Subsidiary liability in the event of bankruptcy of a legal entity

Recently, the number of court cases related to bankruptcy has significantly increased. Some enterprises and citizens are really in a very difficult situation and therefore they are taking such a step. Other persons launch bankruptcy proceedings to "sanitize" their business. As a result, they write off almost all of their debts. Meanwhile, controlling structures are showing increased interest in any such matter.

Subsidiary liability in the event of bankruptcy of a legal entity

Legislation provides for several organizational and legal types of enterprises. The most common today is LLC. This form is considered by many founders as the most suitable, because they believe that all risks are limited by the amount of the authorized capital. However, in the event of recognition of the insolvency of a firm, this is not always the case. . In each organization there are subjects on which subsidiary responsibility can be entrusted in bankruptcy . They, in particular, are the sole executive structures of the firm that have the authority to issue binding instructions. Such bodies are classified as "controlling". For them, there is a presumption of guilt. If there are several such entities, the subsidiary liability for bankruptcy of a legal entity extends to them in solidarity.

general characteristics

"дополнительная". Subsidiary responsibility in bankruptcy means "additional". It is assigned to certain subjects, if the company's property is insufficient to satisfy all claims. Subsidiary responsibility in the bankruptcy of the debtor involves recovery in the form of personal material values of the founders, managers, etc.

Principles

When assessing the risk to individual bodies, it is necessary to take into account a number of nuances. Civil law establishes the basic principles of the activities of the structures. They are, in particular, reasonableness and conscientiousness. The corresponding provisions are present in Article 53. In Art. 53.1 of the Code states that if it is proved that the executive body of the enterprise is unfair and unreasonable in the exercise of duties and the exercise of rights by the executive body of the enterprise or found that its actions did not fit into the usual terms of turnover or did not correspond to business risk, then it is subject to subsidiary liability in bankruptcy. на этот счет весьма неоднозначна. Judicial practice on this account is very ambiguous. General rules of the Civil Code can play a significant role in the proceedings.

The essence of the situation

Any enterprise can become insolvent. This is due to various circumstances. For example, this situation can be caused by incorrect management decisions, deliberate evasion of repayment of obligations, etc. The founders and management must understand that in such cases subsidiary liability may arise. достаточно часто бывает так, что имущества компании недостаточно. When bankruptcy often enough happens that the company's property is not enough. This is also conditioned by various circumstances. However, they will not matter if you satisfy claims of creditors.

Definition

возможность взыскания непогашенной суммы с одного из дополнительных субъектов, если основной не в состоянии удовлетворить требования кредиторов самостоятельно. Subsidiary liability in bankruptcy is the ability to recover the outstanding amount from one of the additional entities, if the principal is not able to satisfy the creditors' claims independently. As is clear from the above, they include founders and leaders. It is on them, first of all, after the immediate debtor, additional responsibility is entrusted.

Normative regulation

Subsidiary liability in the bankruptcy of a LLC in the Republic of Belarus, as in the Russian Federation, is regulated by the relevant law. In Russia, in particular, this is the Federal Law "On Insolvency." It establishes the obligation to repay all debts by an enterprise recognized insolvent. Often, their amount significantly exceeds the volume of the company's assets. According to the norms of the Civil Code, which also regulates this sphere, the corresponding responsibility is assigned to the founders and managers. In addition to the Code, regulatory regulation is carried out by the Federal Law "On JSC" and "On LLC." They repeat the conditions provided for in the Law on Insolvency.

Circle of subjects

может возлагаться на: Subsidiary liability in bankruptcy can be assigned to:

1. Founders are business participants.
2. Heads of the company, through the fault of which there was a state of insolvency.
3. Trustees, whose powers include the management of company shares.
4. Other citizens who do not have a legal connection with the firm, but actually carried out the management for two years before the insolvency.

As the second article of the Law on Insolvency indicates, the individual will be recognized as involved in the conduct of the affairs of the company if:

1. It gave instructions that are binding.
2. Defined the actions of the firm through beliefs, authority, enforcement of executive structures.
3. Directly influenced the manager and other participants of the company who took managerial decisions.

Conditions

Under what circumstances does subsidiary liability arise in bankruptcy? исходит в первую очередь из положений ФЗ "О несостоятельности". Judicial practice is based primarily on the provisions of the Federal Law "On Insolvency." According to the amendments adopted in 2009, in order to involve founders, managers and other controlling entities in the procedure, certain conditions must be met. или иного, в том числе коммерческого предприятия наступает: Subsidiary liability in the bankruptcy of a MUP or another, including a commercial enterprise, occurs:

1. If there is a decision made by the arbitration instance, that the enterprise is recognized as insolvent.
2. After determining the amount of claims lodged by creditors.
3. At the end of the formation of the bankruptcy estate and its implementation.

Initiators

The creditors of the legal entity can appeal to the court with demands for prosecution. Often the initiator is the arbitration administrator. может возлагаться по требованию самого неплатежеспособного субъекта. In addition, subsidiary liability in bankruptcy may be imposed at the request of the most insolvent entity. If he is sure that he will not be able to repay his obligations in the specified period, it is more profitable to send a corresponding statement. In this case, he will get significant advantages. For example, he has the opportunity to monitor the entire procedure for recognizing insolvency.

