«COMPANY CONTROLLING PERSON» IN CORPORATE LEGISLATION: MYTH OR REALITY?
DOI:
https://doi.org/10.52026/2788-5291_2021_66_3_113Keywords:
controlling person, shadow director, actual control, removal of corporate cover, subsidiary liability, bad faith, abuse of the rightAbstract
In the modern corporate legislation of Kazakhstan, the structure of a legal entity, which is based on the principle of limited liability, has increasingly begun to be used by unscrupulous participants in civil transactions who abuse their rights in society in order to evade responsibility. The article analyzes the main problems of abuse of their rights by the persons controlling the company. The author carried out a comparative legal analysis of the experience and approach of foreign countries on the issue of attracting “persons controlling the company” to subsidiary liability, and investigated the relationship between the concepts of “shadow director” and “controlling person” under the law of Great Britain and Russia. The author studied the history of the implementation of this institution in the Russian legislation on bankruptcy and attempts to introduce it into the Russian civil legislation. Moreover, the author identified the real possibilities and prerequisites for the introduction of this institution into domestic law, analyzed the opinions of various foreign and Kazakh scientists and practitioners-lawyers regarding the introduction of this institution into the corporate legislation of the Republic of Kazakhstan. In addition, the author formulated his own opinion on the need to introduce the institution of “controlling persons” and proposed his own vision of the wording of this norm in the legislation of the Republic of Kazakhstan.
The aim of the study is to analyze the content of the institution of “controlling persons” in foreign countries and to identify the possibility of implementing this institution in Kazakhstani legislation.
Despite the contradictory opinions of many scientists, the author made conclusions about the real possibility and necessity of introducing the institution of “controlling persons” into the corporate legislation of the Republic of Kazakhstan, using the experience of foreign countries, in particular the Russian Federation. Additional provisions were proposed in order to obtain positive legal consequences of the implementation of this institution.