The principle of limited liability of members of an economic company and corporate control: correlation and prospects for development of legal regulation

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.

1. Pokrovsky I. A. Basic problems of civil law. Moscow: Statut; 2001. 353 с. // https://civil.consultant.ru/elib/books/23/page_10.html#8 (In Russ.).

2. Shitkina I. S. Corporate Law: A Training course. In 2 volumes. Ed. by I. S. Shitkin. Vol. 2. Moscow: Statut; 2017. 974 p. (In Russ.).

3. Shitkin A. O. The concept and grounds for the emergence of corporate control. Economy and Law. 2020;5(520):104–121. (In Russ.).

4. Vlasova A. V. Structure of subjective civil law: dis. ... cand. legal sciences. Yaroslavl; 1998. 150 p. (In Russ.).

5. Alekseev S. S. Collected works : in 10 vols. [+Reference volume]. vol. 3: Problems of the Theory of Law: a course of lectures. Moscow: Statut Publ.; 2010. 782 p. (In Russ.).

6. Ioffe O. S. Selected works: v 4 t. [Selected Works: in 4 volumes]. Vol. 2. Saint Petersburg: Yurid. tsentr Press; 2004. 509 p. (In Russ.).

7. Zinchenko S. A. Legal facts in the mechanism of legal regulation. Moscow: VoltersKluver Publ.; 2007. 142 p. (In Russ.).

8. Lapach V. A. System of Civil Rights Objects: Theory and Judicial Practice. Saint-Petersburg; 2002. 542 p. (In Russ.).

9. Isakov V. B. Legal facts in Russian law: Textbook. Moscow: Justicinform Publ.; 1998. 48 p. (In Russ.).

10. Shitkin A. O. Corporate control law of Russia and the United States : the concept, reason and legal implications of the dissertation ... Candidate of Legal Sciences. Moscow; 2020. 245 p. (In Russ.).

11. Krasavchikov O. A. Legal facts in Soviet Civil Law. Moscow: Gosyurizdat Publ.; 1958. 183 p. (In Russ.).

12. Miola M. Legal capital and limited liability companies: the European perspective. 2005. – 4 ECFR 413.

13. Sukhanov E. A. Comparative Corporate Law. Moscow: Statut Publ.; 2014. 454 p. (In Russ.).

14. Mamageishvili V. Z. On the significance of legal entity theories in modern corporate Law. Bulletin of Economic Justice of the Russian Federation. 2021;(3):36–73. (In Russ.).

15. Gierke O. F. DeutschesPrivatrecht. Leipzig, 1895. (In Germany).

16. Stepanov D. I. Interests of the legal entity and its participants. Bulletin of Economic Justice of the Russian Federation. 2015;(1):29–83. (In Russ.).