Test
Ways to protect the rights of creditors
Bibliographic list
1. Challenging the debtor's transactions in bankruptcy cases
Civil and bankruptcy laws provide for mechanisms to protect the rights of creditors and liability measures for debtors and their controlling persons, which include the following elements:
1.challenging the debtor's transactions; 2.bringing to subsidiary liability for the obligations of the debtor; .compensation for losses to creditors caused by unlawful actions (inaction) in bankruptcy cases. The listed components together form a system, the purpose of which is to restore the financial assets of the debtor, which replenish the bankruptcy estate and serve to subsequently satisfy the claims of creditors, and the ultimate goal is to restore property rights creditors. According to the norms of civil law, by virtue of an obligation, one person (debtor) is obliged to perform a certain action in favor of another person (creditor), which may be the transfer of property, performance of work, payment of funds, and the creditor has the right to demand the fulfillment of this obligation. However, as participants in civil legal relations, the debtor and creditor have restrictions in exercising their civil rights. For this reason, if the debtor abuses his right to dispose of the property, which is expressed in the form of hiding this property from foreclosure, resulting in the insufficiency of this property to satisfy the creditor's claim, the legislator created a mechanism for restoring the violated right of the creditor. Based on the principles of fairness and effectiveness of the protection of violated civil rights, the creditor has the right to challenge such transactions of the debtor, committed intentionally to their detriment, and to foreclose on the relevant property. In the Russian system of law, the mechanism for challenging the debtor's transactions belongs to the institution of bankruptcy law. The norms of the Bankruptcy Law provide for the grounds and procedure for contesting the debtor's transactions by the arbitration manager at one stage or another of the bankruptcy procedure of a legal entity. As noted by S.A. Kuznetsov in his monograph "The main problems legal institution insolvency (bankruptcy)”, the goals of challenging the debtor’s transactions are directly dependent on the immediate goals of each stage of the bankruptcy procedure. Thus, during the monitoring procedure, actions to challenge the debtor's transactions are aimed, in accordance with the main purpose of the procedure, at ensuring the safety of the debtor's property. Therefore, on the basis of paragraph 1 of Article 66 of the Bankruptcy Law, the interim manager has the right to make demands for the recognition of transactions and decisions of the debtor as invalid. The purpose of the financial recovery procedure is to restore the solvency of the debtor and pay debts to creditors in accordance with established schedules. As a result, in order to achieve this goal, the debtor's transactions may be challenged on the grounds of paragraph 5 of Article 82 of the Bankruptcy Law. In the course of external administration and bankruptcy proceedings, the arbitration manager is also entitled to challenge the debtor's transactions if these transactions have signs of unequal counter execution (under Article 61.2 of the Bankruptcy Law) or signs of giving preference to one creditor over others (under Article 61.3 of the Bankruptcy Law). ), which were previously discussed in detail by us in chapter 1. The arbitration manager submits an application on his own initiative or by decision of the meeting of creditors (or the committee of creditors). In this case, the process of contesting transactions is initiated by the arbitration manager in order to increase the financial assets of the debtor and return the property alienated at a reduced price, which constitutes the bankruptcy estate, which will be used to satisfy the claims of creditors in the bankruptcy case. It should also be noted that in the framework of a bankruptcy case, not only civil law transactions are subject to challenge, but also other actions aimed at fulfilling the obligations and obligations of the debtor. In accordance with the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of December 23, 2010 No. 63 "On Certain Issues Related to the Application of Chapter III.1 of the Federal Law "On Insolvency (Bankruptcy)", among the debtor's actions that can be challenged in a bankruptcy case, there are the following: "-actions that are the fulfillment of civil obligations, or other actions aimed at the termination of obligations (a statement of set-off, an agreement on novation, provision of compensation, etc.); Bank operations, payment of wages, including bonuses; marriage contract, agreement on the division of the common property of the spouses; payment of taxes, fees and customs payments both by the payer himself and by debiting funds from the payer's account on behalf of the relevant state body; protection right creditor bankruptcy actions for the execution of a judicial act, including a ruling on the approval of a settlement agreement; transfer to the recoverer in enforcement proceedings of the proceeds from the sale of the debtor's property; reserving by the recoverer in enforcement proceedings of the property of the debtor or by the pledgee of the subject of pledge. It should be noted that challenging the debtor's transactions is the exclusive competence of the arbitration manager. In exceptional cases, the creditor has the right to independently make a statement challenging one or another transaction of the debtor. Such cases, in accordance with the provisions of the Bankruptcy Law, include the following. If the debtor, in the course of the financial rehabilitation procedure, without the consent of the meeting of creditors (or the committee of creditors) has made one or more related transactions that: associated with a change in the quantitative characteristics of the debtor's property (acquisition, alienation), the book value of which is more than five percent of the value of the debtor's assets during the period of the transaction; associated with the issuance of loans, consent to act as a guarantor or the issuance of guarantees, as well as the transfer of the debtor's property to trust management. If the debtor, in the course of the financial rehabilitation procedure, has made, without the consent of the administrator, one or more related transactions that: are the reason for the increase accounts payable more than five percent of the amount of creditors' claims that are included in the register of creditors' claims formed as of the date of the introduction of financial rehabilitation; associated with a change in the quantitative characteristics of the debtor's property (acquisition, alienation); associated with the issuance of loans, consent to act as a guarantor or giving guarantees. If the external manager in the course of the external administration procedure made a transaction that resulted in the emergence of new monetary obligations of the debtor, not provided for by the external administration plan, without the consent of the meeting of creditors. It should be noted that such legislative distinctions in the