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Bankruptcy of legal entities: the main aspects of the procedure and changes in 2017

Bankruptcy of legal entities is enoughA complex process involving various procedures: observation, financial recovery, external management, bankruptcy proceedings. The bankruptcy of legal entities is regulated by 127-FZ "On Insolvency (Bankruptcy)" of 26.10.2002. The institution of bankruptcy of organizations began to develop actively in the last few years, as state control over the uncontrolled change of directors and founders of companies is tightened, reorganization of companies with debts by joining is limited.

Bankruptcy of legal entities - this is a legal procedure for the liquidation of a company with arrears. To apply for bankruptcy of a legal entity, several conditions must be met:

  • Debt to employees of a legal entity, budget and other creditors should be more than 300 thousand rubles.
  • The company should not be able to fulfill its obligations to creditors and the budget for more than 3 (three) months.

In this case, the managers of the enterprisethere is a duty to declare bankruptcy. According to Art. 9 127-FZ "On Insolvency (Bankruptcy)" the head of the company must file an application for bankruptcy with the Arbitration Court if:

  • payments to one creditor will lead to the impossibility of paying to other creditors or making obligatory payments to the budget;
  • the governing bodies of the debtor decided to liquidate the company;
  • recourse of recovery from other legal entities or individuals to the property of the debtor-legal entity may make it impossible for further normal economic activities;
  • the financial statements of the debtor contain signs of insolvency;
  • there is a debt of more than 3 monthspayment of severance pay, wages to employees of the organization, former employees of the organization, established in accordance with labor legislation.

Bankruptcy of legal entities

After filing a bankruptcy petition, the court mayaccept an application to declare the debtor bankrupt and enter the monitoring phase, appointing an interim manager. At this stage, the temporary (arbitration) administrator appointed by the court from the members of the self-regulating organization takes measures to secure and preserve the debtor's property, conducts an analysis of the financial state of the debtor organization, identifies the creditors of the debtor, maintains a register of creditors' claims, notifies them of the introduction of supervision , convokes and holds the first meeting of creditors (Article 67 127-FZ).

If the creditors meeting after the externalmanagement will decide on the need for financial recovery, the administrative manager will develop a program to restore the normal financial and economic activities of the organization.

During financial recovery, which canlast for several years, the external manager keeps a register of creditors 'claims, convokes meetings of creditors, examines reports on the progress of the repayment schedule and financial recovery plan, provides information on the fulfillment of the schedule for repayment of debts to the creditors' meeting. The purpose of the stage of financial recovery is the return of the financial stability of the enterprise, the repayment of existing debts to creditors, employees and the budget.

The stage of bankruptcy proceedings is a stage in whichwhich the arbitration manager already directly identifies and sells the property of the debtor, this procedure ends, as a rule, with the recognition of the debtor-legal person as a bankrupt.

It is at this stage that there is the mostissues related to the available opportunity to satisfy the requirements of all creditors. The bankruptcy or arbitration manager has a great responsibility for identifying the assets and other assets of the debtor, challenging transactions that could be concluded for the withdrawal of funds from the bankrupt company, timely evaluation and presentation of the debtor organization's property for bidding.

On the consequences that await the leaderenterprise-bankrupt, it is worth dwelling in more detail. At the end of the bankruptcy procedure, the former manager can not hold executive positions in organizations (enterprises) for five (5) subsequent years, such as the general director, the financial director. The former director may be assigned subsidiary responsibility for the debts of the company. Already from 2016, the law enforcement practice on bringing to subsidiary responsibility in cases of bankruptcy of legal entities has changed significantly. One of the most notorious cases was the involvement of ex-Senator Pugachev in the amount of 75.6 billion rubles to the subsidiary liability. The Supreme Court of the Russian Federation in 2016 approved the lower court decision in the case A40-119763 / 2010 http://kad.arbitr.ru/PdfDocument/54e6f4a7-81bf-4630-afbe-05547a0b9cce/A40-119763-2010_20160129_Opredelenie.pdf.

Since July 2017, the understanding of the institution of subsidiary liability in the framework of bankruptcy of companies has been greatly expanded.

If previously attracted to a subsidiaryresponsibility of directors and other managers of the company could only be in the bankruptcy, at the end of the procedure it was already impossible, the new law 488-FZ allowed to file applications for bringing to subsidiary responsibility and in cases where bankruptcy is completed, terminated for lack of funds to pay for expenses if the court returned an application for bankruptcy. Present creditors will be able to present claims to the former director within three years from the moment when the applicant learned or should have found out the existence of grounds, but no later than 3 (three) years after the bankruptcy of the legal entity.

Also, in fact, the law now specifies twogrounds for bringing to account the controlling persons of the debtor. One basis is subsidiary responsibility in the bankruptcy procedure. The second reason is compensation for damages under the rules of art. 15 of the Civil Code.

To collect losses now can not from the directoronly competitive creditors, employees and representatives of employees of a legal entity, but also the founders (owners) of a legal entity in the event that it is proved that the company's loss was caused by the guilty actions of the governing bodies.

To solve problems with debt collectioncreditors, the new version of the Bankruptcy Law has now clarified that when a bankruptcy procedure is introduced, if the guilt of the executives is established, but the amount of liability is not determined, the claimant may be sued by the lender for subsidiary liability, which will be considered by the same court upon completion of the procedure bankruptcy and determining the exact amount to be repaid by the debtor to this creditor.

Innovations 488-FZ fit into the big picturestrengthening personal responsibility of company executives. Since 2016, the tax authorities have been able to collect debts from affiliated persons.

It is also worth noting that the debts incurred by the company's executives involved in subsidiary liability will not be written off through the bankruptcy procedure of an individual.

Thus, the legislator tightensresponsibility of legal entities not only in liquidating a company, but also in conducting bankruptcy proceedings. It is extremely important to understand the leaders of legal entities that it is necessary to approach the procedure of bankruptcy of companies and liquidation of companies with debts responsibly, attracting specialists at all stages of work, in cooperation with the arbitration manager.

Center for Liquidation and Bankruptcy http://oscps.ru/</ noindex </ p>

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