On March 23 of this year, Deputy Chairman of the State Duma Committee on Civil, Criminal, Arbitration and Procedural Legislation Alexander Remezkov introduced a bill on criminal liability to the lower house of parliament legal entities(hereinafter referred to as the Draft Law). According to the Bill, it is planned to punish legal entities for a wide range of crimes - from human trafficking to bribery. In addition, it is assumed that all legal entities, with the exception of state and municipal ones, both Russian and foreign, as well as international organizations, will be held criminally liable.
As Alexander Remezkov explained to the GARANT.RU portal, the idea of extending criminal liability to organizations is not new. Abroad, this type of liability of legal entities has existed for quite a long time and has recently been used more and more widely. This institute operates in all countries of Anglo-American law, including Great Britain, Ireland, the USA, Canada, Australia, continental law countries - the states of the European Union, as well as in China and a number of countries in the Middle East (Jordan, Lebanon, Syria). This institution has also taken root in the post-Soviet space - in Georgia, Kazakhstan, Latvia, Lithuania, Estonia, Moldova, and Ukraine. In addition, the principles of criminal punishment of organizations for criminal activities are also laid down in a number of international norms, recognized, among other things, by our country, for example, in the United Nations Convention against Corruption.
In Russia, this topic was periodically discussed at different levels, but the proposals were never implemented. Thus, in 1994, the draft Criminal Code of the Russian Federation, prepared by the Ministry of Justice of Russia and the State Legal Administration of the President of the Russian Federation, contained provisions on criminal liability of companies, but the legislator did not implement them at that stage. Later, in 2011, the Investigative Committee came up with a similar initiative. The document was submitted for public discussion, but never made it to the State Duma. As Alexander Remezkov explained, the current initiative develops and complements the concept previously proposed by the Investigative Committee, and the text of the Draft Law was prepared in cooperation with it. The proposal was also supported by Rosfinmonitoring and the Bank of Russia.
Goals of the institution of criminal liability of legal entities
Remezkov explains the need to prosecute not only individuals, but also the organization by a number of socio-economic factors. Thus, it is assumed that the threat of criminal measures will make it more stringent internal control in commercial structures and enterprises, and this will increase their interest in complying with the requirements of the law, even contrary to economic interests. And the threat to the company's reputation will help managers cope with the temptation to circumvent the law.
In addition, putting things in order in the business sphere, according to the author of the Draft Law, will increase the investment attractiveness of the Russian market. The introduction of new mechanisms will also facilitate the application of legal measures against organizations involved in the illegal withdrawal of capital and assets abroad and will speed up their return to Russia. Besides, new law designed to create an effective toolkit to combat fictitious legal entities.
Who, in accordance with the Bill, can be held criminally liable?
Compared to the 2011 project, the range of legal entities subject to criminal prosecution is planned to be significantly expanded to include foreign legal entities and international organizations operating within Russia. In addition, the Draft Law implies the responsibility of separate divisions of foreign companies. Punish Russian organizations who committed a crime abroad are planned only if they were not convicted under the laws of foreign countries.
According to the document, the organizational and legal form of the company does not matter for holding liable, however, state and municipal institutions and there are no plans to subject enterprises to criminal law measures.
The fact that an organization is held accountable for an unlawful act does not mean that individuals involved in the same crime will be able to escape punishment. A similar rule exists when bringing to administrative responsibility: both the organization and its official are punished for the same act (). At the same time, a person who commits a minor crime for the first time in the interests of an organization and does not receive personal benefit may be released from liability. However, the main condition for this is the conviction of a legal entity.
The Bill pays special attention to fictitious legal entities: so-called “fly-by-night” companies and “shell” companies. They are not considered by the authors as independent subjects of criminal prosecution. Transactions carried out on behalf of fictitious legal entities are blamed on their initiators, and not on those persons who are listed in the documents as the founders and managers of such companies. The document decides in an original way the fate of such fictitious organizations. If during the trial it is established that the company involved in the crime is fictitious, then its registration record by court decision is subject to exclusion from the Unified State Register of Legal Entities without further criminal prosecution. Their property will be transferred to its legal owners, and in the absence of such, it will be turned into state income.
Guilt and liability of legal entities
The document takes a unique approach to determining the guilt of legal entities. According to the Bill, a legal entity will be found guilty not only if it commits criminal acts on its own behalf, but also if it commits a punishable act in the interests of the company, even without the knowledge of its management. For example, a company will be found guilty if a criminal act was committed on its behalf by a person who is not its manager. In addition, the organization will incur criminal punishment for an act committed by a person acting on the basis of an issued power of attorney, as well as if the crime was committed by third parties with the knowledge of the authorized person. In this case, it is assumed that the organization is not guilty of a crime if all measures within its power to prevent the crime were taken, but there was no real opportunity to prevent it.
In addition, accomplices in a crime, in accordance with the Draft Law, can be not only individuals, but also legal entities, despite the fact that the joint participation of individuals and legal entities in a crime does not constitute complicity. An organization can act as a perpetrator, organizer and accomplice of a crime.
