No. 3 (2021): Бизнес, менеджмент и право

BANKRUPTCY LAW

1. Belykh Vladimir S., Zemerov Dmitry V. Subsidiary Liability in Cases of Insolvency (Bankruptcy) of Controversial Issues of Theory and Practice.

Abstract: The article deals with a number of controversial provisions related to the application of subsidiary liability in cases of insolvency (bankruptcy). The authors considered such issues as the concept, characteristics and grounds of subsidiary responsibility in cases of insolvency (bankruptcy). The analysis of distinctive features attributed to the institution of subsidiary responsibility in civil law was carried out in detail. It is established that the person brought to subsidiary responsibility bears responsibility along with the principal debtor who didn’t fulfill or improperly fulfilled his property obligations. Through the prism of obtained results the authors draw a conclusion about the legal nature of subsidiary responsibility in cases of insolvency (bankruptcy) and determine its relevance to tort liability, where one of the criteria of its application is the debtor’s failure to fulfill his obligations to creditors. Special attention is paid to the subject of subsidiary liability in cases of insolvency (bankruptcy) – the debtor’s controlling person. In particular, the authors point out the positive trends in legislation and judicial practice related to the fact that the persons controlling the debtor on formal grounds cannot be released from liability. First of all, we should assess the possibility of a person to influence the debtor’s decision-making, regardless of the duration of control over the debtor.

Keywords: insolvency (bankruptcy), debtor, liability, creditor, subsidiary responsibility, the debtor’s controlling person, court practice

 

2. Frolov Igor V. Model for Ensuring Legal Protection of Public Interests of the State And Society in The Field оf Bankruptcy of Citizens

Abstract: The article examines the model of ensuring the legal protection of public interests of the state and society in the field of bankruptcy of citizens which is described on the one hand in protection of state interests of fiscal nature in the form of taxes and other obligatory payments, and on the other hand in the form of protection of public interest, observance of balance of rights and legitimate interests of all persons participating in a case on bankruptcy. The author concludes that the concept of protecting public interests in the field of insolvency and bankruptcy of citizens, which has developed in the Russian legal system has a clear economic interest of the state and is aimed at ensuring the maximization of citizens’ welfare through two stages of rehabilitation of a debtor citizen through: financial rehabilitation of a debtor citizen in a judicial procedure for restructuring a citizen’s debts through the mechanism of achieving agreements on the repayment of creditors’ claims by the debtor within the framework of the debt restructuring plan; social rehabilitation of a citizen declared bankrupt as a result of a judicial procedure for the sale of property or a procedure for an extrajudicial bankruptcy of a citizen with the help of mechanisms for releasing a bankrupt from creditors’ claims that are unbearable for his financial condition

Keywords: insolvency (bankruptcy); public interest; bankruptcy of citizens; protection of public interests; institution of insolvency and bankruptcy of citizens; wealth maximization; insolvency of citizens; poverty; financial rehabilitation of insolvent citizens; social rehabilitation of bankrupt citizens

 

3. Slavich Maria A. Legislation on Insolvency (Bankruptcy) of the Developer for the Construction: History of Development and Prospects

Abstract: The article analyzes the development of legislation on insolvency (bankruptcy) of a developer for the construction. The author considers the history and reasons for special legal regulation of bankruptcy of this category of debtors, the main stages of legislative changes, the content of such changes and their social orientation. The article highlights positive trends of the legal regulation of bankruptcy of the developer. Firstly, the legislator excluded legal entities from the number of privileged creditors. This is due to the fact that in many respects socially-oriented legislation on developer’s bankruptcy should not provide protection for professional participants of the construction market. Secondly, the legislation imposed additional requirements on arbitration managers for their participation in developer’s bankruptcy proceedings. This had a direct favorable effect on the quality of bankruptcy proceedings. Thirdly, the legislator excluded such stages as supervision and financial rehabilitation in the bankruptcy of the developer due to their low efficiency to ensure the needs of prompt protection of the rights and interests of individual shareholders. Considering modern realities, the author has allocated several vectors for the development of the legislation on the insolvency (bankruptcy) of the developer: the need to increase the efficiency of participation of public-law company «Fund of protection of the rights of citizens-participants of shared construction» in the cases of insolvency (bankruptcy) of the developer, the need to balance the interests of construction participants and the use of judicial system in the presenting the debtor-developer’s claims by construction participants, and establishment of a list of privileged objects.

Keywords: bankruptcy, developer, construction, peculiarities of legal regulation, changes in legislation.

