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Law and Politics
Reference:
Osipov M.Y.
On the issue of improving the bankruptcy procedure of the liquidated debtor
// Law and Politics.
2023. ¹ 4.
P. 36-47.
DOI: 10.7256/2454-0706.2023.4.40646 EDN: WJEEIJ URL: https://en.nbpublish.com/library_read_article.php?id=40646
On the issue of improving the bankruptcy procedure of the liquidated debtor
DOI: 10.7256/2454-0706.2023.4.40646EDN: WJEEIJReceived: 27-04-2023Published: 04-05-2023Abstract: The subject of the research in this article is the legal regulation of the bankruptcy procedure of the liquidated debtor. The purpose of the study is to analyze the peculiarities of legal regulation of bankruptcy of legal entities from the point of view of general and specific patterns of legal regulation and requirements imposed on it, to identify problems in legal regulation that create conditions for illegal actions in the bankruptcy of legal entities, including the recognition of a fully solvent debtor as bankrupt. During the study, the analysis of the legal regulation of public relations in the field of insolvency (bankruptcy) was carried out by setting control questions concerning the degree of certainty of elements of these relations, as well as by determining the main types of risks arising in the regulation of these relations. During the study, it was found that the legal conditions for committing illegal actions in bankruptcy are, in particular, the availability of simplified bankruptcy procedures, in particular the bankruptcy of the liquidated debtor, which allows in some cases, in the presence of unfair actions on the part of the management of these legal entities and (or) persons affiliated with this management, to carry out illegal actions. A number of measures are proposed to improve the current legislation in the field of bankruptcy of a liquidated debtor, aimed at both protecting the interests of the debtor and protecting the interests of the creditor, including such as the introduction of mandatory monitoring procedures and mandatory inventory during this procedure. Keywords: bankruptcy, legal entities, illegal actions, simplified procedures, concealment, the legislation of the Russian Federation, accounts receivable, accounts payable, warning, business lawThis article is automatically translated. 1. IntroductionOne of the urgent problems facing Russian business law is the problem of preventing illegal actions in the bankruptcy of legal entities, including by improving legislative regulation. A lot of works have been written about this problem) [1] [2] [3] [4] [5] [6] [7] [8] [9] [10] However, the issues of considering the institutional conditions that allow one to commit certain illegal actions in the bankruptcy of legal entities in the domestic legal literature have not received adequate coverage, with the exception of the work of P.P. Langa), which states the possibility of abuse of the right during the insolvency (bankruptcy) procedure [11] but a detailed study of these actions and possible ways to prevent them is not proposed in this article. . Meanwhile, the issues of institutional causes of illegal and criminal behavior have been widely covered in foreign literature [12] [13] [14] [15] [16] [17] [18] [19] Meanwhile, illegal actions in the bankruptcy of legal entities are quite highly intelligent actions that require quite serious knowledge bankruptcy legislation, and which involve the use of defects in the current legislation regulating these public relations for the commission of relevant illegal actions. So in the process of bankruptcy of the liquidated debtor, there are situations when the liquidated debtor declares that he has no accounts receivable, whereas in reality it exists, moreover, sometimes it exceeds the amount of accounts payable. [20] [29]. Consequently, there is a need to prevent such actions, since under the contracts from which the creditors' claims for insolvency (bankruptcy) arise, the debtors did not pay off and these facts were hidden when the debtor filed an application for recognition as insolvent (bankrupt), the debtor's assets were withdrawn, followed by his unlawful bankruptcy. At the same time, it is clear that in this case, the interests of creditors, as well as the interests of students studying in this autonomous non-profit organization, as well as the interests of other persons who are or have been in certain legal relationships, including labor relations with this organization, may be harmed. Hence, the problem arises of the need to prevent such actions in the bankruptcy of legal entities. But in order to properly prevent such unlawful actions in the bankruptcy of legal entities, including such an act as illegal "concealment of assets", which leads to the unlawful bankruptcy of a legal entity" [21] it is necessary to analyze the features of legal regulation of bankruptcy of legal entities from the point of view of general and specific laws of legal regulation and the requirements imposed on it, to identify problems in legal regulation that create conditions for the commission of illegal actions in the bankruptcy of legal entities, including the recognition of a fully solvent debtor as bankrupt, which was the purpose of the study, the results of which are presented in this article. 