Perm University Herald. Juridical Sciences. 2018. Issue 2 (40)

Y. G. Leskova, Institute of Law and National Security of the Russian Presidential Academy of National Economy and Public Administration

Y. D. Zhukova, National Research University "Higher School of Economics"

K. P. Pavlova, Institute for Social Sciences of the Russian Presidential Academy of National Economy and Public Administration

Introduction: the research considers the peculiarities of the liability of a person exercising powers of the individual executive body of a business entity. It also shows the specific aspects of the liability of collegiate bodies' members. The experience of foreign countries is used to evaluate the correctness of borrowing a number of rules that were introduced into the Russian legislation, and to determine the guidelines for further reception of the normative provisions that proved to be efficient. Purpose: to reveal the gaps and contradictions in the legislation and judicial interpretation that preclude efficient implementation of the directors' liability rules and balance among the interests of the corporation, its sharers and the directors themselves. Methods: general scientific methods: comparison, description, system analysis, interpretation; specific scientific methods: juridical dogmatic method, method of interpreting legal norms, method of analysis and generalization of the legislation and its application practice. Results: the study has revealed the inconsistency of criteria of the director's unlawful behavior, and as a result – their inferiority in the form they currently exist. An attempt to partially borrow categories that characterize the duties of the manager from the Anglo-American law is not successful due to the artificiality of the criteria distinguishing between the bad faith and irrationality given in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 30, 2013, No. 62 "On Some Issues of Compensation for Losses by Members of a Legal Person's Administrative Bodies". The problem of the actual absorption of the director's guilt by the unlawfulness of his behavior is not solved, which invalidates the normative principle of fault-based liability. The rules establishing the grounds for imposing liability on collegiate bodies' members are not sufficiently developed. Conclusions: we deem it necessary to conceptually review the criteria of the director's bad faith behavior and director's irrational behavior. It is proposed to define the director's key duties through applying the criteria of caring attitude to business. It is essential to introduce certainty into the content of such a bad faith criterion as the presence of conflict of interest, to determine the correlation of this criterion with the criterion of the initial unprofitableness of the deal for the company. It is also necessary to develop criteria of guiltlessness in case of breach of the duty to act in the interests of the company in reason and in good faith.