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Plenum of the Supreme Court of the Russian Federation adopted a Resolution on the Bankruptcy of Citizens
News
11.01.2016

Plenum of the Supreme Court of the Russian Federation adopted a Resolution on the Bankruptcy of Citizens

Plenum of the Supreme Court of the Russian Federation adopted a Resolution on the Bankruptcy of Citizens

The Supreme Court of the Russian Federation adopted a resolution in which it clarified the issues of the bankruptcy of citizens according to the amended Federal Law No. 127-FZ of October 26, 2002 On Insolvency (Bankruptcy) (hereinafter the Bankruptcy Law), which came into legal force on October 1, 2015 (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 45 of October 13, 2015 On some issues related to the introduction of the procedures applied in the cases of insolvency (bankruptcy) of citizens).

Question 1: Will the claims that arose before October 1, 2015 be taken into account when initiating cases of the bankruptcy of citizens? (Paragraph 1).

Courts conclusion: Yes, they will. Although the new provisions on the bankruptcy of citizens came into legal force on October 1, 2015, when opening bankruptcy cases the creditors claims which have arisen before October 1, 2015 are also taken into account.

Question 2: Can the provisions on the bankruptcy of citizens be applicable to the individual entrepreneurs? (Paragraph 2).

Courts conclusion: Yes, they can, but taking into account the aspects established for individual entrepreneurs by the Bankruptcy Law. In this case it does not matter whether the obligations, the non-performance of which caused the opening of a bankruptcy case, are related to entrepreneurial activity or not.

Question 3: If a citizen is an entrepreneur, can the court open two cases of bankruptcy of a debtor being a citizen and an entrepreneur?
(Paragraph 2, Sub-paragraph 3).

Courts conclusion: No, the opening of two bankruptcy cases of this person at the same time is prohibited.

Question 4: Can the provisions on the bankruptcy of citizens be applicable to peasant (individual) farms? (Paragraph 3).

Courts conclusion: No, they cannot. The bankruptcy of peasant (individual) farms is carried out according to the general rules of the Bankruptcy Law with the features established by Paragraph 3 of Chapter X of the Bankruptcy Law (this paragraph deals with the peculiarities of bankruptcy of a peasant (individual) farm).

Question 5: Which courts (general jurisdiction courts or courts of arbitration) consider bankruptcy cases of citizens? (Paragraph 4).

  Courts conclusion: Bankruptcy cases of citizens are considered by courts of arbitration according to the rules of the Arbitration Procedural Code of the Russian Federation, with features that are provided for by a special act - the Bankruptcy Law.

Question 6: In which court of arbitration should one file an application for declaring a citizen bankrupt? (Paragraph 5)

Courts conclusion:
It shall be done if:
the amount of outstanding monetary obligations and (or) the obligation to make mandatory payments (both with the due date and with the undue) in the aggregate make up at least 500,000 roubles (it does not matter if they are related to entrepreneurial activity or not);
the satisfaction of the claim of one or several creditors will cause the failure to perform the obligations and (or) obligations to pay mandatory payments to other creditors.

Question 7: Who is entitled to file an application for declaring a citizen bankrupt? (Paragraph 6).

Courts conclusion: The debtor himself, a bankruptcy creditor (including the claims for the recovery of alimony for minor children) or authorised body.

Question 8: Does the applicant need to publish a notice of intent to file an application for declaring a citizen bankrupt before applying to the court? (Paragraph 7).

Courts conclusion: No, it is not required to pre-publish a notice when applying for declaring a citizen bankrupt.

Question 9: When does the court accept an application for declaring a citizen bankrupt from creditors and authorised bodies? (Paragraph 8).

Courts conclusion: If claims to the debtor in aggregate make up at least 500 000 roubles and they are undercharged during the three-month term after their due date.

Question 10: When shall a citizen file an application for declaring himself a bankrupt? (Paragraph 10).

