Who is attracted to the “subsidy” and how this can be avoided
The court can recover debts from those who are guilty of bankruptcy of the company, applying subsidiary responsibility – the responsibility of founders and others for the debts of their bankrupt enterprises. Therefore today “subsidiarity” is a headache not only for entrepreneurs, but also for company executives, their deputies, and chief accountants.
The expert Alexander Zhuk, the director of the legal company “SPRAVA Consulting”, told how to avoid responsibility for other people’s debts, as well as who and what is responsible for the “subsidy”.
- Judicial practice shows that the number of cases of subsidiary liability is constantly growing.
Why do I need subsidiary responsibility? In order to strengthen the protection of the interests of the creditor. Therefore, remember that if you become someone’s guarantor or guarantor, then it automatically sends you to the risk zone.
In this case, always carefully read the contract: for example, under the law, the guarantor bears joint responsibility with the principal debtor, but in the contract of guarantee can be prescribed and its subsidiary liability.
Which documents regulate subsidiary liability:
The main document is the Civil Code. The grounds and conditions of liability are detailed:
Law No. 415-Z “On economic insolvency (bankruptcy)”
Law No. 2020-XII “On Business Associations”
Decision of the Plenary Meeting of the VHS № 11 “On some issues of application of subsidiary liability”.
When the debts of some should be paid off by others
Naturally, first of all, the debt collection is assigned to the main debtor (legal entity), and the following conditions are necessary to bring him to responsibility (in aggregate):
- The principal debtor has not fulfilled its obligation.
- The lender submitted a written request to him.
- The principal debtor refused to satisfy the creditor’s request, or the creditor did not receive a response from him to the request in due time (the form of the refusal does not matter if it is not established by the legislation or the agreement of the creditor with the principal debtor).
But if the company does not have the means to repay debts in the event of bankruptcy, in which certain persons are to blame, then they should pay their debts. Provided that their actions (inaction) must necessarily take into account these moments:
- The right to give instructions mandatory for the legal entity or the ability to otherwise determine its actions.
- The performance of their actions (or inaction), which indicate the use of his right from paragraph 1.
- Causal relationship between paragraph 2 and the debtor’s recognition as bankrupt.
If the subsidiary debtor proves that at least one of the criteria is missing, the economic court has no right to impose responsibility on it.
To apply subsidiary responsibility in the bankruptcy procedure, two conditions are necessary:
- Insufficiency of the organization’s assets to pay off debts
- The onset of bankruptcy through the fault of the above persons
In practice, the norms of Section 3, Art. 52 GK and the Law on bankruptcy, on which the subsidiary liability for the debts of the organization-bankrupt is born here these persons:
- Property owners of the organization
- Founders (participants)
- Other persons (director, IP-manager, liquidator, chairman of the liquidation commission)
- Subsidiary responsibility is imposed also in the event that the persons about whom we wrote above sold (donated) their shares in the statutory fund, withdrew from the founders, terminated labor relations with the debtor organization. The size of the share in the statutory fund does not affect the possibility of bringing to subsidiary responsibility and its size.
When several people are being held accountable, each of them is being charged with the entire amount of debt.
For example, with a total debt of 100,000 rubles and filing a lawsuit against three founders and a director, the court will decide to recover 100,000 rubles from each defendant.
Who can be obliged to pay for the main debtor
Legislation establishes a large number of cases of subsidiary liability, which can be attracted to:
- ODL Participants
- Members of production cooperatives for the debts of these legal entities
- Members of the main company in its economic insolvency (bankruptcy) through the fault of the subsidiary company
- Owners-founders for the debts of state enterprises and institutions
- Members of the association (union) for the debts of this association (union)
- Guarantor for the debtor’s unfulfilled obligations
To “subsidiar” you can also draw full comrades. I will explain that these are members of business associations that are engaged in business on behalf of these partnerships. Today this organizational and legal form is practically not used.
Who and how can sue
An anti-crisis manager is required to file an action for bringing the guilty parties to subsidiary liability for the debts of the bankrupt organization in each bankruptcy case.
This is done in all cases, even if, in the opinion of the administrator, there are no grounds for bringing to subsidiary responsibility, or creditors have opposed the filing of a claim. Otherwise, the manager may be removed from participation in the case and himself brought to justice.
Subsidiary liability does not apply if the claim can be satisfied by offsetting a counterclaim to the principal debtor or by indisputable collection of funds from the principal debtor.
A suit can also be brought against:
- Creditors, their successors
- The Prosecutor
- The tax authorities
- KGC and other controlling bodies
Claims are submitted for the entire amount of outstanding debt.
The term of bringing to subsidiary liability – within 10 years from the moment of initiation of the bankruptcy case.
Rights of the subsidiary debtor
A subsidiary debtor is entitled to raise against the claim of the creditor all those objections that are the principal debtor.
The amount of his liability can not be greater than that of the principal debtor.
The statute of limitations on the demand for a subsidiary debtor is equal to the statute of limitations on demand, which results from the violation of the basic obligation.
Termination of the main obligation entails the termination of the subsidiary obligation.
The submission of a claim to a subsidiary debtor is excluded – the second defendant necessarily involves the principal debtor.
Is it possible to avoid involvement in subsidiary liability
There is no single effective way to prevent subsidiary liability.
But some recommendations will be useful to those who are in the zone of secondary risk.
1. The founders of companies need:
- Regularly attend general meetings in companies
- Require financial statements for review
- Keep copies of balance sheets
- Carry out an annual audit
- When entering into the membership of a commercial organization, to require an audit with the issuance of a written opinion
- If you lose accounting documents, take active measures to restore accounting records
The founders also need to refuse approval (and the leader – from signing) of doubtful transactions, which include:
- Transactions with pseudo-entrepreneurial structures (their list is in the register of commercial organizations and IP with an increased risk of committing offenses)
- Sale of assets of the organization at a low price
- Large non-cash money transfers in favor of non-residents under contracts on the import of works, services and results of intellectual activity
- Knowingly unprofitable transactions with affiliated entities
- Repayment of debts only to “elected” creditors
If the insolvency of the company becomes stable, the founder must:
1. Require the convocation of an extraordinary general meeting of participants.
2. To put on it the question of financial rehabilitation of the organization or submission to the economic court of the debtor’s application for economic insolvency (bankruptcy).
3. Record this initiative in the minutes of the general meeting, which will be a proof of the participant’s proper performance of his duties.
What to do if you are brought to justice
In this case, you can take the following actions.
Since there is a presumption of guilt in civil law, it is necessary to prove:
- Absence of the fault in insolvency of the company
- Its conscientiousness and reasonableness in making managerial decisions
- Absence of a causal relationship between their actions as a leader (founder) and consequences (the company’s persistent insolvency)
The founder with an insignificant share in the statutory fund should refer to:
- Impossibility to determine the decisions of the economic society
- Entrepreneurial risk as a sign of entrepreneurial activity (letter VCh No. 03-32 / 36 “On issues related to reasonable industrial and economic risks”)
And remember that in case of secondary responsibility, a court order for recovery from a subsidiary debtor is issued only after the evidence has been submitted by the recoverer to the impossibility of collecting the entire amount awarded from the principal debtor (part 3 of Article 331 of the COD).