A legal entity may be exempt from criminal liability due to their voluntary refusal to commit a crime before the start of illegal actions, or due to active repentance. In the second case, the guilty person is released from liability if a number of conditions are simultaneously met, such as committing the act for the first time and classifying it as of minor or moderate severity. In addition, such a person must independently report the crime to the authorities before criminal proceedings are initiated and compensate for the damage caused.
What types of punishments can be imposed
The bill provides for a wide range of basic and additional types punishments imposed by the court on legal entities who are criminals. It is assumed that the type and amount of punishment will be determined by the court, taking into account the nature and degree of public danger crime committed measures taken by the organization to prevent a crime, as well as the characteristics of the legal entity itself: its past criminal records, charitable and other social activities will be taken into account useful activity.
As exceptional penalties that can be imposed on legal entities involved in the commission of particularly serious crimes, the Draft Law allows for the use of penalties such as forced liquidation, and for violators with foreign “registration” - a ban on carrying out activities in Russia. Russian branches foreign companies and international organizations may be forcibly liquidated. The author of the Draft Law proposes to turn the remaining part of the property belonging to these legal entities into state income after satisfying the creditors' claims. These punishments are applied when it is impossible to use a more lenient type of punishment, taking into account the severity of the act committed, as well as the nature of the consequences. It is proposed to liquidate a company for committing particularly dangerous crimes against the individual, public safety and peace, such as human trafficking, laundering of criminal proceeds and terrorist attack.
Less dangerous crimes are punishable by a fine. Its size according to the Draft Law varies from 200 thousand to 30 million rubles. or is assigned in an amount that is a multiple of the criminal income received, but not more than 500% of this amount. It is determined that when imposing a fine, in addition to other grounds for imposing punishment, the property status of the guilty legal entity is taken into account.
The initiative proposes to deprive organizations of licenses, quotas, preferences or benefits in connection with the use of which the crime was committed, and indefinitely. A similar principle applies to punishment in the form of deprivation of a legal entity’s right to engage in a certain type activities: activities in connection with which a crime was committed will be prohibited. However, this type of punishment is imposed for a period of six months to three years.
Measures aimed at proper execution of punishment
The initiative includes a number of provisions to prevent an organization from evading punishment. For example, from the moment the criminal case is initiated until the execution of the punishment, fictitious transactions aimed at siphoning off company assets are not allowed. Thus, voluntary liquidation or reorganization of a convicted legal entity is prohibited. It will not be possible to make transactions with the organization’s property exceeding 25% of the total value of its assets without their prior approval from the authorized federal body state power. And in the event of reorganization or voluntary liquidation of a legal entity carried out before a conviction, the punishment will be borne by its legal successors or other persons who have become the owners of the property of the convicted organization. However, it is planned that prerequisite the extension of liability to third parties will be their awareness of the criminal acts of the reorganized or liquidated person, as well as if it is established that the transfer of powers or the abolition of the organization was carried out with the aim of evading the execution of punishment.
In addition to those mentioned, the author of the Bill, in order to ensure confiscation of property and other property penalties, proposes to use such a measure as seizure of property. And if a legal entity evades compliance with this measure, impose a monetary penalty on the violator in the amount of 100 thousand to 3 million rubles.
In addition, the Bill provides for legal entities such negative consequence criminal prosecution, such as a criminal record. It is assumed that the organization’s outstanding criminal record will allow bona fide participants in commercial transactions to exercise greater caution when choosing a counterparty. In particular, this circumstance will be taken into account by state authorities and local governments when carrying out privatization or procurement for state or municipal needs.
Socially dangerous acts for which legal entities are expected to be held accountable
The bill allows for the possibility of bringing an organization to criminal liability only for those acts for which the Special Part of the Criminal Code of the Russian Federation will directly provide for punishment applicable to legal entities. It is proposed to establish such punishment only for those crimes for which the obligation to impose liability on legal entities is provided for by international legal acts ratified by Russia, as well as for certain accompanying criminal acts.
According to Alexander Remezkov, the obligation to criminally prosecute organizations for corruption-related crimes such as commercial bribery (), as well as for the laundering of proceeds from these crimes, is provided for by acts of the Council of Europe and the UN, ratified by our country back in 2006. The obligations of UN member states to impose sanctions on legal entities for involvement in crimes aimed at financing and other forms of support of terrorism and extremism are provided for by the International Convention for the Suppression of the Financing of Terrorism. And the obligation to establish the liability of legal entities for unlawful access to computer information and its modification, as well as for human trafficking and the organization of illegal migration is formulated in the UN Convention against Transnational Organized Crime. All these acts were also ratified by our country, and therefore are binding. Art. 272);
Procedure for criminal prosecution and execution of punishment
The draft law places the preliminary investigation in criminal cases against legal entities within the competence of the Investigative Committee. Criminal proceedings are planned to be carried out according to current rules, taking into account some nuances. Thus, as a new source of evidence, the Draft Law defines a legal entity’s objection to suspicion, accusation or civil claim, submitted to the investigator or court in writing. The objection indicates the circumstances and conclusions of the investigation with which the company representatives do not agree, and also provides arguments refuting them.
