Legislation of the Russian Federation in terms of regulationcivil transactions often change. This can be said, for example, about the sphere of debt relations. In particular, the law on financial insolvency is among the legal acts that are often subject to adjustment. Which of the recent innovations of the legislator contained in this source deserve special attention?
Speaking of innovations relating tobankruptcy law, it should be noted that in the Russian Federation there is only one legal act regulating the sphere of debt relations in the aspect of financial insolvency, both with the participation of organizations and citizens. This is the Federal Law No. 127 “On Insolvency (Bankruptcy)”. He was adopted on October 26, 2002.
For a long time, this legal act is fullyregulated debt relationship only with the participation of organizations. Appealing to the courts could, by appealing to the provisions contained in the law on insolvency, be enterprises, but not physical persons. However, in 2014, provisions were added to this legal act that made it possible for citizens to declare bankruptcy.
There is a not entirely correct point of view that there isseparate law on the insolvency of individuals. This is not true. Bankruptcy as citizens and organizations is governed by a single legal act marked Federal Law No. 127. Recently, it is also the law on the insolvency of credit institutions.
The fact is that until December 2014 the procedureBankruptcy, in fact, of banks, was regulated by a separate legal act - Federal Law No. 40, adopted on February 25, 1999. Now the legislation relating to financial insolvency is thus consolidated in a common source. It doesn’t matter how to interpret it - as a legal act regulating the bankruptcy of businesses, banks, or the law on the insolvency of individuals - the text of the law will be the same in many of its provisions, despite the fact that the legal status of subjects of debt relations is different.
The very fact that the insolvency lawProvisions relating to the relevant procedure involving individuals were included as a sensation: for more than 10 years, thus, the legislator ignored the possibility of regulating citizens' bankruptcy, but suddenly decided to reconsider his attitude to the relevant areas of activity. Therefore, if we talk about some large-scale innovations introduced into legal practice through the Federal Law No. 127, this is precisely the fact that a full-fledged law on insolvency of individuals appeared in the Russian Federation. The text of the relevant legal act enthusiastically began to study ordinary citizens. In particular, those who managed to collect various loans and began to experience difficulties with their repayment.
After the relevant legal actacquired a full-fledged look, in the Russian Federation there appeared a law on the insolvency of individuals, individual entrepreneurs, business societies - new amendments to it nevertheless continue to be made by the legislator. They concern the most different aspects of the sphere of debt relations. Our task is to consider the key ones.
Можно отметить, что недавние корректировки имеют attitude mainly to communications with the participation of enterprises. The activities of individuals are still governed by the previous provisions, which, however, are very new in themselves. The recent changes made to the bankruptcy law, adopted on December 29, 2014, can be considered directly related to enterprises (although some of them can be interpreted in relation to citizens upon a detailed examination). Therefore, in the article, the term “debtor” means, first of all, a legal entity. The provisions that will be discussed are fully applicable to organizations.
Changes in the bankruptcy law have affected suchaspects, as the interaction of creditors - in the status of banking organizations, with arbitration courts. In accordance with the innovations, financial institutions have been granted the right to apply to these instances, even if they do not have a decision of the court of general jurisdiction to recover funds from the debtor. In this sense, credit organizations received an advantageous position relative to the competencies of competitive entities, which, in turn, should have in their hands the appropriate judicial decision.
Prior to relevant innovations, lenders shouldwere to go to court in a manner consistent with the lawsuit. After that, they had to wait until a corresponding decision was made on the recognition of the debt by the borrower and on the need to recover it. The next stage was associated with the expectation that the court ruling would come into force. In addition, the debtor could appeal, which implied the participation of the creditor in the new court sessions, and it is good, if successful for him. Now the preliminary appeal to the court is not required. But it should be noted that this provision applies only to banks, that is, structures officially registered as a credit institution.
It will be useful to consider the order of some actions, which the bank, in accordance with legislative innovations, should follow when initiating a debtor’s bankruptcy.
So, the credit institution from the time of entryThe relevant amendments to force, namely, from July 1, 2015, should, 15 days before applying to arbitration, publish a notice regarding the intention to initiate the procedure for declaring the debtor insolvent. This document is sent to the Unified Federal Register of Information on the Activities of Legal Entities. Note that before the amendments enter into force, the deadline for submitting the relevant notice was up to 30 days, while the document must be sent to the debtor, as well as to the creditors known to the bank.
As a result of legislative innovations, the bankmay initiate the bankruptcy procedure of the borrower without additional lawsuits. Moreover, he has the right to start the relevant work before the rest of the creditors, thereby being the first to receive the necessary documents concerning the activities of the debtor.