right to challenge the debtor's transactions damage the balance of interests of the persons involved in the bankruptcy case and prevent creditors from effectively protecting their property interests. So, having determined the circle of persons who have the right to apply to the arbitration court with an application to challenge the transactions of the debtor, it is worth moving on to the procedure for considering this application. The application review process is regulated by the provisions of Article 61.8 of the Bankruptcy Law. In accordance with paragraph 1 of this article, an application to challenge the debtor's transaction is filed with the same arbitration court that is in charge of the case on declaring the debtor bankrupt, and this application is subject to consideration within the framework of the said case as a separate dispute. Similar requirements are imposed on the application for challenging the debtor's transaction as for the statement of claim in arbitration proceedings. Creditors and other persons in respect of which the disputed transaction has been made or whose legitimate interests may be affected by a judicial act adopted as a result of consideration of the said application are vested with the rights of persons participating in the case in accordance with the rules of the Arbitration Procedure Code of the Russian Federation. A similar dispute about law in a bankruptcy case is considered in a simplified manner, therefore, the ruling of the arbitration court will become the resolving act following the consideration of an application to challenge the debtor's transaction. In accordance with paragraph 6 of Article 61.8 of the Bankruptcy Law, the court may make one of the following rulings: on the recognition of the debtor's transaction as invalid and (or) the application of the consequences of the invalidity of a void transaction; on refusal to satisfy the application for recognition of the transaction as invalid. This ruling may be appealed to a higher court within 10 days from the date of its issuance. Term limitation period on disputes related to the recognition of the debtor's transactions as invalid, is 1 year from the moment when the arbitration manager became aware or should have known about the existence of grounds for recognizing the debtor's transaction as invalid and applying to it the consequences of the nullity of the transaction. It is also logical, within the framework of considering the mechanism for contesting the debtor's transactions, to highlight the issue of what consequences arise as a result of a positive resolution of the issue and the recognition of the debtor's transaction as invalid. Within the meaning of the provisions of Article 61.6 of the Bankruptcy Law, which governs this issue of the consequences of contesting the debtor's transaction, if the debtor's transaction is recognized as invalid, the second party in respect of which the transaction was made is obliged to return the property received from the debtor under the invalid transaction to the bankruptcy estate. At the same time, this second party has the right to demand the return of property received under an invalid transaction from the debtor, which is satisfied in the manner and order established by the Bankruptcy Law. Summarizing the provisions we have considered, we can conclude that such a measure as contesting the debtor's transactions is the initial measure used to replenish the debtor's bankruptcy estate with the aim of subsequent fair and equivalent satisfaction of creditors' claims. 2. Subsidiary liability of persons controlling the debtor in bankruptcy cases and compensation for losses caused by illegal actions during bankruptcy
Referring to the meaning of paragraph 1 of Article 399 of the Civil Code of the Russian Federation, we can say that subsidiary liability is the obligation of a person to be liable to the creditor in addition to the liability of the principal debtor for this obligation. However, before presenting a claim to this person to incur subsidiary liability, the creditor must present it to the principal debtor. In accordance with the norms of civil law, the founder of a legal entity or the owner of its property is not liable for the obligations of a legal entity. However, the norms of special legislation, namely the Bankruptcy Law, recognize cases when the person controlling the debtor will bear subsidiary liability for property damage caused by the actions or omissions of this person to the rights of creditors. In Chapter 1, we considered situations in which it is possible to bring the person controlling the debtor to subsidiary liability. At the moment, we will consider the procedure for bringing to subsidiary liability in the framework of the bankruptcy case of a legal entity. It should be noted that it is possible to initiate the procedure for bringing to subsidiary liability in a bankruptcy case only at the stage of bankruptcy proceedings. The main proceedings in a bankruptcy case may not be terminated until a resolving ruling on a separate dispute on bringing a person to subsidiary liability has been issued on the merits. If, within the framework of the main proceedings of the bankruptcy case, the procedural actions were terminated, it is possible for the court to suspend the bankruptcy case until a ruling is issued on a separate dispute on its own initiative. Article 10 of the Bankruptcy Law defines the circle of persons entitled to file an application for bringing the controlling debtor to subsidiary liability. These include: 1.the bankruptcy trustee on his own initiative and by decision of the meeting of creditors (or the committee of creditors); 2.a bankruptcy creditor, if the debtor is declared insolvent due to the actions (or inactions) of the person controlling it, as well as in case of violation of the deadlines and obligation to file the debtor's application; .a representative of the debtor's employees, former employees of the debtor, if the debtor is declared insolvent due to the actions (or inactions) of the person controlling him, as well as in case of violation of the deadlines and obligation to file the debtor's application; .authorized bodies in similar cases. The Plenum of the Supreme Arbitration Court of the Russian Federation in its decision of 22.06.2012 No. 35 "On some procedural issues related to the consideration of bankruptcy cases" clarified the circle of persons who may be participants in a separate dispute on bringing to subsidiary liability. In accordance with the provisions of clauses 14 and 15, they may be a citizen-debtor, a bankruptcy trustee, a representative of a meeting (committee) of creditors, a representative of the owner of the debtor's property - unitary enterprise, a representative of the founders of the debtor, a person directly controlling the debtor. The application for bringing the controlling debtor of a person to subsidiary liability in form and content must comply with the requirements that are imposed by the arbitration procedural legislation on a statement of claim. This application must contain the full details of the parties involved, formulate requirements for the recovery of a specific amount of money against the defendant, based on the norms of bankruptcy law, and also provide