On the problem of a universal criterion for classification of subsidiary liability under the Russian Federation legislation

The article examines the existing viewpoints on the classification of subsidiary liability under the laws of the Russian Federation. Some scientific concepts of contract, extra-contractual, statutory, and other types of subsidiary liability mentioned in legal literature are under analysis. Consideration of different viewpoints and normative material showed that the above types of subsidiary liability are not consistent with legal reality. Thus, various types of relations are used as a basis for the classification. It may be a relationship between a creditor and a debtor, a creditor and a subsidiary debtor, as well as between primary and subsidiary debtors. The author has analyzed the above relations to determine their values for subsidiary liability and pointed out three different kinds of relations. The first kind comprises the relations between a subsidiary liable debtor and a creditor. The second kind is the relationship between a creditor and a principal debtor. They may be characterized as «core» and «outer» relations at the same time. The third kind is represented by relations between primary and subsidiary debtors; they can be called «internal». The author comes to a conclusion about the fundamental role of «external» relations, and the auxiliary character of «internal» relations for the classification of subsidiary liability. Having analyzed the structure of the above relations, the author proposed a unified criterion for the classification of subsidiary liability. It is the relationship between a creditor and a principal debtor. Therefore, the distinction of subsidiary liability should be drawn only according to «external relations». Thus, contractual subsidiary liability should be defined in connection with the existence of a contractual obligation between a principal debtor and a creditor. Non-contractual subsidiary liability implies the absence of contractual relations not between a subsidiary debtor and a creditor, but between a creditor and a principal debtor. Subsidiary liability of the members of «corporate» relations can have both a contractual and an extra-contractual nature. Therefore, we can separate only two kinds of subsidiary liability - contractual and non-contractual. In the result of his research, the author draws the conclusion about the theoretical and practical significance of the division of subsidiary liability according to the proposed criterion. «External» relations form the basis of subsidiary liability, the question of subsidiary liability will be decided according to the violation by a principal debtor. The «internal» relationship is also important: with its help we can determine the cause and purpose of subsidiary liability legal regulation, as well as the features of subsidiary liability, its additional conditions and the consequences of its imposition.

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