Критерии определения понятия связанного с должником лица для целей субординации

Журнал российского права. 2025. Т. 29. № 6. С. 118–129.

Якушева Е. Е.

Subordination implies a certain deterioration in the situation of persons related to the debtor due to their abuse of their rights in the form of satisfying their claims in the order preceding the distribution of the liquidation quota. This article considers the possibility of using the concepts of "controlling debtor" and "affiliated person" fixed by the legislator when applying the rules on subordination of claims in bankruptcy.

The purpose of the study: taking into account the legal uncertainty that has arisen, the author of the article wishes to identify the most effective criteria for determining the concept of a "debtor-related person" for the purposes of subordination.

Research methods: general scientific (analysis and synthesis) and methods of legal science (methods of literal, systematic and historical interpretation of legal norms).

Conclusions: an analysis of current judicial arbitration practice indicates that currently the courts do not have a common opinion on the list of persons whose claims are subject to subordination. Such legal uncertainty does not allow creditors to assess in advance the risks of downgrading their claims, which clearly contradicts the principle of equality of creditors. At the same time, considering foreign and domestic approaches to resolving this issue, the author believes that the main criterion for applying the rules of subordination to a creditor is the ability of this person to determine the behavior of the debtor using special opportunities that are not available to other creditors. Moreover, the author considers it advisable to develop so-called "presumption of connectedness", which will clearly indicate the connectedness of persons or distribute the burden of proof in cases where a certain presumption is not applicable.

Keywords: банкротство, bankruptcy, контролирующее должника лицо, субординация требований кредиторов, баланс интересов сторон, subordination of creditors' demands, lowering of priority, person controlling the debtor, balance of interests of the parties, понижение очередности