Evaluation categories in the application of subsidiary liability in bankruptcy

Abstract

The application of subsidiary liability of controlling persons in the bankruptcy of organizations is associated with the need to determine the list of the mentioned persons, as well as to assess their activities from the point of view of identifying the harmfulness of the consequences, the qualitative characteristics of the behavior of the subjects and determining the grounds for bringing to liability. In this case, a mass of evaluative categories are used that relate to the activities of controlling persons, which do not have meaningful formal consolidation in legislation, which forces law enforcement officials to strive to form a uniform practice. Evaluation categories in the area of application of subsidiary liability of controlling persons must be distinguished from evaluative concepts and legal principles that are applied on a borderline basis in private and public law. When conducting a comparative analysis of the doctrine and established judicial practice within the framework of civil, corporate and bankruptcy law, it can be concluded that it is necessary to form a unified approach to law enforcement in terms of identifying the proper subjects of subsidiary liability (actually controlling persons), as well as criteria for assessing their actions in the context of ordinary entrepreneurial risk, taking into account the economic feasibility of their decisions. This will allow for a more fair distribution of the risks of negative consequences of bankruptcy between creditors and persons liable on behalf of the debtor.

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