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Law and Politics
Reference:

The Limits of Analogy in the Private Legal Status of the Beneficial Owner of a Legal Entity

Mikryukov Viktor Alekseevich

ORCID: 0000-0002-6856-1627

PhD in Law

Assistant Professor of the Entrepreneurial and Corporate Law Department, Kutafin Moscow State Law University (MSAL)

125993, Russia, Moscow, Sadovaya-Kudrinskaya str., 9

vmikryukov@yandex.ru
Other publications by this author
 
 

DOI:

10.7256/2454-0706.2022.9.38698

EDN:

XPLCCO

Received:

27-08-2022

Published:

03-09-2022

Abstract: The author reveals the inconsistency of judicial practice on the issue of the private legal status of beneficial owners (final beneficiaries, beneficiaries) of a legal entity: in cases of challenging decisions of general meetings of participants and transactions of such legal entities, courts without proper references to the legal basis tend to recognize the beneficiaries of the right to appropriate claims, and in disputes over their demands for information the activities of the corporate entities actually controlled by them are denied on the grounds of the lack of grounds for applying the analogy of the law, considering the silence of the legislator about the relevant protective instrument of the beneficiary qualified. Due to the absence of special rules on the presence or absence of analyzed protective capabilities of beneficial owners, the effectiveness of analogy as a traditional means of overcoming legal gaps has been tested. The prospects of the analogical introduction of the public-law concept of "beneficial owner" into the structure of the private-law status of legal entities are evaluated. The development of a formal approach based on the absence of a direct legal connection of the beneficiary with the organization controlled by them is not excluded. It is concluded that it is necessary to develop a unified judicial approach to the possibility of an analogical application of public-law rules on the figure of beneficial owners to private-law relations with their indirect participation before the legislative solution of the issue under study.


Keywords:

beneficial owner, final beneficiary, controlling person, analogy of the law, indirect claim, beneficiary, conduit organization, subsidiary liability, legal gaps, qualified silence of the legislator
References
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Peer Review

Peer reviewers' evaluations remain confidential and are not disclosed to the public. Only external reviews, authorized for publication by the article's author(s), are made public. Typically, these final reviews are conducted after the manuscript's revision. Adhering to our double-blind review policy, the reviewer's identity is kept confidential.
The list of publisher reviewers can be found here.

The subject of this work is aimed at studying the issues of the implementation of the legal status of the beneficial owner of a legal entity in the law enforcement activities of national courts. Submitted article for review on the topic: "The limits of analogy in the private legal status of the beneficial owner of a legal entity" is an actual and timely study. At the same time, there is currently not enough work on a given topic, so this work is timely. The relevance is due to the need to develop the status of the beneficial owner of a legal entity in civil law relations. The work is based on the analysis of the legal positions of arbitration courts and the analysis of scientific views on a given topic. The name of the submitted publication for review coincides with its name. The author considers the subject of the study from the point of view of practical problems and the lack of uniformity in judicial practice. The conducted research is based on the analysis of modern approaches in civil science and law enforcement practice. The scientific novelty lies in the study of the limits of the analogy of the beneficial owner of a legal entity through the prism of the legal positions of national courts. At the same time, I would like to note that the author of this publication needs to disclose the content of the terms "double indirect" and "quasi-indirect (derivative, double indirect) claims" used from the point of view of the author's understanding and interpretation. It is advisable to reveal their semantic content and fundamental difference from the point of view of the author's position. Within the framework of the presented work, the author demonstrates scientific erudition and analytical style of presentation, as well as the ability to make a detailed, critical analysis of both materials of judicial practice and scientific literature. He has the ability to critically analyze empirical material, as well as to form his own scientific position. In the presented work for review, relevant and timely conclusions are formulated that require further research on a given topic, as well as requiring the development of legal regulation in this area of legal relations. The author uses current sources containing discussions on this issue. The legal positions of the national courts on this topic are investigated, they correspond to timeliness and relevance. The author's conclusions and judgments are of interest to the scientific community, from the point of view of a critical understanding of the legal statute of the beneficial owner of a legal entity. This article is of interest to the scientific community, and can be used as a basis for further research by the author on a given topic. The article submitted for review "The limits of analogy in the private legal status of the beneficial owner of a legal entity" has an independent and creative character and deserves support. The article may be accepted for publication in the journal "Law and Politics" after the removal of the previously mentioned comments. At the same time, these comments do not detract from the quality of the submitted work and are of a recommendatory nature.
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