Kommersant: The Supreme Court decided to change the approach to cases of subsidiary liability to refuse a harsh approach to them with a deliberately accusatory bias, writes Kommersant. These are the processes related to the subsidiary liability of bankers.
Subsidiary liability of the owners and managers of companies occurs when they cannot pay off their obligations with their assets, and the court concludes that the bankruptcy was the result of deliberate actions of top managers or owners.
In Russian law, there is a concept of a controlling debtor a person (KDL), which must answer with its own property, not invested in the business (authorized capital of the enterprise), to creditors. Since 2017, the circle of persons falling under the definition of the CFL has been significantly expanded. Now it includes people indirectly associated with the bankrupt company.
The change in the approach to subsidiary liability of the KDL is due to the position of the Economic Collegium of the Supreme Court, which considered the case of Greenfield Bank, which belonged to Magomed Mukhiev and Mikhail Yanchik and was revoked from the Central Bank in 2015. The claimant was the Deposit Insurance Agency (DIA), which demanded to bring 12 top managers and owners to subsidiary liability.
According to the DIA's position, they deliberately made dubious transactions, including issuing loans to “friendly banks with signs of bankruptcy,” buying illiquid promissory notes and claims against technical borrowers, and also issuing deliberately bad loans.
In 2020, the Moscow Arbitration Court brought to justice Mukhiev, Yanchik, chairman of the board Sanal Pakhomkin, his deputy Alexander Gulya, as well as four members of the board and three members of the board of directors. The court of appeal found the last seven innocent of the bank's insolvency, having determined that they only complied with the decisions of Mukhiev, Yanchuk and Gulya. The cassation instance overturned this decision, but the Supreme Court upheld the position of the appeal.
Members of the Economic Collegium of the Supreme Court noted an “inadmissible accusatory bias” in the cassation instance, based on suspicions not confirmed by concrete facts. The judges also pointed out that the law does not provide for the presumption of guilt of the KDL, and in order to determine their guilt, it is necessary “to provide clear and convincing evidence.” According to the Armed Forces, it is possible to bring to subsidiary liability only those CDLs whose actions led directly to bankruptcy. At the same time, the unprofitableness of transactions in itself cannot serve as sufficient evidence of guilt.
Lawyers interviewed by the publication noted that the decision of the Supreme Court should become a turning point and change the approach of the lower courts in cases of bringing to subsidiary liability. Now their position, they believe, will become more balanced and may lose the accusatory bias.