Bankruptcy of legal entities: signs, stages, consequences

Bankruptcy of a joint-stock company is intended to legally (in accordance with legislative norms) stop the business activities of a joint-stock company in the event that for some reason it cannot fully make obligatory payments to the budget, pay debts to its creditors, or pay for wages or holidays. employee benefits. Let's consider the features of bankruptcy procedures in relation to joint-stock companies, the stages of such a procedure, the grounds for its initiation and the procedure for filing an application to the court to declare a joint-stock company insolvent.

Sources of legal regulation

The grounds and procedure for declaring the insolvency of joint-stock companies are subject, with the exception of a number of features, to the general requirements of the legislation on bankruptcy of legal entities. In this regard, the sources of legal regulation of this issue include the following regulatory legal acts:

• Art. 65 and a number of other norms of the Civil Code (hereinafter referred to as the Civil Code);
• Law “On Insolvency (Bankruptcy)” dated October 26, 2002 No. 127-FZ in terms of regulation of the general bankruptcy procedure (hereinafter referred to as Law 127-FZ);
• Law “On Joint-Stock Companies” dated December 26, 1995 No. 208-FZ (hereinafter referred to as Law 208-FZ), establishing a number of features regarding the recognition of a joint-stock company and its subsidiaries as insolvent;
• Code of Administrative Offenses in terms of establishing liability for violation of legislative requirements for the bankruptcy procedure (in case of failure to fulfill the obligation to file an application, fictitious bankruptcy, etc.);
• decisions of higher courts and other judicial practice in the field of bankruptcy of legal entities and joint-stock companies in particular.

Other legislative acts can also act as sources of regulation in certain cases (for example, the Civil Code only states that a public company cannot be declared bankrupt, but the concept is given by a separate law).

Reasons for bankruptcy

The bankruptcy of a closed joint-stock company can be recognized on a voluntary or compulsory basis. Each of the factors has its own reasons. Common prerequisites for voluntary bankruptcy are the following circumstances:

• the inability of a closed joint stock company to recoup the costs of conducting commercial activities (production, sales, development), which entails a loss (negative profit indicator);
• decision by shareholders to engage in other types of business due to the irrelevance of current activities in the current market conditions;
• the emergence of significant disagreements between the founders of the Company, leading to dissonance.

This type of bankruptcy means that the participants of the company independently decided to liquidate it. The problem of forced bankruptcy is much more serious, when outsiders and organizations are forced to intervene in the process. There may also be several reasons for this development of events:

• inability to pay creditors;
• malicious evasion of taxes and contributions to the state;
• fact of violation of labor legal relations with employees.

Information

This is a more serious set of reasons for the bankruptcy of a closed joint stock company. They are formed in situations where the owners of the company are not able to monitor its functioning and calculate the budget. The initiation of such procedures is carried out by government bodies - tax services, various funds and other governing bodies.

Reasons for starting the procedure

A joint stock company, like a legal entity of a different organizational and legal form, can be declared insolvent and subsequently liquidated only if the set of signs specified in Art. 3 and 4 of Law 127-FZ. These signs include the following:

• the joint-stock company is unable to pay employees wages or severance pay, debts to creditors, obligatory payments to the budget and extra-budgetary funds;
• the delay in fulfilling these monetary obligations is at least 3 months (the period must be continuous, i.e. the impossibility of payment must be present for the specified period without interruption);
• the delay is calculated from the date on which the monetary obligation should have been fulfilled (from the date of payment for the received goods established by the contract, the deadline for payment of wages due to the employee, etc.);
• the amount of unfulfilled obligations is taken into account on the date of filing the relevant application with the court;
• the debt that is important for identifying signs of insolvency includes all monetary obligations to creditors and employees, as well as mandatory payments (insurance and pension contributions, taxes);
• Monetary obligations include debt for goods, works and services received but not paid for, loans received and interest on them, unjust enrichment of the company, obligations to the founders and others specified in paragraph. 2 p. 2 art. 4 of Law 127-FZ.

