Capitalized payments in the amount of subsidiary liability of persons controlling the debtor for the legal entity's obligations

Shurlyakov Georgii Sergeevich ORCID: 0009-0005-6518-3076 Postgraduate student of the Department of Civil Law and Procedure of the Ural Institute of Management, branch of the Russian Academy of National Economy and Public Administration under the President of the Russian Federation 455000, Russia, Chelyabinsk region, Magnitogorsk, Domenshchikov str., 24 eg.shurlyakov@gmail.com

One of the guarantees of social protection of citizens provided for in Part 1 of Article 7, Article 39 of the Constitution of the Russian Federation is the mechanism of capitalization of time-based payments in compensation for damage caused to the life and health of individuals during liquidation, including as a result of bankruptcy of a legal entity. The procedure for liquidation of a legal entity in respect of which bankruptcy proceedings are being conducted begins from the moment it is declared bankrupt and bankruptcy proceedings are opened (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09/06/2005 No. 4275/05 in case No. A72-4650/02-Sk334-B, part 2, paragraph 6 of Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 11/30/2006 No. 57 "On certain issues of establishing requirements for the payment of capitalized payments in a bankruptcy case" (hereinafter referred to as Resolution No. 57 of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 11/30/2006).

Accordingly, paragraph 2 of Article 1093 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) states: in the event of liquidation of a legal entity recognized in accordance with the established procedure as responsible for harm caused to life or health, the corresponding payments must be capitalized to pay them to the victim according to the rules established by law or other legal acts. With regard to the liquidated legal entity, which is the policyholder, this rule is specified in paragraph 2 of Article 23 of Federal Law No. 125-FZ dated 07/24/1998 "On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases" (hereinafter – the Law on Compulsory Social Insurance against Accidents), and regardless of whether social insurance was carried out victim's insurance or not. Similarly, this issue is resolved in paragraph 1 of Article 135 of Federal Law No. 127-FZ dated 26.10.2002 "On Insolvency (Bankruptcy)" (hereinafter referred to as the Bankruptcy Law) when declaring a legal entity bankrupt. At the same time, the claims of citizens to whom a legal entity is responsible for causing harm to life or health by capitalizing the corresponding time-based payments (after repayment of current expenses necessary for its liquidation) are satisfied first of all (paragraph 1, paragraph 1, Article 64 of the Civil Code of the Russian Federation, paragraph 1, paragraph 4, Article 134 of the Law on bankruptcy). At the same time, a citizen may consent to the transfer to the Russian Federation of his right to claim against the debtor in the amount of capitalized time-based payments in accordance with paragraph 3 of Article 135 or paragraph 10, Article 189.94 of the Bankruptcy Law, which is also satisfied in the first place. In this case, the debtor's obligations to the citizen for the payment of capitalized time-based payments pass to the Russian Federation and are fulfilled By the Russian Federation. However, one cannot agree with V. I. Zubov and T. V. Borisenkova that "there is a special composition of debt transfer here" ^{[1, p. 34]}. After all, this requires the will of the injured citizen, the debtor – a legal entity and Russia. The succession of the Russian Federation regarding the acceptance and payment of capitalized time-based payments in compensation for damage caused to a citizen by a liquidated legal entity arises by virtue of law on the basis of the unilateral will of the victim (paragraph 41 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 06/11/2020 No. 6 "On certain issues of application of the Provisions of the Civil Code of the Russian Federation on termination of obligations").

The procedure and conditions for making capitalized payments to the Pension and Social Insurance Fund of the Russian Federation upon liquidation of legal entities - policyholders for compulsory social insurance against industrial accidents and occupational diseases are approved by Decree of the Government of the Russian Federation dated 11/17/2000 No. 863 (ed. dated 12/24/2022 No. 2423) (hereinafter – the Procedure dated 11/17/2000 No. 863), and the Calculation Method The amount of capitalized payments is determined by Resolution of the Social Insurance Fund of the Russian Federation No. 72 dated 30.07.2001 (hereinafter referred to as the Methodology No. 72 dated 30.07.2001). Meanwhile, the Bankruptcy Law does not distinguish between the procedure for capitalization of payments within the framework of social insurance relations and civil law relations for compensation of damage between the causer and the victim. Nothing is said in this regard in the Letter of the Social Insurance Fund of the Russian Federation dated 01.11.2001 No. 02-18/07-7809.

