of October 27, 2006 No. 11
About some questions of use of subsidiary responsibility
(as of September 26, 2008)
For the purpose of ensuring the correct and uniform application of the legislation by economic courts of the Republic of Belarus in case of the dispute resolution about debt collection according to the procedure of subsidiary responsibility the Plenum of Supreme Economic Court of the Republic of Belarus, being guided by articles 14-16 of the Law of the Republic of Belarus of December 9, 1998 "About economic courts in the Republic of Belarus" (Vedamasts? Natsyyanalnaga to descent Respubl? to? Belarus, 1999, No. 2, St.
32), decides to give to economic courts of the Republic of Belarus (further - economic courts) the following explanations.
1. Subsidiary responsibility is special type of civil responsibility in case of which on person bearing subsidiary responsibility (further - the subsidiary debtor) according to the legislation or conditions of the obligation, in case of refusal the primary debtor from satisfaction of the requirement of the creditor, including in view of insufficiency or lack of property, or not direction to the creditor in reasonable time of the answer to the imposed requirement, the obligation on execution of the requirement of the creditor to the primary debtor is assigned.
3. In particular, can be brought to subsidiary responsibility:
the complete companions who became members (shareholders) of economic society when transforming partnership to society within two years - according to the obligations which passed to society from partnership (Item 2 of Article 65 of group of companies). The specified rule is applied when transforming partnership to production cooperative and the unitary enterprise;
participants of complete partnership - according to obligations of partnership (Item 1 of Article 72 of group of companies);
the participants who were disposed from partnership - according to the obligations of partnership which arose until its disposal on an equal basis with the remained participants within two years from the date of approval of the activities report of partnership in year in which it left partnership (Item 3 of Article 72 of group of companies);
participants of additional liability company - according to obligations of society in the limits determined by constituent documents, but at least the sizes established by legal acts (Item 1 of Article 94 of Civil Code, article 112 of the Law on economic societies);
the main society (partnership) - on debts of subsidiary in case of economic insolvency (bankruptcy) of subsidiary because of the main society (partnership) (Item 2 of Article 105 of group of companies);
members of production cooperative - according to obligations of production cooperative in equal shares if other is not determined in the charter, in the limits set by the charter, but there is at least size of gained annual earnings in production cooperative (Item 1 of Article 107 of group of companies);
The Republic of Belarus - according to obligations of the state company in case of insufficiency of its property (Item 5 of Article 115 of group of companies);
members of consumer cooperative - according to obligations of cooperative within not brought part of additional contribution (item 4 of Article 116 of group of companies);
the owner of property of organization - according to obligations of organization in case of insufficiency of the money (Item 2 of Article 120 of group of companies) which is at the disposal of organization;
members of association (union) - according to obligations of association (union) in the amount of and procedure, provided by constituent documents of association (item 4 of Article 121 of group of companies);
the guarantor, if the legislation or the agreement provide subsidiary vicarious liability (Item 1 of Article 343 of group of companies);
the guarantor - according to obligations of the primary debtor (Item 1 of Article 349 of group of companies);
person who transferred the real estate encumbered with rent to the possession of other person - according to the requirements of the receiver of rent which arose in connection with agreement breach of rent if group of companies, is not provided by other acts of the legislation or the agreement joint liability according to this obligation (Item 2 of Article 557 of group of companies);
the owner - according to requirements about discrepancy of goods quality (works, services) sold (which are carried out, rendered imposed to the user) the user under the agreement of franchizing, quality of the similar goods (works, services) sold (which are carried out, rendered) directly the owner (Item 1 of Article 910-6 of group of companies).
By the legislation or conditions of the obligation also other cases of subsidiary responsibility can be provided.
4. By the general rule, stipulated in Item 1 Article 370 of group of companies, condition of involvement of the subsidiary debtor to responsibility is the refusal of the primary debtor of satisfaction of the requirement of the creditor or not direction by the primary debtor to the creditor in reasonable time of the answer to the imposed requirement.
At the same time economic courts should mean that special condition of attraction to subsidiary responsibility on obligations of the primary debtor according to Item 5 of Article 115 of Civil Code and subitem 1.35 of Item 1 of the Decree No. 508 is insufficiency of property of the primary debtor, and for attraction to subsidiary responsibility of the owner of property of organization according to Item 1 of Article 120 of group of companies such special condition is insufficiency of money at the primary debtor.
In this connection involvement of such subsidiary debtors to responsibility is possible only on condition of establishment by economic court according to insufficiency of property or insufficiency of money at the primary debtor.
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