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Insolvency (bankruptcy)- recognized by the arbitration court the debtor's inability to in full satisfy the claims of creditors for monetary obligations or fulfill the obligation to pay mandatory payments.

Insolvency- termination of the performance by the debtor of part of the monetary obligations or the obligation to pay mandatory payments caused by insufficient Money.

To arbitration court accepted an application for declaring the debtor bankrupt of the debtor, it is necessary to prove the presence of certain signs of insolvency (bankruptcy).

Signs of insolvency- these are specific parameters, the presence of which is necessary in two cases:

1.for the arbitration court and the initiation of proceedings in the case,
2.for deciding on declaring the debtor bankrupt by an arbitration court.

There is no equal sign between these two groups of signs - the creditor can initiate a bankruptcy case, BUT the debtor, before the arbitration court decides to declare the debtor bankrupt, can pay off all the creditors' claims included in the register of creditors, and the court will have no reason to declare the debtor bankrupt - the case of bankruptcy will be terminated.

The following persons have the right to initiate bankruptcy proceedings:
- the debtor on his own initiative,
- creditors,
- authorized bodies

For accepting a bankruptcy petition the arbitration court and the initiation of bankruptcy proceedings require the presence of signs of insolvency:
- availability of debt over 100,000 rubles for legal entities(excluding interest and penalties);
- term of non-fulfillment of requirements over 3 months;
- the presence of the creditor's claims against the debtor.

If a bankruptcy petition is filed by a debtor, then the existence of creditors' claims can be confirmed by the presence of:
- creditors' claims to the debtor in writing,
- statements of claim on the collection of funds from the debtor,
- judgments entered into force on the collection of funds
from the debtor.
If the bankruptcy petition is filed by the creditor, then his claim is confirmed solely by the presence of the creditor -
solutions civil court, an arbitration court, an arbitration court that entered into legal force .

In case the bankruptcy petition submitted by the authorized body, then his demand must be confirmed by a decision of the relevant authorized body and sent to the bailiff service.

In some cases, debtor protecting himself from bankruptcy proceedings, even before consideration of the creditor's application in the arbitration court, pays the creditor:

The amount of the principal debt (excluding penalties, arrears and penalties)
- part of the principal debt, so that the amount remaining after partial repayment is below 100,000 rubles, then the court has no grounds for initiating a bankruptcy case.

Based on the results of consideration of the application for declaring the debtor bankrupt, the arbitration court issues a ruling on the introduction in respect of the debtor - a legal entity observation procedures ... Observation is introduced for a period not exceeding 7 months from the date of filing the application with the arbitration court.

At the end of the observation procedure, a court session is appointed to consider the results of the observation and the report of the interim administrator.

In the case when, based on the results of the analysis of the financial condition during the observation, the interim manager concluded that that the restoration of the debtor's solvency is possible, then at the session of the arbitration court a ruling may be made on the introduction of one of the following bankruptcy procedures:

- Financial recovery.
- External control.
- Settlement agreement.

These procedures are introduced in order to ensure that after paying off debts to creditors, the debtor could continue to operate... In this case, after the claims of the creditors included in the register of creditors are paid off, the bankruptcy case must be terminated.

In the same court session by observation the debtor may be declared insolvent bankrupt .

To make a decision on declaring a debtor insolvent (bankrupt) other signs are required, namely:
- proof lack of property the debtor, in this case:
- the debtor's assets do not cover all of his obligations,
- in the balance sheet on line 470 there is an uncovered loss,
- it is not possible to restore the debtor's solvency
(i.e. it is not possible to pay off the claims of all creditors).

If all of the above conditions are met, the debtor is declared insolvent (bankrupt) and in relation to him bankruptcy proceedings are opened, which is liquidation with the participation of an arbitration court.

This scenario is the only possible scenario for organizations with large accounts payable (including tax arrears), which these organizations are unable to repay.

Low management efficiency, crisis manifestations in the economy, changes in tax legislation lead to the impossibility of fulfilling their obligations on mutual settlements with other firms or the budget for many enterprises. If improvements do not take place for three months, it becomes possible for the owners of the enterprise or creditors to apply to the court to start the bankruptcy procedure of the legal entity. Similar cases are considered by arbitration courts. If the court recognizes the facts of the debtor's insolvency as legal, the bankruptcy process begins.