Unfortunately, in the Bankruptcy Law, as well as in the Civil Code of the Russian Federation, there is no legal definition of the concept of capitalization of payments. But, based on the context of the norm of Article 1092 of the Civil Code of the Russian Federation and the essence of the tort legal relationship, it can be concluded, as V. A. Boldyrev rightly notes, that capitalization means the procedure for calculating the amount of money, as well as the separation of funds belonging to a legal entity for the purpose of compensating the victim ^{[2, p. 69]}.

Articles 135 of the Bankruptcy Law provide that the claims of citizens to whom the debtor is responsible for causing harm to life or health are calculated on the date of recognition of the debtor as insolvent (bankrupt) for the future until he reaches the age of 70 years, but not less than 10 years. In this case, the procedure and conditions for capitalization of time–based payments are established in accordance with the requirements of the Decree of the Government of the Russian Federation dated 07.09.2019 No. 872 "On Measures to implement Articles 135 and 189.94 of the Federal Law "On Insolvency (Bankruptcy)" (hereinafter - the Decree of the Government of the Russian Federation dated 07.09.2019 No. 872). At the same time, it is necessary to pay attention to the fact that the Rules for the capitalization of such payments contain a more specific procedure for bankruptcy than the Procedure dated 11/17/2000 No. 863 due to the presence in them of provisions on the transfer to the Russian Federation of the right of claim against the debtor in the presence of an appropriate expression of the citizen's will.

The claims of a citizen to a legal entity may be assigned to them in favor of the Russian Federation, in which case the obligations of the bankrupt debtor to pay capitalized payments pass to the Russian Federation and are executed in accordance with the procedure established by Decree of the Government of the Russian Federation dated 09.07.2019 No. 872. Therefore, in this case, the right to require inclusion in the register of creditors of the debtor of the amount of such payments or The exercise of the creditor's rights in respect of claims already included in the register is transferred to the Russian Federation. In this case, the claims of the Russian Federation against the debtor are taken into account in the first stage of the register of creditors' claims of the debtor.

The specifics of accounting for capitalized payments in the framework of the debtor's bankruptcy proceedings are determined by Resolution No. 57 of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 11/30/2006. It follows from its content that the provisions of Article 135 of the Bankruptcy Law are subject to application if a citizen is not an insured person, and if he is an insured person, then it is necessary to apply the provisions of the Law on Compulsory Social Insurance against Accidents, which "does not limit the right of insured persons to compensation for harm in accordance with by the legislation of the Russian Federation in the part exceeding the insurance security" (Part 2, paragraph 2), that is, it makes it possible to include a claim in excess of the amount of insurance security in the first place of the register of creditors' claims. If the claims to the register of creditors of the debtor are declared by the Pension and Social Insurance Fund of the Russian Federation on the basis of the provision of paragraph 2 of Article 23 of the Law on Compulsory Social Insurance against Accidents, then they are subject to accounting in the order of the third stage of the register of creditors of the debtor.

It is important to note that the establishment of requirements for capitalized payments is possible only during the bankruptcy proceedings, since the liquidation procedure begins from the moment the debtor is declared bankrupt. In this regard, in other bankruptcy procedures, for example, in supervision, external management or financial rehabilitation, capitalization is not performed (paragraph 6 of Resolution No. 57 of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 11/30/2006).

In accordance with paragraph 1 of Article 5 of the Bankruptcy Law, current payments in the debtor's bankruptcy case are understood as monetary obligations, claims for severance payments and (or) remuneration of persons working or who worked under an employment contract, and mandatory payments that arose after the date of acceptance of the application for recognition of the debtor as bankrupt, unless otherwise provided It is established by this law. According to the provisions of paragraph 1 of Article 63 of the Bankruptcy Law, from the date of the arbitration court's ruling on the introduction of supervision, creditors' claims for monetary obligations and for the payment of mandatory payments, with the exception of current payments, may be filed against the debtor only in compliance with the procedure established by this law for filing claims against the debtor. Consequently, as a general rule, registry obligations in a bankruptcy case include those obligations that arose no later than the date of acceptance of the application for recognition of the debtor as insolvent (bankrupt), special rules of the Insolvency Law apply for their accounting.

Based on the above, it can be concluded that capitalized payments calculated no earlier than the date of recognition of the debtor as bankrupt have a special legal nature, since they are taken into account in the register of creditors' claims of the debtor, but they are calculated for the future, whereas other creditors' claims do not have this property, the period of their formation for the purposes of accounting in the register of creditors' claims of the debtor in any case, before the date of introduction of the monitoring procedure in relation to accessory obligations (in this case, we do not take into account the moratorium interest) and no later than the date of acceptance by the arbitration court of the application for declaring the debtor bankrupt for obligations from the amount of the principal debt.

