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

Bankruptcy of legal entities is a rather complicated process, involving various procedures: surveillance, financial recovery, external management, bankruptcy proceedings. The bankruptcy of legal entities is regulated by 127-FZ "On Insolvency (Bankruptcy)" of 26.10.2002. The institute of bankruptcy of organizations began to develop actively the last several years, as the control by the state for uncontrolled change of directors and founders of companies is tightened, reorganization of companies with debts by joining is limited.

Bankruptcy of legal entities is a statutory procedure for liquidating 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 company have 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 further normal economic activity impossible;
• The financial statements of the debtor contain signs of insolvency;
• There is a debt of more than 3 three months for the payment of severance pay, wages to employees of the organization, former employees of the organization, established in accordance with labor legislation.

After filing a bankruptcy petition, a court can accept an application to declare a debtor bankrupt and enter a 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 about the introduction of supervision , Convene and hold the first meeting of creditors (Article 67 127-FZ).

If the meeting of creditors after the external administration enters a decision 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 the financial recovery, which can last for several years, the external manager keeps a register of creditors 'claims, convokes creditor meetings, examines the progress reports on the repayment schedule and the financial recovery plan, provides information on the fulfillment of the debt repayment schedule 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 the stage at which the arbitration manager directly identifies and sells the property of the debtor, this procedure ends, as a rule, with the recognition of the debtor-legal person as bankrupt.

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

On the consequences that await the head of the enterprise-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 CEO, CFO. The former director may be entrusted with subsidiary liability for the debts of the company. Already since 2016, the law enforcement practice on bringing to subsidiary liability in bankruptcy cases 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 directors and other managers of the company could be brought to subsidiary responsibility only in the framework of 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 because of a lack of funds to pay expenses if the court returned an application for bankruptcy. Present creditors will be able to submit 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 two grounds for bringing to justice the controlling persons of the debtor. One basis is subsidiary responsibility in the bankruptcy procedure. The second reason is compensation for losses under the rules of art. 15 of the Civil Code.

Not only competitive creditors, employees and representatives of employees of a legal entity, but also the founders (owners) of a legal entity can now recover damages if it is proved that the company's loss was caused by the guilty actions of the governing bodies.

In order to solve problems with debt collection by creditors, 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 for liability may be sued by the bankruptcy creditor By the same court upon completion of the bankruptcy procedure and determining the exact amount to be reimbursed by the debtor to this creditor.

Innovations 488-FZ fit into the overall picture of increasing 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 tightens the liability of legal entities not only in liquidating a company, but also in conducting bankruptcy proceedings. It is extremely important to understand the heads of legal entities that it is necessary to approach the procedure of bankruptcy of companies and liquidation of companies with debts responsibly, involving specialists at all stages of work, in cooperation with the arbitration manager.

Center for liquidation and bankruptcy http://oscps.ru/