a calculation of the amount of money to be recovered. In addition, the application must set out the circumstances on which the applicant's claims are based, and disclose the evidence supporting them. It must also be accompanied by evidence of sending a copy of the application to the parties, documents confirming the authority of representatives to sign the application, extracts from the Unified State Register legal entities or the Unified State Register of Individual Entrepreneurs in relation to the parties. Failure to comply with the requirements listed above entails negative procedural consequences, expressed in leaving the application without movement. Clause 4 of Article 10 of the Bankruptcy Law provides a detailed algorithm for determining the amount of subsidiary liability of the controlling debtor. The amount of liability should be determined based on the total amount of creditors' claims that are already in the register of creditors' claims, as well as declared after the closure of the register of creditors' claims and claims for current payments that were not satisfied due to insufficient property. Consideration should also be given to the possibility of reducing the amount of subsidiary liability if the defendant can provide evidence that the amount of damage caused to the rights of creditors through the fault of this person is less than the amount of the claims. As mentioned earlier, in litigation regarding the holding of subsidiary liability of persons controlling the debtor, the presumption of guilt of these persons is applied. The defendants have an obligation to prove that they are not guilty of declaring the debtor bankrupt. Such a redistribution of the burden of proof is intended to help protect the more vulnerable party - creditors, who may not be able to access certain material evidence in the form of internal, primary documentation of the debtor. An important aspect of the issue we are considering is also the determination of the limitation period for bringing to subsidiary liability in bankruptcy cases. According to the rules of Article 10 of the Bankruptcy Law, an application for bringing to responsibility may be made within one year from the moment when the applicant knew or should have known about the existing grounds for bringing the defendant to subsidiary liability. In this case, the application cannot be filed after the completion of the bankruptcy proceedings against the debtor. Based on the results of consideration of the application for bringing to subsidiary liability, the court issues a ruling either to satisfy the applicant's requirements or to refuse to satisfy these requirements. If the applicant's claims are satisfied, the funds recovered from the defendant will be directed to the bankruptcy estate for the subsequent fair satisfaction of creditors' claims in the order established by the Bankruptcy Law. It is also worth noting that if the debtor was declared bankrupt due to the fault of several persons, the liability between them will be shared jointly and severally. In practice, there are situations when the funds collected in order to bring the persons controlling the debtor to subsidiary liability are not enough to fully compensate for property damage caused to the rights of the debtor's creditors. In this case, it seems possible to apply such a civil liability measure as compensation for losses in accordance with Article 53 of the Civil Code of the Russian Federation. Losses are compensated in the amount and in the part not covered by the amount of subsidiary liability. In accordance with part 1 of article 53.1 of the Civil Code of the Russian Federation, "a person who, by virtue of a law, other legal act or constituent document of a legal entity, is authorized to act on its behalf (paragraph 3 of article 53), is obliged to compensate, at the request of the legal entity, its founders (participants) acting in the interests of a legal entity, losses caused through his fault to a legal entity.A person who, by virtue of a law, other legal act or constituent document of a legal entity, is authorized to act on its behalf, shall be liable if it is proved that in the exercise of his rights and in the performance of its duties, it acted in bad faith or unreasonably, including if its actions (inaction) did not correspond to the usual conditions of civil turnover or ordinary entrepreneurial risk. Thus, as a result of considering the mechanism for bringing the persons controlling the debtor to civil liability, we can conclude that at the legislative level this institution of liability has a fairly broad and detailed development. However, referring to the law enforcement practice of arbitration courts, certain problems can be identified. A widespread and topical problem is the situation of bringing to responsibility the so-called "nominee" heads of legal entities. As an example, the Resolution of the Arbitration Court of the North-Western District dated 06.11.2015 No. in case No. A56-33863 / 2015, where during the trial the arguments of the bankruptcy trustee were considered about the existence of a “nominee” director in the organization during the period when the debtor was declared bankrupt and attempts were made to bring to subsidiary liability the person who, in the opinion of the bankruptcy trustee, actually performed duties of the sole executive body. Based on the arguments of the court of cassation, we can draw the following conclusions about the possibilities of resolving cases with "nominal" leaders. If there are grounds to believe that the person indicated as the sole executive body in the Unified State Register of Legal Entities is the so-called "nominee" head, the court should take measures to clarify the circumstances, which person actually performed the duties of the head of the legal entity, acted in this capacity in relations with creditors, and also kept the constituent documentation and documents accounting and reporting, organized the activities of a legal entity. After that, the court is empowered to propose to the bankruptcy trustee to attract this person as a co-defendant in a separate dispute on an application for bringing to subsidiary liability. 3. Criminal and administrative liability in bankruptcy cases
