CC BY
1018
JURISPRUDENCE / «€®LL®(MUM~J®U©Ma[L>>#3®I®7)),2©2©
UDC:347.51
Glazkova Tatiana Andreevna,
global and national economy department student Korneva Olesya Yuryevna, global and national economy department student Ovod Igor Viktorovich
associate professor of the department of legal support for economic activity
Samara State Economic University DOI: 10.24412/2520-2480-2020-3587-18-19 SOME FEATURES OF RESPONSIBILITIES IN LLC
Abstract.
In essence responsibility is the means providing fulfillment of duties by participants of legal relationship. This function of legal responsibility with identical degree will concern both natural persons, and to the organizations.
Keywords: corporation, creditor, liability, bankruptcy, corporate law, founders.
Paragraph 1 of the article 3 of the Federal Act "Joint Stock Companies" fixes the limits of independent property liability of an LLC having which happens to be the most important feature of a legal person: a company is held liable for its debts to the extent of all its assets. Meanwhile, in real terms foreclosure is more often recovered on credits of a business entity maintained in bank accounts despite the fact that the amounts of the accounts may include, for instance, up-front payments which do not belong to the LLC until the performance of prepaid work, services, product or goods transfer as well as borrowed and other funds within entity's ownership. However, it is the property with which a limited liability company is liable for its debts. Therefore, it is advisable to interpret the specified standard broadly as according to the article 56 of the CC of the RF, a legal person is held liable to the full extent of its assets not only those mentioned in paragraph 1 of the article 48 of the CC of the RF. On this account real rights should not be considered as obligatory and exclusive legal arrangements of property insulation of a legal person.
The liability of the members is limited only by the size of the contribution made to the share capital of the company. But in this case, this involves the economic risks of the founders of a legal entity since the ownership of the property introduced into the share capital is held by a legal person so it is not accurate to write about legal responsibility of the members within the contributions made. Therefore, the law most often states not the responsibility of the members but downside risks within the costs of the contribution made.
Separate property liability of a legal person and its members (property owner) for its debts results from the fundamental principle of the corporate law the idea being "the consistent separation of a legal personality (separate identity) and corporate property from a person and property of its members ("the separation principle").
Alongside with that the civil legislation covers the circumstances when founders (members) or a property owner of a legal person are held liable for the debts of the legal person. As exceptions to the rules these cases
should be expressly provided by the Civil Code of the RF [1]. They derive from both features of organizational legal forms of a legal person and particular circumstances which are extraordinary in nature.
One of the most attractive features of an LLC is its being very convenient in terms of responsibility and liability which is held by company's founder. Founders are liable for all the debts, loans and other liabilities only to the extent of their share in share capital. This arises from the article 16 of the Federal Law "Limited liability companies" [2].
The Civil Code of the RF particularly the article 56 states that an LLC is liable for all the liabilities held to the full extent of its assets. At the same time the funders of a limited liability company or its owners are relieved of responsibility for the debts and loans of the LLC as well as the Company is not liable for the debts and loans of its founders [3].
When considering the subsidiary liability which assumes that individuals who are in charge of companies' businesses are fully financially responsible for all the debts and obligations to counterparts.
This mechanism allows of recovering LLC debts from CEOs' or company's founders' personal savings (the article 44 of the Federal Law "Limited Liability Companies") [4]. It became possible after the amendments to the Federal Law "Insolvency (bankruptcy)" dated October 26, 2002 came into effect [5]. The amendments mentioned has significantly expanded the abilities of creditors to use founders to hold liable: executives, accountants, top managers, managers and high-level executives registered as LLCs.
In accordance with the previous version of the law dated June 5, 2009 only founders, members and managers of an LLC who were such at the time of the start of the bankruptcy procedure could be held liable. However, such reading provided room to easily escape liability by replacing managers and executives or changing the members of founding boards.
Lawbreakers could simply change the LLC's statue, appoint a new director, executive or accountant. However, this version provides for the possibility of holding liable ex-director of a company and all persons
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involved in its management and responsible for certain business decisions.
The legislation has been revised significantly. Particularly, a special term "person controlling a debtor" has been added (the article 61.10 of the Federal Law). This person can be someone not connected to the director of the LLC by any legal documents but de-facto controls their business activities and influences the decisions made.
Managing persons of an LLC or its founders can be held subsidiary liable (the article 3 of the Federal Law "Limited Liability Companies") only if it is proved that bankruptcy occurred due to their fault [6]. In other words, creditors who applied to a court will have to prove that those were the actions of the LLC members that led to the situation in which the Company became insolvent and couldn't fulfil its obligations to the partners, creditors, etc.
To achieve application of the rules of subsidiary liability it is necessary to determine to whom they will apply. They can be founders, managers, directors and other members of an LLC. Other individuals can also be responsible for the debts of the company if it is
proved that it was they who made the managers or directors take actions which resulted in the bankruptcy of the entity.
References:
1. The Civil Code of the Russian Federation (part one) dated 30.11.1994 № 51-Federal Law (edited on 29.12.2017), implemented by State Duma of the Federal Assembly of the Russian Federation on 21.10.1994, by the Federal Law dated 30.11.1994 № 52-Federal Law "On the Enactment of the Part One".
2. Of the Civil Code of the Russian Federation entered into force since January 1, 1995, published in "Rossiyskaya gazeta", № 238-239, 08.12.1994
3. Gutnikov O.V. "Legal liability in corporate relations" Civil Law Bulletin. -2014. -№ 6. -C. 51-117.
4. Code of the Administrative Offences of the Russian Federation dated 30.12.2001 № 195-Federal Law (edited on 03.04.2018)
5. The Federal Law "Limited Liability Companies" dated 08.02.1998 № 14-Federal Law (edited on
31.12.2017)
6. The Federal Law "Insolvency (bankruptcy)" dated 26.10.2002 № 127-Federal Law (edited on
07.03.2018)
УДК 346.54
Денекиев М.Р.
Башкирский государственный университет,
Институт права Научный руководитель - Анисимов В.А.
доцент, к.ю.н.
DOI: 10.24412/2520-2480-2020-3587-19-20 ПУТИ АДАПТАЦИИ АНТИМОНОПЛЬНОГО ЗАКОНОДАТЕЛЬСТВА К УСЛОВИЯМ
ЦИФРОВОЙ ЭКОНОМИКИ
Denekiev M.R.
Bashkir State University, Institute of Law Scientific adviser - Anisimov V.A. associate professor, PhD in Law
WAYS OF ADAPTING ANTI MONOPOLY LEGISLATION TO THE CONDITIONS OF THE
DIGITAL ECONOMY
Аннотация.
В статье рассмотрена динамика развития антимонопольного законодательства в условиях цифровой экономики. Особое внимание уделено проблемам адаптации антимонопольного органа к реалиям цифровых платформ. На основе изучения нормативно - правовых актов в сфере антимонопольного регулирования выявлены решения вопросов приспособления органов антимонопольной службы к периоду цифровой экономики. Abstract.
The article examines the dynamics of the development of antimonopoly legislation in the digital economy. Particular attention is paid to the problems of adapting the antimonopoly authority to the realities of digital platforms. Based on the study of normative legal acts in the field of antimonopoly regulation, solutions to the issues of adaptation of the antimonopoly service bodies to the period of the digital economy have been identified.
Ключевые слова: антимонопольный орган, цифровая экономика, антимонопольная служба, цифровая платформа, адаптация антимонопольного законодательства.
Keywords: antitrust authority, digital economy, antitrust service, digital platform, adaptation of antitrust
laws.
