Administrative responsibility of the manager, personnel officer and occupational safety specialist as an official of the company

Order to appoint a responsible person

This example provides a sample order from the director to assign the duties of the chief accountant to himself from the very beginning of the activity.

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Minors may also face the full penalty. In this case, it is necessary to prove that the person was under the influence of drugs or alcohol, which contributed to the damage to the enterprise.

An order appointing someone responsible for fire safety is drawn up and registered in the same manner as other orders and must contain the following points:

The basis for the purpose is a reference to clause 4 of the Fire Regulations of the Russian Federation.
Full name and position of the employee who is appointed responsible with his written consent, the basis for the work (combining positions, additional responsibilities).
A brief list of responsibilities of the person responsible for fire safety in the organization. They can be included in the appendix to the order, especially if it is drawn up for several people.
The person who will monitor the execution of the order (usually the manager), and the person who will familiarize interested parties with the order.

Sample order for the appointment of a financially responsible person

To appoint those responsible for office work (for example, for keeping track of working hours), a document can be issued that also affects a group of persons at once. Appointments that do not relate to financial responsibility do not provide for additional agreements with employees.

In this case, you need to select a candidate so that in case of an emergency there is a sufficient number of people “at hand” who can be quickly deployed.

Let us recall that a generalizing word denotes a more general concept in relation to what is designated by homogeneous members of the sentence, in our case this is a list of responsible persons. Answer from the Russian language help desk. Options are possible here.

After completing the training and passing the exam, managers and specialists are issued a certificate of completion of training and knowledge testing.

Assign responsibility or assign responsibility. Order sample

In this case, the sample order assigning the duties of chief accountant to the director also includes an indication of the validity period of the order. Moreover, it is not necessary to indicate the end date; the order can be canceled by a certain event, for example, the chief accountant’s return from maternity leave or sick leave.

A comma is needed if the phrase a few years ago is given the meaning of an explanatory structure and it is formalized accordingly intonationally. This is due to the fact that providing personnel with safe conditions when performing work duties is one of the first conditions for the legal functioning of an enterprise, especially those engaged in the manufacturing industry.

The duties of employees, as well as the degree of their responsibility for their improper performance, are also indicated here.

Types of legal liability

Legal responsibility is one of the types of social responsibility. This is a way for the state to respond to an offense by implementing sanctions provided by law. This is the need for the guilty person to be subject to government measures and to suffer certain negative consequences.

Types of legal liability:

criminal;
civil (civil law);
administrative;
disciplinary;
material;
procedural;
constitutional.

Order on the appointment of responsible persons

All these aspects are reflected in the special instructions. If a fire safety service is created in a company, a corresponding regulation is developed.

An order for the appointment of responsible persons may concern both the work of a separate service and the entire enterprise as a whole. It all depends on the responsibility assigned to a particular person.

This document is intended to address the operational and major challenges facing this organization. In this sense, the “Order on the appointment of a person in charge” is especially important.

What positions of employees can be appointed responsible for storing personal data?

With the correct distribution of areas of activity and responsibility of each employee, the effective and efficient functioning of any enterprise will be achieved.

The order on the appointment of employees has the same legal force as an order. But there is some difference between these two documents, namely, the order is narrow in nature, applicable to a specific object or person, and the order appointing a responsible person covers the main areas.

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The indicated comma is placed correctly; it closes the participial phrase, which comes after the word being defined.

When preparing tax documents, the signature of the chief accountant is not required; only the head of the company signs here, unless a power of attorney has been issued to another person.

There are several main types of liability . In this case we are talking about:

Complete.
Individual.
Collective.
Limited.

Responsible employees are appointed in various areas of the organization. Such an appointment is formalized by order of the head - an order.

Alternative option

In some cases, the enterprise issues an order appointing responsible persons. Essentially, this is the same order. Both of these documents are administrative in nature. They record the administration's decisions regarding specific organizational issues.

But there is a slight difference that should be taken into account when choosing the right type of document. The law states that an order is usually issued on major issues relating to the internal life of the enterprise or organization itself, which require approval. The order is more often addressed to a specific person and concerns a narrow issue. It can concern both one-time cases and long-term issues. The essence of the order is to convey to the executor the need to perform certain actions relating to a specific part of his job duties. It all depends on what responsibility and for how long the management plans to assign to this employee.

