Щодо відповідальності виконавчих та невиконавчих членів ради директорів

In the article there is an analysis of the basis and conditions for holding members of the board of directors legally liable, including those not formally elected to the board but who, in fact, perform the functions of this body («directors de facto»). Based on the fact that the election of board members establishes corporate relations between them and the corporation, and in the case of directors with whom an employment contract is concluded, also establishes employment relations, issues of legal application and conflicts between intersectoral norms regarding the property liability of board members are inevitable. The author concludes that it is necessary to enter into exclusively civil law contracts with all elected directors. Additionally, to address legal issues related to holding directors liable in cases where civil law contracts with them are declared invalid, the author proposes introducing specific legal consequences for such invalidity. The article argues that, in certain cases, an accessory nature of liability for violations in the corporate sphere can be observed: the liability of a board member as an independent subject of corporate relations depends on the corporation’s breach of its primary obligation as an independent subject of economic and/or civil relations. Given this, although liability for violations in the field of corporate relations will mostly be a type of economic liability, the author notes that such liability cannot arise in cases where the corporation acts as a subject of civil relations (rather than economic ones), for example, in a legal relationship between an insurer and an insured individual. Consequently, liability for violations in the field of corporate relations, as accessory liability, may sometimes take the form of civil liability as primary liability. The author critically examines the content of the principle of speciality, arguing for the need to hold «directors de facto» accountable for violations in the corporate sphere. The article explores the possibility of individualizing the liability of board members and the appropriateness of imposing liability on them for damages caused to the corporation as a result of the application of public law liability.