At the same time, it should be noted that there is no legislative prohibition on current business activities during the bankruptcy proceedings in a bankruptcy case, in connection with which a situation involving harm to the life and health of a citizen may arise after the date of initiation of bankruptcy proceedings and even during the bankruptcy proceedings.

In this case, according to A.V. Egorov, capitalization rules should apply, which are typical for registry requirements, but such requirements will be current ^{[3, p. 12]}. In support of this conclusion, he refers to paragraph 49 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 12/15/2004 No. 29 "On some issues of the Practice of Applying the Federal Law "On Insolvency (Bankruptcy)" (hereinafter - Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 12/15/2004 No. 29), which says: "When considering the approval of the settlement agreement, it should be borne in mind that within the meaning of paragraph 1 of Article 158 of the Bankruptcy Law, before approving the settlement agreement, the claims of citizens specified in articles 135 and 136 of the Law, including current obligations (paragraph 1 of Article 134 of the Law), must be repaid." Meanwhile, the Bankruptcy Law does not directly resolve this situation. Moreover, even Article 134 of the Bankruptcy Law does not disclose the order of accounting for current payments on capitalized payments, which necessitates the need to act by analogy with the law by virtue of paragraph 1 of Article 6 of the Civil Code of the Russian Federation.

Thus, a preliminary conclusion can be drawn that such a category of obligations as capitalized payments can be taken into account in the register of creditors' claims if the obligations from causing harm arose before the date of acceptance of the application for recognition of the debtor as bankrupt, as well as as part of the current payments of the bankrupt debtor if the obligations occurred after that date. In both cases, the amount of capitalized payments is calculated for the future for the period "up to the life" of the citizen.

According to Chapter III.2 of the Bankruptcy Law, the involvement of entities controlling the debtor, a legal entity, to subsidiary liability is provided either for failure (late filing) of the debtor's application for its own bankruptcy (Article 61.12), or for the inability to fully repay creditors' claims (Article 61.11). In each case, the amount of such subsidiary liability is calculated according to its own rules.

Thus, in accordance with paragraph 11 of Article 61.11 of the Bankruptcy Law, "The amount of subsidiary liability of the controlling debtor is equal to the total amount of creditors' claims included in the register of creditors' claims, as well as claims of creditors and creditors' claims for current payments declared after the closure of the register, which remained unpaid due to insufficient property of the debtor."

Liability for failure to file a bankruptcy application assumes that the amount of liability is equal to the amount of the debtor's obligations (including mandatory payments) that arose after the expiration of the period provided for in paragraphs 2-4 of Article 9 of the Bankruptcy Law and before the initiation of bankruptcy proceedings of the debtor (return of the application of the authorized body to declare the debtor bankrupt) (paragraph 2 of Article 61.12 Bankruptcy Law).

In other words, if a person is held vicariously liable for bringing the debtor to bankruptcy (Article 61.11 of the Bankruptcy Law), then in this case the amount of such liability will include all outstanding by the time of the issuance of the judicial act (for) the registry and current obligations of the debtor to his creditors. If liability is established for failure to file an application for the debtor's own bankruptcy, then the amount of subsidiary liability will include only outstanding (for) registry obligations that arose one month after the date of the objective bankruptcy (Article 61.12 of the Bankruptcy Law). This is due to the fact that the purpose of this ground for bringing to subsidiary liability is to restore the rights of "deceived" creditors, that is, those persons with whom the debtor entered into a relationship, knowing about the onset of bankruptcy in relation to himself, but hid this information from creditors and realized the impossibility of providing such creditors with equivalent performance.

In both cases, the Bankruptcy Law provides for the possibility of excluding part of the obligations from the amount of subsidiary liability. For the basis provided for in Article 61.11 of the Bankruptcy Law, the realization of such an opportunity depends on the ratio of the amount of damage caused to creditors' rights by the actions of the controlling debtor and the total number of current and (for) registered claims of creditors of the debtor, as well as on the presence or absence of claims of persons interested in the debtor as part of the obligations. On the grounds of failure to file a bankruptcy application (Article 61.12 of the Bankruptcy Law), an explanation of the obligations excluded from liability is contained in paragraph 14 of Resolution No. 53 of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2017 "On certain issues related to bringing persons controlling the debtor to responsibility in bankruptcy." Such obligations include the claims of creditors who knew or should have known about the onset of the head's obligation to go to court, with the exception of "involuntary" creditors who, for objective reason, were forced to enter into a relationship with the debtor.