How to prepare an order appointing someone responsible for fire safety

Financial responsibility is far from the only case when a manager issues an order to appoint a responsible person. Specific employees are also responsible for:

labor protection and compliance with safety regulations (only an employee who has completed safety training, passed the exam and received the necessary certificate, and also has the necessary electrical safety clearance group is allowed to perform control);
fire safety;
use of sources of increased danger;
conducting personnel records;
working time tracking;
advanced training and retraining of employees;
turnover of especially valuable items;
turnover of currency and securities;
and so on.

Don’t forget to write down the corresponding obligation in advance in the employment contract or the employee’s job description / instructions for the profession (if any).

The financial responsibility of individual employees (deputy manager, chief accountant) can be stipulated directly in the employment contract. When including conditions on such responsibility in a written contract with an employee, it is not necessary to issue an additional order, but the employer can do this if it is convenient for him to support the agreement with an order when conducting document flow.

Attention! The list of responsible persons of the organization may be issued by a separate order for the unit.

Financial responsibility of individual employees (deputy manager, chief accountant) according to Art. 243 of the Labor Code of the Russian Federation can be stated directly in the employment contract.

So there is no division by gender and everyone goes to the steam room together, both men and women.

It is possible to outsource this work. What is more profitable - to create your own security service or pay for the services of third-party specialists - the owner of the company decides for himself. Specialized organizations offer another type of service – industrial safety audit.

If the company does not have a large staff of employees, the persons responsible for any area of activity are appointed by the manager himself. In some cases, the director may assign these powers to himself; an order must be issued to confirm this.

Administrative responsibilities of the manager:

The features of bringing officials to administrative responsibility are as follows. An administrative offense is an unlawful, guilty action (inaction) of a legal entity or its director, for which administrative liability is established by the Code of Administrative Offenses of the Russian Federation (CAO RF) or the laws of the constituent entities of the Russian Federation on administrative offenses.

The manager bears administrative responsibility regardless of the administrative responsibility of the legal entity itself. This means that both the director and the legal entity can be held administratively liable for the same offense.

Not only employees are subject to certain fines if they violate labor discipline. There is also the administrative responsibility of the head of the organization, director, managing person with specific powers in a small company or large organization. Such people solve serious administrative, economic, labor and other issues and lead the team.

The director may be officially held administratively liable for the following violations:

infringements on the rights of workers and citizens under subordination;
in the field of state property;
in industrial activities, construction;
rules of the business code;
in the field of securities turnover, tax payments (read the link about the consequences of non-payment of taxes for an LLC on the lawyer’s blog);
in the customs field;
other violations, for a more precise list read below.

Terms and procedure for bringing to administrative responsibility

The strictly established procedure for bringing an official to administrative responsibility includes several stages.

It all starts with identifying a violation during an inspection or when a complaint is received from a subordinate.
Then a protocol is drawn up and all the circumstances of the case are investigated and evidence is collected.
The completed protocol with accompanying documentation is sent to the prosecutor's office or labor inspectorate. Also, documents can be considered in city and district courts, by state inspectors, and representatives of supervisory authorities.

There are some features of the administrative responsibility of officials. If a citizen is found guilty, specific sanctions are applied to him. Punishment may be imposed no later than two months from the date of violation of the law.

The average fine ranges from 5 to 55 thousand rubles. Sometimes the object of the offense is confiscated - products or goods that do not meet certain hygienic or technical requirements are confiscated. Many citizens are interested in the question of whether it is possible to bring a former director to administrative responsibility? This can be done, but only within the statute of limitations for a specific offense. If it has already expired, you will not be able to contact the appropriate authorities and seek justice.

Therefore, if there is a difficult situation, you need to act immediately. You should not delay drawing up a protocol on the violation of your rights or freedoms. Time will pass, and the crime may go unpunished because the statute of limitations has expired.

Attention : watch the video on protecting rights in administrative cases, and also subscribe to our YouTube to learn the advice of a lawyer and receive free advice from a lawyer in Yekaterinburg through comments on the video.