2. Research methodologyThe subject of the research in this article is the regularities of the legal regulation of the insolvency/bankruptcy procedure of the liquidated debtor. As a research method, the analysis of the legislative regulation of public relations arising during the recognition of the liquidated debtor as bankrupt is used. In this case, the analysis of legislative regulation allows, firstly, to determine the criteria under which the debtor can be declared bankrupt, secondly, the range of evidence that allows the debtor to be declared bankrupt, thirdly, the procedure for the consideration of insolvency (bankruptcy) cases, fourth, the procedure for the bankruptcy of legal entities, fifth, to identify possible gaps and errors in legal regulation related to the recognition of the debtor as insolvent (bankrupt). 3. Research resultsAccording to paragraph 1 of Article 224 of the Federal Law on Insolvency (Bankruptcy), "in the event of a debtor's application for recognition as an insolvent bankrupt, the arbitration court recognizes him as an insolvent bankrupt and bankruptcy proceedings are opened. At the same time, supervision, financial rehabilitation and external management in the event of bankruptcy of the liquidated debtor are not applied" [22]. What are the risks and possible illegal actions that arise during the implementation of this kind of procedure. There are several of them. The absence of a monitoring procedure in the implementation of this kind of procedure, which allows in certain cases unscrupulous debtors to hide their assets necessary to repay claims to creditors [29]. It turns out that in case of bankruptcy of the liquidated debtor, it is quite possible that the unscrupulous founders of the legal entity decide to liquidate the legal entity, underestimate the assets of the liquidated legal entity, the legal entity is recognized as insolvent (bankrupt), bankruptcy proceedings are conducted, the debtor is recognized as liquidated, after which the assets of this legal entity are held by outsiders, while creditors suffer losses. The absence of a monitoring procedure during the bankruptcy of a liquidated debtor is also dangerous because, according to the bankruptcy law, monitoring is carried out at the stage of preparing the case for trial in an arbitration court. This is provided for by article 49 of the Federal Law on Insolvency (Bankruptcy [22] and Article 133 of the Arbitration Procedure Code of the Russian Federation [23]. In addition, during the monitoring procedure, the following risks can be identified, which form the so-called risk matrix. 1. The risk of unlawful recognition of the debtor as insolvent (bankrupt). 2. The risk of unlawful refusal to recognize the debtor as insolvent (bankrupt). 3. The risk of incorrect determination of the criteria for recognizing the debtor as insolvent (bankrupt) at the level of the legislator. 4. The risk of incorrect determination of the criteria for recognizing the debtor as insolvent (bankrupt) at the level of the law enforcement officer. 5. The risk of incorrect definition of public relations arising during the recognition of the debtor as insolvent (bankrupt). 6. The risk of incorrect determination of the range of subjects of public relations arising during the recognition of the debtor as insolvent (bankrupt) and their legal status. 7. The risk of incorrect definition of the range of objects of public relations and their legal regime. 8. The risk of incorrect determination of the subjective rights and obligations of participants in the objects of public relations arising during the implementation of the insolvency (bankruptcy) procedure. 9. The risk of incorrectly determining the measures of responsibility of participants in public relations arising during the implementation of the insolvency (bankruptcy) procedure for non-fulfillment of their legal obligations and violation of the subjective rights of others. 10. The risk of incorrect determination of the grounds for the emergence and termination of subjective rights and obligations of participants in objects of public relations arising during the implementation of the insolvency (bankruptcy) procedure. 11. The risk of incorrect determination of the grounds for the emergence and termination of bankruptcy proceedings in respect of a legal entity. 12. The risk of incorrect determination of methods and deadlines for the implementation of subjective rights and obligations of participants in objects of public relations arising during the implementation of the insolvency (bankruptcy) procedure. 13. The risk of incorrectly determining the range of evidence that should confirm that the debtor is indeed bankrupt. 14. The risk of providing false evidence that the debtor is indeed bankrupt. 15. The risk of legal consequences of providing false evidence that the debtor is really bankrupt. 16. The probability of receiving benefits from providing false evidence that the debtor is indeed bankrupt. 18. Risks arising as a result of differentiation in the bankruptcy procedure, including risks associated with ignoring the interests of the subjects of the insolvency (bankruptcy) procedure, as well as the interests of other interested parties. The specified risk matrix makes it possible to identify certain contradictions and gaps, as well as errors in the legal regulation of insolvency (bankruptcy), as well as to outline ways to eliminate them, as noted in the special literature [25] [26] [27] At the same time, the specifics of insolvency (bankruptcy) cases are such that as a subject of proof for such cases are the following circumstances that arise from the definition of insolvency (bankruptcy), enshrined in the legislation: [22] At the same time, if for one reason or another some of the debtor's assets are not included in the balance sheet with an incorrect interpretation of some business transactions, this may lead to erroneous recognition of a legal entity as insolvent (bankrupt), which may in some cases lead to infringement of the interests of creditors of this legal entity. Therefore, in order to correctly