Protection of a former director from subsidiary responsibility
A receiver in bankruptcy sued a former director of a bankrupt company. He demanded to bring our client to subsidiary responsibility in the amount exceeding RUB 33 mln.
The ground for his claims was the violation by the former director of his duty to independently apply to the court for bankruptcy. By law, debtors must themselves apply to a court for bankruptcy.
However, does a debtor always have to notify a court of its bankruptcy?
Case was handled by
In the course of consideration of an isolated dispute which lasted for more than six months, the lawyers of JurInvest, representing the former director of the company succeeded in having the court dismiss the claims in full.
Given the higher standard of proof that the former director's behavior was reasonable and legitimate, we succeeded in proving the following in the course of the proceedings:
– the presence in the financial (accounting) statements for 2014 of Line 1370 Retained earnings (uncovered loss) in the amount of RUB 50,180,000 does not indicate any signs of objective bankruptcy;
– such loss resulting from the company's financial and economic activities in 2014 was covered by increasing its authorized capital and raising loans from a group of affiliated companies;
– the obligations referred to by the receiver arose at the time the relevant contracts were concluded, but not on the date on which the relevant payments became due (the dates on which the pecuniary obligation was incurred and matured were differentiated);
– the signs of the debtor's insolvency arose only when the bankruptcy proceedings were initiated against him.
Eventually, the Novosibirsk Region Commercial Court dismissed the receiver’s claims to bring the company's former director to subsidiary responsibility for the bankrupt’s debts.
The client saved a total of RUB 33,495,802.24 mln.