The Code of Administrative Offenses of the Russian Federation contains a fairly large list of offenses that a director of a legal entity can commit. Here are just a few of them:

Carrying out business activities without state registration or without special permission or license (Article 14.1)
Violation of advertising legislation (Article 14.3)
Sale of goods, performance of work or provision of services to the population of inadequate quality or in violation of the requirements of technical regulations and sanitary rules (Article 14.4)
Sale of goods, performance of work or provision of services in the absence of established information or non-use of cash register equipment in cases established by federal laws (Article 14.5)
Consumer fraud (Article 14.7)
Illegal use of a trademark (Article 14.10)
Illegal receipt of a loan (Article 14.11)
Fictitious or deliberate bankruptcy (Article 14.12)
Violation of the rules for the sale of certain types of goods (Article 14.15)
Violation of legislation on state registration of legal entities and individual entrepreneurs (Article 14.25)
Unfair competition (Article 14.33)
Violation of the procedure for handling cash and the procedure for conducting cash transactions (Article 15.1)
Violation of the deadline for registration with the tax authority (Article 15.3)
Violation of the deadline for submitting information about opening and closing an account with a bank or other credit organization (Article 15.4)
Violation of deadlines for submitting a tax return (Article 15.5)
Failure to provide information necessary for tax control (Article 15.6)
Gross violation of the rules of accounting and presentation of financial statements (Article 15.11)
Unfair issue of securities (Article 15.17)
Violation of legal requirements relating to the presentation and disclosure of information on the securities market (Article 15.19)
Violation of legal requirements on the procedure for preparing and holding general meetings of shareholders, participants in limited (additional) liability companies and owners of investment shares of closed mutual investment funds (Article 15.23.1)
Violation of the currency legislation of the Russian Federation and acts of currency regulatory authorities (Article 15.25)
Forgery of documents, stamps, seals or forms, their use, transfer or sale (Article 19.23)
Illegal remuneration on behalf of a legal entity (Article 19.28)
Violation of fire safety requirements (Article 20.4)
Violation of legislation in the field of ensuring sanitary and epidemiological welfare of the population and legislation on technical regulation (Article 6.3)

ATTENTION : The above list of punishable acts is not exhaustive.

Correct sample order for the appointment of responsible persons

The law does not put forward special requirements for the position of the person appointed responsible for organizing the processing of personal data.

It is a description of the essence of the document and the purposes for which it was created. The information is presented concisely, literally in a few phrases. In addition, the preamble may contain a list of individual regulations that served as the basis for the publication of this document.

It should be noted that financial liability is established for a certain group of employees . The list of these employees can be determined by studying the order issued by the manager. Speaking about the labor function of each of the named positions, the list may include:

Work that involves receiving and making financial payments.
Interaction with inventory.
Storage and maintenance of valuables of material value.

The order to appoint a person in charge is drawn up in any form. There is no single unified form for this document.

Responsibility for working with values

If the position of a particular employee is constantly connected with the turnover of any material assets, then this aspect of his activity must certainly be documented. We need an appropriate document that will legitimize this obligation. The appointment of a financially responsible person in the interests of the enterprise occurs through the issuance of a separate order. It should reflect in detail all the points relating to this issue. For example, an accountant who issues wages at the cash desk is financially responsible for accounting, storage and issuance of funds.

There are other examples. Thus, employees who use various tools and devices during the working day are also responsible for them. If such items of labor fail due to their fault, then, along with administrative punishment, the cost of the damaged equipment or the costs necessary to repair it will be withheld. Such measures force employees to be more attentive and always remember the responsibility assigned to them.

How to correctly write assign responsible or responsible

Many Tatar girls have these qualities. If you know Tatar women who are not like this, then you are very lucky. In order to appoint a certain employee responsible for a specific type of work, it is necessary to issue an order and sign it with the director of the enterprise.

In some cases, a separate annex with paintings is published for the information of interested parties, but in this case this is not required.

The order to appoint a responsible person does not have an officially established form. It is compiled arbitrarily, but in compliance with the rules applicable to all primary documents.

The main provisions of the order on the appointment of those responsible for fire safety

If he causes harm to the enterprise, he will only be responsible for the damage caused, which is direct. If a civil law type contract was concluded with the employee, then he is obliged to compensate for losses. The manager is responsible for all types of damage that were caused to the enterprise.