Courts conclusion: It shall be done if:
the amount of outstanding monetary obligations and (or) the obligation to make mandatory payments (both with the due date and with the undue) in the aggregate make up at least 500,000 roubles (it does not matter if they are related to entrepreneurial activity or not);
the satisfaction of the claim of one or several creditors will cause the failure to perform the obligations and (or) obligations to pay mandatory payments to other creditors.

Question 11: Does the amount of outstanding obligations matter if a citizen exercises the right (and not fulfils the obligation) to file an application for declaring himself a bankrupt? (Paragraph 11).

Courts conclusion: No, it does not. When the debtor exercises the right to file an application for declaring himself a bankrupt, the court shall only take into account:
circumstances that provide an obvious evidence of the debtors not being capable of performing monetary obligations and (or) executing his/her/its duty to make mandatory payments when due.
the signs of insolvency and (or) insufficiency of the debtors property.

Question 12: What documents shall be attached to the application for declaring a citizen bankrupt and what happens if you do not? (Paragraph 12).

Courts conclusion: The documents are determined by Item 3 of Article 213.4 of the Bankruptcy Law. If you do not submit them, the court will take no further action on the application, and if you do not eliminate the violations, it will return it. Exceptions are the cases when the filing of an application is compulsory (Item 1 of Article 213.4 of the Bankruptcy Law). In such cases the court shall accept the application and the lacking documents shall be demanded when a bankruptcy case is prepared for court hearing.
If the application is filed by the creditor, the debtor is obliged to submit reply to an application with the attachments set out in Item 6 of Article 213.5 of the Bankruptcy Law. If the debtor does not submit them and provides inaccurate or incomplete information, the court may deny him the discharge of his obligations.

Question 13: When shall a copy of the court decision confirming the creditors claims be attached to the application? (Paragraph 13)

Courts conclusion: If the applicants requirement does not fall within those specified in Item 2 of Article 213.5 of the Bankruptcy Law. The list of the requirements is exhaustive.
If the claimed requirement is not in this Item and the applicant does not attach a copy of the court decision, the court will take no further action on the application.

Question 14: What citizens objections against the claims of creditors may be dismissed by the court? (Paragraph 14)

Courts conclusion: The ones made to enforce bankruptcy procedures artificially.
For example, the debtor acknowledges the debt and the period of delay but objects to the opening of a bankruptcy case.
Any (oral and written) debtors objections to the creditors claims in relation to the debt, its amount and the term of discharge of an obligation provide an evidence of the legal issue.

Question 15: May a creditor (debtor, authorised body) choose a financial manager? (Paragraph 16)

Courts conclusion: No, neither the creditor, nor the debtor, nor the authorised body may choose a financial manager.
However, they are obliged to indicate the name and address of the self-regulating organisation from among whose members the financial manager is to be confirmed in the application for declaring a citizen bankrupt.
If the application specifies a financial manager but there is no information about the self-regulating organisation, the court will take no further action on the application. If both the financial manager and the self-regulating organisation are indicated, the court will accept the application and request the contender for a financial manager from this self-regulating organisation.

Question 16: Can a citizen be declared insolvent if he has an income that allows him to pay off the debt in a short period of time? (Paragraph 17).

Courts conclusion: Yes, if it is established that the debtor:
has provided unreliable information or
performs actions aimed at concealment of assets or its illegal transfer to third parties.
These facts mean that the debtor evades the payment of debts.

Question 17: May a debtor get a grace period for depositing funds to a deposit of an arbitration court to pay remuneration to a financial manager? (Paragraph 19).

Courts conclusion: Yes, the court is entitled to grant a grace period at the request of the debtor. It is granted for up to the day of the court hearing dedicated to the grounds for the application for declaring a citizen bankrupt. If the debtor does not deposit the funds within the term specified, the court returns the application without consideration or terminate the proceedings in the bankruptcy case.

Question 18: May the creditors get a grace period for depositing funds to a deposit of an arbitration court to pay remuneration to a financial manager? (Paragraph 20).

