Истребование доходов (disgorgement of profits) директора и аффилированных с ним лиц за нарушение фидуциарных обязанностей (часть 1)

Вестник экономического правосудия Российской Федерации. 2024. № 10. С. 140–177.

Акужинов А. С.

The article is devoted to the policy and comparative legal analysis of the application of disgorgement of profits to cases of breach of fiduciary duties by a director of a legal entity. Disgorgement of profits is a remedy that allows a person who has suffered a violation of a right to recover from the wrongdoer the profits received by the latter because of the wrongdoing. The article is divided into six parts to be published consecutively in three issues of the journal. The first three parts of the article are published in this issue. In the initial section, I delineate the content of a director’s obligation to act in good faith and with due care in Russian law [I]. I then demonstrate that, based on international and domestic precedent, the recovery of income can be regarded as a sui generis remedy, which does not necessitate damage to the aggrieved party. In Russia, this remedy is provided for by Article 15 (2) (2) of the Civil Code of the RF [II]. Subsequently, two potential policy-legal justifications for the recovery of profits from a director are presented: deterrence and corrective justice [III].

Keywords: упущенная выгода, фидуциарные обязанности, account of profits, constructive trust, disgorgement of profits, loss of profits, истребование доходов, интервенция в договорные отношения