What is a legal entity bankruptcy procedure

The reasons for the insolvency of the enterprise can be external factors and errors in management. The bankruptcy procedure of a legal entity is a sequence of processes designed to improve the financial situation, to find funds to meet the claims of creditors. Only the arbitration court can start these actions in relation to the debtor at the request of the owner or a person authorized by him, the creditor or a group of creditors, tax authorities... This process is more complicated than the bankruptcy of an individual.

Why is the lender needed

When a company has a hard-core debtor who does not pay debts under contractual obligations, the only legal way to resolve this issue is to file a payment claim. If this requirement is not fulfilled within three months, the creditor has the right to apply to the arbitration court for the introduction of the bankruptcy procedure of the legal entity. This is necessary, since no one, except the owner of the enterprise or managers, knows about the availability of funds in current accounts, about all assets, full list debt obligations.

What gives the debtor

If the company's debt liabilities for any reason grow sharply and exceed the possibilities, the debtor has a chance to announce the decision voluntarily. This is beneficial because:

  • the accrual of fines, penalties for late payment stops;
  • the court will appoint an independent bankruptcy commissioner;
  • for the recovery period, a moratorium is introduced on any actions with the debtor's property;
  • a plan to restore solvency will be adopted.

Signs of bankruptcy of an enterprise

All insolvency issues are regulated in accordance with Federal law Russian Federation dated December 29, 2015 No. 127-FZ "On insolvency (bankruptcy)". According to Article 3 of this law, the signs of bankruptcy of a legal entity are the presence of indebtedness of at least 100 thousand rubles on financial obligations for a period of more than 3 months when the court recognizes the fact of the insolvency of a legal entity to fulfill its credit obligations. Article 65 of the Civil Code of the Russian Federation prohibits this procedure for state enterprises, religious associations and political parties.

The concept of insolvency includes debt to legal entities, banks, government agencies, individuals, business entities. One of the signs of insolvency is wage arrears to its employees. Lawyers specializing in supporting bankruptcy recommend voluntary bankruptcy as a way to get a business out of a difficult situation. In this case, an objective the financial analysis, a simplified procedure, the appointment of loyal managers at all stages, a fair assessment of the value of assets.

Procedure for bankruptcy of a legal entity

Any external influences on business affect the interests of employees, managers, and their families. The bankruptcy procedure of the enterprise begins with the filing of an application with the Arbitration Court, followed by: consideration, trial, approval of the application and commencement of the debtor's insolvency process. To fulfill all judicial procedures, quick processing of court decisions and instructions, it is necessary to involve commercial companies specializing in services legal support insolvency processes.

Who can start the procedure

According to Federal Law No. 296 of December 30, 2008, creditors, the debtor himself, and authorized authorities can file an application with the Arbitration Court for declaring a legal entity bankrupt by initiators of insolvency and holders of the right. Lenders can be banks, investors, other legal and individuals... TO authorized bodies the authorities include representatives of tax services who initiate an insolvency case on the basis of violations of tax legislation, non-payment of mandatory payments and fees.

Filing a statement of claim with a court

To quickly and correctly initiate an insolvency procedure, you must complete and submit an application with a package of documents. If the debtor himself initiates the process, he provides data on the amount of debts and a list of assets. The main components of an application for declaring the debtor bankrupt:

  • name of the court;
  • claims of creditors indicating the amount of debt;
  • candidacy for the post of interim manager.

List of required documents

The application must be accompanied by originals and copies of the required documents:

  • constituent documents;
  • claims of creditors and the amount of debts;
  • balance, data accounting, tax reports for the last tax period;
  • a document confirming the right to submit an application;
  • a list of the debtor's assets;
  • appraisal of the debtor's property.

Bankruptcy stages of a legal entity

According to the law, the bankruptcy procedure of a legal entity includes:

  • observation procedure;
  • financial rehabilitation of the enterprise (reorganization);
  • external management;
  • settlement agreement;
  • bankruptcy proceedings in case of bankruptcy of a legal entity;
  • bidding.

