To date, this is not the first time that the problem of the establishment by bailiffs-executors (Bailiffs) of enforcement measures that are not provided for by law has arisen. And one of these measures is the illegal establishment of a ban on changing the data on the general director of the company.
The establishment of this illegal measure not only contradicts the fundamental principles of civil, business and other branches of law; interferes with the execution of a judicial act; but it creates negative conditions for the business of the company, since, for example, as a result of the expiration of the term of office of the general director, problems arise with counterparties, and it becomes possible to challenge the transactions concluded by the general director of the company as illegal. Accordingly, there are other negative consequences for society associated with this.
By establishing a ban on changing the data on the general director of the company, the provisions of the Constitution of the Russian Federation on the prohibition of forced labor in the Russian Federation are also violated; the general director of the company cannot be forced to fulfill his duties, including by establishing such a ban on SPI. This is not provided by law.
Meanwhile, establishing such a prohibition, the SPI is based on the fact that if the debtor evades the execution of the judicial act on the case, it will be possible to bring the general director of such a debtor company to responsibility, due to the fact that, in their opinion, such a prohibition impedes leaving from the responsibility of the general director of the company - a problem arises with the change, as a result of which the debtor-company cannot evade debt repayment.
Given its illegality, the courts have a negative attitude to the application of the SPI of this enforcement measure (Resolution 9 of the AAC in case No. A40-176032 / 15 of 03/28/16, Resolution of the AU of the Moscow District in case No. A40-15772 / 2016 of 01/23/17).
In addition to the above, it is also important to pay attention that, firstly, according to the law, information about the Unified State Register of Legal Entities must be reliable, their distortion is not allowed; and secondly, the establishment of illegal obstacles in the implementation of the company's economic activities is not allowed, and here we are talking about such consequences of the application of this measure as a significant restriction of the powers of the general director and the founders of the company, as well as the provision of inaccurate information in this regard not only to the tax authorities, but also to an indefinite circle of persons: after all, in this way, third parties are also misled about the powers of a person who has the right to act on behalf of society without a power of attorney.
Therefore, in the case of the application of an IPI measure not established by law, the most effective way is to timely and high-quality appeal against such a measure as illegal.
