The subsidiary liability of a member of a consumer cooperative belongs to an auxiliary type. It is applied to shareholders in the event of bankruptcy of the cooperative.
Subsidiary liability - additional civil liability of persons who are liable together with the debtor to the creditor. This applies to cases prescribed in the contract or legislation. The situation arises if the sold property of a consumer credit cooperative in the event of bankruptcy is not enough to pay off the debt. Liability arises to the extent of the contribution share.
Features of subsidiary liability
In fact, it represents the stage of bankruptcy, at which third parties are liable for debts if the debtor refuses to pay or has no income. Sometimes the procedure takes place not only in relation to the credit cooperative, but also to LLC, other legal entities. In this case, a prerequisite may be the wrong actions of the organization's members, who are empowered to give instructions or orders.
Responsibility can be expressed:
- compensation for losses;
- undertaking obligations to pay mandatory payments.
The head of the cooperative can also be punished for failure to fulfill obligations related to the storage and use of strict accountability documents.
Shareholders (members of a credit cooperative), persons whose membership was terminated within six months from the date of submission of an application to the arbitration court, are jointly and severally liable within the unpaid part or the amount of unit savings. A specific entity can be found guilty of bankruptcy if its actions or decisions did not comply with:
- principles of reasonableness and good faith;
- business customs;
- the charter of the cooperative.
Procedure for bringing to subsidiary liability
First, an application is filed with the court. Based on the results of the consideration of the case, a decision is made to start bankruptcy proceedings, to refuse to accept the application or to abandon the motion. If the decision is positive, the procedure begins, which consists of three stages. At first, there is surveillance, but a temporary administration begins to lead the work of the cooperative. Based on the results, a detailed report is drawn up.
At the stage of financial recovery, measures are taken to restore the debtor's solvency. This stage can take up to two years. At the last stage, external management is carried out, when the past management is completely removed from the management of the cooperative. The arbitration manager begins to make all decisions. It is on his actions that the possibility of bringing persons to subsidiary liability depends.
The initiator can be the debtor himself or the creditor. Often a decision is made by an arbitration court on the basis of a claim received from both the bankruptcy commissioner and the creditor.
When filing a claim to bring persons to justice, an important criterion is the limitation period. It is three years old. The countdown begins from the moment the court makes a decision on declaring the debtor bankrupt.
During the trial, the board of the cooperative, members of the audit committee may be found guilty of bankruptcy. This becomes the reason for bringing them to administrative or criminal liability. For this, the actions or inactions are proved, which became the reason for the situation that has arisen. If the fact is revealed that the SRO did not apply for the appointment of an interim administration, it will also be held liable.
Some nuances
In January 2018, the Central Bank of the Russian Federation proposed to strengthen the responsibility of participants. One of the areas of work in this area was the restriction of the rights of members of cooperatives to withdraw unit savings and contributions when the CPC's financial situation deteriorates. The right of return now arises only after the approval of the financial statements for the year. It is planned that the shareholder will be held liable for 6 months, and 12 months after leaving the cooperative.
The reason for such changes was the fact that the mechanism of joint responsibility in relation to members of cooperatives does not work. When there is a deterioration in the financial institution, the participants write statements of withdrawal, withdraw funds. From that moment on, the former shareholders are not responsible for the further development of the cooperative, which negatively affects the financial component. The new mechanism will help maintain the stability of the PDA. This will also protect the interests of members, since in the process of bankruptcy they lose more money than is required to contribute to change the situation in the CCP.