In addition to civil liability for offenses committed during bankruptcy, Russian legislation also establishes criminal and administrative liability. The Criminal Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation distinguish several elements of such offenses: · illegal actions in case of bankruptcy (Article 195 of the Criminal Code of the Russian Federation, Article 14.13 of the Code of Administrative Offenses of the Russian Federation); · intentional bankruptcy (Article 196 of the Criminal Code of the Russian Federation, clause 2 of Article 14.12 of the Code of Administrative Offenses of the Russian Federation); · fictitious bankruptcy (Article 197 of the Criminal Code of the Russian Federation, clause 1 of Article 14.12 of the Code of Administrative Offenses of the Russian Federation). The criterion for delimiting liability for similar acts is the amount of material damage caused: criminal liability occurs if the amount of material damage caused exceeds 1,500,000 rubles. Since such elements of these acts are identical and differ only in the amount of damage caused, it seems appropriate to consider them together. It seems logical to first consider the responsibility for the acts preceding the initiated bankruptcy procedure. In accordance with the provisions of the Criminal Code of the Russian Federation and the Code administrative offenses In the Russian Federation, intentional bankruptcy is “actions (inaction) committed by the head or founder (participant) of a legal entity or a citizen, including an individual entrepreneur, knowingly entailing the inability of a legal entity or citizen, including an individual entrepreneur, to fully satisfy the requirements of creditors on monetary obligations to (or) fulfill the obligation to make mandatory payments. The object of this unlawful act is the procedure established by law for declaring a debtor insolvent, as well as the order in which creditors' claims are satisfied. The objective side of the crime is the actions of responsible persons, which initially had as their goal to lead to the inability of the legal entity to fully satisfy the requirements of creditors for the fulfillment of monetary obligations and the payment of mandatory payments. In addition, there is a causal relationship between these actions and the large damage caused to creditors. As previously described, the financial position of a legal entity directly depends on the actions or inaction of the head of the organization and other persons controlling it. The organization of the activities of a legal entity should be based on the principles of difference and good faith actions. Thus, the reasons for the deterioration financial condition the debtor is the commission of certain types of transactions that are obviously unprofitable for the organization, as well as the commission of management actions by the management bodies of the organization (for example, deliberate inaction to collect receivables). Decree of the Government of the Russian Federation of December 27, 2004 No. 855 "On the Approval of the Provisional Rules for Checking by an Arbitrator the Signs of a Fictitious and Deliberate Bankruptcy" provides a list of transactions that are instruments in the commission of such an illegal act as deliberate bankruptcy. These include transactions: "a) for the alienation of property; b) aimed at replacing or acquiring less liquid property; c) the purchase and sale of property, without which the main activity is impossible; d) associated with the emergence of obligations, not secured by property; e) on replacement of some obligations by others, concluded on deliberately unfavorable conditions. The performance of these actions becomes the reason for the creation and increase of accounts payable, which in turn entails the insolvency of the debtor. It becomes impossible to satisfy in full the requirements of creditors for monetary obligations and to pay mandatory payments. Identification of signs of intentional bankruptcy is carried out during the analysis economic activity debtor held by arbitration managers. The subjective side of the unlawful act we are considering is characterized by guilt in the form of direct intent. The responsible person is aware that, by committing acts that result in the insolvency of a legal entity, there arises the possibility or inevitability of causing significant damage to the material interests of creditors, and desires this. As noted in scientific literature, motives and goals of a wrongful act are not mandatory elements of a crime. It should be noted that the characteristic goals in the commission of the considered illegal act are: taking possession of the property of a bankrupt enterprise free of charge or at an insignificant cost; evasion of obligations to repay accounts payable, which becomes possible due to the insufficiency of the property of the liquidated debtor to repay the claims of creditors in the process of bankruptcy proceedings. The subject of the illegal act is special: the head or founder (participant) of a legal entity. The moment of termination of the act is considered the moment of causing major damage to creditors. As noted earlier, the criterion for distinguishing between criminal and administrative-legal liability is the amount of damage caused by an unlawful act. If this amount exceeds one million five hundred thousand rubles, it is defined as large. In the presence of this criterion, the guilty person is charged with criminal liability. In the literature, the issue of the need for an arbitration court decision on declaring a debtor insolvent (bankrupt) as a prejudice act for bringing to criminal liability under Art. 196 of the Criminal Code of the Russian Federation. It seems that the position of B.V. Volzhenkin, which consists in the fact that the inability of a legal entity to fully satisfy the requirements of creditors and (or) fulfill the obligation to make mandatory payments can be established in addition to the decision of the arbitration court. Fictitious bankruptcy is recognized as "a deliberately false public announcement by the head or founder (participant) of a legal entity about the insolvency of this legal entity about the insolvency of this legal entity." The object of the illegal act, as well as in the case of deliberate bankruptcy, is the procedure established by law for declaring the debtor bankrupt, as well as the order in which creditors' claims are satisfied. The objective side in the offense under consideration is a deliberately false public announcement by the head or founder (participant) of a legal entity about the insolvency of this legal entity. In addition, there must be a causal relationship between the aforementioned public declaration of insolvency and the large-scale damage caused to the material interests of creditors. Knowingly false public announcement of insolvency means publication in the media mass media notification of its own insolvency, as well as the filing of the debtor's insolvency application with the arbitration court, while in reality the debtor is solvent and has real opportunity satisfy creditors' claims or pay mandatory payments in full. Identification of signs of fictitious bankruptcy is also carried out in the course of an analysis of economic activity conducted by an arbitration manager, or in the course of another audit or examination. The subjective side of the wrongful act is characterized by guilt in the form of direct intent. The responsible person is aware that the reported information about the insolvency of the legal entity is not true, the debtor is solvent, and the person is able to foresee the possibility or inevitability of causing major damage to creditors and wishes to do so. Motives and goals are not mandatory features of the composition of the act. The main goals of the illegal act under consideration are the intention to suspend the foreclosure of the debtor's tangible assets, obtaining preferential terms (deferment, installment plan, discounts on payments) for making settlements with creditors. The subject of responsibility, similarly to the offense considered above, is special: the head or founder (participant) of a legal entity. The composition of the offense is material. The moment of termination of the illegal act is