determine whether the person being liquidated is bankrupt or not, it is necessary to demand and analyze all accounting documents, especially primary scientific documents, which, according to Article 9 of the Federal Law on Accounting, "reflect the fact of economic life [28] Because for correct decision-making on bankruptcy of the liquidated debtor, it is necessary to analyze the primary accounting documents of the liquidated debtor, accounting registers of the liquidated debtor, as well as verification of the correctness of accounting statements by the debtor. The use of the risk matrix in the analysis of proposals for improvements in the legislative regulation of the insolvency (bankruptcy) of the liquidated debtor shows that the application of the monitoring procedure leads to a reduction in the following risks: 1. the risk of unlawful recognition of the debtor as insolvent (bankrupt); 2. the risk of incorrect determination of the criteria for recognizing the debtor as insolvent (bankrupt) at the level of the law enforcement officer; 3. the risk of providing false evidence that the debtor is really bankrupt 4. the risk of legal consequences of providing false evidence that the debtor is really bankrupt; 5. the risk of legal consequences of providing false evidence that the debtor is really bankrupt 6. the probability of receiving benefits from providing false evidence that the debtor is indeed bankrupt. These risks are reduced, since during the monitoring procedure carried out as part of the preparation of the case for trial, the necessary evidence can and should be collected to establish the existence of criteria and grounds for recognizing the liquidated debtor as bankrupt. In addition, the introduction of the institution of subsidiary liability of members of the liquidation commission (liquidator), and (or) the founder (s), as well as the owner of the property of a legal entity for the debts of a legal entity in case of non-fulfillment of their obligations, provided for in paragraph 1 of Article 224 of the Federal Law on Insolvency (Bankruptcy) will reduce the risks of dissatisfaction with the claims of creditors of the debtor in the event of it is unlawful to refuse to appeal to the arbitration court, which will, in our opinion, increase the protection of creditors' interests when recognizing the liquidated debtor as insolvent (bankrupt). Some authors believe that surveillance also poses a threat to the interests of creditors, due to the possibility of withdrawal of the debtor's assets [6] In our opinion, in the presence of a monitoring procedure, the risk of withdrawal of the debtor's assets is much lower than the risk of withdrawal of the debtor's assets in the absence of any procedure at all. Since nothing prevents the debtor from taking away the active long before the observation procedure. At the same time, during the inventory of the property of the liquidated debtor, it is proposed to establish a ban on making large transactions (transactions whose value exceeds 5% of the total property of the debtor) with property, as well as on making transactions aimed at gratuitous alienation debtor's property and other transactions, with the exception of reimbursable transactions involving their immediate execution, these risks can be minimized, since these transactions can be easily challenged in an arbitration court. Also, the proposed model of legal regulation of bankruptcy of a liquidated debtor will allow identifying groups of creditors whose interests should be protected as a priority [2] thanks to the inventory mechanism of the property of the liquidated debtor, and identifying the legitimate interests of creditors of various categories, as well as determining the sufficiency of the debtor's property. The mechanism proposed by some authors for declaring a debtor bankrupt without conducting a proper inventory of the debtor's property during the monitoring procedure [7], in our opinion, increases the risk of making an erroneous court decision and does not contribute to ensuring a balance of interests of the creditor and the debtor, and also will not allow identifying suspicious transactions and challenging them in a timely manner, as noted in the specialized literature [24][25][26][27]. Therefore, it is proposed to amend and supplement article 225 of the Federal Law on Insolvency (Bankruptcy) stating it in the following wording. 1. The commercial Court, after accepting the application for recognition of the liquidated debtor as bankrupt, introduces a definition on the introduction of a monitoring procedure, and also appoints a comprehensive inventory of the debtor's property and creditors' claims. In the course of conducting a comprehensive inventory, the liquidated debtor is prohibited from making transactions with property, as well as transactions aimed at the gratuitous alienation of the debtor's property and other transactions, with the exception of reimbursable transactions involving their immediate execution.2. The purpose of a comprehensive inventory of the debtor's property and creditors' claims is to determine the debtor's ability/inability to fully satisfy creditors' claims for monetary obligations, for payment of severance payments and (or) for remuneration of persons working or who worked under an employment contract, and (or) to fulfill the obligation to pay mandatory payments 3. Participants in the comprehensive inventory of the debtor's property are: representatives of the liquidation commission (liquidator) of the debtor temporary manager representatives of tax authorities representatives of the founder of the liquidated debtor 4. In the course of a comprehensive inventory, identification, analysis