An Important Moment

Independent submission of an application by a debtor is allowed only in cases prescribed by law:

1. The dissatisfaction of claims of creditors on the repayment of obligations.
2. Impossibility to carry out economic activities in connection with the imposition of penalties on property.
3. Presence of proofs of insolvency.

Competition manager

He also has the right to initiate a bankruptcy procedure and to demand that subcontractors be brought to supervisory responsibility. But even in this case, the legislation establishes a number of conditions:

1. Requirements for the company must exceed 100 thousand rubles.
2. Since the beginning of the debt, more than three months have passed.
3. The amount of unliquidated obligations is confirmed by the decision of the arbitration instance that came into effect.

It should be noted that only the amount of debt without penalty, loss, interest for delay is taken into account. If the value of obligations is less than 100 thousand rubles, then creditors can write a collective application.

FNS

The tax inspection also has the right to initiate the procedure for recognizing insolvency. или другой коммерческой структуры по требованию ФНС может налагаться: Subsidiary liability in bankruptcy of a bank or other commercial structure at the request of the Federal Tax Service may be imposed:

1. For financial liabilities, if they were not repaid from the date of entry into force of the relevant arbitration award.
2. For taxes and fees, if more than a month has passed since the decision was made by the tax authorities.

It is worth saying that in the latter case, it comes not only subsidiary liability in bankruptcy. будет вменен компании – решает ФНС. What a penalty will be imputed to the company - it is decided by the Federal Tax Service. The basic rules for imposition of penalties are set in the Tax Code and the Code of Administrative Offenses.

Subsidiary liability for bankruptcy of an individual

Since 2015, the procedure for recognizing the insolvency of citizens is being applied. Innovations make it possible to recover from their founders, managers and other controlling entities their personal property, if it is impossible to do so when bringing to subsidiary responsibility. How it works? Courts in such cases use the following wording: the obligations that a citizen has in connection with the involvement of an insolvent enterprise by a creditor as a subsidiary liability, act as the basis for initiating bankruptcy proceedings against him. Supervising subjects should be wary of this if the size of claims that they are presented is more than 500 thousand rubles. At the same time, citizens are unable to pay them off within 3 months. From the date of entry into force of the court decision.

Negative consequences

несет ряд рисков для гражданина. Subsidiary liability for the bankruptcy of an individual carries a number of risks for the citizen. First of all, creditors get the opportunity to challenge any transactions concluded by controlling entities. These include marital contracts, and contracts for donating property. According to general rules, after the end of settlements with creditors, a person (legal or physical) recognized as a bankrupt is released from subsequent repayment of obligations. However, this rule provides for several exceptions. The main one concerns the requirements for bringing a citizen to subsidiary liability. In other words, claims after recognition of the insolvency of the subject will remain in force regardless of when exactly they were declared. Claims can be presented by creditors even after the production is completed. As a result, the controlling persons of a bankrupt enterprise that has been brought to justice will not be able to get rid of the obligations imposed on them. Even the procedure for recognizing personal insolvency will not help in this. Debt that appears in the framework of secondary liability, will remain until full repayment.

Law requirements

The head, founders of the enterprise may be held liable in accordance with the provisions of article 401 of the Civil Code. To do this, you must have:

1. An unlawful violation of duties imposed on a citizen formally.
2. Losses incurred by the company as a result of unlawful actions of the entity.
3. The relationship between the behavior of a person and the company's losses.
4. The proven guilt of a citizen.

The prosecution is carried out only when all the requirements are met in the aggregate. Accordingly, each circumstance must be documented. Regarding controlling entities, a statement is drawn up. It, in fact, sets out a requirement to hold them accountable. Arguments should be cited with references to legislation. In addition, it is necessary to indicate the financial verification of the debtor's work. All claims of creditors must also be documented. In addition to the application, an extract from the bank account is attached, as well as a copy of the request for the transfer of accounting documents. All these materials are carefully studied by the court.

Reasons for presenting claims

The prosecution of controlling persons is carried out in the following cases:

1. Causing damage to creditors as a result of the commission of certain transactions by obligated entities.
2. In the accounting documentation there are no necessary data or reporting is completely absent.
3. Distortion of information in financial papers led to losses.

Of course, this is by no means all possible reasons why subjects bear subsidiary responsibility. Situations can be very different. However, in any case, the requirements established by the legislation must be observed. Otherwise, any assignment of additional obligations is unlawful.

Exceptions to the rules

In a number of cases, controlling persons can not be brought to subsidiary responsibility. In particular, the relevant requirements can not be presented if it is established that there is no fault in their actions. It is not allowed to prosecute citizens after the liquidation of the legal entity, if no bankruptcy procedure was initiated in respect of the company. The corresponding position is present in the 419th article of the Civil Code. You can not bring to justice a person in the absence of a causal link between his actions and the damage that has arisen. It proves that it was the behavior of a particular entity that led to losses, in connection with which the enterprise became insolvent. To establish this connection, it is necessary to have documentary evidence of all the actions of the person being brought to justice. As a prerequisite is the procedure for recognizing the insolvency of the firm. If it was not started, subsidiary liability can not be applied to anyone. Moreover, the legislation provides certain advantages for the founders and management. If they independently sent a statement on the beginning of the procedure, they can not be brought to subsidiary liability. This is the only way to avoid new obligations. Control subjects often think that it is difficult and even impossible to make such a decision, but there is no other way. Otherwise they can become eternal debtors.