1. **Subject of the dispute:** Review of the liquidator’s motion to impose subsidiary liability on the head and deputy director for causing the bankruptcy of an agricultural enterprise.
2. **Court’s arguments:**
– The Supreme Court emphasized that imposing subsidiary liability under Article 61 of the Code of Ukraine on Bankruptcy Procedures requires establishing not only the individual’s status but also their capacity to issue mandatory instructions to the debtor.
– The lower courts failed to determine whether the deputy director had the authority to dictate the enterprise’s actions, which is essential for the application of the general rule on subsidiary liability.
– It is crucial to distinguish between general liability (Article 61 of the Code of Ukraine on Bankruptcy Procedures) and special liability for damages caused by specific transactions (Article 42 of the Code of Ukraine on Bankruptcy Procedures), which the lower courts failed to do.
– The Court stressed that when applying Article 61 of the Code of Ukraine on Bankruptcy Procedures, a mechanical division of the total creditor claims among the defendants in proportion to the damages caused is impermissible, as this contradicts the nature of subsidiary liability.
– Procedural violations were also noted: the appellate court failed to provide a proper assessment of key evidence, in particular, resolutions on the closure of criminal proceedings, which could have refuted the defendants’ culpability.
– Due to incomplete investigation of the circumstances and misapplication of legal norms, the decisions of the lower courts were deemed premature.
3. **Court’s decision:** The Supreme Court set aside the decisions of the courts of first and appellate instances and remanded the case for a new trial to the Commercial Court of Cherkasy Region.