Courts conclusion: No, unlike the debtor, the court will not grant a grace period to creditors. If the creditor does not deposit funds to pay remuneration, the court will take no further action on the application, and if the violations are not eliminated, it will return it.

Question 19: May a financial manager recruit other persons to support his activities? (Paragraph 21).

Courts conclusion: Yes, he may, but only on the basis of a ruling of the court. The court makes such a ruling at the request of the financial manager if:
a need for recruiting these persons is proved,
the price of their services is reasonable and
a debtor, a creditor or an authorized body have agreed to pay for these services (the financial manager may also give his consent to pay for the services in his own name).
If the debtor has agreed to pay for the services, he reimburses the payment expenses himself, and if other persons do, the debtor does not reimburse such expenses.

Question 20: Is the court entitled to terminate proceedings in the bankruptcy case if there are no funds available to meet legal expenses, including remuneration to a financial manager? (Paragraph 22).

Courts conclusion: Yes, it is, at any stage of the proceedings in the bankruptcy case of a citizen.

Question 21: Will the meeting of creditors consider the draft financial rehabilitation plan if the financial manager failed to send it within the 10-day term? (Paragraph 28).

Courts conclusion: Yes, it will. However, the draft plan must be received before the date of the meeting, taking into account the time required for interested persons to get familiarised with the plan and prepare objections and proposals for it.

Question 22: Can the court approve a financial rehabilitation plan if the debtor has not approved it? (Paragraph 30).

Courts conclusion: Yes, it can, but only in exceptional cases - if it is proved that the debtors disagreement with the plan is an abuse of the right. For example, the debtor has liquid property, consistently receives high salaries and at the same time insists on the early completion of his bankruptcy case and debt relief.
In other cases the court approves the financial rehabilitation plan only if it has been approved by the debtor. The reason is that the debtor acts as its direct participant and the plan is usually carried out by the debtor himself. In addition, only the debtor has the most complete information about his financial condition and its prospects.

Question 23: Will the court approve a financial rehabilitation plan approved by the creditors meeting, which is obviously not economically viable?
 (Paragraphs 31 and 34).

Courts conclusion: No, it will not. Besides, the court will not approve the plan:
that does not provide for the debtor and members of his family the means of subsistence in an amount not less than the minimum subsistence level;
if the rights and legitimate interests of minors are significantly violated at its implementation;
if at the end of the term for its implementation, the debtor will not be able to effect settlement with those creditors, the due date for payment to whom has not yet come (for example, he does not have a stable income and transfers all his property to creditors, the due date for payment to whom has come).

Question 24: What is the maximum duration of a citizens financial rehabilitation plan? (Paragraph 33).

Courts conclusion: Three years from the date of the courts approval of the plan. If the period is less than three years according to the terms of the plan, the court may extend it at the request of the debtor, taking into account the opinions of the creditors and the authorised body, but it still must not exceed three years.

Question 25: What happens if the debtor concludes transactions without the consent of the financial manager during the financial rehabilitation procedure?
(Paragraph 37).

Courts conclusion: The court may declare such transactions invalid upon the request of the financial manager, the bankruptcy creditor or the authorised body. (Item 1 of Article 173.1 of the Civil Code of the Russian Federation).

Question 26: What is more important for the court: the property interests of the creditor or the personal rights of the debtor? (Paragraph 39).

Courts conclusion: The court must ensure a fair balance between the property interests of the creditors and the personal rights of the debtor (including his rights to a decent life and personal dignity). There shall be a balance, in particular:
when deciding on access to the living quarters of the debtor, to his addresses and to the contents of e-mail and post;
when considering the debtors petition for receiving funds from the bankruptcy estate to pay for his personal needs.

Question 27: What happens if the debtor does not submit the documents to the court or the financial manager or provides unreliable information? (Paragraph 42).

