Специфіка субсидіарного обов’язку учасника господарського товариства за зобов’язаннями останнього

The scholarly publication emphasizes that the institution of subsidiary obligation of business company participants serves not only a protective function regarding the interests of creditors and the legal entity itself but also concerns the internal structure of the entity and the balance of rights and duties among its participants. The study analyzes the diverse manifestations of subsidiary obligation across different types of business entities and provides a comprehensive theoretical and legal examination of each specific case of imposing a subsidiary obligation on a participant. This is done by considering not only the formal model of civil liability but also the functional purpose, regulatory objectives, and internal logic of the legal design of subsidiary obligations within the legal entity framework to ensure a proper balance of interests in civil legal relations. It is argued that in general partnerships, limited partnerships, and companies with additional liability, the subsidiary obligation of participants for the company’s debts is a fundamental structural element and a core feature of the contractual model of participation. In contrast, in limited liability companies or joint-stock companies, such an obligation is exceptional and arises only in the event of a violation of legislative requirements. In this regard, the article criticizes the legislative trend to uniformly label all cases of subsidiary obligations under the term «subsidiary liability» as not only theoretically incorrect and contrary to doctrinal approaches of civil law science, but also potentially detrimental to legal certainty and judicial practice. In particular, it is emphasized that some subsidiary obligations are established ex lege and do not require any wrongful conduct by the obligor, while others – such as liability arising from a company’s bankruptcy caused by the fault of its founders, participants, shareholders, or directors – are delict-based and require the establishment of civil tort elements. This terminological inconsistency, the article argues, must be addressed legislatively. Additionally, the publication puts forward proposals for improving the legal regulation of subsidiary obligations of company participants, taking into account the specificities of their legal forms and in line with generally accepted civil law theories of liability.