 

4. Kononova Ludmila A. Insolvency Manager as a Legal Entity: Myth or Reality?

Abstract: The article considers both foreign and national legal provisions on the possibility (inability) to approve (appoint) both individuals and legal entities as an insolvency manager in cases of insolvency (bankruptcy). Analyzing the norms of current legislation, the author pays special attention to different scientific views on the feasibility of approving legal entities as insolvency managers. The author speaks about the positive experience concerning the operation of the state corporation “Deposit Insurance Agency”. The author points out that it is possible for an insolvency manager to have dozens of bankruptcy procedures simultaneously involving not only employees, but also entire organizations that actually perform most of his functions, that, according to the Supreme Court of the Russian Federation, is not permissible. In the end of the article, the author concludes that there are prerequisites and the need to legislate the right of the court to appoint both an individual and a legal entity professionally engaged in anti-crisis management as an insolvency (bankruptcy) administrator. At an initial stage it is offered to provide this possibility only in relation to a large complex industry.

Keywords: insolvency (bankruptcy), bankruptcy manager, requirements, state corporation “Deposit Insurance Agency”

 

5. Gorbashev Ilya V. Liability of corporate group through the prism of article 67.3 of the Civil Code of the Russian Federation

Abstract: The article establishes exceptions from the principle of limited liability of participants (shareholders) for the obligations of a business company. In particular, theoretical bases for bringing the main company to responsibility for debts of subsidiary company were analyzed. It was argued that the obligation arising from the main company is not the responsibility in the direct sense (there is no need to establish the composition of damages), and by its nature is closer to the debt of the guarantor. This provision also stipulates that the liability of the parent company arises not as a result of a violation of law but because of imposition of its will on the subsidiary company through giving instructions or consent to conducting the transactions, which is achieved by means of dominant control.

In this case, the parent company is not liable for all the transactions of the subsidiary company, but only in cases where transactions concluded on its instruction did not comply with the interests of the subsidiary company. Substantiated criticism of joint and several liability of the parent company for the deal of the subsidiary company has been given. In particular, the article also presents the analysis of similar circumstances: in ordinary legal relations, the responsibility of the parent company under the transaction will be joint and several for the very fact of its fulfillment, and if this transaction will entail bankruptcy, the responsibility for the offence will be subsidiary.

Keywords: group of persons, corporate groups, subsidiary company, main company, joint and several liability, indication and approval, bankruptcy (insolvency)

 

COMPARATIVE LAW

6. Klushkin Sergey Y. Joint-Stock Company in the Legal Systems of Russia and Kazakhstan: Comparative-Law Essay

Abstract: Integration processes in the Eurasian space cause interest in comparative-legal research, including the sphere of corporate law. In the present article the notion of “joint-stock company” under the legislation of the Russian Federation and the Republic of Kazakhstan is considered. The subject of the analysis are the norms of the Civil Code of the Russian Federation, the Republic of Kazakhstan, and special laws regulating the legal status of joint stock companies in the legal systems of the above states.

The article mainly examines features of the joint-stock companies in normative legal acts. Besides, separate problems of corporate law in doctrine are touched upon.

As a result, alternative concepts of “authorized capital” and “joint-stock company” that reveal the most essential features of the legal category of “joint-stock company” are proposed.

At the same time the said comparative-law study allows to identify common and special features in the immanent characteristics of joint stock companies in the legislation of Russia and Kazakhstan, and through the theory of corporate law indicate the existing problems in the corporate legislation of Kazakhstan, among which, for example, is the lack of possibility to reduce the authorized capital in a joint stock company.

The presented material may be interesting to scientific, educational and practical purposes, including law enforcement practitioners.

Keywords: comparative law, corporate law, joint-stock company, legal position

 

7. Broslavsky Lasar I. The State Energy Function and U.S. Energy Law

Abstract: : The article examines the problems of the federal government policy in the field of energy and energy law, describing in detail the competent state authorities in the United States, their powers, and functions. The author points at the stages of energy law development from 1970s to present time through the prism of economic and political conditions; he analyzes the system of sources, which is characterized by the presence of statutory acts at all levels of government, and the traditional set of sources for the American legal system.

The legal regime of oil and gas fields development in the USA is analyzed separately; it differs depending on the land plot owner: if the owner of the land plot is the state, the land plot is leased for acquiring the right for oil and gas production, and if the land plot is owned privately, the subsoil under it is also owned. Attention is also paid to the disputable case of the owner of minerals in case of possible migration of oil and gas reserves in the territory of several plots.

In conclusion, the author emphasizes the increased need for codification of Russian energy legislation. However, he highlights the need for the preliminary theoretical study concerning the place of Energy Code in system of law and legislation, and the structure of energy law.

Keywords: government energy policy, energy law, energy independence, energy safety, lease