and comparison of primary accounting documents, accounting registers, and accounting statements are carried out in order to determine the reliable property status of the liquidated debtor 5. Based on the results of a comprehensive inventory, an act is drawn up, which is signed by all subjects of a comprehensive inventory and which must contain the following information: Date and place of drawing up the act List of participants in the complex inventory process The period of the complex inventory The list of primary accounting documents studied by the participants of the complex inventory The list of accounting registers studied by the participants of the complex inventory The list of accounting documents studied by the participants of the complex inventory The correctness of the reflection of information in the accounting registers of information about the business operations of the organization The correctness of the reflection of information in the accounting statements of information about the business operations of the organization The total value of the debtor's property according to accounting documents The total amount of debt according to accounting documents Conclusion on the ability or inability of the debtor to fully satisfy the creditors' claims for monetary obligations, on the payment of severance payments and (or) on the remuneration of persons working or who worked under an employment contract, and (or) to fulfill the obligation to pay mandatory payments." Signatures of the parties 5. If there are disagreements between the participants of the complex inventory, a protocol of disagreements is drawn up, which is transmitted to the arbitration court conducting the insolvency (bankruptcy) case. In this case, the arbitration court appoints a financial and economic examination to determine the financial situation of the debtor and his ability or inability of the debtor to fully satisfy the creditors' claims for monetary obligations, for the payment of severance payments and (or) for the remuneration of persons working or who worked under an employment contract, and (or) to fulfill the obligation to pay mandatory payments"6. Based on the results of a comprehensive inventory or financial and economic expertise, the arbitration court makes a decision to declare the liquidated debtor bankrupt and to open bankruptcy proceedings or to refuse to satisfy the stated claims. 7. The timing of the comprehensive inventory of the debtor's property and creditors' claims, as well as the timing of the financial and economic expertise shall be determined by the arbitration court and specified in the definition of the arbitration court on the appointment of a comprehensive inventory of the debtor's property and creditors' claims and (or) on the appointment of financial and economic expertise 8. In the ruling of the arbitration court on the appointment of a comprehensive inventory of the debtor's property and creditors' claims, it should be indicated: name of the court that issued the ruling date and place of the ruling
grounds for conducting a comprehensive inventory of the debtor's property and creditors' claimsthe composition of persons involved in conducting a comprehensive inventory of the debtor's property and creditors' claims terms of conducting a comprehensive inventory of the debtor's property and creditors' claims terms of submission of the act on conducting a comprehensive inventory of the debtor's property and creditors' claims 9. In the ruling of the arbitration court on the appointment of financial and economic expertise, the following are indicated date and place of the ruling grounds for conducting financial and economic expertise the name of the expert or expert institution that is authorized to conduct financial and economic expertise terms of financial and economic expertise terms of submission of the conclusion of financial and economic expertise 10. Persons who have provided false information, as well as those involved in concealing the debtor's property, are held liable in accordance with the current legislation. Article 224 of the Federal Law on Insolvency (Bankruptcy) is proposed to be supplemented with paragraph 4 of the following content
In case of non-fulfillment of the obligations provided for in paragraph 1 of this article, the members of the liquidation commission (liquidator) and (or) the founder(s), as well as the owner of the property of the legal entity, bear subsidiary liability for the obligations of the debtor. The specified liability ceases from the moment of applying to the arbitration court for recognition of the liquidated debtor as insolvent (bankrupt)Also, article 224 of the Federal Law on Insolvency (Bankruptcy) should be supplemented with paragraph 5 of the following content 5. If the circumstances provided for in paragraph 1 of this Article are discovered, the liquidation commission (liquidator), the owner of the debtor's property of a unitary enterprise, the founder (participant) of the debtor or the head of the debtor is obliged to apply to the arbitration court within 15 days, as they became aware of the occurrence of these circumstances.At the same time, the need to introduce a monitoring procedure with the establishment of certain restrictions, as mentioned above, and the inventory procedure, will allow the arbitration court to make the right decision on recognition/ refusal to recognize the debtor (insolvent) (bankrupt) and will prevent possible abuses, including the facts of illegal actions in bankruptcy, intentional bankruptcy and fictitious bankruptcy, as noted in the special literature [4] [5] [9] [10] References
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