Again on the complexities of considering cases of bringing the KDL to subsidiary responsibility at the junction of different versions of the Law on Bankruptcy

The bankruptcy trustee of CJSC United Construction Group filed a lawsuit seeking to bring V.E. Zaitsev (general director before the bankruptcy case was initiated) and CJSC StroyPutInvest (the only shareholder of the debtor) to subsidiary liability.

The claims were dismissed by two courts.

Position of the cassation:

– Refusing to satisfy the application of the bankruptcy trustee in the part of V.E. Zaitsev, the courts were guided by the fact that the legal relations and actions imputed to V.E. Zaitsev took place before the entry into force of Federal Law of 29.07.2017 № 266-FZ and the introduction of Chapter III.2 of the Bankruptcy Law, therefore, he can not be recognized as a person controlling the debtor on the basis of sub. 3 paragraph 4 of Art. 61.10 of the Law on Bankruptcy, in addition, the applicant has not provided evidence in accordance with Art. 65 of the APC RF, indicating the presence of the interested person of the status of a controlling person;

– these conclusions of the courts are based on an incorrect application of the rules of substantive law. Since V.E. Zaitsev was the general director of the debtor, he had the status of a person controlling the debtor regardless of the applicable law, in this particular case the norms of clause 4 of Article 10. 4 of Article 10 and paragraph 34 of Article 34 of the Bankruptcy Law (as applicable);

– In addition, the applicant’s argument about the presence of grounds for bringing CJSC StroiPutInvest to subsidiary liability for granting loans in the amount of more than 465 million rubles in the conditions of already existing debts to the controlling person in the amount of more than 500 million rubles, the courts did not consider, assessment in relation to the norms of paragraphs. Article 10(4) of the Law on Bankruptcy was not assessed.

The judicial acts were cancelled, the case was sent for a new hearing. Decision of the Arbitration Court of Moscow on 07.10.2022 in case No. A40-24262/2017.