The indicated signs for initiating the bankruptcy procedure of a legal entity in the form of a JSC must occur simultaneously. Only in aggregate can they indicate the financial insolvency of the enterprise.

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Stages of the JSC bankruptcy procedure

The bankruptcy procedure carried out in relation to the debtor, when it is impossible to apply measures to improve and restore the normal functioning of the joint-stock company and ending with the liquidation of the company, goes through several stages, among which are:

• submission to the court of an application by a competent person (executive body, creditor, tax service) to declare the joint-stock company insolvent if this company has the corresponding legally established characteristics;
• recognition of the application as justified and its satisfaction by the arbitration court;
• introduction of a monitoring procedure in relation to an insolvent JSC, upon the onset of which enforcement proceedings against this legal entity are suspended, and claims of creditors can be presented only in compliance with special rules; the amount of creditors' claims is established;
• carrying out financial rehabilitation, introduced by the court on the basis of a decision of a meeting of creditors, during which the debts of the enterprise are repaid and its financial position is normalized;
• external management, during which the previous management is removed from the management of the company and a new (external) management is appointed, whose actions are aimed at restoring the solvency of the joint-stock company;
• bankruptcy proceedings opened if it is impossible to normalize the financial condition of a joint-stock company, during which its assets are sold in order to satisfy the claims of creditors, pay off wage arrears, and mandatory payments.

Sequence of stages

The bankruptcy procedure does not necessarily require all of these stages. In accordance with paragraph 1 of Art. 75 of Law 127-FZ, after monitoring the JSC, the arbitration court may decide to introduce any of the subsequent stages. In addition, at each of these stages between the joint-stock company and its creditors (or other authorized persons who initiated the bankruptcy procedure) by virtue of clause 1 of Art. 150 of Law 127-FZ, a settlement agreement can be concluded.

Observation

Surveillance is the first procedure used in a bankruptcy case. It is carried out in order to preserve the debtor’s property.
During the procedure, an analysis of the financial condition of the enterprise is carried out, a register of creditors is compiled and the first meeting of creditors is held. According to the law, the period for conducting the monitoring procedure cannot exceed seven months from the date of acceptance of the bankruptcy petition

During the observation procedure, the enterprise can operate as usual. Moreover, arrests on his property are lifted, accounts are unblocked, and enforcement proceedings are suspended. Penalties and fines no longer accrue; bailiffs cannot interfere with the activities of the enterprise.

restrictions on the activities of the enterprise and its management bodies , but they are not significant:

It is prohibited to conduct transactions for more than 5% of the book value of assets without the consent of the arbitration manager. This refers to atypical transactions: figuratively speaking, you can sell your goods, but the equipment on which they are made cannot be sold.

It is prohibited to receive or issue loans without the consent of the arbitration manager.

The general meeting is prohibited from making decisions on the distribution of profits, the payment of dividends, and the payment of the actual value of a share upon the withdrawal of a participant.

The general meeting is prohibited from making decisions on liquidation and reorganization. But it has the right to change the charter, legal address and change the director.

The arbitration manager in the observation procedure is called a temporary manager . His candidacy is approved by the arbitration court.

As soon as the court introduces the monitoring procedure, the temporary manager makes a corresponding publication in the Kommersant newspaper and in the EFRSB. From the moment of publication, the 30-day period for submitting creditors' demands to participate in the first meeting begins to count. It is highly advisable for the creditor to be included in this list on time, otherwise he will have to wait for the transition to the further procedure.

The temporary manager gets access to all financial information of the debtor - he has the right to request and receive any documents and explanations from the debtor’s management, counterparties, banks, government agencies, etc. All these persons are obliged to provide him with information within 7 days without charging any fee.

