8.4.1 Kwalificatie als insider leidt niet automatisch tot achterstelling

Wilton en Moeller-Sally overwegen treffend: “The doctrine of equitable subordination, as developed under the Bankruptcy Act, established the general principle that money loaned by corporate insiders is as green as money loaned by non-insiders; absent inequitable conduct, an insider’s claim to recover a loan to a corporation ranks pari passu with claims of non-insider lenders.”3 Het Supreme Court overwoog in Comstock: “It is not the mere existence of an opportunity to do wrong that brings the [subordination] rule into play; it is the unconscionable use of the opportunity afforded by the domination to advantage itself at the injury of the subsidiary that deprives the wrongdoer of the fruits of his wrong.”4 Herzog en Zweibel concluderen: “Mere control or domination of a corporation is not prescribed by law and is in itself insufficient to justify […] subordinating claims. The fiction of a separate legal entity will be respected unless to the elements of domination and control are added certain factors which will motivate the bankruptcy court, sitting as a court of equity, to disregard the fiction. These “plus” factors may be fraud, plain and simple, or a history of spoliation, mismanagement and faithless stewardship which is tantamount to fraud; they may be simply the violation of rules of fair play and good conscience which amounts to a breach of the fiduciary standards of conduct owed to the corporation, a use of the powers of an “insider” for personal advantage to the detriment of creditors all of which constitutes a “wrong” which equity will undo or intervene to prevent.”5