Observation procedure

To ensure the safety of property and assets of the enterprise, the stages of bankruptcy of a legal entity include a monitoring procedure. The court appoints an interim manager who must assess the financial condition of the debtor and hold the first meeting of creditors. A register of debts and registration of creditors' claims are being drawn up. The bankruptcy supervision procedure does not change the company's internal operating procedures. At the monitoring stage, restrictions are imposed on some of the rights of the management and founders - it is prohibited to create branches, reorganize the business.

Reorganization - financial recovery of the enterprise

At this stage, the plan for restoring the company's solvency and repayment of debt is carried out according to the schedule approved by general meeting creditors. These activities are supervised by an administrative administrator officially appointed by the court, without whose agreement it is impossible to carry out transactions amounting to more than 5% of the accounts payable... If, as a result of the reorganization of the enterprise, the debt to the creditors is repaid, the arbitration court shall terminate the case.

Ways to restore solvency

To restore the solvency of an enterprise, which, as a result of the actions of its management or other external factors, fell into a state of insolvency, the bankruptcy procedure of a legal entity contains several stages that are implemented using external management. For this purpose, the bankruptcy commissioner is appointed by the arbitration court, who receives the rights of a manager. The external manager is obliged to take a set of measures to get the enterprise out of a difficult situation.

External control

At the stage of external management, instead of the general director and management structures, an external manager begins to work as the head of the debtor and fully control all aspects of the activity. For this period, a moratorium is introduced on the payment of debts, fines, and penalties to all creditors. The duration of this stage is 18 months, but by the decision of the arbitration court, this period may be increased.

External manager functions

The main responsibility of the external administrator is the organization of measures to restore the debtor's solvency. At external management unprofitable subdivisions can be closed, property sold, and its activities re-profiled. Insolvency often occurs in a chain of enterprises operating in a closed cycle due to the fault of the final consumer of the product. For example, a mine supplies coal to a coke plant, and that coke supplies metallurgical plant... In case of insolvency of the metal plant, problems arise for all enterprises in this chain.

Bankruptcy proceedings in case of bankruptcy of a legal entity

The final stage of the enterprise bankruptcy procedure is bankruptcy proceedings. The need for its implementation arises if all the previous actions failed to improve the financial component of the legal entity's work. Like other cardinal decisions, this is only made by the Arbitration Court. In fact, this means declaring the company bankrupt. Within the framework of bankruptcy proceedings the legal entity is liquidated and its assets and property are sold to pay off debts to creditors. The term of this stage is 6 months.

Bidding

At the end of the bankruptcy proceedings, an auction is held, for which the property and assets of the enterprise are put up. For this, the liquidator organizes an open auction. Any interested legal entity and citizens can take part in it. According to the rules of the auction, the owner of the property will be the one who offers the highest price. Debts are repaid from the proceeds from the auction. Creditors' claims are satisfied in descending order of the amount owed. The debts of the largest creditors are repaid first, followed by the smaller ones.

Settlement agreement

If at any stage of the organization's bankruptcy procedure the issue of debts is resolved, an amicable agreement is signed between the debtor and the creditors. The decision on it is taken by the meeting of creditors by a simple majority of votes. The court confirms this decision and delivers a final verdict to terminate the bankruptcy proceedings:

  • At the stage of observation, the settlement agreement does not require agreement with the interim manager.
  • Reorganization requires approval from the Administrative Manager.
  • In bankruptcy proceedings, only the external administrator has the right to sign it.

Punishment for bringing an enterprise to bankruptcy

In case of damage for creditors of less than 1.5 million rubles, the perpetrator is applied administrative responsibility in the form of a fine of 5-10 thousand rubles or a ban on holding leading positions for a period of 1-3 years. Article 196 of the Criminal Code of the Russian Federation establishes criminal liability for "deliberately bringing the enterprise to bankruptcy." A condition of criminal prosecution is the infliction of deliberate damage in the amount of more than 1.5 million rubles. Upon establishing the facts that external factors, and not the actions of the perpetrator, led to bankruptcy, a criminal case is not initiated.