Based on the information received, the temporary manager conducts a financial analysis of the debtor’s activities. Financial analysis is carried out for at least two (and usually three) years preceding bankruptcy. The purpose of this work is to provide a conclusion about the presence of signs of deliberate or fictitious bankruptcy, as well as the presence of dubious transactions. Together with the financial analysis, the arbitration manager prepares recommendations on the further development of the bankruptcy case.

At the end of the monitoring procedure, the arbitration manager convenes the first meeting of creditors. The agenda must include the following issues:

1. Report of the arbitration manager on the work done.

For the first meeting, the arbitration manager prepares a financial analysis, an analysis for the presence of signs of deliberate and fictitious bankruptcy, an analysis of transactions, and proposals for the further development of the bankruptcy case.

2. Selection of an arbitration manager for the next procedure. Additional requirements for the arbitration manager.

If the interim manager for some reason does not suit the creditors, they can vote for another candidate. They can also establish additional requirements for the arbitration manager beyond those established by law - work experience, education, etc.

3. Choice of bankruptcy procedure.

After the observation procedure, a decision can be made to switch to one of three procedures:

• financial recovery;
• external management;
• bankruptcy proceedings.

A decision may also be made to enter into a settlement agreement.
4. Involvement of an external registrar .

The registrar is the person who maintains the register of creditors. This may be an arbitration manager or an external specialized organization. The meeting of creditors decides whether to involve her or not.

5. Convening a committee of creditors.

If there are more than 50 creditors, then convening a committee is mandatory. In other cases it is a right, not an obligation.

The outcome of the bankruptcy case largely depends on the results of voting on these issues.

The results of the meeting are sent to the arbitration court, which makes the final decision on what procedure should be introduced next in the bankruptcy case.

If the enterprise does not have the assets to finance subsequent procedures, and the incumbents do not agree to bear these costs, the court, based on the results of observation, may terminate the bankruptcy proceedings. In this case, all restrictions imposed on the enterprise by the bankruptcy law are lifted, and the enterprise can continue to function.

Often, the creditor who initiated the bankruptcy case refuses further financing of the case after receiving information in the monitoring procedure. This is done in order to avoid financing the liquidation of the debtor in cases where recovery of funds is unlikely.

It is important to distinguish between “termination” and “dissolution” of a bankruptcy case. After termination, all restrictions are lifted and the enterprise continues to live. Upon completion, the company is liquidated, and debts outstanding in the bankruptcy procedure are considered discharged. In this case, the enterprise is excluded from the Unified State Register of Legal Entities.

Going to court

Initiation of a case of insolvency of a legal entity, in accordance with paragraph 1 of Art. 6 of Law 127-FZ, is carried out on the basis of an application from a person who has the right to submit such an application, or by an arbitration court at the location of the legal entity. The application form for declaring a joint stock company insolvent is posted by arbitration courts on their Internet resources.

In particular, in such a statement the interested person must indicate:

• name of the judicial authority;
• name and address of the applicant;
• name and postal details of the joint-stock company whose insolvency the applicant requests to recognize;
• an indication of the circumstances from which the JSC’s obligation arises, not satisfied for more than 3 months, which was the basis for sending the application;
• reference to the rules of law establishing the signs of bankruptcy;
• indication of the amount of debt and the period of delay in fulfilling the obligation;
• the operative part with the requirement to declare the JSC bankrupt;
• a list of documents attached to the application that serve as evidence in the case;
• date of document preparation, signature of an authorized person.

In addition, during one or another stage of the bankruptcy procedure, competent persons (meetings of creditors or others) will be required to submit petitions to the arbitration court to introduce the next stage of the procedure, justifying their claims.

Bankruptcy of a joint stock company (joint stock company): assistance from a lawyer in the regions of the Russian Federation

• Altai (republic) Gorno-Altaisk

Bankruptcy due to the fault of shareholders

Law 208-FZ (paragraph 2, paragraph 3, article 2) provides for such a concept as bankruptcy due to the fault of shareholders. By virtue of this norm, guilty actions of shareholders (or other persons who have the authority to make decisions binding on the company) should be understood as actions committed by these persons with the knowledge that they would result in bankruptcy.

