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“Subsidiary liability of the controlling debtor of the person. Is it possible to apply to heirs?” — article by Anna Volynets for the Arbitration disputes

Introduction

Interest in the institution of subsidiary liability, provided for by the Federal law of 26.10.02 № 127 "Insolvency (bankruptcy)" (hereinafter — The bankruptcy law), has increased many times in recent years.

This article is devoted to one unusual question about the possibility of making a claim against the heirs of the controlling debtor of a person on the basis of the rules on subsidiary liability provided for Chapter III.2 of The bankruptcy law.

This problem has already begun to arise in practice, but has not yet received coverage in theory. The conclusions contained in this article are largely debatable*, and it is too early to put an end to this complex and sensitive issue.

Problem statement. The conclusions of the courts

By chapter III.2 of The bankruptcy law is defined in fact two types of subsidiary liability of the controlling debtor:

— subsidiary liability for the impossibility of full repayment of creditors' claims (article 61.11);

— subsidiary liability for failure (late filing) of the debtor's application for its own bankruptcy (article 61.12).

The question arises: what is the fate of the requirement to attract for subsidiary responsibility in case of death of a person attracted to subsidiary responsibility?

Is it possible to make such a claim to the heirs of the deceased person in succession, and if so, what does this opportunity depend on?

The analysis of judicial practice shows that at the moment in case of death of the controlling person courts are inclined to stop production on separate dispute on attraction to subsidiary responsibility. Thus courts are based on point 6 of part 1 of article 150 of the Arbitration procedural code of the Russian Federation[1] according to which the arbitration court terminates the proceedings if it finds that after the death of a citizen who is a party of the case, the disputed legal relationship does not allow succession.

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* The opinions expressed in this article are the personal opinion of the author and may not coincide with the position of the "Prime Advice".

1 Arbitration procedural code of the Russian Federation of 24.07.02 № 95.