It is assumed that the legal entity will act in legal proceedings as a suspect, accused or civil defendant. Rights and obligations in criminal proceedings on behalf of a legal entity will be exercised by a representative, who can be determined by the legal entity itself or appointed by an investigator. The participation of a representative of a suspected or accused legal entity in criminal proceedings is mandatory. It is intended that such a representative could be the head of the organization or another authorized person acting, for example, on the basis of an agreement or power of attorney.
The initiative allows for the consolidation of proceedings against legal entities and individuals within one criminal case. However, unlike a citizen, it will not be possible to conclude a pre-trial cooperation agreement with an organization.
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Despite mixed assessment the bill by the public and a number of representatives of the business community, experts are not inclined to exaggerate, pointing to a number of its positive aspects, such as decriminalizing the country’s economy and increasing its attractiveness for investors. The bill has every chance of becoming a law, but before that there is a high probability of its serious transformation.
A legal entity independently bears property liability for its obligations with all its property (Article 48 of the Civil Code). By virtue of clause 3 of Art. 56 of the Civil Code, exceptions may be made from this rule, provided for by the Civil Code or constituent documents legal entity.
The Civil Code provides for the following exceptions:
1) upon conversion business partnership into the company, each general partner who has become a participant (shareholder) of the company bears subsidiary liability for 2 years with all his property for the obligations transferred to the company from the partnership (clause 2 of article 68 of the Civil Code);
2) participants general partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership (clause 1 of article 75 of the Civil Code);
3) general partners participating in a limited partnership bear subsidiary liability with their property for the obligations of the partnership (Article 82 of the Civil Code);
4) members of the company with limited liability those who have not made contributions in full are jointly and severally liable for its obligations to the extent of the value of the unpaid part of the contribution of each of the participants (paragraph 2, paragraph 1, article 87 of the Civil Code);
5) participants of a company with additional liability jointly and severally bear subsidiary liability for its obligations with their property in the same multiple of the value of their contributions, determined by the constituent documents of the company (Article 95 of the Civil Code);
6) shareholders who have not fully paid for the shares bear joint liability for obligations joint stock company within the limits of the unpaid part of the value of the shares they own (clause 1 of Article 96 of the Civil Code);
7) members of a consumer cooperative jointly and severally bear subsidiary liability for its obligations within the limits of the unpaid part of the additional contribution of each member of the cooperative (paragraph 2, paragraph 4, article 116 of the Civil Code);
8) the main company, which has the right to give instructions to the subsidiary, including under an agreement with it, mandatory for it, shall be jointly and severally liable with subsidiary company on transactions concluded by the latter in pursuance of such instructions (clause 2 of Article 105 of the Civil Code);
9) the owner of the property of a state-owned enterprise bears subsidiary liability for the obligations of such an enterprise if its property is insufficient (clause 5 of Article 115 of the Civil Code);
10) the institution is liable for its obligations at its disposal in cash. If they are insufficient, the owner of the institution’s property bears subsidiary liability for its obligations (clause 2 of Article 120 of the Civil Code);
11) if the insolvency (bankruptcy) of a legal entity is caused by the founders (participants), the owner of the property of the legal entity or other persons who have the right to give instructions mandatory for this legal entity or otherwise have the opportunity to determine its actions, on them in the event of insufficiency of the legal entity’s property subsidiary liability may be imposed on his obligations (clause 3 of article 56 of the Civil Code).
The number of persons who may be assigned subsidiary liability for the obligations of a person declared insolvent, in accordance with clause 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8, includes: a person having in ownership or trust management a controlling stake in a joint stock company, owner of the property unitary enterprise, who gave instructions that were binding on him.
Claims against the above-mentioned persons bearing subsidiary liability may be presented to the bankruptcy trustee. If they are satisfied by the court, the collected amounts are included in the debtor’s property, at the expense of which the creditors’ claims are satisfied.
The constituent documents may establish exceptions:
1) for members of a production cooperative who may bear subsidiary liability for the obligations of the cooperative in the amount and manner provided for by the charter (clause 2 of Article 107 of the Civil Code);
2) for members of the association (union), who may bear subsidiary liability for its obligations in the amount and in the manner provided for by the constituent documents of the association (clause 4 of article 121 of the Civil Code).
Civil liability of a legal entity occurs in the presence of the following conditions provided by law:
1) illegality of the offender’s behavior;
2) causing harm to the victim;
3) the presence of a causal connection between the unlawful behavior of the offender and the harm caused to the victim;
4) the guilt of the offender.
The totality of these conditions in civil law is called a civil offence. By general rule the absence of at least one of the specified conditions of liability excludes its application.
The illegality of the violator’s behavior means that it contradicts the rules of law and the subjective rights of other persons and can be expressed both in action and inaction of a legal entity.
