Bankruptcy (insolvency) of a legal entity: concept and characteristics, features, general characteristics, legal regulation. Law on Insolvency (Bankruptcy) of Legal Entities

The notion of insolvency (bankruptcy) of a legal entity is familiar to government employees, entrepreneurs, specialists, as well as students of economic and legal specialties. Someone who encounters this term studies tickets before the exam, someone writes course papers or a thesis. In a later and difficult period of life, this phenomenon occurs in courts, state bodies, entering various commissions or, at worst, being the owner of an insolvent enterprise. Then, in more detail, we will reveal the features of insolvency (bankruptcy) of legal entities.

Bankruptcy: a general concept

If we consider this term in a generally accepted form, then its meaning is insolvency. Such situations arise at a time when an enterprise or an individual can not settle accounts with banks, tax authorities, suppliers or other categories of creditors.

However, in the common parlance, sometimes a bankrupt is called an unemployed person who has run out of livelihood.

General characteristics of the insolvency (bankruptcy) of a legal entity and stereotypes of insolvency have much in common. Outside of economic and legal relations, when a person does not have money or is not enough to pay off his debts, as he said, he is called bankrupt. Normative-legal acts give more detailed information. About her - further.

Bankruptcy (insolvency) of a legal entity in terms of legislation

It is important to note that this phenomenon can not be described by any one normative legal act. In the Russian Federation, the Federal Law "On Insolvency (Bankruptcy)" of legal entities No. 127-FZ of 2002 is the main regulator on the part of legislation. In addition to the above-described act, the procedure and concept of bankruptcy are regulated by the Civil Code of the Russian Federation. After 127-FZ the Civil Code occupies an important position and central place. The latter also regulates the insolvency (bankruptcy) of legal entities and individuals.

In addition, other federal laws can be included in this list:

• Federal Law No. 40-FZ of February 25, 1999 "On Insolvency (Bankruptcy) of Credit Institutions" (as amended and supplemented).
• Federal Law of June 24, 1999 N 122-FZ "On the features of insolvency (bankruptcy) of subjects of natural monopolies of the fuel and energy complex."
• Decree of the Government of the Russian Federation of February 3, 2005 N 52 "On the regulatory body that monitors the activities of self-regulatory organizations of arbitration managers."

This includes many other FZ on insolvency (bankruptcy) of legal entities that are applied in accordance with a particular situation.

The above acts include such basic concepts as:

• debtor;
• creditor;
• Insolvency (bankruptcy) of legal entities;
• obligatory payments.

A debtor can be a natural person, an individual entrepreneur or a legal entity that is unable to repay the claims of its creditors for monetary obligations or mandatory payments during the period established by the insolvency (bankruptcy) law of individuals.

Lender - as a rule, it is a legal entity in respect of which the duty of the debtor for payment of a financial debt lies.

The bankruptcy (insolvency) of a legal entity is recognized by the arbitration court. It is understood as the lack of ability of the debtor to satisfy the creditor's claims with regard to monetary obligations.

Mandatory payments are taxes, duties, various fees and deductions, for example, to the Pension Fund or to the employee's medical insurance.

In general, the legal regulation of insolvency (bankruptcy) of a legal entity is a rather complex system. This interweaving set of norms of the law of a various level, and also positions and articles from the Civil code of the Russian Federation defining such phenomenon, as an inconsistency (bankruptcy) of legal bodies. It is almost impossible to explain it briefly.

From the point of view of office work

The concept and signs of insolvency (bankruptcy) of a legal entity include many elements. If we consider the procedure for identifying insolvency based on judicial law, then, as described above, the very fact of bankruptcy must be established by the arbitration court. The meaning of this is to settle the aggravated situation between the enterprise and creditors on legal grounds. The main objective is to efficiently distribute the assets of the enterprise and, if possible, satisfy the interests of both sides of the conflict, namely, enterprises and creditors.

The law on insolvency (bankruptcy) of legal entities states: an organization is considered insolvent, if the obligation to pay debts was not executed within three months from the date of delay.

In addition, the legislation provides an opportunity for organizations to improve the situation of their cases, but only under the supervision of the arbitration court, the banks themselves, as well as special commissions and managers, which will be described below.

