The appellate instance indicated that the members of the board and the supervisory board of the credit institution were not its controlling persons, and their actions could not lead to an objective bankruptcy of the bank. According to the lawyers in the case, the first instance did not carefully analyze the circumstances of the case and the legal norms in force at that time.
Vasily Dryga, Managing Partner of Rezolut, explained that, as a general rule, persons who have the right to give instructions binding on this organization or the ability to otherwise determine its actions can be brought to subsidiary liability. The legal status of a person in a particular company is not decisive. The court must establish who actually controlled the company. And if such “control” has led to bankruptcy – to bring the controlling person to subsidiary liability. It can be a manager, a chief accountant, etc. The “actual owner” of the company. A similar practice develops during the bankruptcy of credit institutions.
The lawyer noted that in this case the court of appeal differentiated the roles of the bank’s top management and shareholders depending on their ability to determine the actions of the latter, thereby correcting the mistake made by the lower court. “As a result, the court released from responsibility the members of the supervisory board and the board, who did not have the opportunity to determine the actions of the bank and give instructions obligatory for it, which, in my opinion, was reasonable,” Vasily noted.
The amount of subsidiary liability in shares, in his opinion, can be determined only after establishing the total amount of liability of the controlling persons. “If the court, having determined the circle of persons subject to subsidiary liability, suspended the proceedings on a separate dispute pending determination of the aggregate amount of liability, the determination of the shares of each of the named persons is premature,” Vasily Dryga agreed with the conclusion of the appeal.