Courts conclusion: The court may refuse to release the debtor from performance of obligations. In such a case, it takes into account whether:
the citizen has such documents and information at his disposal;
the citizen can receive or restore them.

Question 28: Can a debtor be discharged if he acted unlawfully at creation or fulfilment of the obligation that was the basis for stating a claim by the creditor? (Paragraph 45).

Courts conclusion: No, he cannot. This also concerns, the unlawful actions of the debtor, which are envisaged by Paragraph 4 of Item 4 of Article 213.28 of the Bankruptcy Law. The court shall determine such circumstances in proceedings on a case of bankruptcy of a debtor, as well as in other cases.

Question 29: Does the court, in the event of the death of a citizen, include in debtors estate the property of the heirs of the debtor which is not included in the inheritance property? (Paragraph 48).

Courts conclusion: No, it does not, as the heirs do not become debtors according to the Bankruptcy Law.
However, if the debtor has died, the court will involve in the case his heirs (testamentary executors, notaries) as interested persons on issues that concern the estate. The creditors of the heirs, obligations to whom have arisen on grounds unrelated to the inheritance, do not participate in the case of the bankruptcy of a citizen in the event of his death.

Consul & Rubicon, Law firm, LLC

Further information

If you would like further information on any aspect of the issues
described in this note please contact a person mentioned below

IMG_0051.JPG
Contact
Dmitry Zipunnikov
Partner, IBA member, INSOL Europe member 
T + 7 902 3627056
d_zipunnikov@mail.ru

This note is written as a general guide only. It should not be
relied upon as a substitute for specific legal advice.




About
Consul & Rubicon, Law firm LLC was founded by the attorneys at law & consultants  &  trustees in bankruptcy practicing in the field of insolvency & restructuring and liquidation of enterprises  in 30 May, 2006 (the main state registration number 1063435051107, taxpayer identification number 3435078350, code of tax registration's reason 343501001, location is Russian Federation, Volgograd oblast (former name Stalingrad), city Volzhsky, Lenin prospectus, Building 20, office 11 (Office Center "Staraya Ploshchad"), 404130). During 13 years the companie's specialization is liquidation and bankruptcy of enterprises. The contact person is Dmitry Zipunnikov, attorney at law since 2008 & trustee in bankruptcy since 2011. Please, feel free to phone +79023627056 or send e-mail konrub@bk.ru or WhatsApp calling  +7-902-362-70-56. Time zone of our location is Volgograd time  (UTC+4). 


Methods of liquidation
Method of liquidation Description (solution to the problem) Cost Period
Change of the registration address and  the founders & management of the enterprise This is a quick procedure: change of the founders/shareholders of the company is performed by way of selling the stock/shares to a new owner while the company keeps existing. The sales and purchase transaction must be notarized to confirm the legal capacity of the new owner. From the moment of the state registration of the changes to the constituent documents the former owners cease to bear any liability for the current activities of the company. cost
basis
145 000 rubles
35 days
Reorganization of the enterprise by way of consolidation or merger with another company The main advantage of this method is as follows: In the event of successful completion of the reorganization procedure the former enterprise shall be considered to have ceased its activities upon making the respective entry into the Uniform State Register of Legal Entities. All its liabilities shall be transferred to its legal successor, including outstanding ones and those that have not been identified at the time of the reorganization. cost
basis
415 000 rubles 
4 months
Involuntary bankruptcy of a debtor If a company already has indebtedness to the budget and/or other creditors and no possibility to redeem it, then the bankruptcy of the debtor is the only legal way to liquidate the company, write off its indebtedness and avoid the liability of its founders and managers. The only thing that the company needs to do is to find a liquidator and a receiver who will be loyal to the debtor from the members of the self-regulating organization of court-appointed professional receivers. cost
basis
350 000 rubles
12 months
Voluntary liquidation of an enterprise by the decision of its founders Generally, voluntary liquidation is acceptable for organizations with either limited activities or totally inactive. It is also suitable for organizations that are ready to undergo tax audit, i.e. that are sure that their accounting records are well-kept and none of their contractors were fly-by-night companies. cost
basis
60 000 rubles
4 months
Pros and cons of different methods of liquidation
Method of liquidation Pros Cons
Voluntary liquidation of an enterprise by the decision of its founders

cost basis

      60 000 rubles.

