In this interpretive judgment the Plenary Session of the Court addressed a number of controversial matters related to liability of directors of companies, and gave binding interpretations on such matters. Inter alia, the Court laid down that:
- director may not be held liable for losses caused to the company if his actions (or inaction) that entailed losses were not outside the limits of ordinary entrepreneurial risks; it is necessary to prove the lack of reasonableness and good faith on his part;
- if director refuses to give necessary explanations to the court, the burden of proving that he acted reasonably and in good faith may be placed upon him;
- the lack of good faith on the part of director may be attested, inter alia, by the fact that he concealed a conflict of interest or information on a transaction he made, or upon the termination of his powers tried to avoid transferring to the company certain documents pertaining to the losses caused to the company;
- director may not be held to be acting in pursuance of the interests of the company, if he acted in the interests of one or several shareholders, but against the interests of the company;
- in case of bringing the company to public law liability (that is, tax or administrative responsibility, etc) for the reason of director’s failure to act reasonably and in good faith, the resulting losses may be recovered from the director;
- commercial court may not completely refuse to recover from a director the losses caused by him to his company on the sole ground that the amount of losses cannot be determined with reasonable certainty. In such case the amount of recoverable losses shall be determined by the court with due regard to all circumstances of the case, based on the principles of justice and adequacy of liability;
- if the company has already been indemnified through other legal remedies, such as recovery of losses from the person who immediately caused them (e.g. employee or contractor) the action for losses against the director should be dismissed;
- losses still may be recovered, even if the plaintiff was not a shareholder at the moment of director’s action (or failure to act) which entailed losses or at the moment when they arose;
The interpretations given in this Judgment are applicable, mutatis mutandis, when considering cases on the recovery of losses from company liquidators and bankruptcy trustees, unless it is provided otherwise by a law or the nature of legal relations in question.