the actual infliction to creditors. Considering the issue of criminal and administrative liability in bankruptcy cases, one should also pay attention to illegal acts committed after the initiation of proceedings in an arbitration court in a bankruptcy case of a legal entity. Articles 195 of the Criminal Code of the Russian Federation and 14.13 of the Code of Administrative Offenses of the Russian Federation define a range of illegal actions in bankruptcy, among which there are three independent compositions. Based on the content of the above norms, illegal actions in bankruptcy are "concealment of property, property rights or property obligations, information about property, its size, location or other information, transfer of property into possession of other persons, alienation or destruction of property of a debtor - a legal entity as well as concealment, destruction, falsification of accounting and other accounting documents reflecting the economic activity of a legal entity, if these actions were committed in the presence of signs of bankruptcy. The second element of illegal actions in bankruptcy is "illegal satisfaction of the property claims of individual creditors at the expense of the property of the debtor - legal entity by the head of the legal entity or its founder (participant) knowingly to the detriment of other creditors." The third composition is unlawful obstruction of the activities of an arbitration manager or a managing organization, including that expressed in the form of inaction of the head or founders (participants) of a legal entity. The listed compositions are the same in characterizing such elements of the crime as the subject and object of the composition of the unlawful act, the subjective side. The object of unlawful actions in bankruptcy is the procedure established by law for declaring a debtor insolvent, as well as the order in which creditors' claims are satisfied. The subject of the considered illegal acts is special: the head of the organization - the debtor, the founder (participant) of the debtor. The subjective side of the acts is expressed in the direct intent of the responsible persons, which means the presence of intentions and the ability to foresee causing major damage to the rights of creditors by their actions. The establishment of the objective side is made individually for each case; the objective side is most often expressed in the commission of acts described in each part of the article, respectively. Based on the data we have reviewed, it is logical to conclude that, taking into account the possibility of causing major material damage to the rights of creditors by the actions of the persons controlling the debtor, as well as having a significant impact on the balance of public interests, the legislator classified these acts as socially dangerous and established for their commission criminal liability. In our opinion, the above constructions of the norms are exhaustive and adequately ensure the protection of private interests. Summarizing presented in this control work provisions, we can conclude that the institution of liability of the debtor and its controlling persons has its development in various branches of law. The norms of civil, administrative and criminal legislation provide due protection to the rights of creditors, provide mechanisms for their effective enforcement. However, there are problematic issues, the successful resolution of which depends, first of all, on the completeness of the interpretation of the rules of law by law enforcers and the improvement of legislative norms. Bibliographic list
Journal publications 1.Bakulin, A.F., Vopilovsky, Yu.A., Remezova, S.V. On bringing the persons controlling the debtor to subsidiary liability // M .: Center for Anti-Crisis Technologies LLC, 2013. No. 5 (66). S.26-30. 2.Zhukova, Yu.D. Responsibility of persons having the actual ability to determine the actions of a legal entity: an analysis of the legal possibilities laid down in article 53.1 of the Civil Code of the Russian Federation // Bulletin of Arbitration Practice. 2014. No. 5. P.15-24. 3.Mandryukov, A.V. Subsidiary responsibility of controlling persons in case of bankruptcy // Pharmacy: accounting and taxation. 2015. No. 1. pp.69-75 4.Misnikovich, L. Deliberate and fictitious bankruptcy // Practical accounting. 2014. No. 9. pp.68-71 5.Tarasyuk, I.M., Shevchenko, I.M. Subsidiary liability of persons controlling the debtor in a bankruptcy case for the absence of accounting and reporting documents, the presence of incomplete or distorted information in them // Arbitration disputes. 2015. No. 3. P.5-20. Arbitrage practice 6.Decision of the Arbitration Court of the North-Western District dated November 6, 2015 in case No. A56-33863 / 2015 // ATP "ConsultantPlus" 7.Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06/07/2012 No. 219/12 in case A21-10191/2005 // ATP "ConsultantPlus" .Resolution of the Presidium of the Supreme Arbitration Court dated November 6, 2012 No. #9127/12 // #"justify">9. Determination of the Arbitration Court of the Saratov Region dated July 18, 2014 in case No. А57-10209/2012 // #"justify">10. Resolution of the Arbitration Court of the East Siberian District dated June 25, 2015 No. F02-2629 / 2015 in case No. A58-6342 / 2014 // SPS "ConsultantPlus" .Resolution of the Thirteenth Arbitration Court of Appeal dated June 15, 2015 No. 13 AP-8973/2015 in case No. A21-1205/2013 // ATP "ConsultantPlus" One of the most pressing problems in the business environment, and especially in the banking sector, is the effective protection of the rights of creditors. On this account, the Civil Code of the Russian Federation provides for six ways to secure obligations: forfeit, deposit, retention of the debtor's property, pledge, bank guarantee and surety. A penalty is a sum of money stipulated by an agreement or law, which the debtor is obliged to pay to the creditor in case of non-performance or improper performance of obligations under the agreement (Article 330 of the Civil Code of the Russian Federation). This is the most typical view securing obligations, which is used in almost every contract. Usually the current penalty is set, i.e. a sanction for each day of delay in payment or delivery of goods, which should encourage the debtor to fulfill the obligations assumed. However, practice shows that the use of a penalty does not always lead to the desired result. A fairly large part of loan agreements, despite the presence of forfeit liability, including increased amounts, is not executed by debtors, thereby causing significant, sometimes irreparable damage to banks and other creditors. This is why loan agreements need to provide additional ways securing obligations. A deposit is recognized as a sum of money issued by one of the contracting parties on account of payments due under the agreement, as proof of the conclusion of the agreement and to ensure its execution (Article 380 of the Civil Code of the Russian Federation). The deposit is used mainly in relation to the sale or delivery of goods, having a firm conviction in the good faith and solvency of the seller (supplier), since, despite the fact that the party receiving the deposit. in case of non-fulfillment of the obligation, it is obliged