CONDITIONS OF BRINGING PERSONS GUILTY OF BANRUTCY TO SUBSIDIARY LIABILITY

Abstract

This article is devoted to the study of problematic aspects and features of legal regulation and application of subsidiary liability, namely: the conditions for bringing persons guilty of bankruptcy of business entities – legal entities, to subsidiary liability in accordance with the Code of Ukraine on Bankruptcy Procedures (hereinafter – the Code). In addition, the author addresses the issue of understanding subsidiary liability as a separate commercial and legal type of liability imposed on the founders (participants, shareholders) or other persons, including the head of the debtor. The article also elaborates the essence and features of the purpose of subsidiary liability for bankruptcy. At the same time, the legal regulation of the institution of subsidiary liability was analyzed taking into account legislative changes, namely the replacement of the Law of Ukraine "On Restoration of Debtor’s Solvency or Recognition of Bankruptcy" with a new legal act of the Bankruptcy Procedure Code (hereinafter – the Code). Taking into account the positions of scholars and judges of commercial courts, the main advantages and disadvantages of bankruptcy law were identified and presented. Another point of our goal was the issue of proving the absence of guilt by the legislator, entrusted to the person who is brought to subsidiary responsibility and it is he who must prove the absence in his actions of tort. The article reveals the essence of the form of appeal to the commercial court to impose subsidiary liability on a person, which are unfortunately not defined in the Code. The authors clearly state the conditions, features and grounds for the application of subsidiary liability for bringing to bankruptcy, as well as the actions of the liquidator to prove the need for additional liability to the perpetrators. It is determined that the subsidiary claims are part of the liquidation estate and cannot be obtained by creditors other than in the order of priority in the bankruptcy procedure.