Good faith (bona fides) is presented in the Civil Code of the Russian Federation as a general principle and presumption. In resolving corporate disputes, the courts are governed by general principles of good faith. However, corporate relations have a specificity due to, inter alia, the variety of corporate forms. It can be assumed that the application of good faith provisions should also vary taking into account the characteristics of corporate patterns, the types and forms of corporate relations, subjective internal corporate circumstances. Common law countries have developed a system of good faith elements and special tests to apply the required requirement of good faith according to the context. A special place is given to fiduciary relations as a product of bona fides. The author has carried out a comparative analysis of the provisions of the Plenums of the Supreme Court of the Russian Federation, the Supreme Court of the Russian Federation and the law enforcement practice of Germany, the USA, Great Britain and Canada on the issues of good faith in the consideration of corporate disputes. Special attention is paid to the interrelation between corporate ethics and law. Examining a number of key cases from the law-enforcement practice of the courts of the Anglo-American system of law, the author substantiates the possibility of applying special tests, namely, objective and subjective good faith tests, to regulate matters related to the application of the rules of good faith from the Civil Code and special laws in dealing with corporate disputes. Special attention is paid to the role of courts and permissible discretion in the formation of standards of enforcement of blanket norms and general principles of law in corporate relations.
The paper discusses various legislative and enforcement approaches in the Russian Federation, USA, and Great Britain; compares the various provisions of the Plenums of the Supreme Arbitration Court of the Russian Federation and the Armed Forces of the Russian Federation on issues of good faith; analyzes the application of these provisions by the courts when considering issues of holding directors to account as a result of malpractice that entailed property damage. By the example of consideration of a number of key cases from the law enforcement practice of the courts of the Anglo-American system of law, the question of the use of tests is considered: objective and subjective integrity tests to regulate the issue of holding the executive body accountable. English and American courts resort to the criterion of good faith in very rare cases, and the fiduciary duty of directors in commercial companies was significantly limited. The approach used by the common law courts implies a minimal degree of court interference in the economic affairs of commercial companies. Holding the director accountable is allowed only in case of obvious neglect of duties or is considered in some cases based on the specific circumstances of the case. Russian courts often hold directors accountable not as a result of gross negligence or proven intentional actions by executive bodies to harm the company, but as a result of society not achieving the desired economic result. Besides, dishonesty compensates for obvious gaps in the internal corporate routine, which do not make it possible to precisely determine the boundaries of authority and the area of responsibility of the executive body. The author formulates a conclusion on the degree of admissible judicial discretion when applying the provisions on good faith to corporate relations as requiring special regulation.
Отсылки к добросовестности содержатся в большом количестве статей Гражданского кодекса Российской Федерации и специальных законах. Однако из анализа положений гражданского законодательства и правоприменительной практики следует вывод о том, что в каждом отдельном случае термин «добросовестность» следует понимать по-разному. Для того, чтобы разобраться в специфике и множественности проявлений добросовестности, следует изучить ее в историческом развитии и сравнительно-правовом контексте. Изучение добросовестности в динамике позволяет выработать адекватные способы правоприменения добросовестности как системы.
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