The peculiarities of bankruptcy in this case are determined by paragraph. 1 clause 3 art. 2 of Law 208-FZ. By virtue of this provision, when establishing the guilty actions of shareholders or other persons that resulted in the insolvency of the company, such persons bear subsidiary (i.e., additional) liability. This means that if the company's funds are insufficient to satisfy all financial requirements, such persons are obliged to satisfy these requirements from their own funds.

Shares and shareholders after the bankruptcy of the JSC

According to the legislative provisions of Federal Law No. 208, the liquidation of a closed joint stock company implies the complete cessation of the company's activities. At the same time, the legal powers and obligations of the participants cannot be transferred to other persons. This means that the CJSC's securities lose their economic value. So the bankruptcy process is accompanied by significant losses for shareholders. In legal practice, there have been many cases when, after all the calculations were made, part of the property remained unsold. This usually occurs in the case of voluntary initiation of the procedure. In such situations, the undistributed balance acts as a means of financing expenses. It is important to follow a certain sequence:

• the first share goes to shareholders who have the right to redeem shares;
• after that, shareholders - owners of preferred securities - can count on payment of the debt amount;
• the interests of holders of ordinary shares are taken into account.

Bankruptcy of a subsidiary due to the fault of the principal

By analogy with the guilty actions of shareholders that led to the bankruptcy of a joint-stock company, para. 3 p. 3 art. 6 of Law 208-FZ establishes the concept of guilty actions of the main company, as a result of which the insolvency of the subsidiary company occurred. Such actions must also have an indication that the parent company knew in advance that its mandatory instructions would lead to bankruptcy of the subsidiary.

Such an action is the only exception allowing the parent company to bear responsibility for the obligations of the subsidiary. In this case, it bears subsidiary liability for those obligations that the subsidiary could not satisfy at the expense of its own assets. Moreover, para. 4 of this norm specifically indicates the right of shareholders to claim compensation for losses that were caused to a subsidiary as a result of mandatory instructions from the parent company.

How can the tax authorities bankrupt an OJSC?

The tax inspectorate has the right to undertake a procedure for declaring the insolvency of an OJSC. This procedure, initiated by the tax authority, can begin when the amount of tax debts is at least 100 thousand rubles.

Sometimes the tax service makes peace with the OJSC and grants a one-year deferment for the payment of arrears on various payments. This is beneficial to the state, so this practice is quite widespread. But, in the case where the issue of bankruptcy is final, a decision is made without the participation of the court.

The legislation of the Russian Federation provides for an advantage in protecting the interests of the state. The tax service can independently decide to collect the debt. Other creditors can act in such matters only by court decision.

Not every creditor can file an application for insolvency of an OJSC. According to the legislation of the Russian Federation, an application can only be sent by a bankruptcy creditor (a creditor for monetary obligations only). Other, non-monetary obligations may not qualify for a claim until the debt has been converted into cash.

The main privilege of a bankruptcy creditor is its right to choose the bankruptcy procedure itself. According to the bankruptcy law, in order to comply with their rights, creditors can unite to file an application in the event that their amounts do not exceed the required 100 thousand rubles.

Features of fictitious and deliberate bankruptcy of an OJSC and what liability is faced for this and to whom

Bankruptcy helps to escape from debts, but if it is proven fictitious, it becomes a reason for criminal punishment of the top persons of the JSC. Fictitiousness can manifest itself in the following:

• the managers of the enterprise carried out fictitious actions aimed at increasing the profitability of the enterprise and paying off debts;
• deliberate actions before bankruptcy, as a result of which an enterprise or organization is brought to a state of insolvency;
• deliberate theft of the property of an OJSC before recognition of insolvency;
• the direction of actions of the enterprise management in the interests of some persons interested in bankruptcy.

Fictitious bankruptcy is considered to be one that took place when the enterprise had financial reserves and was able to pay its debts. It can be difficult to prove this, since primary documents may be distorted.

