Legal presumptions and judicial discretion in holding a controlling person of the debtor liable subsidiarily

: Holding a controlling person of the debtor subsidiarily liable remains one of the most accessible and effective
ways to settle debts to creditors in insolvency cases. The legislator employs an approach similar to that of delictual liability
to establish fault and causation concerning the actions or inaction of the controlling person, expressed through presuming
their guilt and providing an opportunity to rebut this assumption. However, in law enforcement practice, the approach to
establishing fault often remains formal and insufficiently substantiated, merely justified by reference to the existence of
a presumption. This approach is used due to the impossibility for the party seeking liability to provide relevant evidence.
This construction does not allow the person being held subsidiarily liable to simply invoke their good faith and refuse to
take an active procedural position. At the same time, a competition of presumptions arises, which currently has not found
a legislative solution. The paper analyses the correlation between the presumptions established by the legislator and
the options for their application, considering the allocation of the burden of proof between the parties to the dispute.
An examination of the specifics of the evidentiary process in cases of holding controlling persons of the debtor subsidiarily
liable in insolvency cases has made it possible to define the role of the court’s discretionary powers. The authors believe
that the risk of violating the constitutional rights and freedoms of persons against whom an application for subsidiary liability has been filed and to whom the presumption of guilt has been applied can be mitigated by considering the presumption of good faith through the establishment of the possibility for the court to allocate the burden of proof.