to return the double amount of the deposit, it is often very difficult to obtain this double amount. As a countermeasure in relation to the party that received the deposit, in order to ensure the fulfillment of its obligations, a pledge of property should be used and preferably leaving the subject of the pledge with the pledgee. This will achieve a balance of interests - one side gives a deposit, and the other pledges property. It is this bilateral enforcement of obligations that must be used when making transactions for a large amount. Retention of the debtor's property as a way to secure obligations under the contract is new for the Russian civil law, although it was widely used in pre-revolutionary Russia. Any party under the contract has the right to retain a thing (property) if it has the right to demand payment for goods (works, services). To do this, the thing must actually be in the possession of the creditor. The volume of claims includes payments under the contract, actual damages and lost profits. Although this method is effective enough to secure the creditor's rights, due to its limited possible application and lack of practice of use applied little. In addition, the procedure for foreclosure on retained property is carried out in the manner prescribed for a pledge, therefore, for greater efficiency and reliability, a pledge of property in its classic version should be used. According to an obligation secured by a pledge, the creditor has the right, in the event of the debtor's failure to fulfill this obligation, to receive satisfaction of his claims from the value of the pledged property (Article 334 of the Civil Code of the Russian Federation). For a more solid guarantee of the sale of the subject of pledge, a pledge should be issued with the transfer of property to the pledgee (mortgage), providing in the contract for the creditor to independently, without going to court (if the debtor fails to fulfill its obligations under the contract on time), to realize the subject of pledge, withholding the amount due to him . This way of securing obligations will allow as soon as possible obtain satisfaction of their claims without resorting to lengthy court procedures. The same approach can be applied to the pledge of goods, securities, currency, precious metals and other things, the actual transfer of which is possible. All pledge agreements real estate(land plots, subsoil plots, residential and non-residential facilities, apartments, dachas, garages), as well as objects of movable property subject to state registration, must be registered with the relevant state body. By registering a pledge agreement corresponding to government agency issues a registration certificate stating: Such registration of pledge agreements will allow the creditor to be sure that the pledged property really exists, that its value is sufficient for the debtor to repay the debt, that it is not pledged to third parties. It is no secret that, in practice, loans are often issued on the security of unverified property, which either does not exist at all, or has already been pledged several times under various loan agreements, or its value is clearly overestimated compared to the real value, etc. The introduction of a unified registration system for pledge agreements guarantees both the availability of property and its real value, and warns of the possible existence of rights of third parties to this property, and also, since the registration certificate will be issued in a single copy (issuing a duplicate is expressly prohibited), serves as a preventive measure for possible abuse, in a word, creates a reliable system of guarantees for the implementation of the pledge rights of the creditor. A bank guarantee is a written obligation of a bank, other credit institution or insurance organization, issued to an applicant, to pay the creditor of this applicant the amount of money stipulated in the guarantee upon submission of a written claim of the creditor. The following can act as a guarantor: A bank guarantee is issued to an interested person (principal) at his request as a way to secure his obligations to the creditor (beneficiary). The scope of the guarantor's liability is limited to the amount specified in the guarantee. Although, if the guarantor did not fulfill his obligation to pay the appropriate amount in a timely manner, he is liable for his actions to the beneficiary on a general basis. The warranty is generally considered irrevocable. In order for it to be revocable, it is necessary to indicate this in the text of the guarantee. An important point of the guarantee is its validity period - it is set in the guarantee itself and is determined by agreement between the applicant and the guarantor. Bank guarantee - the most effective method obligations, since in this case there is no need to deal with the execution, evaluation, registration of a pledge agreement, to sell the pledged property, which is associated with additional costs of time and money. But its application requires a more scrupulous approach, the legal purity of this document. The practice of consideration of arbitration cases, where a guarantee is used as a security for the fulfillment of an obligation, shows that a number of mistakes are made when concluding such transactions: Therefore, when applying bank guarantees, one should clearly adhere to its form and content, only in this case the bank guarantee will reliably protect the interests of the creditor. A guarantee is an obligation of one person (guarantor) to the creditor of another person to be responsible for the fulfillment by the latter of the obligations assumed. It compares favorably with a bank guarantee in terms of form and content, since in this case there are no strict rules for their observance. There are no restrictions on the subject composition either - any person can act as a guarantor, the only criterion of which is solvency that no one doubts. However, due to the fact that the suretyship is an additional obligation, the suretyship agreement should indicate for which particular obligation the surety is guaranteeing and to what extent: whether it is joint and several liability or subsidiary, for which specific part of the losses the surety is liable: whether in full , whether only for the principal amount of the debt or for real damages. The liability of the guarantor may be limited by specifying in the contract a certain amount of the guarantee. It is advisable to indicate in the suretyship agreement and its validity period, although clause 4 of Art. 367 of the Civil Code of the Russian Federation provides for the scope of this agreement: the validity period cannot be less than the period for fulfilling the main obligation, and if the agreement does not indicate the duration of its validity, claims against the guarantor can be brought within one year from the date of the due date fulfillment of the obligation secured by it - this is the difference from the validity period of a bank guarantee, which does not depend on the fulfillment of the main obligation and is subject to unconditional termination upon the expiration of the period specified in it. Modern civil circulation, completely regardless of the forms in which it is implemented, inevitably