Bankruptcy from the economic point of view

In general, the definition is similar to the legal one. The concept and signs of bankruptcy insolvency of a legal entity: in this case under insolvency is understood the need to undergo a procedure for the liquidation of an enterprise or its recovery. This is due to the fact that the borrowing organization is not in a position to satisfy the claims of creditors.

This situation arises when there are certain symptoms of bankruptcy, i.e., the reasons why an enterprise can not pay off its debts. This may include, for example, incorrect management of the company, when due to management actions or persons performing certain duties, the enterprise starts to incur losses and is gradually ruined. Another reason may be the external environment: a sharp fluctuation in demand for products or services, global economic factors such as currency rate jumps, and the entry of stronger competitors or their collusion into the market. Sometimes the political environment, for example sanctions, can influence. Also, technical factors can be attributed here - problems in the field of bank payments or equipment failure in the case of various financial enterprises may become critical.

Sometimes the reason for the insolvency can be targeted criminal activities of employees of the organization, for example, tax evasion or debt repayment, as well as the concealment or withdrawal of assets of the enterprise. However, such actions are strictly punishable in accordance with the Criminal Code of the Russian Federation.

Signs of insolvency (bankruptcy) of a legal entity

With rare exceptions, practically no enterprise can go bankrupt in a single moment. Before the organization goes into the insolvency stage, it will acquire a number of criteria, which together are called a pre-bankruptcy condition.

A formal indication is the inability for a long time to settle for its various obligations. In general, their appearance also means the initiation of proceedings.

When conducting an audit, the most effective way is a comprehensive examination of informal signs of bankruptcy. Often the control over such tendencies allows to save the enterprise not only from insolvency, but also from superfluous procedures connected with improvement of a financial situation. Informal signs can be divided into two conditional subspecies:

• Documentary - in one way or another related to financial reports, accounting and management accounting;
• Indirect - related directly to the management of the enterprise, the management model and the behavior of the responsible persons.

So, the documentary signs are those that are somehow reflected in the financial statements and in other documents of the enterprise. They are again manifested in the organization's long indebtedness to creditors, as well as in sudden changes in the balance sheet. For example, it can be the emergence of a large amount of free funds from the enterprise, a sharp increase or decrease in inventories, a delay in wages, a large receivable. In general, these are any unreasonable significant changes that affect the financial component of the organization.

Indirect signs of bankruptcy insolvency of a legal entity, as a rule, are the earliest. Insolvency of organizations begins with such tendencies. As mentioned above, this is primarily a change in the behavior of the company's management or some responsible persons. It is very important to pay attention to conflicts within the managers, as well as to various unreasonable innovations (attempts to speculate, inadequate price policy, etc.). If one of the owners of an enterprise sharply sells its share, this will also be an indirect sign of an unfavorable state of affairs. This includes a drastic change in long-term plans, the company's strategy, which can cause the outflow of customers and, as a result, the financial difficulties that will breed the entire chain, until liquidation.

Reorganization

This is a very important procedure for a debtor enterprise - in fact, a second wind that can save the organization's activities. It consists of two measures: external management and sanitation.

External management consists in the transfer of the debtor's property to a specially appointed arbitration administrator. The procedure is carried out by a court decision. If problems at the enterprise were associated with illiterate (and sometimes criminal) actions of the top management, then external management can lead the organization out of the crisis, especially to large firms that have a large number of assets or production capacities.

Sanitation is a measure, which consists in additional financing of a debtor enterprise. Sources of funds for assistance can be the state, the owner of the enterprise, and in some cases, creditors. Such measures are often applied to strategically important enterprises, for example, different plants or banks.

Elimination of

These procedures allow you to gradually wind up the activities of a bankrupt company. Conditionally, these measures can be divided into two subspecies:

• Voluntary liquidation (under the control of creditors);
• Compulsory (by court order).

In the first case, the organization turns off its activities by concluding a settlement agreement. As a rule, at the same time the creditor receives a part of the borrower's property or some other ways to settle the conflict. Such agreements can be signed at any time and at any stage of the bankruptcy litigation.

