Features of recovery of losses from shadow management in the framework of a bankruptcy case

The article defines the features of determining the subject composition in the resolution of separate disputes in bankruptcy cases related to the recovery of losses from the former managers of the debtor. The cases of applying the presumption of control over the activities of a legal entity, taking into account the effect of paragraph 3 of Article 53.1 of the Civil Code of the Russian Federation and Article 61.10 of the Bankruptcy Law in relation to shadow managers, are investigated. In particular, on the distribution of the burden of proof in the presence of information about the shadow leadership and the consequences of such a statement.

The author criticizes the incompleteness of the normative definitions of the concept of persons who have the actual ability to determine the actions of a legal entity, and believes that the consequence of this was the inability in practice to hold the shadow leadership accountable.

Using examples from judicial practice, an approach is developed to differentiate the statuses of a nominal and shadow director. It is proposed to give an answer to the question of which of these persons is subject to prosecution. The decision is made by the author depending on the statement of their receipt of benefits arising from the commission of unfair actions. The cases are analyzed when the nominee director is not held accountable, despite the actual participation in the management body of a legal entity.

It is concluded that the presumption of activity control is not applied in practice to shadow beneficiaries, which excessively complicates the process of holding them accountable. In order to ensure a balance between the “legitimate” persons controlling the debtor and the “shadow”, it is necessary to approach the burden of proof differently, in particular, to simplify the reclamation of evidence. To introduce the grounds for the occurrence of such a presumption.