Changes in the law on bankruptcy. The Law "On Insolvency (Bankruptcy)"

The legislation of the Russian Federation in the regulation of civil transactions often changes. This can be said, for example, about the sphere of debt legal relations. In particular, the law on financial insolvency - among the legal acts, which are often subject to adjustment. Which of the recent innovations of the legislator contained in this source deserve special attention?

Legislative nuances

Speaking about innovations related to bankruptcy law, it should be noted that in Russia there is only one legal act regulating the sphere of debt legal relations in the aspect of financial insolvency both with the participation of organizations and citizens. We are talking about Federal Law № 127 "On Insolvency (Bankruptcy)". It was adopted on October 26, 2002.

Regulation of bankruptcy of natural persons

For a long time, this legal act fully regulated debt legal relations only with the participation of organizations. Appeal to the provisions, which contained the law on insolvency, enterprises, but not physical persons. However, in 2014, provisions were added to this legal act, thanks to which citizens were able to declare their bankruptcy.

There is an entirely incorrect view that there is a separate law on the insolvency of individuals. This is not true. Bankruptcy as citizens and organizations is regulated by one legal act, noted by Federal Law No. 127. Recently it is also the law on the insolvency of credit institutions.

Regulation of bankruptcy of credit and financial organizations

The fact is that until December 2014 the bankruptcy procedure, in fact, the banks, was regulated by a separate legal act - Federal Law No. 40, adopted on 25.02.1999. Now the legislation on financial insolvency is thus combined in a common source. It does not matter how to interpret it - as a legal act regulating the bankruptcy of businesses, banks, or as a law on the insolvency of individuals - the text of the law will be the same in many of its provisions, despite the fact that the legal status of subjects of debt legal relations is different.

Specificity of innovations

The very fact that the provisions on the relevant procedure involving natural persons were included in the insolvency law can be viewed as a sensation: more than 10 years, thus, the legislator ignored the possibility of regulating the bankruptcy of citizens, but suddenly decided to reconsider their attitude to the relevant spheres of activity. Therefore, if we talk about some large-scale innovations introduced into legal practice through Federal Law No. 127, this is precisely the fact that a full-fledged law on the insolvency of individuals has appeared in Russia. The text of the relevant legal act was started with enthusiasm by ordinary citizens. In particular, those who managed to collect various loans and began to experience difficulties with their payment.

After the relevant legal act has acquired a full-fledged form, a law on insolvency of individuals, individual entrepreneurs, business companies appeared in the Russian Federation - new amendments to it are still introduced by the legislator. They concern the most different aspects of the sphere of debt legal relations. Our task is to consider the key.

The regulator is attentive to legal entities

It can be noted that recent adjustments are mainly related to communications with enterprises. The activities of natural persons have so far been regulated by previous regulations, which, however, are themselves very new. The last amendments to the bankruptcy law adopted on December 29, 2014 can be considered directly related to enterprises (although, with detailed consideration, some of them can be interpreted in relation to citizens). Therefore, in the article under the term "debtor" we mean, first of all, a legal entity. Those provisions, which will be discussed, are fully applicable to organizations.

Interaction of banks with arbitration

Changes in the law on bankruptcy have touched upon such aspect as interaction of creditors - in the status of bank organizations, with arbitration courts. In accordance with the innovations, financial institutions have the right to apply to these instances, even if they do not have a decision of the court of general jurisdiction to recover financial resources from the debtor. In this sense, credit institutions received a preemptive position in relation to the competencies of competitive entities, which in turn should have a corresponding judicial decision in their cases.

Minimum Instance

Prior to the relevant innovations, the creditors had to apply to the court in an order corresponding to the lawsuit. After that, they had to wait until an appropriate decision was made to recognize the borrower's debt and the need for his recovery. The next stage was connected with the expectation that the court decision would come into force. In addition, the debtor could appeal, which implied the creditor's participation in the new court sessions, and well, if successful for him. Now, a preliminary appeal to the court is not required. But it should be noted that this rule applies only to banks, that is, structures officially registered as a credit institution.

Sequence of actions of banks

It will be useful to consider the order of some actions, which, in accordance with legislative innovations, should be followed by the bank when initiating the bankruptcy of the debtor.

So, the credit organization, from the moment the corresponding amendments come into effect, namely, from July 1, 2015, 15 days before the appeal to the arbitration, to publish a notice concerning the intention to initiate the procedure for recognizing the debtor as insolvent. This document is sent to the Unified Federal Register of Information on the Activities of Legal Entities. It should be noted that before the amendments came into force, the deadline for filing a corresponding notice was up to 30 days, while the document should be sent to the debtor, as well as to the well-known bank to the creditors.

