Legal encyclopedia. Letter H

INSOLVENCY

(Bankruptcy) - the inability of the debtor to fully satisfy the claims of creditors on monetary obligations and (or) fulfill the obligation to pay mandatory payments by the arbitration court.

The debtor is a citizen, including an individual entrepreneur, or a legal entity that is unable to satisfy the claims of creditors for monetary obligations and (or) fulfill the obligation to pay mandatory payments within the period established by this Federal Law.

Creditors are persons who, with respect to the debtor, have the right to claim money obligations and other obligations, to pay mandatory payments, to pay severance pay and to pay employees who work under an employment contract.

Pre-judicial rehabilitation - measures to restore the solvency of the debtor, taken by the owner of the property of the debtor-unitary enterprise, the founders (participants) of the debtor, creditors of the debtor and other persons in order to prevent bankruptcy.

A citizen is considered incapable of meeting the claims of creditors for monetary obligations and (or) fulfilling the obligation to pay mandatory payments if the relevant obligations or obligation are not fulfilled by him within 3 months from the date when they were due to be executed and if the amount of his liabilities exceeds the cost Owned property.

A legal entity is considered incapable of meeting the claims of creditors for monetary obligations and (or) fulfilling the obligation to pay mandatory payments if the relevant obligations or obligation are not fulfilled by them within 3 months from the date they were due to be executed.

The cases of bankruptcy are considered by the arbitration court. Unless otherwise provided by Federal Law No. 127-FZ "On Insolvency (Bankruptcy)" of October 26, 2002, a bankruptcy case may be initiated by an arbitration court, provided that the claims to the debtor-legal entity in the aggregate amount to not less than 100,000. Rubles, to the debtor-citizen - not less than 10 000 thousand rubles, and also there are signs of bankruptcy.

To initiate a bankruptcy case at the request of the bankruptcy creditor, as well as at the request of the authorized body for monetary obligations, the requirements confirmed by a court decision, an arbitration court, an arbitration court that have entered into legal force are taken into account.

The debtor, the competitive creditor, the authorized bodies in the order established by the Government of the Russian Federation have the right to appeal to the arbitration court with the application on recognition of the debtor bankrupt.

Partial execution of the requirements of the bankruptcy creditor or authorized body is not grounds for refusal by the arbitration court to accept the application for declaring the debtor bankrupt if the amount of unfulfilled claims is not less than the amount determined in accordance with the Federal Law on Insolvency (Bankruptcy).

The debtor has the right to submit to the arbitration court the application of the debtor in case of foreseeing bankruptcy in the presence of circumstances that clearly indicate that he is not able to fulfill the monetary obligations and (or) the obligation to pay mandatory payments within the prescribed period.

The head of the debtor or an individual entrepreneur is obliged to apply with the debtor's application to the arbitration court in case if:

1) the satisfaction of the claims of one creditor or several creditors leads to the impossibility of the debtor's performance of monetary obligations, the obligation to pay mandatory payments or other payments in full to other creditors;

2) the body of the debtor, authorized in accordance with the constituent documents of the debtor to take a decision on the liquidation of the debtor, decided to apply to the arbitration court with the application of the debtor;

3) the body authorized by the owner of the property of the debtor - unitary enterprise, decided to apply to the arbitration court with the application of the debtor;

4) the foreclosure of the debtor's property will significantly complicate or render impossible the economic activity of the debtor;

5) in other cases provided for by this Federal Law.

The debtor must apply to the arbitration court with the application of the debtor, if during the liquidation of the legal entity it is established that it is impossible to satisfy the creditors' claims in full. The debtor's application must be sent to the arbitration court not later than one month from the date of the occurrence of the relevant circumstances.

When examining a bankruptcy case of a debtor - a legal entity, the following bankruptcy procedures are applied:

1) observation;

2) financial recovery;

3) external management;

4) bankruptcy proceedings;

5) settlement agreement.

When examining a bankruptcy case of a debtor-citizen, the following bankruptcy procedures are applied:

1) bankruptcy proceedings;

2) settlement agreement;

3) other procedures for bankruptcy envisaged by the Federal Law "On Insolvency (Bankruptcy)".

In order to prevent bankruptcy of organizations, the founders (participants) of the debtor, the owner of the property of the debtor-unitary enterprise, before the time of submitting an application to the arbitration court to declare the debtor bankrupt take measures aimed at restoring the debtor's solvency. Measures aimed at restoring the debtor's solvency may be taken by creditors or other persons on the basis of an agreement with the debtor.

Cases of bankruptcy of legal entities and citizens, including individual entrepreneurs, are considered

Arbitration court according to the rules provided by the Arbitration Procedural Code of the Russian Federation, with the features established by the Federal Law "On Insolvency (Bankruptcy)."