Owners, director, temporary manager of an enterprise or private entrepreneur are subject to criminal prosecution in case of proven deliberate bringing to and fictitious bankruptcy. As a punishment, the Criminal Code of the Russian Federation provides for:

  • payment of a fine of 200-500 thousand rubles;
  • deprivation of the guilty wages in 3 years;
  • imprisonment in places of imprisonment for a period of up to 6 years.

Consequences of the bankruptcy of a legal entity

The bankruptcy proceedings ends with a court ruling on the bankruptcy of the enterprise with an entry in unified register... This confirms the recognition of the debtor as insolvent to fulfill financial obligations, and liquidation procedures begin. On the basis of this decision, the legal entity is considered bankrupt, in federal register legal entities of the Unified State Register of Legal Entities, an entry is made on the liquidation of the legal entity. The enterprise is not only subject to liquidation, but its debts are liquidated, and obligations are terminated.

Responsibility of the founder

If law enforcement it will be possible to establish a connection between the actions of the founder or CEO with the insolvency of payments to creditors or any actions that can bankrupt the enterprise, this will confirm a fictitious or deliberate bankruptcy, and this is already a criminal offense. His legal implications will be the initiation of a criminal case, proceedings in a criminal court. The actions of each of the joint and several debtors are considered in individually.

Consequences for the director

With debts less than 1.5 million rubles, the director and other officials will be subject to administrative punishment in the form of a fine of up to 10 thousand rubles, the prohibition to hold managerial positions for up to 3 years. With debts of more than 1.5 million rubles, if there are suspicions about the guilt of the managing staff in bringing to bankruptcy, a criminal case will be initiated. In this case to CEO they face imprisonment up to 6 years or high fines of up to 500 thousand rubles.

What is subsidiary liability

When the bankruptcy process begins the stage of bankruptcy proceedings and the bidding process, a situation may arise in which the liquid assets and property of the enterprise will not be enough to pay off the entire debt to creditors. In this case, the debt collection will be made from the personal property of the company's managerial staff. It includes persons who could, for a period of 2 years before the onset of bankruptcy, influence the adoption of management decisions:

  • founders;
  • general manager;
  • persons with a package of 50% + 1 share;
  • persons who are not legally associated with the firm, but who influence management decisions.

This group of persons is called "joint debtors" and subsidiary liability is established for them. Clause 2 of Article 325 of the Civil Code of the Russian Federation defines this norm as the right of claim of one of the debtors to others in the fulfillment of their obligations to pay debts. If any debtor proves not to be involved in bankruptcy, the arbitral tribunal will release him from subsidiary liability.

How long does the bankruptcy procedure of a legal entity take

For each stage, the period of its validity is legally established. For supervision it is 7 months, for rehabilitation - 18 months, bankruptcy proceedings - 6 months. The total duration of the bankruptcy process is nominally 2 years 7 months. Given the fact that each stage is under the control of the Arbitration Court, its duration can be changed based on the specific situation. The court is able to decide on the end of the bankruptcy procedure at every stage.

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At the end of December of the past year, the rules for bankruptcy of legal entities (; hereinafter - the Law) were once again changed. The new rules are in effect for a little over a month - they entered into force on January 29. Practice on them has not yet been accumulated, but some of the short stories raise questions. Let's consider what the main innovations are.

Conventionally, the amendments can be divided into two parts: the first includes changes , aimed at toughening the conditions for debtors and reducing the opportunities for abuse on their part. The second includes amendments that clarify the rules of self-regulation in the field of bankruptcy.

The first group includes the following.

1

Credit institutions have the right to initiate bankruptcy without the obligatory preliminary confirmation of the debt in judicial procedure, as required by the legislation earlier ().

Let me remind you that before the amendments come into force bankruptcy creditor could file a petition on the debtor's insolvency only if there was a court decision that entered into legal force on the recovery of funds from him (). Now, banks have acquired the right to file an application with the court from the moment the debtor has signs of insolvency, that is, when he has delayed the performance of his obligations by three months. At the same time, 15 days before going to court with an application for declaring the debtor bankrupt, the bank is obliged to publish a notice of this in the Unified Federal Register of Information on the Facts of the Activities of Legal Entities ().

These innovations give banks significant temporary advantages over other creditors when filing an application (and hence the ability to appoint "their" bankruptcy commissioner). Of course, in some cases, the new rule will make it difficult for the debtor to withdraw assets before and during bankruptcy proceedings. However, it is not clear why such a privilege is granted only to banks and not to all creditors.