As a result of legislative innovations, a bank can initiate a bankruptcy procedure for a borrower without additional litigation. Moreover, he has the right to start the relevant work before the rest of the creditors, thereby, first having obtained the necessary documents concerning the activities of the debtor.

Choice of temporary manager canceled

Changes in the law on bankruptcy have touched upon such aspect, as procedure of appointment of the temporary manager. Prior to innovations, the debtor had the right to choose a person performing the relevant functions, based on his own preferences. After the changes in the law were approved, the temporary managers were appointed by random choice. True, the specific mechanism of such a draw has not yet been determined. In this regard, the interim manager will be appointed by the court until the necessary mechanisms are approved in the laws.

Prior to the innovations, the borrower could appoint a manager who was, in fact, accountable to the firm. The person holding this position could not prevent the debtor company from continuing its activities. Nor could it be ruled out that "his manager" would close his eyes to the real financial problems of the debtor company. It was possible that the creditors would not be included in the claims register, whose claims are undesirable for the borrower. Also, the manager appointed by the debtor company could help the firm commit various illegal actions, for example, concealing certain facts significant for the court and for creditors.

What is the procedure for ordering the debtor to change the law on bankruptcy? Before applying to the court, if the borrower is the initiator of the procedure for the recognition of financial insolvency, he must publish a notice regarding this activity in the Unified Register. After that, the arbitration manager is randomly appointed , but as we noted above, while this procedure is not regulated, and the choice of a person for the relevant position is within the competence of the court.

The minimum amount of debt

Changes in the law on insolvency also affected the criterion such as the minimum amount of debt, which entitles the parties to debt relations to initiate a bankruptcy procedure. In this case, we are talking only about debtors-organizations. Prior to the innovations, the corresponding value was 100 thousand rubles. (For natural monopolies - 500 thousand). After adjustments in the legislation, the figures increased: bankruptcy can be initiated if the company must not less than 300 thousand, and if it has the status of a natural monopoly, - from 1 million rubles. The law on the insolvency of individuals, which is noteworthy, is characterized by stricter conditions in the aspect of the minimum amount of debt: the bankruptcy of a citizen is possible only if he has borrowed and can not repay 500 thousand rubles. and more. The legislator has not yet made adjustments to this rule.

Rights of secured creditors

Changes in the law on bankruptcy gave rise to talk about the fact that secured creditors - those whose claims are secured by those or other assets owned by the debtor - received additional rights. Which ones? In particular, this is the right to vote at meetings where questions are raised about the choice of the manager, as well as when appealing to the court over the removal of a person in the relevant position, about the company's transition to external management. Prior to innovations, secured creditors could exercise their right to vote more often only at the observation stage.

Pledge creditors after the introduction of changes in the legislation have the right to fix the initial value of the subject of the pledge, as well as the order in which the auction should be held. If the opinion of the relevant subjects of debt legal relations does not find understanding with other participants of the bankruptcy procedure, then the court must intervene.

If at the enterprise that is considered insolvent, the assets are replaced, for example, when several business entities are created on the basis of the firm, the creditors are entitled to satisfy their requests at the expense of the joint-stock assets.

Creditors of the appropriate category have the right to retain the subject of pledge in the bidding process. To do this, they need to make a public offer if there are no applications for participation in this type of bidding. This, according to experts, can be interpreted as an additional mechanism that ensures protection of interests of secured creditors.

Statute of limitations

Among other noteworthy innovations that brought changes to the bankruptcy law, it is possible to single out a mechanism in which competitive creditors can claim that the limitation period for debts of other entities that have made claims to the borrower has expired. Previously, there was no such legislation.

Responsibility for timely notification of bankruptcy

Heads of firms in which there are financial difficulties that give rise to talk about the appearance of signs of bankruptcy, must notify the owners about it. If the director of the organization does not fulfill this obligation, then a fine of 25-50 thousand rubles may be imposed on him. It can also be noted that the liability for other improper actions of the company's management in the process of bankruptcy has been toughened.

Bankruptcy must be justified

Before the changes to the bankruptcy law were introduced, there were no grounds for ending the cases, the subject of which was bankruptcy. That is, for example, if the court discovered any abuse by the initiator of the bankruptcy procedure, there could be no legal consequences. The new version of the law says that applying to a court whose subject - initiating the process of recognizing a debtor as insolvent, should not be limited to formal justification. It is important that the borrower is insolvent in fact.

If, therefore, the court determines that the debtor or creditor who initiated the bankruptcy procedure knew that the relevant entity is fully solvent, that is, pursued the benefit, the proceedings can be legally suspended. Provided, of course, that by that time the borrower will not lose solvency. Such a rule allows courts to prevent collusion between debtors and creditors, which, due to certain circumstances, may be beneficial to them, but at the same time harm other interested persons.