Cases of bankruptcy of legal entities and citizens, including individual entrepreneurs, are considered by the arbitration court at the location of the debtor-legal person or at the place of residence of the citizen.

An application for declaring a debtor bankrupt is taken by the arbitration court if the claims to the debtor-legal entity in total amount to not less than 100,000 rubles, to the debtor-citizen-not less than 10,000 thousand rubles. And these requirements were not fulfilled within 3 months from the date when they were to be executed, unless otherwise provided by this Federal Law.

The application is submitted in writing. To the application of the authorized body on obligatory payments, a decision of the tax authority or the customs authority on recovery of the debt from the debtor's property must be enclosed. The judge of the arbitration court accepts an application for declaring the debtor bankrupt, filed in compliance with the requirements of the agrarian and industrial complex of the Russian Federation and the Federal Law "On Insolvency (Bankruptcy)." On the acceptance of an application for declaring a debtor bankrupt, the judge of the arbitral tribunal shall issue the ruling no later than 5 days from the date of receipt of the application to the arbitration court. The court session on the verification of the applicant's claims to the debtor is carried out not less than 15 days and not more than 30 days from the date of passing the decision on accepting the application for declaring the debtor bankrupt. A judge of an arbitration court refuses to accept an application for declaring a debtor bankrupt in the event of: violation of the conditions provided for in cl. 33 of the Federal Law "On Insolvency (Bankruptcy)"; Filing an application to declare the debtor bankrupt, in respect of which the arbitration court instituted a bankruptcy case and introduced one of the bankruptcy procedures; The grounds for refusing to accept the application provided for by the agrarian and industrial complex of the Russian Federation.

The application for declaring a debtor bankrupt, which does not meet the requirements,

Stipulated by Art. 37-41 of the Federal Law "On Insolvency (Bankruptcy)", and

The documents attached to it are returned by the arbitration court. On the return of an application for declaring a debtor bankrupt, the arbitral tribunal shall issue a ruling.

The bankruptcy case can not be referred to the arbitration court.

The persons participating in the bankruptcy case are:

1) the debtor;

2) the arbitration administrator;

3) competitive creditors;

4) authorized bodies; 5) federal executive authorities, as well as executive authorities of the subjects of the Russian Federation and local self-government bodies at the location of the debtor in cases stipulated by the Federal Law "On Insolvency (Bankruptcy);

6) the person who provided the security for the financial recovery.

In the arbitration process in the bankruptcy case involved:

1) representative of employees of the debtor;

2) representative of the owner of the debtor's property - unitary enterprise;

3) a representative of the debtor's founders (participants); A representative of the creditors 'meeting or a representative of the creditors' committee;

4) other persons in cases provided for by the Arbitration Procedural Code of the Russian Federation and the Federal Law "On Insolvency (Bankruptcy)."

The bankruptcy case must be considered in the arbitration court meeting within a period not exceeding 7 months from the date of receipt of the application for declaring the debtor bankrupt in the arbitration court.

Based on the results of the bankruptcy case, the arbitration court accepts one of the following judicial acts: 1) a decision to declare the debtor bankrupt and to open a bankruptcy proceeding;

2) the decision to refuse recognition of the debtor as a bankrupt;

3) the definition of the introduction of financial recovery;

4) the definition of the introduction of external management;

5) determination of the termination of proceedings in the bankruptcy case;

6) determination of leaving the application for declaring the debtor bankrupt without consideration;

7) the definition of the approval of the settlement agreement.

The above-mentioned judicial acts are subject to immediate execution, unless otherwise established by the Federal Law "On Insolvency (Bankruptcy)."

Adoption by the arbitration court of a decision to refuse recognition of the debtor as a bankrupt is the basis for the termination of all restrictions provided for by this Federal Law and are the consequences of accepting an application for declaring a debtor bankrupt and / or introducing supervision.

The arbitral tribunal terminates the bankruptcy proceedings in the following cases:

1) restoration of the debtor's solvency in the course of financial recovery;

2) restoration of the debtor's solvency in the course of external management;

3) conclusion of a settlement agreement;

4) the recognition in the course of observation of the applicant's claims, which served as the basis for initiating the bankruptcy case, unreasonable in the absence of declared and recognized in accordance with the procedure established by the Federal Law "On Insolvency (Bankruptcy)";

5) other relevant to the provisions of Art. 6 of the above Federal Law of creditors' claims;

6) the refusal of all creditors participating in the bankruptcy case to comply with the claimed requirements or the requirement to declare the debtor bankrupt;

7) satisfaction of all claims of creditors included in the register of creditors' claims during any bankruptcy procedure;

8) completion of bankruptcy proceedings;

9) in other cases provided for by the Federal Law.