faces a situation where the debtor (on purpose or for reasons beyond his control) is simply unable to fulfill the obligation, or performs it improperly. Thus, the creditor, one way or another, will have to protect their rights. At this stage, there are such difficulties as choosing from the whole variety of methods of protection exactly the one that would be objectively suitable for the current situation. Under the methods of protection of civil rights, first of all, it is customary to understand the legislatively provided substantive measures of a coercive nature, with the help of which violations of the right are stopped, prevented, eliminated, its restoration is carried out or losses caused by the violation of the right are compensated. An approximate list of these measures is contained in Art. 12 of the Civil Code of the Russian Federation. To begin with, we will consider the methods of protection of rights that are applied in the presence of the fault of the debtor. The essence of such an institution as compensation for losses is to protect the rights of market participants by restoring the property status that would have been in the event of proper performance by its participants of their duties. In addition, the very obligation to subsequently compensate for the losses that a person may cause contributes to the proper fulfillment of the obligations assumed by the subjects of civil legal relations. It follows from this that compensation for damages has the features of both liability measures and rights protection measures. Art. 395 of the Civil Code of the Russian Federation provides for the consequences of non-performance or improper performance (in the form of delay) of a monetary obligation. Thus, according to this article, for the use of other people's funds due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or saving at the expense of another person, interest on the amount of these funds is payable. Art. 395 of the Civil Code of the Russian Federation regulates relations exclusively in the field of monetary obligations. A deposit is recognized as a sum of money issued by one of the contracting parties (the depositor) on account of payments due from it under the contract to the other party (the depositee), as proof of the conclusion of the contract and as security for the fulfillment of obligations under this contract (clause 1, article 380 of the Civil Code of the Russian Federation). An agreement on a deposit, regardless of the amount of the deposit, must be made in writing. Now consider the methods of protection that apply regardless of the presence or absence of the debtor's fault. The claim for the award to the performance of an obligation in kind refers to a variety of civil legal means that ensure the actual performance of obligations. This claim is set out in Art. 12 of the Civil Code of the Russian Federation as one of the ways to protect rights and thus is a general and universal mechanism for protecting subjective rights. It is this claim that allows the creditor to realize his subjective right the requirement of certain actions from the debtor, and if it were not there, then the principle of real performance would be just an empty phrase, and the debtor could at any time replace the subject of the obligation with a monetary equivalent. One of the basic principles of civil law, ensuring the observance of the rights and legitimate interests of persons participating in obligations, is the principle of the immutability of obligations. Like any rule this principle provided for by Art. 310 of the Civil Code of the Russian Federation also provides for exceptions to the rule, giving the parties in some cases the right to unilaterally refuse to perform the contract. There are two cases in which this right can be exercised. Unilateral refusal is allowed in the scope entrepreneurial activity, if it is expressly provided by the contract and unless otherwise follows from the law or the essence of the contract. Most of the contracts by their legal nature are bilateral, i.e. when the obligation is placed on both parties. When implementing such agreements, quite often a situation arises when the counterparty does not fulfill its obligations or performs them improperly, but at the same time, the injured party is still not ready to immediately abandon this agreement, but tends to wait some more time for execution. In such cases, a creditor who has not yet performed his performance or has not fully performed it cannot be sure that the debtor will still perform his obligation, and the creditor's expectation will not be in vain. Thus, the creditor has a desire to suspend his performance in order not to aggravate his risks, and thereby compel the debtor to correct his improper performance as soon as possible. Summing up, I would like to especially note the ambiguity of trends in the field of protecting the rights of creditors. As practice shows, it is not uncommon for a court, considering a particular dispute, to take the side of the debtor, further infringing on the rights of the creditor. On the other hand, positive aspects can be traced in the activities of the Supreme Arbitration Court and the legislator, who gradually, reworking the practice of past years, create conditions that minimize the commission of these infringements. Due to the obvious ambiguity in solving this kind of problem, creditors can be advised only one thing - to consult a lawyer or lawyer who has the appropriate practice in resolving such issues. Using professional help, you will always be aware of what is happening, and will also be able to objectively assess your capabilities and prospects. The collapse of world markets has revealed the problems of many Russian companies, and the liquidity crisis, which contributed to the realization of systemic risk, has shown the importance of effective debt management, both accounts payable and receivable. A striking example of poor risk management is the bankruptcy case of a bank that was once among the top 20 largest banks in Russia. In Russian business practice, debt collection by creditors can be carried out: in a judicial or claim procedure, in the process of bankruptcy of the debtor and as part of the reorganization of the debtor company. court order By general rule, Russian legislation does not allow unilateral refusal to fulfill the obligation, and the debtor's delay can occur only in the absence of the creditor's delay. Failure to perform or improper performance of an obligation by the debtor may become the basis for judicial recovery of the debt by the creditor. According to the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), a creditor under a monetary obligation (for example, from a loan agreement or a credit agreement), in the event of improper performance or non-performance of an obligation by the debtor, has the right to sue statement of claim with the requirement to compensate for losses, payment of interest (in the amount of the refinancing rate) for the use of other people's funds. Moreover, if the creditor's losses are not covered by interest, then he may demand from the debtor compensation for losses in the part exceeding the interest. In general, Russian legislation contains enough rules that ensure the rights