О НЕКОТОРЫХ ПРАВОВЫХ ПРОБЛЕМАХ В СФЕРЕ НЕСОСТОЯТЕЛЬНОСТИ (БАНКРОТСТВА) В РОССИЙСКОЙ ФЕДЕРАЦИИ
Свечникова О.А.
Соискатель кафедры гражданского и трудового права, ФГБОУ ВПО «Российский экономический университет им. Г.В.Плеханова»
О НЕКОТОРЫХ ПРАВОВЫХ ПРОБЛЕМАХ В СФЕРЕ НЕСОСТОЯТЕЛЬНОСТИ (БАНКРОТСТВА) В РОССИЙСКОЙ ФЕДЕРАЦИИ
Аннотация
В данной статье проведен краткий анализ проблем правового регулирования несостоятельности (банкротства) в современном российском законодательстве. Автор рассматривает предложения по совершенствованию законодательного регулирования контроля над арбитражными управляющими и другие аспекты процедуры несостоятельности (банкротства).
Ключевые слова: несостоятельность (банкротство), арбитражный управляющий, саморегулируемая организация, должник, финансовая ответственность.
Svechnikova O.A.
Сompetitor of a scientific degree candidate of law science (Civil and labour law Department in the Plekhanov University of Economics)
ABOUT SOME LEGAL PROBLEMS IN THE SPHERE OF FAILURE (BANKRUPTCY) IN RUSSIAN FEDERATION
Abstract
In the current article, a brief analysis of disadvantages of regulations about failure (bankruptcy) in modern Russian legislation. The author is examining some suggestions to change the normatively legal regulation of a machine of controlling arbitral managers and some other aspects of a process of failure (bankruptcy).
Keywords: failure(bankruptcy), arbitral manager, self-regulating company, debtor, financial responsibility.
Vasiliy V. Vitryansky, the vice-chairman of the Russian High Arbitrage, the first-rate specialist in the area of legal regulation of bankruptcy, considers that Russian legislation of bankruptcy causes the situation when creditors cannot get their debts and debtors cannot restore their financial responsibility. In Russia, enterprises are often bankrupted in order to sell them cheap during bankruptcy proceedings, instead of rehabilitating them financially, as it is appropriate in countries that have developed market economy. “The Act of Bankruptcy” had organized business at the expense of debtors. This fact has no attitude neither to fair distribution of creditors’ property, nor to restoring of the debtors’ financial responsibility. [1]
Nowadays, capacity of a debtor is restored only in 20 cases of 30000 ones. Bankruptcy in most world countries is a procedure of reorganization, i.e. financial improvement of a company. But it means a death sentence in Russia. Also, it is necessary to take account of Russian statistics. According to its information, 30% of commercial enterprises bankrupted in 2011.
One of the reasons of current situation is an ambiguous status and functions of arbitral manager, i.e. the main figure in realization of bankruptcy procedures.
Arbitral manager acts often only in the interests of an affiliated company of creditors; actually they play a part of raiders. The procedure of assignment of an arbitral manager does not also promote his independency. A meeting of creditors assigns a self-regulating company. One of its members should become a manager, and a company nominates 3 candidates to an arbitrage. Both creditors and debtors have a right to nominate one candidate. As all large institutional creditors, banks for instance, have got several self-regulating companies of arbitral managers controlled by themselves, they actually assign the definite arbitral manager using the mechanism of “The Act of Bankruptcy”. The same managers often change their self-regulating companies in order to make a show of assigning of managers from different self-regulating companies.
An arbitral manager puts questions of impossibility of restoring the financial responsibility and conversion to bankruptcy proceedings on a meeting of creditors. Before this, he should visit a company or a debtor after an obligatory semiannual observation. Mainly, it looks like making a list of creditors.
The control of self-regulating company has a formal character at the same time. And in his turn, an arbitral manager is extensively exposed to a groundless discharge of his duty by creditors who have got a right to bring a proper action to an arbitrage.
