Истребование доходов (disgorgement of profits) директора и аффилированных с ним лиц за нарушение фидуциарных обязанностей (часть 2)

Вестник экономического правосудия Российской Федерации. 2024. № 11. С. 173–208.

Акужинов А. С.

The article is devoted to the political and comparative legal analysis (Russia and England) of the application of disgorgement of profits in cases of breach of fiduciary duties by a director of a legal entity. The article consists of six parts. The first three parts were published in the previous issue. The first half of the fourth part of the article is published here, in which I compare disgorgement of profits in Russian and English law [IV]. In English law, disgorgement of directors’ profits is a form of restitution for wrongs, as opposed to restitution for unjust enrichment, and can be exercised through two forms of remedy: an account of profits and a constructive trust. The former is a personal remedy, the latter an in rem remedy. In order to obtain disgorgement under English law, the claimant does not have to prove that he has suffered any damage. In England, disgorgement of profits and damages are alternative remedies [IV.A.(i)]. In Russian law, disgorgement of profits is a sui generis remedy and does not require the plaintiff to prove damages [IV.A.(ii).(a)]. I argue for the cumulative rather than alternative nature of disgorgement of profits to damages in Russian law [IV.A.(ii).(б)]. Finally, I insist that in Russia, disgorgement of profits can only be sought through a personal claim and that a constructive trust cannot be applied in Russian law [IV.A.(ii).(в)].

Keywords: упущенная выгода, фидуциарные обязанности, account of profits, constructive trust, disgorgement of profits, истребование доходов