Civil liability arises if harm is caused to the victim. As a rule, the presence of this condition is necessary to bring the offender to justice. At the same time, civil liability for violation of contractual obligations may arise regardless of the harm caused. For example, if there is a delay in the transfer of goods under a contract, the legal entity - the debtor becomes obligated to pay the penalty provided for in the contract, regardless of whether the delay caused harm to the purchaser of the goods.
Harm in civil law means any derogation of personal or property benefits. From this point of view, a distinction is made between moral and material harm.
Material damage is property losses, such as a decrease in the value of a damaged item, the loss of a destroyed item, a decrease or loss of income, the need to incur expenses to restore the original position, etc.
Moral harm is the physical or moral suffering of a citizen caused by the violation of his personal non-property rights or the derogation of his other personal (intangible) benefits - attacks on his honor and dignity, personal integrity, health, etc.
According to paragraph 5 of Art. 152 of the Civil Code, a citizen in respect of whom information discrediting his honor, dignity or business reputation has been disseminated, has the right, along with a refutation of such information, to demand compensation for losses and moral damage caused by its dissemination. Paragraph 7 of this article provides that the rules of this article on the protection of a citizen’s business reputation are correspondingly applied to the protection of the business reputation of a legal entity.
Grammatical analysis of Art. 152 of the Civil Code gives grounds for concluding that a legal entity has the right to demand compensation for moral damage.
This position is shared by the Plenum of the Supreme Court of the Russian Federation, which in paragraph 15 of the Resolution of February 24, 2005 No. 3 "On judicial practice on cases of protection of the honor and dignity of citizens, as well as the business reputation of citizens and legal entities" indicated that the rules governing compensation for moral damage in connection with the dissemination of information discrediting the business reputation of a citizen also apply in cases of dissemination of such information in relation to a legal entity.
The third condition for the application of civil liability is the existence of a cause-and-effect relationship between the actions of the offender and the infliction of harm.
A cause-and-effect relationship is an objectively existing relationship between phenomena, which is characterized by the fact that in a specific situation, of two interrelated phenomena, one (cause) always precedes the other and gives rise to it, and the other (effect) is always the result of the action of the first. At the same time, when analyzing the grounds for the emergence of civil liability of an organization, the question of whether there is guilt in the actions of a legal entity is of particular interest.
It is here that the conscious-volitional concept of the concept of guilt as the mental attitude of the offender to his behavior and its result raises the greatest doubts. In the works of Soviet lawyers, a variety of concepts were expressed: from explanations of the concept of guilt of a legal entity through a “mental attitude” to violations committed by its employees or its bodies to a categorical rejection of the concept of “mental attitude” to the responsibility of a legal entity. As a result, guilt as a kind of mental attitude to illegal behavior was replaced by the very unlawful action or inaction that embodies it - failure to take measures necessary for the legal entity to fulfill its obligations * (159), improper organization of the activities carried out by it (for example, in the event of a violation of deadlines for the fulfillment of an obligation by an organization or production products of inadequate quality*(160)
According to supporters of the collective theory, the guilt of a legal entity is admitted in connection with the activities carried out labor functions the guilt of his employees. So, S.N. Bratus wrote: “A necessary condition for the liability of a legal entity is the guilt of a specific performer, who was either a member of the legal entity or its employee... An employee, when performing his duties, does not oppose the legal entity as a subject of law different from him: from the summarized official actions of workers and employees or actions of members related to the implementation of their membership duties, and the activity of the legal entity as a whole arises... The liability of a legal entity in this case is responsibility not for others, but for its own actions" * (161)
G.K. Matveev argued that “by placing responsibility on a legal entity, courts and arbitrations mean its guilt. Its psychological content is the vicious will (and consciousness) of the employees of a legal entity in the form of intent or negligence. However, being expressed in illegal actions (for example, in the delivery of substandard goods or in causing injury), this will then acquires a relatively independent and independent character and is considered as a new quality in the form of the subjective (psychological) attitude of the collective to its illegal actions and their harmful consequences" * (162)
The opposite position was taken by O.S. Ioffe, who believed that since a legal entity is an organized collective with collective consciousness and collective will, it is also capable of such a conscious-volitional attitude that forms the content of guilt. The guilt of a legal entity can be expressed in the guilty actions of its employee committed in connection with labor functions; it can also be dispersed between various divisions of the legal entity when the guilt of a particular employee is excluded. But under all conditions, the fault of a legal entity is not the fault of an individual, but of a collective, and the subsequent full or partial transfer of losses compensated by a legal entity to their specific culprit does not change anything in the essence of the matter * (163)
Opponents of the collective theory do not accept the equation of the official actions of employees with the actions of a legal entity. They developed a theory known as culpa in eligendo et custodiendo, which distinguishes between the actions of the bodies of a legal entity and the actions of its other employees. The first personify the activities of the legal entity itself, which is found guilty to the extent that its body is guilty. The latter are “other people’s actions” for a legal entity, and only if the body is guilty of the wrong choice of the employee who committed the offense or of failure to properly supervise him, can liability be imposed on the legal entity.