With the help of these papers, credit debt is increased. If intentional actions to distort the present financial condition of the enterprise are proven, then the managers of the OJSC will repay the debt from personal reserves.

Results

In conclusion, here are the final points:

• regulation of the bankruptcy procedure of a joint-stock company is carried out by general rules on insolvency, taking into account the specifics established by the law “On Joint-Stock Companies”;
• the insolvency procedure of a joint-stock company can be started only if all the signs of bankruptcy established by law are present;
• a decision to declare a JSC insolvent can be made by an arbitration court on the basis of an application from a person who, by force of law, has the right to submit such an application (the executive body of the company, the creditor, the tax service);
• the bankruptcy procedure is implemented in several stages, and not every stage provided for by law is mandatory;
• the procedure can be completed on the basis of a settlement agreement at any stage of its implementation;
• in the event of culpable actions of shareholders or the main company that resulted in the insolvency of the joint-stock company or subsidiary company, respectively, the guilty persons (including the main company) bear additional responsibility and are obliged at their own expense to satisfy the claims of creditors that were not satisfied from the assets of the company as a result of bankruptcy.

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Bankruptcy proceedings

Bankruptcy proceedings are the only procedure provided for by law aimed at liquidating a debtor enterprise.
However, in many bankruptcy cases this procedure is the most important. Bankruptcy proceedings are introduced for a period of 6 months. Can be renewed an unlimited number of times.

There are known bankruptcies in which bankruptcy proceedings last more than 5 years.

The purpose of bankruptcy proceedings is to adequately satisfy the claims of creditors. Debts not repaid during bankruptcy proceedings are considered repaid after its completion.

You can switch to bankruptcy proceedings directly after observation, or after financial recovery or external management, if these recovery procedures do not produce results.

It is after the opening of bankruptcy proceedings that the enterprise is officially declared bankrupt. Until this moment, it is not considered bankrupt, despite the fact that bankruptcy proceedings have been initiated.

Two months after publication in the Kommersant newspaper and the EFRSB, the register of creditors is finally closed. Creditors who do not have time to submit an application for inclusion in the register within this period do not have the right to vote at the meeting and their demands are satisfied last.

During bankruptcy proceedings, the manager is removed from management. The General Meeting loses almost all its powers , as in the case of external management.

The arbitration manager at the stage of bankruptcy proceedings is called a bankruptcy manager. Here's what it does:

• analyzes the financial activities of the debtor (if this analysis has not been carried out previously);
• searches for and challenges suspicious transactions;
• if necessary, evaluates and sells the debtor’s property;
• if there are grounds, holds the manager and founders of the debtor liable, including subsidiary liability, for the company’s debts.

After the bankruptcy manager sells all the property and collects debts, he proceeds to satisfy the claims of creditors.
Naturally, complete repayment of debts rarely occurs. According to statistics, in Russia from 3 to 7% of the claims of third-priority creditors are satisfied (the overwhelming number of creditors are in the third-priority).

After the debtor's funds have been distributed, all that remains is to complete a number of formalities - submitting the files to the archives, submitting liquidation accounting reports, and reporting to the court about the work done.

Within 30 to 60 days after the decision to complete bankruptcy proceedings is made, the court sends the decision on completion to the tax office. Based on this decision, the tax office excludes the legal entity from the Unified State Register of Legal Entities.

I repeat the key phrase: debts not repaid during bankruptcy proceedings are considered repaid. Creditors can write off debts with a clear conscience as uncollectible, and the debtor’s management can breathe easy (unless, of course, the managers were held accountable).

Bankruptcy of CJSC, OJSC and JSC, PJSC

Chapter IX of the Bankruptcy Law considers special or special cases of declaring debtors (certain categories) insolvent. There are no specific features for joint stock companies. Special subjects with a special procedure are:

• so-called city-forming companies;
• agricultural firms;
• financial organizations and institutions;
• credit firms;
• enterprises of a strategic nature;
• developers and a number of other organizations.

