О некоторых аспектах прямой имущественной ответственности контролирующих лиц перед кредиторами
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).