So, according to one of the authors of this concept M.M. Agarkov, the actions of individual representatives of workers and employees of legal entities cannot be considered as the fault of the legal entity. Legal entities are responsible to others for the guilt of their representatives, but in this case they are not responsible as for “someone else’s” guilt * (164) was also adhered to by O.A. Handsome*(165)
In the mid-1950s, the same criterion was used by D.M. Genkin, who came up with the concept of a legal entity as a certain social reality. In his opinion, the imposition of civil liability on a legal entity follows from the second part of Art. 119 of the Civil Code of the RSFSR of 1922, by virtue of which the debtor is responsible for the actions of those persons on whom he entrusted the fulfillment of the obligation * (166)
Liability of a legal entity
If we talk about the liability of a legal entity in accordance with the Civil Code of the Russian Federation, it is necessary to reflect that with the exception of criminal liability, a legal entity bears civil liability. I would emphasize that, along with property liability, a legal entity bears administrative liability to the state.
A legal entity independently bears property liability for its obligations with all its property. However, civil law provides for the following exceptions:
1) when transforming a business partnership into a company, each general partner who has become a participant (shareholder) of the company, for 2 years, bears subsidiary liability with all his property for the obligations transferred to the company from the partnership;
2) participants in a general partnership jointly and severally bear subsidiary liability with their property for the obligations of the partnership;
3) general partners participating in a limited partnership bear subsidiary liability with their property for the obligations of the partnership;
4) participants in a limited liability company who have not made full contributions bear joint liability for its obligations to the extent of the value of the unpaid part of the contribution of each participant;
5) participants of a company with additional liability jointly and severally bear subsidiary liability for its obligations with their property in the same multiple of the value of their contributions, determined by the constituent documents of the company;
6) shareholders who have not fully paid for the shares bear joint liability for the obligations of the joint-stock company to the extent of the unpaid portion of the value of the shares they own;
7) members of a consumer cooperative jointly and severally bear subsidiary liability for its obligations within the limits of the unpaid portion of the additional contribution of each member of the cooperative;
8) the main company, which has the right to give instructions to the subsidiary, including under an agreement with it, mandatory for it, is jointly and severally liable with the subsidiary for transactions concluded by the latter in pursuance of such instructions;
9) the owner of the property of a state-owned enterprise bears subsidiary liability for the obligations of such an enterprise if its property is insufficient;
10) the institution is liable for its obligations with the funds at its disposal. If they are insufficient, the owner of the institution’s property bears subsidiary liability for its obligations;
11) if the insolvency (bankruptcy) of a legal entity is caused by the founders (participants), the owner of the property of the legal entity or other persons who have the right to give instructions mandatory for this legal entity or otherwise have the opportunity to determine its actions, on them in the event of insufficiency of the legal entity’s property subsidiary liability may be imposed on its obligations.
Civil liability of a legal entity occurs in the presence of the following conditions provided by law:
1) illegality of the offender’s behavior;
2) causing harm to the victim;
3) the presence of a causal connection between the unlawful behavior of the offender and the harm caused to the victim;
4) the guilt of the offender.
The totality of these conditions in civil law is called the corpus delicti of a civil offense. As a general rule, the absence of at least one of the specified conditions of liability excludes its application. The illegality of the violator’s behavior means that it contradicts the rules of law and the subjective rights of other persons and can be expressed both in action and inaction of a legal entity. Illegal behavior will be considered behavior that violates mandatory norms law or the terms of contracts authorized by law, including those not directly provided for by law, but not contradicting it. Civil liability arises if harm is caused to the victim. As a rule, the presence of this condition is necessary to bring the offender to justice. At the same time, civil liability for violation of contractual obligations may arise regardless of the harm caused. For example, if there is a delay in the transfer of goods under a contract, the legal entity - the debtor becomes obligated to pay the penalty provided for in the contract, regardless of whether the delay caused harm to the purchaser of the goods. Harm in civil law means any derogation of personal or property benefits. From this point of view, a distinction is made between moral and material harm. The third condition for the application of civil liability is the existence of a cause-and-effect relationship between the actions of the offender and the infliction of harm. A cause-and-effect relationship is an objectively existing relationship between phenomena, which is characterized by the fact that in a specific situation, of two interrelated phenomena, one (cause) always precedes the other and gives rise to it, and the other (effect) is always the result of the action of the first. At the same time, when analyzing the grounds for the emergence of civil liability of an organization, the question of whether there is guilt in the actions of a legal entity is of particular interest. It is here that the conscious-volitional concept of the concept of guilt as the mental attitude of the offender to his behavior and its result raises the greatest doubts. In the works of Soviet lawyers, a variety of concepts were expressed: from explanations of the concept of guilt of a legal entity through a “mental attitude” to violations committed by its employees or its bodies to a categorical rejection of the concept of “mental attitude” to the liability of a legal entity. As a result, guilt as a kind of mental attitude to illegal behavior was replaced by the very unlawful action or inaction that embodies it - failure to take measures necessary for the legal entity to fulfill its obligations, improper organization of its activities (for example, in the event of a violation of deadlines for the fulfillment of an obligation by the organization or production of products of inadequate quality. Abushenko D.B. Interim measures in administrative proceedings: practice of arbitration courts - M., Wolters Kluwer, 2006 - P.14.
