Until recently, when considering cases on secondary liability of insolvency debtor’s controlling persons, there was a clear accusatory bias. Only recently, both judicial practice and doctrine have begun to outline more balanced approaches based on the need to establish all the elements of a special offense — bringing the debtor to bankruptcy and harming creditors’ property rights. However, the effective implementation of these approaches is hindered by the well‑established view of subsidiary liability as a type of ordinary civil tort, without taking into account its special specifics, which is that the corresponding violation occurs in the process of managing a legal entity, and harm is caused to third parties indirectly related to the violator by relative legal relations. The purpose of the article is to consider modern approaches of judicial practice and doctrine to the procedure for liability of controlling persons from the standpoint of the special corporate nature of this liability. The methods of research are general methods of study (analysis and synthesis, induction and deduction, system analysis) and methods of legal science (methods of literal, systematic, teleological and historical interpretation of legal norms). It is concluded that when controlling persons of an insolvent debtor are held liable, a special corporate tort occurs in bankruptcy, which differs both from a direct tort against creditors (Article 1064 of the Russian Civil Code) and from a corporate tort in the form of causing losses to a legal entity (Article 53.1 of the Russian Civil Code). The special corporate nature of secondary liability is substantiated, which directly affects all elements of the offense of the controlling person and the procedure for establishing them. Arguments are given in favor of the intentional form of guilt of the controlling person in bringing the debtor to bankruptcy, which, however, should not be presumed.
Oleg Gutnikov (Wed,) studied this question.