and interests of creditors - therefore, debt collection in the presence of assets or collateral should not, in theory, cause any particular difficulties. In our opinion, the main problem of creditors when collecting debts is the timing. So, for example, one should pay attention to the fact that in practice some bailiffs often “shelve” writ of execution on decisions that have entered into force. The actions of unscrupulous bailiffs must, of course, be appealed. In addition, in 2010, amendments were made to the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation), according to which the term for considering a case can be extended by the court from three months to six "due to the particular complexity of the case, with a significant number of participants arbitration process". In our opinion, such a rule allows the courts to delay the consideration of cases and, probably, even contradicts the right to trial within a reasonable time. Positive legal regulation of loan relations, which ensures the rights of creditors, obviously entails effective debt collection only if the debtor has assets or if the obligation is secured. Loan obligations in Russian practice are mainly secured by such methods as collateral (shares, real estate, etc.), surety (its security function is strongest if it establishes joint and several liability of the guarantor), bank guarantee. In 2008, novelties were included in the pledge legislation, which now allow the conclusion of agreements on extrajudicial foreclosure of pledged property, which greatly simplifies the collection of overdue debts by creditors. In our opinion, the expansion of the principle of freedom of contract in collateral relations meets the needs of business transactions. The current version of the Civil Code of the Russian Federation provides for the possibility of issuing guarantees only by banks, however, in world practice, independent guarantees can be issued not only by banks, but also by other organizations. In this regard, appropriate amendments should be made to the Civil Code of the Russian Federation, which would allow the issuance of guarantees also by other organizations, and not just banks. The judicial procedure for collecting debts, as, indeed, in the framework of the bankruptcy procedure, can be quite complicated in the event of a corporate conflict in the debtor company. In particular, the operation of two "parallel" registers of shareholders, and hence the executive body, may lead to practical problems of holding shareholders or members of the management bodies of the debtor company liable. Probably, the legislator should consider the possibility of establishing the right of creditors to demand early performance of the obligation in the event of corporate conflicts in the debtor company. Debt collection in the framework of the bankruptcy of the debtor For some reason, in Russia, judicial collection of debts under a loan agreement or credit agreement may not be effective, therefore, bankruptcy proceedings are often used for this purpose. In Russian conditions, the outcome of the bankruptcy procedure depends largely on who initiated, that is, filed an application with the court to declare the debtor bankrupt, since such a person has the opportunity to nominate a candidate for arbitration manager. Russian practice shows that without the appointment of a qualified and in most cases “loyal” arbitration manager, the creditor is unlikely to be able to effectively protect his rights and legitimate interests, since the arbitration manager has a fairly wide range of rights. So, for example, an arbitration manager has the right to file a claim on his own behalf with a court to invalidate transactions or decisions concluded or executed by the debtor in violation of the requirements of the law, to raise objections to the claims of creditors, to apply to the court for additional measures to ensure the safety of the debtor's property . In our opinion, Russian bankruptcy legislation should be improved, in particular, to eliminate the possibility of abuse of rights: for example, the procedure for voting at meetings of creditors and the committee of creditors established by law creates such opportunities (in fact, the law established the “principle of 1 ruble - 1 vote”). After all, despite the seemingly identical goal of all creditors in bankruptcy proceedings, it can be used by the debtor for "protective" purposes and initiated by a "friendly" creditor. As a result, cases are not ruled out when a meeting of creditors or a committee of creditors takes decisions to the detriment of the interests of all creditors. Such a situation may arise due to the "bloated" fictitious debt, which will allow a "friendly" creditor to intercept the majority of votes at the meeting of creditors and, accordingly, in the committee of creditors. Currently, a special law on cross-border bankruptcy is being developed and discussed in the Russian Federation, the adoption of which in the future should help ensure the interests of creditors (including foreign ones), when, in particular, debtors “scatter” them in different jurisdictions in order to hide assets. The bill largely correlates with the UNCITRAL Model Law on Cross-Border Insolvency. The effectiveness of the bankruptcy mechanism in debt collection is probably predetermined by the fact that the owner of the business may lose control over it and, accordingly, lose its assets. Debt collection during the reorganization of the debtor company It should be noted that when a bank's borrowing company joins or merges with another company, such takeover or merger carries significant risks for creditors, which may increase as a result of the reorganization, and assets may not necessarily increase. The legislation establishes the following guarantees of the rights of creditors during the reorganization of a legal entity (Article 60 of the Civil Code of the Russian Federation): 1) obligatory notification of creditors about the adopted decision on reorganization; 2) the right of the creditor to demand early performance of obligations by the reorganized legal entity-debtor - in the exercise of this right by all creditors, the risk of bankruptcy of the debtor may arise; 3) providing creditors with security for the fulfillment of obligations of the reorganized legal entity; 4) establishment of joint and several liability of newly created as a result of reorganization (continuing activity) legal entities for the obligations of the reorganized legal entity. In our opinion, the legislation should provide for the possibility of creditors, under certain conditions, to block decisions on reorganization until the fulfillment of obligations to them, given the fact that the current Russian legislation does not recognize irrevocable powers of attorney, with the help of which, probably, creditors could receive voting rights on general meeting shareholders. Thus, the current Russian legislation contains legal mechanisms effective debt collection by creditors, however, our experience suggests that the picture may change with the practical implementation of these mechanisms.Damages
Recovery of a penalty
Interest on borrowed money
Deposit
Award in kind
Cancellation of the contract
Suspension of performance
Debtor vs Lender