Предпринимательский риск и неосторожная вина руководителя: ошибка в предвидении или в процедуре?

Известия высших учебных заведений. Правоведение. 2017. № 5. С. 68–83.

Tsepov G.

Any person can be subject to civil liability for negligent actions. However, risk is an inherent
part of entrepreneurial activity caused by its competitive nature and fundamental uncertainty of the future. Thus, there is a contradiction: a director has to take risks, however he/she should act with caution not to be held liable. To eliminate the contradiction, the author examines traditional guilt concepts and rejects the objective approach which is based on the model of required behavior and identifies guilt with the breach of obligations. The author supports the psychological concept of guilt, according to which the understanding of guilt is based on recognition of the freedom of will, the ability of a person to be aware of his/her action and to foresee its consequences. To eliminate the collision between negligence and business risk, it is necessary to search for a solution not in the evaluation of the ability to foresee the final result (the director is aware of an abstract possibility to get a negative result), but rather in the director’s psychological attitude to the choice procedure. It means that while choosing a solution the result of
which is uncertain, the director`s fault does not lie in the fact that he/she had chosen the option which later proved to be unfavourable, but in the fact that he/she had disregarded the rules of choice. To determine the innocence of the director, it is appropriate to apply a subjective-objective method.

Keywords: вина, предпринимательский риск, guilt, economic choice, экономический выбор, небрежность, business judgment, director, деловое суждение, gross negligence, negligence, business risk, руководитель

Publication based on the results of: Правовое обеспечение корпоративного управления: теория и практика (2014)