The article presents the analysis of the norms of the Commercial Code of Ukraine and corporate legislation, which provide for joint and several liability of company officials for the damages caused to the company by their actions (omissions), as well as current law enforcement practice of the Supreme Court.

The liability of officials is corporate and differs from liability in contract or in tort in the grounds and nature of relations in which it is applied. The article supports the scientific position that corporate law should operate on the principle of specialty: liability is incurred only for those violations, on those grounds, under those conditions and in respect of those legal persons as specified by law, statutory documents of the entity or the shareholders agreement. The liability of any person cannot be established by analogy and therefore for holding company’s officials liable there must always be a clearly defined legal fact (action, omission) with which the law associates the occurrence of the relevant negative consequences for the company.

Corporate governance violations are defined as illegal behavior (action or omission) of a person who does not comply with mandatory norms of the law (norms that establish the powers of the bodies of the company and the procedures for their implementation), with internal documents of the company that establish the responsibilities of such persons, with customary business practice, terms of a civil contract concluded with such person, and who violates the subjective rights of another participant of corporate relations or the company. Article 89 of the Commercial Code of Ukraine establishes the list of illegal actions of officials. It is defined that the ground for holding officials of a joint-stock company jointly and severally liable for damages caused to the company by their actions (omissions) is a violation jointly committed by the company officials in the corporate governance relations. Wrongfulness, existence of harm, causal connection, guilt of the wrongdoer in their entirety are the conditions for holding company officials jointly and severally liable. The presumption of guilt of the debtor, which operates in civil and commercial law, should be applied in relations of corporate governance as well. The guilt of officials whose actions can be qualified as grounds for civil liability for damages caused to the company shall be presumed. The burden of proof of the fact of illegal behavior, the extent of damage and direct causal connection between the violation and the damage lies with the plaintiff. Company officials may be released from liability for damages caused to the company if they prove that their actions did not go beyond the usual risk in adopting the relevant managerial decisions that resulted in negative consequences for the company. Officials cannot be held liable only for violation of general principles of good faith and reasonableness.

Bibliography

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Journal articles

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