According to supporters of the collective theory, the guilt of a legal entity is the guilt of its employees admitted in connection with the labor functions performed.
A necessary condition for the liability of a legal entity is the fault of a specific performer, who was either a member of the legal entity or its employee. An employee, when performing his duties, does not oppose a legal entity as a subject of law different from him: from the summarized official actions of workers and employees or the actions of members related to the implementation of their membership duties, the activity of the legal entity as a whole arises. The liability of a legal entity in this case is responsibility not for others, but for its own actions.
When assigning liability to a legal entity, courts and arbitrations take into account its guilt. Its psychological content is the vicious will (and consciousness) of employees of a legal entity in the form of intent or negligence. However, being expressed in illegal actions (for example, in the delivery of poor-quality goods or in causing injury), this will then acquires a relatively independent and independent character and is considered as a new quality in the form of the subjective (psychological) attitude of the team to its illegal actions and their harmful consequences .
The opposite position was taken by O.S. Ioffe, who believed that since a legal entity is an organized collective with collective consciousness and collective will, it is also capable of such a conscious-volitional attitude that forms the content of guilt. The guilt of a legal entity can be expressed in the guilty actions of its employee committed in connection with labor functions; it can also be dispersed between various divisions of the legal entity when the guilt of a particular employee is excluded. But under all conditions, the fault of a legal entity is not the fault of an individual, but of a collective, and the subsequent full or partial transfer of losses compensated by a legal entity to their specific culprit does not change anything in the essence of the matter.
In civil law, a presumption of guilt of the offender is established; it is he who must prove the absence of his guilt in the offense. That is, the violator is presumed guilty, the victim of the offense is not obliged to prove the guilt of the violator, and the latter, in order to be released from liability, must himself prove its absence. The absence of guilt of the offender exempts him from civil liability according to the general rule, from which exceptions are provided. In cases established by law or directly provided for by the contract, liability can be applied regardless of the offender’s guilt, including in its absence. Thus, in accordance with paragraph 3 of Article 401 of the Civil Code, a legal entity that has not fulfilled or improperly fulfilled an obligation when carrying out business activities is liable unless it proves that proper fulfillment was impossible due to force majeure, that is, extraordinary and unpreventable under the given conditions circumstances.
Violation of contractual obligations entails civil liability. It is a sanction that causes negative consequences for the violator in the form of deprivation of subjective civil rights or the imposition of new or additional civil obligations. This liability has some features that allow it to be distinguished from other types of legal liability.
Firstly, civil liability is of a property nature, since its application is always associated with the recovery of damages and the payment of a penalty.
Secondly, this is the responsibility of one participant in legal relations to another, i.e. responsibility of the offender to the victim. The purpose of liability is restoration or compensation for the violated rights of the victim. However, if the violation affects public interests, then sanctions can be turned in favor of the state. For example, the income of the Russian Federation is recovered from a transaction made for a purpose contrary to the foundations of law and order and morality.
Thirdly, civil liability is of a compensatory nature, i.e. its size must correspond to the volume of damages caused, since, again, the purpose of liability is the restoration of the property sphere of the injured party. The rules on a deliberately unequal amount of liability are a rare exception and are usually applied to protect public interests. For example, in case of failure to fulfill obligations under a government contract, in addition to paying a penalty, suppliers compensate for losses incurred by the buyer.
In addition to traditional measures of property liability, there are other measures that force the proper fulfillment of obligations (elimination of defects in a product or work, replacement of low-quality goods, etc.), as well as “measures of operational influence,” meaning the right of the injured party to unilateral actions that give rise to legal consequences . Such coercive measures cannot be considered liability, since the obligation for real (proper) performance follows directly from the obligation itself, and responsibility must be expressed in some kind of additional burden. The only thing that brings them closer to responsibility is that the use of these measures is also associated with a violation of obligations.
For a long time, our legislation used the “principle of real fulfillment of obligations,” which meant that payment of a penalty and compensation for losses do not relieve the debtor from fulfilling the obligation in kind. However, judicial and arbitration practice testified to the ineffectiveness of the decisions made. Sazhina T.A.. Business does not trust the state // Calculation, N 8, August 2007
Currently, only some elements of the principle of real execution are retained in the legislation. Thus, if the payment of a penalty and compensation for losses are caused by improper fulfillment of an obligation, the debtor is not released from fulfilling the obligation in kind. For example, the obligation was fulfilled incompletely or completely, but improperly.
