БЬЮТ НЕ ПО ПАСПОРТУ, ИЛИ ПОНЯТИЯ ФИКТИВНОЙ ОРГАНИЗАЦИИ, ПОДСТАВНОГО ЛИЦА И ФАКТИЧЕСКОГО РУКОВОДИТЕЛЯ В РОССИЙСКОЙ СУДЕБНОЙ ПРАКТИКЕ
The paper examines Russian court practice in terms of sham com- panies, straw persons and shadow directors. The author comes to a conclusion that Russian courts, especially criminal ones, active- ly lift the corporate veil, imposing liability upon the shadow direc- tors. This approach has a solid economic foundation. The value of civil property regulatory relations lies in the fact that they organise property turnover, enabling it to be efficiently distributed, and nar- row the uncertainty of the future. Faking and sham relations do not perform these functions. On the contrary, since information is a limited resource, not providing the true information about a le- gal entity's activities and its bodies increases transaction costs. On the basis of the research results, the author concludes that target criterion should be decisive to recognise a company as sham, and will criterion should be decisive to recognise a person as dummy or shadow director. It is also necessary to clarify and systematise the used terms based on supremacy of civil law.
The authors discuss such problems of application of paragaph 4 of article 10 of the law "On Insolvency (Bankruptcy)" as the periods that various editions of this paragraph were in force, a proper person, that can be brought to resposibility, and procedural aspects. The end of the article contains a conclusion that the edition of analyzed paragraph, that is in force from 30.06.2013, didn't change significantly the previous court practice.
Using the model of a limited liability corporation is fundamental to the modern economy, providing not only the opportunity to make long-term collective investments, but also, in total, to effectively engage in economic activities. Therefore, the deprivation of the "corporate shield" is permissible only in exceptional cases and should be based on objective criteria.
It is justified to bring controlling persons to direct property liability to creditors of a legal entity when they using the legal entity as a tool for unlawful activities, including for misappropriation creditors’ property.
The discrepancy between the content of economic relations and their legal form is observed when using conduit companies, which in fact act not as investors, but as trustees. Therefore, the responsibility of the beneficiaries of such companies is logical to consider as the responsibility of the founder of the trust (Paragraph 3, Article 1022 of the Civil Code of the Russian Federation).
The joint liability of the main company established by paragraph 2 of Article 67.3 of the Civil Code of the Russian Federation for the obligation of the subsidiary prevents the normal distribution and limitation of investment risks. It is advisable to replace this type of liability with the joint liability of the group members having a single enterprise (paragraph 1 of Article 2, paragraph 3 of Article 401, paragraph 2 of Article 1047 of the Civil Code of the Russian Federation).
The article deals with the problem of a controlling person’s liability for taking an excessive business risk in the vicinity of insolvency. Applying methods of economic analysis of law the author concludes that, in general case, a controlling person of a commercial corporation is liable towards creditors of a debtor only for those actions that are committed by him with an intention to harm creditors.
Applying the methods of transaction costs theory, the author studies the rules of making and challenging interested party transactions, put into effect by the Federal Law 03.07.2016 №343-FL, and concludes that they are likely to cause the increase of agency costs rather than their reduction.
Biased assessment of economic benefits, bounded rationality and opportunism do not allow to create totally objective rules of making conflict of interest transactions. When making this kind of transactions, it is not possible to reach a voluntary agreement on prices and other terms by exceptionally the will of a party concerned, which gives grounds not to consider them contracts. Consequently, the most appropriate means of minimizing agency costs must be a preliminary management control giving back a contractual nature to these transactions.
However, instead of professional pre-inspection of effectiveness of interested party transactions the legislator has created a game situation the outcome of which depends on the plaintiff’s capabilities to prove the damages. In this, the concerned CEO – the defendant, who has violated the fiduciary duties, has the advantages: he has more and better information, he is protected by presumptions, and consequently, he bears lower costs on running the case.
The article is devoted to a particular form of freedom of assembly — the right to counter-demonstrate. The author underlines the value of this right as an element of democratic society, but also acknowledges the risk of violent actions among participants of opposing demonstrations. Due to this risk, the government may adopt adequate measures restricting the right to counter-demonstrate, certain types of which are analyzed in this paper.
Development of standards of international controllability is reviewed in the article. Institutional approach is applied to development of international legal regime of Energy Charter. Definition of controllability is connected to development of international standards of dispute settlement, which are described in the article in detail. In connection with controllability, Russian interest, defense of investment in European Union and ecological investment encouragement, is reviewed in the article.
мировое управление и управляемость, Мировая экономика, международное экономическое право, энергетическая хартия, International control and controllability, International economics, international economic law, Energy Charter
международное частное право; недвижимость; ; школа бартолистов; бартолисты; теория статутов; статуарная теория/