With their help, it is possible to resolve important issues related to the implementation of specific tasks. The “Order for the appointment of a person in charge” allows you to achieve your goals by attracting individual employees to carry out specific assignments.

To understand whether the employee can cope or not with the area of work assigned to him, study the specific responsibilities of the person responsible for working with personal data.

Imposition of subsidiary liability on children and heirs of persons controlling the debtor

7.01.20

M. Poluektov / AK Poluektova and partners

At the end of 2020, the Supreme Court of the Russian Federation (hereinafter referred to as the Supreme Court of the Russian Federation) considered two high-profile cases:

— on the transfer to the heirs of the controlling debtor of the person (hereinafter referred to as the CDL) of his debt under subsidiary liability and

— on imposing subsidiary liability on the children of the CDL to whom the CDL transferred its assets free of charge.

Both of these cases received widespread press coverage and mixed reviews from the legal community. Let's look at these cases in more detail.

The case of the transfer of debt under subsidiary liability to the heirs of the KDL (Determination of the SKES of the Armed Forces of the Russian Federation dated December 16, 2019 No. 303-ES19-15056)

The plot of the case: due to the illegal actions of the deputy head of the debtor M.A. Shefer, who died as a result of an accident, the debtor (Amur Product LLC) lost oil products worth 183 million rubles, which were transferred to him for storage. The debtor's loss of petroleum products led to his bankruptcy.

As part of the debtor's bankruptcy case, the creditor filed an application for subsidiary liability and asked to recover 273 million rubles from the debtor's bankruptcy estate. jointly and severally in a subsidiary manner for the debts of the debtor with the former head of the debtor Rudenko S.M. in full; from the heirs of his deputy Schaefer M.A. within the hereditary mass.

The courts of the first three instances brought to subsidiary liability only the former head of the debtor S.M. Rudenko. for bringing the debtor to bankruptcy, since he did not exercise proper control over the actions of his representative (Shefer M.A.), which as a result led to the disposal of petroleum products from the control of the debtor.

In satisfying the demands to bring to justice the heirs of Shefer M.A. the courts refused due to the fact that these requirements are inextricably linked with the personality of M.A. Shefer, and according to Article 1112 of the Civil Code, responsibilities that are inextricably linked with the personality of the testator are not included in the inheritance.

The courts also pointed out that subsidiary liability to creditors for bringing to bankruptcy cannot be considered as tortious liability, since it is additional within the meaning of Article 399 of the Civil Code.

The Supreme Court of the Russian Federation canceled these judicial acts, pointing out the following:

1. Vicarious liability for the obligations of the debtor (insolvent person) arises in connection with damage to the property rights of creditors of the controlled person and is a tort.

. This was stated in paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2017 N 53 “On some issues related to holding persons controlling the debtor liable in bankruptcy.” It follows from this that a debt arising from subsidiary liability must be subject to the same legal regime as other debts related to compensation for damage to the property of participants in the turnover (Article 1064 of the Civil Code).

2. The application of the provisions of Article 399 of the Civil Code to subsidiary liability in bankruptcy is erroneous. Despite the same name, subsidiary liability under the Bankruptcy Law and subsidiary liability under Article 399 of the Civil Code are completely different legal institutions. Article 399 of the Civil Code regulates additional liability, while subsidiary liability provided for by the Bankruptcy Law is the independent (primary) liability of the controlling person for violation of the obligation to act in good faith and reasonably in relation to the creditors of the controlled person.

3. The obligation to compensate for one’s negative behavior, arising as a result of being brought to subsidiary liability, is not inextricably linked with the personality of the testator

. This means that the debt of the testator, which arose as a result of bringing him to subsidiary liability, is included in the inheritance mass and passes to the heirs.

4. Such a claim can be satisfied only within the limits of the value of the inherited property

(Clause 1 of Article 1175 of the Civil Code). In this case, it does not matter whether the property that was acquired by the testator at the expense of creditors as a result of illegal actions that entailed subsidiary liability was directly included in the estate.

These conclusions of the RF Armed Forces seem absolutely correct.

At the same time, the statements of some authors that the RF Armed Forces allegedly allowed heirs to be held accountable for acts that they did not commit are incorrect.