If the payment of a penalty and compensation for losses are caused by non-fulfillment of an obligation, the debtor is released from fulfilling the obligation in kind, and in this case the obligation is terminated. For example, by the deadline for the obligation to be fulfilled, the debtor did not begin to fulfill it. But what is also of fundamental importance is what method of protection the creditor chooses. If a claim is brought to compel the fulfillment of an obligation in kind, the creditor (plaintiff) will retain the right to demand that the debtor pay a penalty for subsequent periods. But if the creditor (plaintiff) chooses to sue for damages, he will be deprived of the opportunity to subsequently make any claims against the debtor. Thus, the debtor, as it were, “buys off” the creditor by compensating him for losses.
It should be borne in mind that the principle of actual execution is formulated in legislation in the form of a dispositive norm. Many contracts now include a provision that “payment of penalties and compensation for damages does not relieve the party that violated its obligations from their proper fulfillment.” It should be noted that such wording in contracts fully complies with the requirements of the law, although they impose an additional burden on debtors.
An unprecedented measure of operational influence are the rules on “reciprocal fulfillment of obligations.” Counter performance is a performance of an obligation that must be performed by one party only after the other party has fulfilled its obligation. Moreover, such conditionality must be provided for directly in the contract. For example, if, according to the terms of the contract, the customer did not finance the construction in a timely manner, he does not have the right to demand sanctions against the contractor who delayed the delivery of the project.
A unique measure of operational (quick) influence on an unscrupulous counterparty is the unilateral refusal of the contract permitted by law. As is known, repeated violation by the supplier of delivery deadlines for individual batches of goods gives the buyer the right to withdraw from the contract. How is unilateral refusal of a contract combined with penalties for its violation? In one of the cases, the Moscow Arbitration Court made a decision: if the actions of a party are aimed at repudiating the contract, the penalty cannot be used at all either as a method of ensuring the fulfillment of obligations or as a measure of liability. It seems that a different approach is needed here. The penalty is collected for the very fact of violation of the obligation, so it can be collected for the period from the moment of violation of the obligation until the moment the other party declares a waiver of the contract.
For violation of contractual obligations (non-fulfillment or improper fulfillment) in business activities, first of all, contractual liability arises. It does not give rise to a new obligation, but is added to the previous one in the form of a new obligation of the violator. Non-contractual liability may also arise, for example, in connection with damage to property, as well as due to unjust enrichment or savings. But in such cases, the acquisition of property (or savings) must occur without grounds established by law or transaction. If the property was received in pursuance of a concluded contract, then claims are brought for compensation of losses, and not for the return of what was received unjustifiably.
As for liability in the form of compensation for moral damage, it is, of course, non-contractual, since in principle it cannot arise from a contractual obligation. In business, the issue of compensation for moral damage has been very controversial for many years. The court decides on monetary compensation for the physical and moral suffering of a person. The position of the highest courts on the issue of whether moral damage can be compensated for a legal entity is contradictory. The Supreme Arbitration Court of the Russian Federation takes the position that a legal entity cannot experience physical and moral suffering, therefore, it is impossible to compensate for moral damage. In turn, the Supreme Court of the Russian Federation takes a rather formal approach to the interpretation of paragraph 7 of Art. 152 of the Civil Code of the Russian Federation and believes that the rules on the protection of a citizen’s business reputation, including the possibility of compensation for moral damage, should also apply to legal entities. The position of the Supreme Arbitration Court of the Russian Federation deserves support, since a legal entity is a device legal technology, an artificially created subject of law who, not being a living being with a higher nervous activity, cannot experience any suffering.
Unlike criminal justice civil relations a “presumption of guilt” is applied, i.e. a bona fide party is not obliged to prove the guilt of the violator; on the contrary, the person who violated the contractual obligation must prove the absence of his guilt. A person is found guilty if, with the degree of care and prudence that was required of him, he did not take all measures for the proper fulfillment of the obligation.
Absence of guilt in violating an obligation releases one from liability. This rule always applies to non-profit organizations. In business activities, the release of the debtor from liability is allowed only in case of absolute impossibility to fulfill the obligation, i.e. the presence of extraordinary and insurmountable circumstances, which in contracts are often referred to as “force majeure”. Force majeure circumstances, in addition to being extraordinary and unpreventable, are for the most part of a general nature, i.e. relate not exclusively to a given person, but to an indefinite circle of persons. The list of force majeure circumstances is usually determined in advance in the contract; these may be circumstances of a natural nature (floods, fires, earthquakes, etc.), legal ones (state restrictions on the export or import of goods) and social events (strikes, military actions).
So, in entrepreneurial activity, liability arises without fault on the principle of causing damage. At the same time, for various reasons, our legislation provides for a number of cases when entrepreneurs are liable only if there is guilt in the corresponding violation of the obligation. In particular, this is the responsibility of the manufacturer of agricultural products under a contract, the custodian for damage to things, and the commission agent for the execution of the transaction by a third party.
Civil legislation provides various shapes liability for violation of obligations, but a special place among them is occupied by compensation for losses. The debtor is obliged to compensate the creditor for losses caused by non-fulfillment or improper fulfillment of the obligation; This measure of liability is always of a property nature.