Due to the fact that subsidiary liability is a type of civil liability, an approach has been formed in judicial practice based on the content of Article 15 of the Civil Code of the Russian Federation, according to which, in order to bring to subsidiary liability, it is required to establish: 1) the fact of causing harm; 2) the illegality of the actions of the controlling debtor of the person; 3) the causal relationship between the action or inaction of the controlling debtor of the person and the negative consequence that has occurred. In addition to the objective side of the violation, it is also required to establish the subjective side of the offense (paragraph 1 of Article 401 of the Civil Code of the Russian Federation), expressed in the fault of the subject of responsibility, based on whether it has taken all measures depending on it aimed at the proper fulfillment of obligations to creditors (Resolution of the Arbitration Court of the Ural District No. F09-975/19 of 06/22/2023 on case no. A60-15850/2015, resolution of the Arbitration Court of the Ural District no. F09-3055/22 dated 10/20/2023 in case no. A60-44485/2020).

Due to the fact that the legal structure for bringing the controlling debtor to subsidiary liability is complex and includes both objective (action, consequence, causal relationship between them) and subjective sides (guilt of the person), in each case the court decides which obligations to include in the amount of subsidiary liability and which ones to exclude, based on the specific circumstances of the case.

Capitalized payments, as follows from the above analysis, have a special nature: for example, the amount of payments included in the register of creditors' claims of the debtor is made up of future payments that the debtor or the state has not yet paid to the victim, and it is unknown whether the amount will actually be paid to him, or circumstances will arise that exclude further payments (for example, death of a single citizen, cancellation of previously scheduled payments, etc.). In addition, since bringing to subsidiary liability requires establishing not only negative consequences for creditors, but also a connection with the action (inaction) of the person controlling the debtor, the question arises whether, in principle, capitalized payments can be included in the amount of liability, provided that the employer is not found guilty of causing harm to life and health an employee.

As K. I. Zaboev notes, today "the fault of the employer is not at all a condition for compensation for harm to the employee's health or a criterion for determining its size" ^{[4, p. 5]}. In substantiation of this thesis, the author provides paragraph 3 of the Letter of the Federal Tax Service of the Russian Federation dated 06/20/2001 No. 02-18/07-4445 "On the appointment of insurance payments upon the occurrence of an insured event in connection with the performance of work duties", which explicitly states that under the terms of the Law on Compulsory Social Insurance against Accidents "the appointment of insurance payments to specified persons the occurrence of an insured event in connection with the performance of work duties, regardless of who is found guilty of causing harm - the employer or a third person with whom the victim was not in an employment relationship." The Bankruptcy Law does not directly regulate the issue of including the amount of capitalized payments in the amount of subsidiary liability of the controlling person, and it is ambiguously resolved in the practice of arbitration courts.

According to the opinion of the Arbitration Court of the Ural District, set out in resolution No. F09-7730/17 dated 07/25/2022, unlike disputes on recovery of losses when bringing a person to subsidiary liability, it is not necessary to establish the guilt of the controlling person in the occurrence of obligations to each individual creditor of the debtor, in connection with which "it is unacceptable to exclude from the amount of subsidiary liability the requirement for capitalized payments for the reason of the absence of a causal relationship directly between the actions of the subsidiary defendant and the occurrence of the corresponding obligations of the debtor to employees, provided that the defendant is guilty of bankruptcy and it is impossible to satisfy creditors' claims in full."

This explanation demonstrates to a greater extent the position of the court in establishing subsidiary liability for actions that led to the debtor's insolvency (Article 61.11 of the Bankruptcy Law), whereas when holding a person accountable for failure to submit an application, the very fact of the occurrence of objective bankruptcy and guilt in the formation of subsequent obligations, rather than guilt in bringing the debtor to a state of bankruptcy, which in this case may not be (Article 61.12 of the Bankruptcy Law). At the same time, the issue of including capitalized payments in the amount of subsidiary liability in case of establishing grounds for failure to file a bankruptcy application (Article 61.12 of the Bankruptcy Law) remains unclear and requires additional clarification.

With regard to capitalized payments included in the register of creditors' claims of the debtor based on the requirement of the Pension and Social Insurance Fund of Russia, which makes payments to the insured person, according to the Methodology dated 30.07.2001 No. 72, the amount of capitalized payments for providing monthly insurance payments is calculated according to the formula: Scap1i = K1i * Ssvi – per victim, where K1i is the capitalization coefficient, and Ssvi is the amount of the monthly insurance payment to the victim.

