Commentary by Olga Pleshanova on PRObankrotstvo
Cassation: without assessing the advance reports of the bankrupt's employees, it is inadmissible to recover damages from them
Olga Pleshanova, Head of the Infralex Analytical Department, drew attention to the nuances of the following bankruptcy dispute (case No. A65-10465/2018).
The debtor transferred cash advances to employees [who were not controlling persons] for the needs of the organization. In 2021, the bankruptcy trustee decided to challenge the transactions for the transfer of 27.9 million rubles in favor of the employees. The court found the transactions suspicious (the provided reports seemed to be improperly drawn up), but refused to challenge them due to the expiration of the limitation period.
In 2024, the bankruptcy trustee filed a lawsuit to recover damages caused to the debtor from the same employees, as well as to recover the value of the alienated property and the amounts of unconfirmed advance reports of employees from the former director.
The courts of first and appellate instances concluded that all defendants acted intentionally with the aim of withdrawing the debtor's property, and partially satisfied the claims against the employees [moreover, on the bankruptcy grounds].
The cassation court overturned the judicial acts, sending a separate dispute for a new trial.
The expert here draws special attention to the following reasoning of the court:
- the obligation to store expense reports lies with the organization, and not with the employees;
- consideration of disputes with employees who are not controlling persons requires taking into account the provisions of the Labor Code of the Russian Federation. There are no grounds for imposing liability on the debtor's employees under the same criteria as those provided for by the Bankruptcy Law for controlling persons;
- possible participation of employees in collusion with the director to withdraw assets should probably have a criminal-law qualification;
- it is necessary to carefully check and evaluate advance reports with documents confirming the expenditure of funds on business needs (business trips, materials, fuel and lubricants, etc.).
In view of the above conclusions of the court, Olga Pleshanova brings up the following questions for discussion:
"To what extent are the debtor's employees protected from claims brought against them on bankruptcy grounds related to labor relations? What consequences should occur if the employer used employees when withdrawing assets from the organization and the employees deliberately participated in such activities?"
Read about how to qualify claims against employees and what conclusions the cassation court came to regarding the assignment of claims under contested transactions on the sale of property by the former director on PRObankruptcy