The legislator gave creditors the opportunity to recover debts from companies from their managers and other persons who determine the companies activities without bankruptcy procedures if they are excluded from the EGRUL (Unified State Register of Legal Entities) by the decision of the tax authority due to termination of operations (Paragraph 1 of Article 64.2 of the Civil Code of the Russian Federation).
In this case, if a failure to perform obligations of a company (including tort) is due to the fact that persons referred to in Paragraphs 1 – 3 of Article 53.1 of the Civil Code of the Russian Federation acted in bad faith or unreasonably, at the request of a creditor, subsidiary liability for the obligations of a company can be imposed on such persons.
Paragraphs 1 – 3 of Article 53.1 of the Civil Code of the Russian Federation specify the following persons: a person who by virtue of law, other legal acts or constituent documents of a legal entity is authorized to act on its behalf; members of collegial bodies of a legal entity; a person who has the ability to determine actions of a legal entity, including the ability to give instructions to the persons named above.
The creditor, whose interests were represented by “Aspectum.”, appealed to the arbitration court to impose subsidiary liability on the head of the debtor company, who was also the only founder (participant) of the company, which was excluded from the EGRUL by the decision of the tax authority. A company can be excluded from the EGRUL if it does not submit financial and tax reports within 12 months, and there is no cash flow on its bank accounts during the specified period.
The arbitration court of St. Petersburg and Leningrad region handling our claim in the case A56-112402/2018 ruled that the head of the debtor company acted unreasonably and in bad faith on behalf of the company established and managed by him. The court also recognized that his actions prevented our client from recovering the debt from the debtor company, and therefore the head of the debtor company is obliged to personally repay the debt.
The court decision became effective.