2

3

Debtors, when filing for bankruptcy, were deprived of the opportunity to choose an insolvency practitioner or a self-regulatory organization of insolvency practitioners. In order to indicate a self-regulatory organization of bankruptcy commissioners in the debtor's application, it is determined by random selection when publishing a notice of the debtor's application to the arbitration court (). The procedure for this selection will be established by the regulatory body. In my opinion, this novel is one of the most significant in the entire package of amendments. The innovation will make it difficult for the management of the debtor to appoint a "loyal" arbitration manager, and, accordingly, will complicate the maintenance of control over the property of the enterprise. However, the possibility of filing an application by a controlled creditor with an indication of the "required" bankruptcy manager remained.

The legislation enshrined the need to obtain writ of execution for compulsory execution of the decisions of the arbitral tribunal, which confirmed the debt, for filing an insolvency petition. This rule applies to non-credit lenders (). Judicial practice has previously required to confirm the decision of the arbitral tribunal judicial act about extradition executive document(), now this requirement is enshrined in the law.

5

The Law provided the pledged creditors with the right to vote on the appointment and removal of an insolvency practitioner or a self-regulatory organization of insolvency practitioners (). In addition, they can now independently install starting price implementation collateral and the conditions for ensuring its safety (). This is another amendment in favor of credit institutions, allowing them to exert a more significant influence on the conduct of bankruptcy procedures.

6

10 times enlarged administrative fines for officials per misconduct in case of bankruptcy (failure to provide information to the bankruptcy commissioner, unlawful satisfaction of the claims of some creditors to the detriment of others, illegal obstruction of the bankruptcy commissioner, etc.) (). Previous fines in the amount of 5-10 thousand rubles. could not be called a significant incentive to comply with legal requirements. Hopefully, the new foreclosure amounts will encourage officials to be more careful about fulfilling their statutory responsibilities.

7

Thanks to the amendments, the bankruptcy administrators were able to request information not only about the bankruptcy itself, but also about the members of the management bodies of the debtor company, about controlling persons, their property (including property rights), about counterparties and about the debtor's obligations. It is including information that constitutes official, commercial and banking secrets (). I believe that the innovations will make it possible to more effectively conduct financial analysis, search for property and analyze the debtor's transactions, as well as make more informed decisions on the advisability of bringing controlling persons to subsidiary liability.

The amendments clarifying the rules of self-regulation in the field of bankruptcy include:

1

The emergence of electronic trading platforms duties to be a member of self-regulatory organizations (SRO). Requirements for SROs of electronic trading platforms are now fixed by law ().

2

Establishment of the minimum size of the compensation fund for SRO arbitration managers - 20 million rubles. (). Previously, the legislation was limited to the wording that the compensation fund is formed from membership fees of SRO participants in the amount of at least 50 thousand rubles. for each of its members, the number of which must be at least 100 (Federal Law of October 26, 2002 No. 127-FZ "On Insolvency (Bankruptcy)"). Thus, minimum size the compensation fund was 5 million rubles.

3

The size of the maximum possible one-time payment from the compensation fund of the SRO of bankruptcy administrators has been changed, of which the bankruptcy administrator was a member as of the date of the actions or omissions that resulted in the infliction of losses on the participants in the bankruptcy case. Now it cannot exceed 5 million rubles. instead of 25% of the size of the compensation fund according to the previous edition () - and this seriously increases the SRO's liability limit. Given the prevailing recent times positive judicial practice to collect funds from the compensation fund of SROs (,), as well as the fact that today less than 20% of SROs have compensation funds over 20 million rubles, this year one can expect a wave of reorganizations and a reduction in the number of SROs of arbitration managers. Many managers will be forced to make additional contributions to the compensation funds of their SROs.

How is a simplified declaration of a debtor bankrupt? Who is an insolvency administrator and how is the bankruptcy proceedings supported? How to properly file for bankruptcy?

Hello, dear readers of the HeterBober business magazine! Denis Kuderin is with you again.

We continue our series of articles on bankruptcy. The topic of the next publication is the bankruptcy procedure.

