UNTYPICAL LOSSES UNDER PARAGRAPH 2 OF CLAUSE 5 OF ARTICLE 189.23 OF THE BANKRUPTCY LAW: A PARADOX OR HIDDEN MEANING?

Abstract

At first sight, the aforementioned norm of the Bankruptcy Law hides a paradox: the Bank of Russia or another public entity provides a credit institution with financing on a gratuitous basis and therefore incurs losses (lost interest income), and the credit institution is vested with the right to recover these losses, i.e. a person who a priori did not experience such losses. This is contrary to any views on damages that exist in civil law theory. Therefore, in order to preserve at least some legal meaning behind the specified norm, it is necessary to understand what kind of economic regulation model its developers meant. Moreover, the judicial practice of applying this norm and recovering such “paradoxical” losses from controlling persons is beginning to take shape. That is, it cannot be said that the norm turned out to be stillborn and is blocked by the law enforcement officer. The best option is to believe that the Bank of Russia has a direct claim to the guilty persons to compensate for their lost profits, and the credit institution that has received financing from it is empowered to collect in its favor or the obligation to transfer it to it. The second important point of the norm under consideration is an attempt to shift the expenses of the Bank of Russia to the controlling persons for depositing funds into the bank’s capital. This happens in a veiled form – through interest on the amount recovered for 20 years in advance, which at the current refinancing rate means approximately 100% of the invested amount. However, it should be borne in mind that by investing such an amount, the Bank of Russia takes the bank’s business for itself, and then, transferring this business to other persons, it receives the proceeds. The owners of the bank do not receive any adequate compensation, but must reimburse the Bank of Russia up to 100% of their invested funds. This observation raises fundamental doubts about the constitutionality of this provision of the Bankruptcy Law.