The heirs are not held responsible for what they did not do. Responsibility lies with the testator (testator) for the offense committed by him. The debts of this CDL are transferred to the heirs and only within the limits of the value of the inherited property. In the same way, the testator's debts for other torts (for example, for damage caused as a result of an accident) are transferred to the heirs.

This statement is also true in the case when a claim for subsidiary liability is filed after the death of the CDL to his heirs. The fact is that the debts of the testator are understood not only as obligations that have come due, but also all other obligations of the testator that do not end with his death and are transferred in the order of universal succession. In this case, by its legal nature, the subsidiary debt of the CDL passes to the heirs, even if it is established after his death. The heirs themselves are not recognized as CDL at any time.

The only thing that confuses this story is the extension to the heirs of the presumptions of bringing the debtor to bankruptcy provided for by the Bankruptcy Law (about these presumptions, see our article “How a creditor can collect money from a bankrupt. Part II. Vicarious and other liability of persons controlling the debtor”).

These presumptions were introduced taking into account the fact that the CDL has all the information about the debtor and, if possible, will be able to refute them (transfer the missing documents to the arbitration manager).

Obviously, due to the lack of involvement of the heirs in the affairs of the debtor, it will be difficult for them to refute these presumptions, which may entail the satisfaction of a claim for subsidiary liability without sufficient grounds.

Thus, it will be difficult for the heirs to prove that the debtor’s bankruptcy was caused solely by external factors and not by the actions of the testator, that his actions did not go beyond the normal business risk and were not aimed at violating the interests of creditors, or that the actions imputed to him were committed to prevent even worse damage to creditors.

Realizing this problem, the Supreme Court of the Russian Federation indicated that after the death of the testator, the heirs do not always have the opportunity to explain the reasons for the testator’s management decisions; they, as a rule, do not have a full set of evidence that the testator could have presented if he had not died. Consequently, the courts need to provide assistance in obtaining evidence in accordance with the rules of Part 4 of Article 66 of the APC.

Nevertheless, the mere indication of the RF Armed Forces on the need to provide assistance in obtaining evidence seems insufficient.

It would be fair to apply these presumptions in a limited manner, taking into account the real possibilities of the heirs to present evidence to rebut these presumptions within a particular case.

The case of imposing subsidiary liability on the children of a CDL to whom this CDL transferred its assets free of charge (Determination of the SKES of the Armed Forces of the Russian Federation dated December 23, 2019 No. 305-ES19-13326)

Alliance LLC (the debtor), being a contractor under government contracts, signed fictitious subcontract agreements with organizations under its control to reduce its tax burden. In reality, no work was performed by subcontractors. However, payments in favor of these fictitious subcontractors allowed the debtor to receive an unjustified tax benefit in the form of an unreasonable reduction in the tax base for income tax and an increase in tax deductions for VAT.

The director and majority shareholder of the debtor was V.I. Samylovskikh.

His wife Kirienko N.A. directly participated in the activities of fictitious subcontractors used by the debtor (in one organization she was a manager, in another an accountant, in a third she advised the director on tax issues). She was also the director and sole participant of Veksha Plus LLC, to whose accounts funds hidden by the debtor from taxation were unreasonably redirected.

Based on the results of the tax audit, the debtor was assessed additional income tax and VAT in the total amount of 208 million rubles, and also imposed a fine in the amount of 69 million rubles.

After a tax audit of the wife of Samylovsky V.I. and Kirienko N.A. transferred their expensive property free of charge on the basis of gift agreements to their children. At the time of the tax offense, the children were minors, and at the time of the donation, one son was 15 years old and the other was 20 years old.

The Federal Tax Service filed an application for bankruptcy of the debtor and, as part of this case, demanded that the director and majority participant of the debtor V.I. Samylovskikh, his wife N.A. Kiriyenko, and their minor sons, Daniil Samylovskiy and Dmitry Samylovskiy, be brought to subsidiary liability.

The court of first instance brought to subsidiary liability only the head of the debtor V.I. Samylovskikh, collecting 311 million rubles from him into the bankruptcy estate.

The appellate court changed the ruling of the first instance court, recognized the wife of the debtor’s manager (N.A. Kiriyenko) as a CDL and additionally brought her to subsidiary liability in the same amount.

The Court of Cassation overturned the appeal ruling, indicated that there were no grounds for recognizing the spouse as a controlling person, and upheld the ruling of the first instance court.

