Новые горизонты для косвенных исков участников корпорации

Цивилистика. 2023. № 4. С. 139–154.

Трофимов Ф. И.

Each lawmaker introducing a derivative claim into their legal system must strike a balance between the interests of the participants (often minority shareholders) and the interests of the corporation. After all, not only can the company infringe participants’ rights, but participants, by abusing their rights, can also force the company to suffer losses. The derivative claim model chosen by the Russian legislature seeks to maintain this balance by limiting the list of claims that a participant may bring. This approach, which, incidentally, is also found in some other continental European jurisdictions, proves in a number of practical situations to be not entirely successful or fair. At the same time, the analysis of case law presented in this paper allows certain conclusions to be drawn about how Russian courts are correcting the “excesses” generated by the corporate law provisions on derivative claims. It is already possible to outline a range of legal instruments (largely of a fictional nature) that can be used in practice, given the limited, formally defined list of claims available to a participant. The paper also sets out a number of arguments pro et contra the use of this new legal toolkit and advances theses in support of a subsequent expansion of the derivative claim institution in Russia.

Keywords: косвенные иски, derivative claims