Forced liquidation implies a lengthy legal process, which by law will decide the dispute between the creditor and the borrower. In this case, various administrative levers will be used, the distribution of property between banks, moreover, sanctions may be imposed on the persons responsible.

Types of bankruptcy

As a rule, it is customary to classify various concepts in economics and law for convenience. Insolvency (bankruptcy) of legal entities is divided into different subspecies. The following are the most common:

• Real bankruptcy. It is characterized by the inability of the organization to pay off its obligations due to losses incurred and outflow of own and borrowed capital. Proceeding from this, the conduct of business in such an enterprise becomes impossible. Further, the arbitration court legally declares such firm insolvent.
• Temporary bankruptcy. It is often associated with large accounts receivable, in which a significant part of the product was not paid for, but at the same time remained liquid. This leads to the appearance of debts to creditors, as well as to the reflection of problems in the company's financial statements. Such situations are not uncommon, in such cases the arbitration court or creditors can give additional time for the fulfillment of obligations. A third-party manager or supervisor of the company's activities may also be appointed. A large percentage of such enterprises are restoring their activities.
• Intentional bankruptcy. Has the most serious consequences for the management of the enterprise. As a rule, it is used for the purpose of concealing assets, avoiding taxes, selling or separating property, theft and other illegal activities. Such processes usually turn into criminal cases against company executives, as well as million-dollar fines and prohibitions on holding certain positions for a long time.
• Fictitious bankruptcy (insolvency) of a legal entity. The scheme is similar to the previous one, but its purpose is to obtain the most favorable terms from creditors, for example, lowering interest rates on loans or deferring payment. Like the previous type of insolvency, in most cases it creates grave consequences for company executives, up to criminal cases and real prison terms.

Bankruptcy of individuals

In this case, a different procedure for considering insolvency is envisaged. Relations with authorities, courts, as well as creditors are regulated differently. Now the Federal Law No. 476-FZ (on the bankruptcy of individuals) is applied, which began to be used in 2015 on October 1. Proceeding from this normative legal act, any citizen of the Russian Federation can declare his insolvency under the following conditions: the debt is overdue by more than three months, there are documents that confirm the lack of ability to pay off debts (a copy of the labor one, a certificate of unemployment, etc. .), As well as the amount of debt that exceeds five hundred thousand rubles.

The very process of bankruptcy involves three stages. The first stage is an appeal to a judicial authority, and the application can be made not only by an individual, but also by his creditor. Further, the applicant's application is considered, and if it is satisfied, then the third stage will begin - directly the trial itself .

So, an individual was declared bankrupt. In this case, all debts, regulated in the law, or a certain part thereof, are written off. However, this will entail some negative consequences, for example, the debtor will not be able to hold senior positions for five years, and there will also be problems with obtaining loans.

Recommendations for legal entities

In the case of entrepreneurs, the most favorable option is not to fall into such situations when the risk to the financial condition of the organization is great. Complex measures to prevent bankruptcy can help. First of all, it is compliance with all laws, common sense, control over their employees and reporting, and, of course, audit.

There is quite a large number of consulting and audit firms, private specialists, accountants-outsourcers working remotely or coming at the right time. These specialists can not only help prevent the bankruptcy (failure) of a legal entity, but also improve the desired indicators and the quality of the work as a whole.

If the unfavorable situation has occurred, and the enterprise is in a state of bankruptcy, then it is better not to delay the process in search of any workarounds, but act voluntarily. Do not waste time and cheat creditors. This will only exacerbate the situation and may add additional problems, for example penalties and more serious sanctions, up to criminal punishment.

Also, if the company does not have a full-time lawyer, then it is necessary to involve a competent specialist, possibly, it will be able to reduce court costs, the time of the process, and will also save part of the company's property from sale.

For individuals

Here the situation is reversed: for a citizen to be declared bankrupt, he will have to defend this position steadfastly in court. Life situations are different, it is very important to maintain self-control and decency, this image will help to win the process.

The law on bankruptcy of individuals is relatively new, so additional litigation and problems are possible, one should turn to competent specialists in this field.

The most important thing is not to try to abuse this law, because if the attempt to deceive will open, then the chance to lose property, reputation and even your own freedom is very high.