21 January 2016
On September 1, 2013, participants of society, whose CEO made a deal to obviously unfavorable conditions for society, a new opportunity to defend their rights: they may challenge such a transaction on the basis of para. 2, Art. 174 of the Civil Code. This rule allows you to refer to the fact of damage to society and to the dishonesty of the counterparty of the Company; the totality of the circumstances allows to recognize the transaction invalid. . Thus, this rule applies to contest only those transactions that were committed after
Inequivalence price itself does not allow to challenge the transaction
To challenge the transaction n. 2 st.174 Civil Code of the Russian Federation must prove that the following conditions are met:
1) damage to the interests of the legal entity resulting from the transaction;
2) bad faith counterparty to the transaction, namely:
(a) contracting agreement with the CEO parties to the transaction;
(b) a case where the counterparty knew or should have known about the obvious damage to society, which is a party to the transaction.
Analysis of judicial practice shows that the most frequently to justify harm the public interest plaintiffs participating societies refer to
The courts assess these arguments of the plaintiffs in the following way.
Inequivalence counter of the opinion of the courts, can testify to the Company due to the damage, if it is accompanied by other clearly atypical conditions of the contract (for example, the condition of the
However, in cases where the disparity of the counter is the only circumstance relied on by the plaintiff, the deal had not yet been recognized as invalid with reference to para. 2, Art. 174 of the Civil Code.
At the same time members of the Company who intend to rely on in court on the
For example, the AU Northwestern District refused to accept as evidence the expert opinion. The Court pointed out that the document is neither an expert opinion or expert advice in the procedural sense. It does not correspond to Russian legislation on appraisal activity does not meet federal standards for evaluation in form nor in content (Resolution AS Northwestern District from
In another case, the AU of the Moscow District dismissed the link plaintiff’s statements, made in the framework of the examination, citing the fact that the experts do not take into account the income of the tenant from the rental property for sublease (the subject of challenge is an additional agreement to the lease contract, which increases the size of the lease payments) (Regulation Speaker of the Moscow District of
.
Thus, a reference to the
Also, companies should bear in mind that, despite signs of losing trades, the court may deny the claim — in the event that a transaction deemed economically viable. According to the explanations of the Supreme Court, the court can come to this conclusion in the following cases:
— The transaction was a way to prevent even greater losses to society;
— The transaction, though it is itself losing, was part of related transactions with a common economic purpose, as a result of which the company received a benefit;
— Unfavorable conditions of the transaction was the result of mutual concessions equivalent in the relationship with the counterparty, including other transactions
(p.93 Resolution of the Plenum of the Supreme Court from
Deferred payment confirm the detriment of society in conjunction with the other circumstances
Quite often, participants in the company as evidence of damage to the perfect director transaction referred to defer payment under the contract for atypical conditions (usually for a period of about a year or more, while on an
The most striking example is the case of the contestation of contracts of sale of shares of the company «Airport» Koltsovo «(determination of the Supreme Court of
Other circumstances also influenced the conclusion of the court of the occurrence of damage as a result of the transaction, was the retreat side of the dispositive norm n. 5, Art. 488 of the Civil Code: the parties have expressly provided that the shares prior to payment by the buyer are not pledged to the seller. As a result, courts have rightly pointed out, the buyer gets the opportunity to dispose of their shares before the payment (Resolution of the Seventeenth Arbitration Appeal Court of 10/21/2014 in case number
At the same time in another case the postponement of payment under a contract for 3 years was the only circumstance referred to by the plaintiff in support of the transaction caused the damage. The amount payable under the contract, amounted to about 12 mln. Rubles. As a result, the courts of three instances rejected the applicant claims (AC decision from 02/10/2014 Moscow region on the case number
Thus, the members of the Company who wish to challenge the deal on n. 2, Art. 174 of the Civil Code, you have to be prepared to demonstrate to the court is a set of circumstances that would indicate damage to the public interest.
The counterparty should be aware of the damage to the transaction, if it is obvious for an ordinary member of turnover
Besides the fact of harm to society, to challenge the transaction according to claim 2 st.174 the Civil Code is also necessary to prove the bad faith of the counterparty. This transaction may be invalidated in the following cases:
— I found that the other party to the transaction knew or should have known about causing apparent damage to society as a result of the transaction;
— Established the existence of circumstances that indicate collusion or on other joint activities director and the other parties to the transaction to the detriment of society.
In view of the above, there are several approaches to proving the bad faith of the counterparty:
(1) demonstrate that, on the basis of this transaction, the counterparty must have known about the obvious damage caused to the public this deal;
(2) characterization of the relationship with the CEO of a company in terms of possibilities to assume the existence of collusion between them;
(3) the establishment of direct collusion of the CEO and the counterparty to the transaction.
It is easy to notice that the second approach involves not only crisp, unambiguous conclusions as construction arguments, ultimately based on assumptions. And this, in turn, dramatically increases the discretion of the courts in their assessment. The third approach is difficult to implement in practice: the parties shall enter into an agreement, apparently seeking to hide it from others. Because of this, directly prove collusion between the General Director and the counterparties tend to be impossible.
Thus, for practical purposes it is the first of these methods of proving best meets the needs of the plaintiffs challenging the transaction by reference to para. 2, Art. 174 of the Civil Code. In this approach, in fact, directed the participants of the turnover and the Plenum of the Supreme Arbitration Court. In his explanations, he pointed out that the other party should be aware of the presence of apparent damage when it was obvious to any ordinary contractor at the time of the transaction (para. 2 of Resolution of the Plenum of the RF from
As the current judicial practice, this approach has prevailed, and in challenging transactions with reference to para. 2, Art. 174 of the Civil Code.
Thus, it is indicative of the wording used by the Arbitration Court of the Sverdlovsk region in considering the
Even more emphatically on a similar occasion expressed the AU Northwestern District: «The contents of the contract of assignment is not suspected as considered the Court of Appeal, and the obvious evidence of the transaction to the detriment of the interests of society and of the absolute awareness of the company to which the provisions of the treaty of cession can reliably know a clear damage done deal to society «(Resolution AS Northwestern District from
Thus, the interests of the plaintiffs, who want to challenge the transaction with reference to para. 2, Art. 174 of the Civil Code, in the best proof is clearly
On the other hand, if you show a «clear
Accordingly, when the terms of the contract obviously point to the
Thus, there is the practice of para. 2, Art. 174 of the Civil Code suggests that this provision is already a very effective mechanism to challenge transactions. But, of course, it should be remembered, and that, like any other legal provision, para. 2, Art. 174 of the Civil Code is not a panacea. Moreover, the challenges to the transaction shall not be the general rule, as a last resort, accessible only in exceptional cases.