Subsidiary Liability in the Legislation on Legal Entities: Issues of Legal Regulation and Legal Nature
The article deals with theoretical and practical issues of legal regulation of subsidiary liability in the legislation on legal entities. It is noted that the norms on subsidiary liability in the legislation lack a system approach. They do not provide clear answers to a number of key questions: applying subsidiary liability including the nature and size of claims which may be set by creditor for the subsidiary debtor; on the grounds of such claims (illegal behavior of the principal debtor or a wrongdoing of a subsidiary debtor); the conditions of lodging a claim and the conditions of meeting such claims; the procedural status of the principal debtor and involving it to the action against subsidiary debtor; confirming the lack of property or money as to the principal debtor as a condition of meeting claims towards the subsidiary debtor; the nature and size of regressive claims of the subsidiary debtor against the principal one; the grounds of changing or terminating subsidiary liability etc. The legislation on legal persons does not contain general provisions on subsidiary liability in corporate relations. However, in the legislation on legal persons this institute is mentioned frequently. Unfortunately, the current decision of the RF Supreme Court Plenum lacks the provisions about applying the legislation on subsidiary liability. The court practice is not developed. Besides, it is often inconsistent and controversial one. Due to this, the paper studies separate most significant issues of subsidiary liability in the legislation on legal persons. An analysis of these issues draws conclusions about diversity of subsidiary liability, which essentially includes three completely different legal effects: (1) one of the types of obligations with plurality of persons; (2) a special device for securing the performance of obligations; (3) a kind of civil liability. The article gives a general description of each of these types of subsidiary liability. It concludes emphasizing the need to separate the legal regulation of these types of subsidiary liability in the Russian Civil Code and the legislation on legal entities.