Civil action and subsidiary liability: Issues of correlation and conflict

Abstract

The article attempts a comprehensive analysis of the correlation between criminal and civil (bankruptcy) qualification of acts related to bringing the organization to bankruptcy by the persons controlling the debtor. In the course of the study, examples are given that reflect both the similarity of criminal law compositions with civil law compositions (first of all, with Art. 61.11 of the Bankruptcy Law) and the similarity of criminal law compositions themselves (for example, Articles 158 and 196, 197 of the Criminal Code of the Russian Federation). The analysis of judicial practice materials and doctrinal sources allowed the authors to come to the conclusion about their complete identity (in case of intentional acts), and, as a consequence, about a number of procedural overlaps and conflicts in the case of appeal of interested parties to the court with a civil claim in the framework of criminal proceedings or with a claim for bringing persons to subsidiary liability in the insolvency (bankruptcy) case.

The authors cite the procedural consequences of the identity of criminal and civil qualification, the problem of different standards of proof in criminal and civil proceedings, double liability, the problem of different priority of creditors' claims. The approaches to the solution of the problems discussed in the article by foreign legal orders, in particular, Germany and China, are studied.

Using the above mentioned method of analysis and comparative legal method, the authors came to the conclusion that it is necessary to leave only one of the two mechanisms for the protection of creditors' rights - such a solution will avoid the conflicts identified in the article and reduce legal uncertainty on the side of creditors.