An independent and, perhaps, the most “fashionable” form of liability for violation of obligations is a penalty. The presence in the contract of provisions on a penalty entails for the debtor who has violated the obligation, unfavorable consequences in the form of payment of interest established by law or contract, accrued on the amount of the unfulfilled obligation (fine) or for each day of delay (penalty). The penalty also acts as the most used - alone or in combination with other measures - method of securing an obligation. The amount of the penalty can be set as a percentage of the contract amount or its unfulfilled part, as a multiple of the amount of the obligation, or as a fixed sum of money. The widespread use of penalties is explained by its stimulating effect on counterparties to civil obligations and the relative ease of collection. The creditor does not have to prove the existence of losses when collecting a penalty. Synonyms for forfeit are fine and penalty; these are amounts of money collected in cases of non-fulfillment or improper fulfillment of an obligation; the difference between them is only in the method of calculating and paying the penalty. A fine is a one-time penalty, determined in a fixed sum of money or as a percentage of a certain amount. A penalty is a penalty collected on an accrual basis over periods of delay in fulfilling an obligation, for example, in case of late loan repayment or late payment of lease payments. The form of the agreement on penalties does not depend on the form of the main obligation; in any case, it must be written under penalty of invalidity of the agreement on the penalty.
Administrative liability of a legal entity occurs if it violates the norms of Russian legislation. Bringing a legal entity to administrative liability is regulated by the administrative code of the Russian Federation.
Responsibility of a legal entity for obligations
(eng. responsibility of juridical person by obligations) - civil law, which occurs when a legal entity fails to fulfill or improperly fulfills its obligations (for non-contractual liability of a legal entity, see Obligations due to unjust enrichment;).
All legal entities, except for owner-financed institutions, are liable for their obligations with all the property they own. State-owned and owner-financed are liable for their obligations in the manner and under the conditions provided for in paragraph 5 of Art. 113, art. 115 and 120 of the Civil Code of the Russian Federation*.
The founder () of a legal entity or its property is not liable for the obligations of the legal entity, but is not liable for the obligations of the founder (participant) or owner, except in cases provided for by the Civil Code of the Russian Federation or the constituent documents of the legal entity. If () a legal entity is called by the founders (participants), the owner of the property of the legal entity or other persons who have the ability to give instructions mandatory for this legal entity or otherwise have the opportunity to determine it, then such persons in the event of insufficiency of the legal entity’s property may be assigned according to his obligations.
Large legal dictionary. Akademik.ru. 2010.
See what “Liability of a legal entity for obligations” is in other dictionaries:
Responsibility of a legal entity for obligations- (English responsibility of juridical person by obligations) civil liability that occurs when a legal entity fails to fulfill or improperly fulfills its obligations (for non-contractual liability of a legal entity, see ... Encyclopedia of Law
LIABILITY OF A LEGAL ENTITY FOR OBLIGATIONS- in accordance with Art. 52 of the Civil Code, legal entities, except for institutions financed by the owner, are liable for their obligations with all their property (clause 1). A state-owned enterprise and an owner-financed institution are liable in their own way... ...
Responsibility of a Legal Entity- liability for its obligations with all property belonging to the legal entity. Dictionary of business terms. Akademik.ru. 2001... Dictionary of business terms
LIABILITY OF A LEGAL ENTITY- a guarantee of a legal entity to answer for its obligations with all its property... Large economic dictionary
Termination or other change legal status legal entity, entailing relations of succession. Article 57 of the Civil Code of the Russian Federation distinguishes five types of legal entities: merger (two or more legal entities turn into one), accession (one or more persons... Large legal dictionary
REORGANIZATION OF A LEGAL ENTITY- in accordance with Art. 53 of the Civil Code, reorganization of a legal entity (merger, accession, division, separation, transformation) can be carried out by decision of its founders (participants) or a body of the legal entity authorized to do so... ... Legal Dictionary of Modern Civil Law
Reorganization of a legal entity- (English reorganization of juridical person) in civil law, the termination of a legal entity with the transfer of its rights and obligations to other persons. According to the civil legislation of the Russian Federation R.yu.l. can be carried out in the form of merger, accession,... ... Encyclopedia of Law
ECONOMIC INSOLVENCY (BANKRUPTCY) OF A LEGAL ENTITY- in accordance with Art. 61 Civil Code a legal entity that is commercial organization, with the exception of a state-owned enterprise, as well as a legal entity operating in the form of a consumer cooperative or a charitable or other foundation, in... ... Legal Dictionary of Modern Civil Law
LIQUIDATION OF A LEGAL ENTITY- a procedure regulated by legislative acts, entailing the termination of the activities of a legal entity without the transfer of the rights and obligations of the legal entity in the order of succession to other persons, unless otherwise provided by legislative... ... Legal Dictionary of Modern Civil Law
LIQUIDATION OR REORGANIZATION OF A LEGAL ENTITY- in the course of the activities of legal entities, their legal status may change in connection with either their reorganization or their liquidation. Reorganization is possible through merger, accession, division, separation and transformation.... ... Legal encyclopedia
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