Date of performance
       4 months

  • Obtaining a certificate of official liquidation.
  • Ability to pre-decide the fate of the assets.
  • Legal "death" of the firm. Lack of succession to the obligations and debts.
  • If formal procedures are carried out correctly, the liquidation can not be regarded as invalid.
  • A lot of bureaucratic procedures
  • Considerable expenses: payment services of a lawyer, accountant, liquidator, the repayment of debts to the budget and creditors.
  • Long-term project: more than 4 months
  • Compulsory tax audit.
  • You must provide a certificate from the Pension Fund about the debts' absence.
Change of the founders and management of the enterprise

cost basis

145 000 rubles 

Date of performance 35 days

  • No tax audit.
  • Reasonable cost of services.
  • Short period of time: 20-30 days.
  • The signing of the act of reception - the transfer of documents.
  • Notarization of the transaction.
  • The company is removed from the tax records
  • The company is not excluded from the Uniform State Register of Legal Entities (USRLE).
  • The risks of vicarious liability.
  • The problem of finding a firm's buyer
    (although it is rather a problem of law firm).
Reorganization of the enterprise by way of consolidation or merger with another company

cost basis

415 000 rubles 

Date of performance
4 months

  • No tax audit.
  • The company is excluded from the Uniform State Register of Legal Entities (USRLE) as in official liquidation
  • Short period of time compared to the official liquidation: 3-4 months.
  • If formal procedures performed correctly, the reorganization can not be regarded as invalid.
  • The firm has a successor
  • It is necessary to place an ad about reorganization in the Bulletin of state registration and wait 2 months.
  • For reorganization in the form of merger it is necessary to get certificate of no debt from the Pension Fund for each of the participants in the reorganization.
Involuntary bankruptcy of a debtor
cost basis
350 000 rubles 

Date of performance
12 months

  • You will have the opportunity to appoint the bankruptcy commissioner and control the bankruptcy procedure
  • The ompany is immediately declared bankrupt and the stage of receivership is entered
  • The company's debt is officially extinguished
  • The company will be excluded from the Uniform State Register of Legal Entities (USRLE) by the decision of the Arbitration Court
  • The firm has no successors
  • Significant costs on the bankruptcy commissioner
  • Risks of vicarious liability for late filing of a bankruptcy petition.
Mandatory removal of inactive legal entities from the Uniform State Register of Legal Entities (USRLE) by the decision of tax authorities
cost basis
Free of charge

Date of performance
from 1 to 5 years

  • The company is excluded from the Uniform State Register of Legal Entities (USRLE).
  • The firm has no successors
  • If formal procedures performed correctly, the firm's deletion from the Uniform State Register of Legal Entities (USRLE) can not be regarded as invalid.
  • Free of charge
  • The decision about non-performing firm's deletion from the Uniform State Register of Legal Entities (USRLE) can be accepted only by the tax inspection: not the fact that such decision will be accepted
  • In order to create the possibility of firm's deletion from the Uniform State Register of Legal Entities (USRLE), firm should not work: this is confirmed by the lack of reporting and transactions on your checking account within one year

We hope that this table will help you to choose the right way of liquidation.

Call us or make an appointment to get free advice from our expert.

Postcode 404130 Russian Federation,
  Volgograd oblast, city Volzhsky  
  Lenin prospectus Building 20 V  office 11  
(Office Center "Staraya Ploshchad")
Call us: office phone +7 (8443) 41-28-81
mobile phone +7-902-362-70-56
Contact us: e-mail: konrub@bk.ru.   
Call us: WhatsApp: +79023627056

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