The material will be of interest to both individuals and owners of legal companies. It is always helpful to know how to deal properly with creditors in the event of prolonged financial distress.

So, let's begin!

1. Concept, signs and purposes of bankruptcy

Bankruptcy as legal phenomenon emerged in the Russian Federation and neighboring countries relatively recently.

25 years ago, no legislative framework for the recognition of companies and individuals as financially insolvent, since market economy just beginning its formation in the vastness of the former USSR.

The first bankruptcy law was passed in 1992. Since regulations changed many times, as the economic reality in Russia and neighboring countries changed.

Today, the Russian Federation has a 2002 Insolvency Law.

Until October 2015, only legal entities - companies, firms, organizations - could go bankrupt. In connection with the development of the institution of lending, there is a need to change legal standards.

Today, ordinary citizens - individuals and individual entrepreneurs... The law on bankruptcy of individuals is aimed at a civilized solution of issues related to the violation of debt obligations.

Step 1. Assess the likelihood of bankruptcy

An assessment of the likelihood of bankruptcy is carried out by a citizen on the basis of an analysis of his own financial condition.

If an individual loses part of his monthly income and realizes that loan debts will grow in the coming months, it's time to think about declaring bankruptcy. To submit an application, the amount of debts must exceed half a million rubles.

Insolvency does not release from debt obligations, but allows debtors to at least partially free themselves from psychological pressure from creditors.

Step 2. Prepare documents for arbitration

The list of documents to be submitted to arbitration is standard and regulated by law.

The debtor will need:

  • certificates confirming the existence of a debt;
  • inventory of own property (drawn up in the form and certified by a notary);
  • income statement;
  • bank statement on the state of the account;
  • personal documents (identity card, marriage certificate, etc.).

The package is accompanied by a compiled according to the approved form.

Step 3. Wait for the results of consideration of the application

All decisions regarding the insolvency of citizens are made by an arbitration court.

For information

Such courts do not work in all cities of the Russian Federation, but only in regional centers. In addition to travel costs, debtors will have to pay out of pocket to the Treasurer and cover legal costs.

The analysis of the real financial condition of a citizen is carried out by a person authorized by the court. The financial manager should identify the signs of bankruptcy, consider the possibility of debt restructuring and, if necessary, carry out independent assessment property of a citizen.

Step 4. Agree on a debt restructuring schedule

Restructuring, as the word itself implies, is a change in the structure of an individual's debt obligations. This term also means a number of measures designed to stabilize the monetary affairs of a citizen.

Typical actions of such a plan are to reduce the size of monthly payments with a parallel increase in the loan term, the abolition of repressive measures on the part of creditors during the restructuring period.

Step 5. Sell the property

The sale of personal property under the hammer is possible after the debtor is officially declared bankrupt. Bidding is appointed if the sale did not give the desired result or the income of the citizen does not allow to pay off the debt in the required amount.

Valuable and liquid assets are put up for auction - vehicles, real estate, jewelry, luxury goods, appliances. Creditors and courts are not entitled to take away from an individual the only living space, but they may demand the allocation of a share in jointly acquired property in a legal marriage.

4. Maintenance of bankruptcy procedures - who can provide qualified assistance

Recognition of insolvency requires an investment of time, effort, nervous and mental energy. To make the procedure go smoothly and with minimal costs, I advise you to entrust the bankruptcy support to specialists.

There are many companies operating online and offline today that deal with professional help for bankruptcy. Such companies handle cases of legal entities and individuals, reducing their costs and helping to achieve the most optimal court decisions.

Specialists work on the side of the debtor and provide services for the execution of documents, shortening the time of the case, and maintaining the legal purity of the process.

The following organizations are involved in bankruptcy support:

1) National Bankruptcy Center

The firm operates in the capital and regions, provides online consultations for its clients. Don't miss the opportunity to consult remotely.

2) STOP Credit

A company specializing in disputes between individuals and legal entities with credit institutions. If you have problems with credit institutions or have delays (large debts), then you are here.

3) All-Russian Bankruptcy Service

A company with branches in many cities of the Russian Federation, working with clients directly in offices and remotely. Even from the most remote corners of our country, you can use the services of this organization.