Changes in the bankruptcy law have affected suchaspects, as the procedure for the appointment of a temporary manager. Before innovations, the debtor had the right to choose a person who performs relevant functions based on his own preferences. After changes to the law were approved, temporary managers began to be appointed by random selection. True, the specific mechanism of such a draw has not yet been determined. In this regard, the temporary administrator will be appointed by the court until the necessary mechanisms are approved by law.
Before innovations, the borrower could assignmanager, who was, in fact, accountable to the company. A person holding this position could not prevent the debtor company from continuing to conduct its business. It also could not be ruled out that “his manager” would close his eyes to the real financial problems of the debtor company. It was possible that the list of requirements would not include lenders whose claims are undesirable for the borrower. Also, the manager appointed by the debtor company could help the company to perform various unlawful actions, for example, to conceal certain facts relevant to the court and to creditors.
What is the procedure prescribed for the debtor?changes in bankruptcy law? Before applying to the court, if it is the borrower who is the initiator of the procedure for recognizing financial insolvency, he must publish a notice regarding this activity in the Unified Register. After that, an arbitration manager is randomly appointed, but, as we noted above, this procedure is not regulated yet, and the choice of a person for the relevant position is within the jurisdiction of the court.
Changes to the insolvency law have affectedalso such a criterion as the minimum amount of debt, which entitles the parties to the debt relationship to initiate a bankruptcy procedure. In this case, we are talking only about the debtors-organizations. Before innovations, the corresponding value was 100 thousand rubles. (for natural monopolies - 500 thousand). After adjustments in the legislation, the figures increased: bankruptcy can be initiated if the company owes at least 300 thousand, and if it has the status of a natural monopoly, from 1 million rubles. The law on the insolvency of individuals, which is remarkable, is characterized by more stringent conditions in terms of the minimum amount of debt: a citizen’s bankruptcy is possible only if he has borrowed and cannot give 500 thousand rubles. and more. So far the legislator has not made any adjustments to this norm.
Changes in bankruptcy law gave reasonsay that mortgagee lenders - those whose claims are secured by various assets owned by the debtor, have additional rights. Which ones? In particular, this is the right to vote at meetings where questions about the choice of a manager are being resolved, as well as when applying to the court for the removal of a person to the relevant position, about the company's transition to external management. Before innovations, secured creditors could exercise their right to vote most often only at the observation stage.
Pledged lenders after making changes toLegislation received the right to fix the initial value of the pledged item, as well as the order in which the bidding should be held. If the opinion of the relevant subjects of debt legal relations does not find understanding among other participants in the bankruptcy procedure, the court should intervene.
If an enterprise that is treated inas an insolvent, assets are being replaced, for example, when several business societies are created on the basis of a firm, then secured creditors are entitled to satisfy their requests at the expense of shareholder assets.
Кредиторы соответствующей категории получили the right to retain the collateral in the bidding process. To do this, they need to make a public offer if there are no applications for participation in this type of bidding. This, according to experts, can be interpreted as an additional mechanism to protect the interests of secured creditors.
В числе иных примечательных новшеств, которые introduced changes to the law on bankruptcy, we can distinguish a mechanism in accordance with which bankruptcy creditors can declare that the limitation period for the debts of other entities making claims to the borrower has expired. Previously, such legislation did not provide for this.
Managers of companies in which financialdifficulties that give rise to talk about signs of bankruptcy are required to notify the owners. If the director of the organization does not fulfill this obligation, then a fine in the amount of 25-50 thousand rubles can be imposed on him. It can also be noted that responsibility for other illegal actions of the company's management during the bankruptcy procedure has been tightened.
Before the changes to the bankruptcy law wereintroduced, no reason for termination of cases, the subject of which - bankruptcy, was not provided. That is, for example, if the court revealed any abuses on the part of the initiator of the bankruptcy procedure, there could be no legal consequences. The new version of the law states that going to court, the subject of which is the initiation of the process of declaring a debtor insolvent, should not be limited to formal validity. It is important that the borrower is in fact insolvent.
Если, таким образом, суд установит, что должник or the creditor who initiated the bankruptcy procedure knew that the relevant entity was fully solvent, that is, pursued a benefit, the proceedings could be legally suspended. Provided, of course, that by that moment the borrower will not lose his solvency. Such a rule allows the courts to stop collusion between debtors and creditors who, due to certain circumstances, are beneficial to them, but at the same time are detrimental to other interested parties.