All three authorities found no grounds for holding children vicariously liable.

The matter reached the RF Armed Forces, which came to the following conclusions:

1. The head of the debtor is subject to subsidiary liability, since he created the above-described business model, which led to the bankruptcy of the debtor.

2. The wife of the debtor’s manager (Kirienko N.A.) is also subject to subsidiary liability, since she took part in the actions that led to the debtor’s bankruptcy.

The actions of the spouses were agreed upon, coordinated, aimed at realizing a common unlawful intention.

According to Article 1080 of the Civil Code (this article is contained in Chapter 59 of the Civil Code “Obligations resulting from causing harm”, and the Plenum of the Supreme Court of the Russian Federation in Resolution No. 53 directly indicated the need to apply the provisions of this chapter when bringing the CDL to subsidiary liability) “persons who jointly caused harm, are responsible to the victim jointly.” Therefore, the spouse is subject to joint and several liability as a co-injurer of harm.

3. The dispute regarding bringing children to subsidiary liability should be sent for a new trial to the court of first instance, and when resolving this dispute, the following must be taken into account.

Children, being minors during the period when illegal actions took place, were not CDL and are not subject to liability
for bringing the debtor to bankruptcy
. The presumption of a controlling beneficiary is not applicable to them (subclause 3, clause 4, article 61.10 of the Bankruptcy Law).

At the same time, children can be used by parents as a tool to hide property belonging to the parents from foreclosure. In particular, parents can formalize the transfer of ownership of property to their children only for show, without the intention of creating corresponding legal consequences, thereby completing an imaginary transaction, which, by virtue of clause 1 of Article 170 of the Civil Code, is void.

But even if the court comes to the conclusion that there are no signs of sham in the transaction, the possibility of applying liability measures is not excluded on the basis of Article 1064 of the Civil Code.

Harm to creditors can be caused not only by bringing the debtor to bankruptcy, but also by deliberate actions aimed at making it impossible for creditors to obtain full satisfaction from the property of the CDL

, guilty of bankruptcy of the debtor, including through the acquisition of their property by relatives under real gratuitous transactions that are not imaginary, the harmful purpose of which could not have been unknown to the acquirer.

In this case, compensation for damage caused to creditors is limited in amount to the value of the property.

, although the owner has changed, but, in fact, left in the family (Article 1082 of the Civil Code).

Despite the fact that the grounds for the creditors' claims against controlling persons (creating the necessary reasons for bankruptcy) and the relatives who acquired their property (creating the impossibility of full fulfillment at the expense of the property of the controlling persons) do not coincide, the creditors' claims against them pursue a single goal - to compensate in full for losses ( Article 15 of the Civil Code), therefore, the obligations of the controlling persons and the mentioned relatives are joint and several (Article 1080 of the Civil Code), which also makes it possible to exclude the occurrence of unjust enrichment on the side of the injured creditors.

During the period when the donation agreements were concluded, one son was an adult, and the other was 15 years old. By virtue of paragraph 3 of Article 26 and Article 1074 of the Civil Code, minors aged 14 to 18 years are responsible for the harm they cause.

The lower courts did not check whether the children became the real owners of the property donated by their parents, and whether, by receiving the property as a gift, along with acquiring ownership rights, they pursued another goal - to free this property from foreclosure by their parents' creditors for tortious obligations

When reconsidering the dispute, the court should consider the possibility of holding children accountable for intentional actions aimed at making it impossible for the debtor’s creditors to obtain execution at the expense of their parents’ property

This case is not as clear as the previous one and has met with great criticism from lawyers, but nevertheless, the conclusions of the RF Armed Forces seem correct.

And most importantly, the ruling of the RF Supreme Court is fair. Justice is what our judicial system, which still suffers from excessive formalism, lacks. In this case, the RF Supreme Court found a fair solution and, no less important, managed to justify it with references to positive law.

What should you pay attention to when analyzing this Determination of the RF Armed Forces?

The wife of the debtor's manager (N.A. Kiriyenko) was not recognized as a CDL (in any case, the RF Supreme Court did not speak out about this), but was nevertheless brought to subsidiary liability.

