LIABILITY, GUILT, RISK: CORRELATION AND APPLICATION OF CATEGORIES IN THE CONTEXT OF ACTIVITIES OF PERSONS PERFORMING FUNCTIONS OF ENTREPRENEURIAL COMPANY’S AGENCIES

Abstract

The author of the article has analyzed the correlation and application of the categories of “liability”, “fuilt” and “risk” used in the process of participation of persons performing the functions of entrepreneurial company’s agencies within corporate relations. The author has grounded the point of view that entrepreneurial risk is not a basis for bringing the specified persons to liability.However, particular attention has been emphasized that the concepts of ordinary conditions of civil turnover and ordinary entrepreneurial risk are not distinguished at the legislative level in order to prevent the groundless application of liability measures to corporate relations participants. It has been noted that such assessment categories should be filled with specific content in the process of proving in accordance with procedural legislation that corresponds to up-to-date caselaw.It has been proved that in order to bring persons performing the functions of entrepreneurial company’s agency to liability, it is sufficient to prove that they acted in bad faith or unreasonably (including if their actions did not comply with ordinary conditions of civil turnover or ordinary entrepreneurial risk) while exercising the rights and performing the duties. Thus, the bad faith and unreasonability of the specified persons’ actions is simultaneously confirmed by two circumstances: 1) violation of the obligation to act in good faith and reasonably in favour of the company (wrongfulness of behavior); 2) guilt of the person who caused damage (in this case, as an exception, the person demanding compensation for the damage bears the burden of proving the guilt).It has been argued that understanding of guilt while violating the obligation to perform in good faith and reasonably in favour of the enterpreneurial company (that is expressed in keeping the degree of care and diligence required by the nature of civil turnover in terms of ordinary entrepreneurial risk) is the specific feature for corporate relations.