Принцип ограниченной ответственности участников хозяйственных обществ и корпоративный контроль: взаимосвязь и перспективы развития правового регулирования

Abstract

The relevance of the topic is due to the lack of a systematic approach in the legislation regarding the mechanism of ignoring the principle of limited liability of founders (participants) of business companies and the parallel judicial practice that is being formed in this area, which develops general provisions on the inadmissibility of abuse of law and certain provisions of corporate and bankruptcy law. The authors substantiate the lack of structure and futility of the approach of applying the doctrine of "removing the corporate veil", based entirely on the paradigm of abuse of law. The research includes three stages. Firstly, recognizing corporate control as a constituent element of the doctrine of "removing the corporate veil", the authors consider its place in the dynamics of legal regulation through the prism of the theory of legal relations and legal facts. Secondly, judicial practice is being studied, demonstrating the implementation of legislative regulation in the studied plane on examples of courts overcoming the principle of limited liability of participants in business companies, including cases of using the structure of a legal entity to deceive creditors, undercapitalization of a company and mixing its capital with the capital of participants. Thirdly, having discovered a "break" in the dynamics of legal regulation when using the tools proposed by judicial practice, which primarily include the evaluative ideology of good faith, the authors model the "deployment" of the essence of a legal entity to the moment when it is influenced by excesses of volition in a corporation. In this connection, conclusions are drawn about the relationship between the independence of a legal entity, the "removal of the corporate veil" and corporate control. Based on the results of the exploration, a position is made on the need to recognize the methodology of application of Article 10 of the Civil Code of the Russian Federation as temporary and the need for the development of a general generic regulatory regulation in the field under consideration.