The debt collection from the founder by the creditor causes a lot of difficulties. The greatest problem is the establishment of legally significant facts and the selection of evidence in order to assign subsidiary liability to the member of the legal entity or director.
Instructions
Step 1
According to paragraph three of Article 56 of the Civil Code of the Russian Federation, a participant or founder of a company is not liable for the obligations of this legal entity (LE) with his property. But if the bankruptcy (insolvency) of a legal entity was caused by a person who can determine its actions, and such can be a participant, founder, owner of the company's property, then if the property is not enough to pay off obligations, such a person may well be liable for the obligations of the organization …
Step 2
The conditions for bringing the founder to subsidiary liability for the obligations of the legal entity are as follows:
1. He must have the right to determine the actions of the legal entity or give instructions that are binding on him.
2. He must perform actions that will prove his ability to influence the activities of society.
3. The relationship between the founder's use of his rights and the declared insolvency (bankruptcy) of the legal entity must be proved.
4. The property of the legal entity is not enough to pay off creditors.
Step 3
The only option to collect the debt from the founder is to go to court. In the practice of applying the norm of subsidiary liability, the greatest problem is the proof of the founder's guilt in the bankruptcy of the enterprise. Most often, the court refuses to satisfy the creditor's claim due to lack of evidence of guilt.
Step 4
Proof of the founder's guilt in bankruptcy may be the conclusion of the Federal Service of Russia on Financial Recovery and Bankruptcy (FSFR of Russia). This opinion must contain confirmation that there are signs of deliberate bankruptcy in the company's insolvency case. But not every court will take this document into account either.
Step 5
According to article 196 of the Criminal Code of the Russian Federation, deliberate bankruptcy is a criminal offense. And only if, within the framework of the criminal case, the fact of deliberately bringing the enterprise to bankruptcy has been proven, the founder, found guilty, can be brought to subsidiary liability.
