency & Bankruptcy practice area at Infralex, this case reflects a modern trend towards a more balanced approach to subsidiary liability, in which a fundamental distinction is made between formal violations (failure to transfer documents) and real abuses (harmful transactions).
This more differentiated approach requires courts not just to state violations, but to analyze their actual impact on the financial condition of the debtor and the interests of creditors.