According to Table 1.1 of Appendix No. 1 to the Methodology, as the age of a citizen increases, the coefficient decreases (coefficients for men and women differ). That is, for example, if an insurance payment of 5,000 (five thousand) rubles per month is established for a citizen of 30 years old, according to the above formula, the amount of capitalized payments will be 5,000 * 472.260 = 2,361,300 rubles. In the event that a similar amount of payments is established for a citizen of 50 years, the amount of capitalized payments will be 5000 * 279.180 = 1,395,900 rubles. The amounts are calculated on the date when the debtor is declared insolvent (bankrupt).

Therefore, if we proceed from the rules for calculating payments according to the Methodology, the earlier the head of the debtor applies to the court with an application for declaring the debtor bankrupt, the larger the amount of capitalized payments will be included in the register of creditors' claims of the debtor, which means it is "unprofitable" for the head of the debtor to apply to the court, otherwise the potential amount of his liability, consisting of the higher the capitalized payments will be, the earlier the court recognizes the debtor as insolvent (bankrupt).

The rules for calculating the amount of subsidiary liability when holding a person liable for failure to submit (late filing) an application to the debtor's bankruptcy court assume, by virtue of paragraph 2 of Article 61.12 of the Bankruptcy Law, the inclusion in the amount of liability only those obligations that arose in the time interval between the date established by paragraph 1 of Article 9 of the Bankruptcy Law and the date of initiation proceedings in the bankruptcy case of a debtor – a legal entity.

Thus, if we take into account the fact that payments under Article 135 of the Bankruptcy Law are included in the register of creditors' claims, and the head of the debtor is held vicariously liable only for failure to file a bankruptcy application under Article 61.12 of the Bankruptcy Law, it is technically impossible to include the amount of capitalized payments in the amount of subsidiary liability, since they are calculated on the date when the debtor was declared insolvent (bankrupt) and further for the future.

Examples from judicial practice are also few. For example, in the decision of the Seventeenth Arbitration Court of Appeal dated 11/19/2023 No. 17AP-4617/2020(5)-AK in case No. A60-52498/2019, the court agreed with the conclusions of the court of first instance on the need to exclude capitalized payments from the amount of liability of the controlling debtor, since the person was held liable only under Article 61.12 of the Bankruptcy Law, and capitalized payments did not exist before the date of recognition of the debtor as insolvent (bankrupt), they were calculated from this date for the future. At the same time, the court also noted that the issue of the legal nature of such payments in relation to inclusion in the amount of subsidiary liability has not been fully resolved by judicial practice.

We believe that the above precedent is a special case, which is typical for a situation where the debtor is an insured person, who, by virtue of the provisions of the Law on Compulsory Social Insurance against Accidents, is obliged to make insurance contributions in favor of the insurer, who, upon the occurrence of an insured event, provides the insured person with social security. In this situation, the interests of citizens, while excluding the entire amount of capitalized payments from the amount of subsidiary liability, will not suffer in any way, since the state makes payments in favor of citizens instead of the debtor - a legal entity.

In a situation where a legal entity has caused harm to the life and health of an individual who is not insured in accordance with the established procedure, which was established in accordance with the provisions of Chapter 59 of the Civil Code of the Russian Federation, the general rules of Article 135 of the Bankruptcy Law apply. In this case, the obligated person is not the insurer, as in the previous case, but the legal entity itself. A citizen can choose to remain a creditor of the first stage or transfer his right in favor of the Russian Federation.

If the obligation of a legal entity to pay the amount of damage that was caused to the life and health of a citizen is established by the court indefinitely, then the court will need to qualify both the moment of occurrence of the corresponding obligation (before or after the date of objective bankruptcy) and determine the procedure for including in the amount of subsidiary liability all or only part of the amount of capitalized payments subject to payment by a legal entity.

Therefore, when resolving the issue of including obligations amounting to the amount of capitalized payments in the amount of subsidiary liability of persons controlling the debtor, it is necessary to establish additional circumstances (the subject of liability, the person making payments in favor of a citizen, the application of only the general provisions of Article 135 of the Bankruptcy Law or special provisions of the Law on Compulsory Social Accident Insurance for the Uninsured and Insured in accordance with the established procedure of persons). Due to the fact that the bankruptcy legislation does not contain clear criteria for distinguishing the above cases, we believe that appropriate clarifications are required by the Supreme Court of the Russian Federation.