THE CONCEPT AND LEGAL NATURE OF SUBSIDIARY LIABILITY

Abstract

In the article the essence and legal nature of subsidiary liability were defined as a legal means of ensuring maximum protection of the property interests of the creditor and distribution of risks in the event of non-fulfillment or improper fulfillment of obligations by the debtor, provision of additional legal guarantees that stimulate participants in civil legal relations to properly fulfill their obligations. It is established that in order to develop an effective mechanism for applying subsidiary liability within the framework of the current legislation of Ukraine, it is extremely important to clearly understand its legal nature, establish a correlation with other types of civil liability, taking into account the problems of law enforcement practice in this area. It is substantiated that the specificity of subsidiary liability as a type of civil liability lies in its additional nature, which means that before presenting a claim to the person bearing subsidiary liability, the creditor must present a claim to the principal debtor. If the principal debtor refuses to satisfy the creditor’s claim or the creditor did not receive a response to the claim within a reasonable time, the creditor may present a claim in full to the person bearing subsidiary liability. It has been established that the characteristic features of subsidiary liability are: its auxiliary nature (arises on the basis of primary liability); the property nature of subsidiary liability; arises in cases stipulated by contract or law; can be applied in the sphere of both contractual and tortious obligatory legal relations; the presence of the debtor’s offense as the main component of subsidiary liability; subsidiary liability in certain cases can be applied regardless of fault; its amount cannot exceed the primary liability. It is concluded that subsidiary liability is an additional liability that is implemented within the framework of civil protective legal relations and occurs only after all possibilities of satisfying creditors’ claims at the expense of the debtor’s property have been exhausted. Subsidiary liability as a special type of civil liability does not replace the liability of the main debtor, but supplements it. The main debtor remains liable for its obligations, and the subsidiary debtor is liable only if the main debtor cannot fulfill his obligations.