It is necessary to mention that all system of controlling the action of arbitral managers is not regulated legislatively enough. The action of self-regulating companies should be controlled by National Association, and it also has to protect their members from invalid claims. But the law in force does not set a duty for all self-regulating companies to enter this association, and its authority to control the proper performing of all standards by members of National Association is described poorly in legislation. [2]
While characterizing the problem of responsibility in self-regulating companies, it is necessary to mark that the institute of disciplinary liability of a company is borrowed from the legislation of the USA. Besides, we should take common standards into account. For instance, our case let us use the civil penalty mentioned in Asset 123 of Russian Civil Code. According to this asset, a member of any association or union can be expelled due to the resolution of remaining ones in cases and in order set by constituent instruments of an association or a union. [3]
Russian Government made for some reason the Federal service of state registration, cadastre and cartography a service that should control self-regulating companies of arbitral managers. But according to functions and cadre of this service, it has no attitude to realizing bankruptcy procedures. On the other hand, the Ministry of Economic development and Federal Tax service are of interest of all creditors of compulsory payments. Federal service of state regulating, cadastre and cartography makes mainly a further control, according to documents introduced by a self-regulating company itself.
Thus, a legal status of an arbitral manager, who is a main figure while realizing bankruptcy procedures, gives no opportunity for him to act professionally and independently. An arbitral manager is at the turn of interests of different members of relations connected with bankruptcy. The number of key factors of influence is increasing, but he cannot protect his own legal position.
The only way out of current situation is making some changes in “The Act of Bankruptcy”. Our particular suggestion is to let an arbitrage, and not creditors, assign a self-regulating company whose member should become an arbitral manager. This problem has its reflection in legal literature because a number of lawyers consider that it is a debtor and creditors who should have a right to choose an arbitral manager. Creditors have to play the main part, and a debtor should have a right to challenge a candidate. [5]
While examining a creditors’ application to expel an arbitral manager, an arbitrage should also check essentially the reliability of their blames, because these blames are the main part of this application.
It is necessary to make some qualifying requirements to an arbitral manager by way of letting him work with debtor that has a definite cost of assets; for example, an arbitral manager will have to make several procedures of bankrupting companies without economical activity; or he should have a positive experience in a case of bankruptcy, i.e. the debtor company’s financial responsibility should have been restored.
We should make all self-regulating companies enter the National Association during the specified time and define concretely the duties of both associations of protecting the rights of self-regulating companies and controlling their action.
While forming a new structure of federal executive agency it is reasonable to pass functions of controlling the action of self-regulating companies of arbitral managers from Federal Reserve System to a main ministry or federal agency. Owing to big significance of an institute of bankruptcy in legal regulating of economics and planning law of natural people’s bankruptcy, it is worth returning to a positive experience of action of Federal service of financial improvement and bankruptcy, as it was called before.
It is also necessary to change the direction of bankruptcy procedures by increasing and legitimating the procedure of financial improvement in a number of cases. The financial improvement should be imposed on debtor’s demand without supervision. The period of financial improvement must be increased up to 2 years.
We suppose that it is reasonable to let an arbitrage impose the financial improvement basing on an application of a debtor or an arbitral manager even in case of negative opinion of creditors. But this way is possible only if the court considers that creditors will get more money after restoring the debtor’s financial responsibility than after selling his property because of bankruptcy. The priority in bankruptcy procedures should be given to saving of business, including changing the owner of debtor’s property.
At the same time, creditors should be exempted from their duty to confirm their demands to a debtor in the court before handing in an application of bankruptcy. Also, the law should contain standards that have to prevent debtors from outputting their assets before bankruptcy.
Thus, the problems of legal control of bankruptcy are necessary to be solved taking into account both theoretical interference and practical assessment of modern condition of realization of bankruptcy procedures. The regulations of legal status of an arbitral manager are on an important place among legal standards that have to be improved and supplemented.
References
- Vitryansky V. V. Neither to a creditor, nor to a debtor. / “New Bulletin”, February the 13th, 2012. P. 6.
- December the 1st, 2007. Federal Law of self-regulating companies. // Russian Legal Code, December the 3rd, 2007. № 49, Asset 6076.
- Russian Civil Code, November the 30th, 1994. № 51 of Federal Law, Part 1. // Russian Legal Code, December the 5th, 1994. № 32, Asset 3301.
- The Decree of Russian Government about the Federal service of state registration, cadastre and cartography, June the 1st, 2009. № 457. // Russian Legal Code, June the 22nd, 2009. № 25, Asset 3052.
- Popondopulo V. F. Bankruptcy. Legal control: a theoretical and practical manual. – Moscow: Prospekt, 2012. P. 95.