We believe that the Supreme Court of the Russian Federation brought the spouse to subsidiary liability not as a person controlling the debtor, but as his accomplice - a “co-causer of harm” on the basis of Article 1080 of the Civil Code, according to which “persons who jointly caused harm are jointly and severally liable to the victim.”

Probably the Supreme Court of the Russian Federation reasoned as follows: if a CDL is subject to subsidiary liability for a tort, then other persons, although not a CDL, but who are “co-injurers of harm,” must be jointly and severally liable with the CDL.

The same approach was applied to children.

Minor children are not CDLs, and therefore are not subject to subsidiary liability for bringing the debtor to bankruptcy, the RF Armed Forces indicated.

But they may be held liable for another tort - for the fact that, when they were already 14 years old, they knowingly participated in hiding the property of their parents from the claims of creditors. And this is precisely how children could harm their parents’ creditors.

Therefore, the Supreme Court of the Russian Federation pointed out the need to believe whether children, by accepting property as a gift, pursued an unlawful goal - to hide the property of their parents from foreclosure on their tortious obligations (how such a goal can be proven in practice is not entirely clear).

Obviously, this approach should be applied not only to the children of the CDL, but to any gratuitous or imaginary purchasers of property that creditors could foreclose on.

At the same time, the Supreme Court of the Russian Federation especially noted that the amount of liability of such donees is limited by the value of the property donated to them, which is quite fair (an analogy with the previous case suggests itself, in which the heirs are liable within the value of the inherited property).

Many critics of the considered definition of the RF Supreme Court point out that in this case, the appropriate way to protect the violated rights of creditors was to challenge gift transactions either under clause 1 of Article 170 of the Civil Code (an imaginary transaction), or in accordance with Chapter III.1. Bankruptcy Law, or under Article 10, 168 of the Civil Code. In their opinion, the Supreme Court of the Russian Federation should not have allowed competition of claims and allowed the filing of a claim to bring children to subsidiary liability.

Meanwhile, in the order of Chapter III.1. According to the Bankruptcy Law, such gift agreements cannot be challenged, since the debtor (Alliance LLC) did not give anything to the children, their parents did.

According to the above articles of the Civil Code, gift transactions can theoretically be challenged, but will this method of protection be effective for the debtor’s creditors?

Unfortunately, in our legal system, a Paulian claim, if considered outside the framework of a bankruptcy case, has not yet become an effective method of defense. Courts often refuse to grant it. And if they do, then difficulties often arise with the execution of the court decision, since it is necessary for one opponent of the plaintiff (son) to return the donated property (or, if it was disposed of, its value) to another opponent of the plaintiff (parent).

In addition, a claim against children and parents to challenge gift agreements can be filed only after a judicial act bringing parents to subsidiary liability has entered into legal force. And by this moment, both the property donated to the children and other assets they have can already be irrevocably removed from their property and transferred to other persons. In this case, you can hardly count on the actual execution of the court decision.

Whereas, in the context of a dispute about bringing to subsidiary liability, it is much easier at an earlier stage to achieve the adoption of interim measures aimed at preventing the withdrawal of assets from the property of children.

The only thing that cannot be understood from the Determination of the Armed Forces of the Russian Federation is what would happen if the children were minors at the time of the donation and they clearly could not have had the unlawful purpose of helping their parents hide the property from foreclosure? What if parents used their young children as a tool to hide assets?

We believe that in such cases there are no grounds for holding children vicariously liable. But such transactions should a priori be recognized as void as imaginary. In this case, the property must be returned to the parents through restitution.

But a more elegant solution is possible. According to Article 77 of the Federal Law “On Enforcement Proceedings,” foreclosure on the debtor’s property held by third parties is carried out on the basis of a judicial act.

Guided by this article, the bankruptcy trustee of the debtor, after bringing the parents to subsidiary liability, can immediately file a claim to foreclose on the property of the parents held by the children. The legal basis for the claim is as follows: gift transactions are void as imaginary (clause 1 of Article 170 of the Civil Code); to recognize a void transaction as invalid, no special court decision is required (clause 1 of Article 166 of the Civil Code); since the transactions are invalid, they did not entail legal consequences in the form of transfer of ownership of the children, the parents continue to remain the owner of the property (clause 1 of Article 167 of the Civil Code); If the parents are the owners of the property, then their debts can be used to foreclose on this property.