In fact, general rules apply to joint stock companies, unless, of course, they fall into the above list.

Perhaps, a clear significant difference from other business companies is that at a number of stages and in a number of cases a meeting of shareholders appears in the procedure itself. At the same time, there are some nuances associated precisely with the very organizational form of such legal entities. These features are not spelled out in the law as a separate line, which means that the participation of a team of qualified lawyers in the procedure for declaring a joint stock company insolvent is highly desirable.

How much does bankruptcy of a legal entity cost?

The bankruptcy procedure, neither for an individual nor for a company, cannot be called cheap. This situation looks cynical when they demand money from a beggar for official recognition as such. But this doesn't change things:

• The legal entity will immediately have to part with six thousand rubles to pay the state fee;
• Financial services services cost from 30,000 rubles (per month);
• 3000 rubles will be required for the mandatory publication of information about bankruptcy in the bankrupt register, plus 10,000-20,000 rubles for publications in Kommersant;
• In the end, quite a significant amount will have to be paid for correspondence with creditors via registered letters, certification of copies of documents by a notary, payment for the services of an independent appraiser, auditor, etc.

The minimum amount that will result in the bankruptcy of a legal entity will be about 250,000 rubles.

If a legal entity does not have such money at the time of filing a bankruptcy petition, it must attach a petition for installment plans to the claim.

How to avoid criminal and subsidiary liability?

Bankruptcy of joint-stock companies is always associated with the possibility of criminal and civil liability. Avoiding it is very simple - you do not need to take any deliberate actions that are aimed either at adverse consequences for the company itself, or at the same time for creditors.

One of the most reprehensible acts in this situation is an attempt to hide the inevitable insolvency, and especially by falsifying, hiding or destroying the enterprise’s documentation. This is punishable by imprisonment for up to four years.

There is also a special article in the criminal law - Article 195, which punishes, in general, any unlawful actions during bankruptcies. For example, under this article there may be liability for distortion or concealment of information about the debtor’s assets, for the dishonest transfer of these assets to other persons, including on the basis of a legal contract from a legal point of view.

Fictitious and imaginary bankruptcy is also punishable by criminal law. Despite the fact that both in my practice and according to statistical data, the number of cases considered by the courts under these articles is extremely small, but has a steady upward trend.

The company's management, its shareholders and participants may also bear civil liability, for example, for damage caused to creditors, if it arose precisely through the fault of these persons, or they contributed to it. Moreover, if the company’s management or its shareholders directly or intentionally contributed to the onset of bankruptcy, then they will have to take part in repaying the company’s debts to creditors.

The shareholder has the right to challenge the transaction of a bankrupt company in the framework of civil proceedings

The Supreme Court published Determination No. 303-ES20-5380 in case A16-2306/2017, in which it determined whether a shareholder of a bankrupt company has the right to challenge its deal in court.

The courts differed in their assessments of the capabilities of a bankrupt shareholder to challenge transactions

Pursuant to the agreement dated July 24, 2015, concluded between JSC PA Dalselmash and LLC Lidoga-Trading, the latter acquired a non-residential building (building of auxiliary workshops) and the land plot underneath it.

By decision of the Arbitration Court of the Jewish Autonomous Region, Dalselmash was declared bankrupt, and bankruptcy proceedings were opened. In this case, the company's shareholder Valery Kunin challenged the agreement, but by a court ruling his application was returned due to his lack of the right to challenge transactions in the bankruptcy case (clause 4 of article 60, clause 1 of article 61.1 and clause 1 of art. 61.9 of the Bankruptcy Law).

Valery Kunin appealed to the Arbitration Court of the Jewish Autonomous Region with a claim outside the scope of the bankruptcy case to declare the transaction invalid and apply the consequences of its invalidity. The plaintiff's arguments were based on the provisions of the Civil Code of the Russian Federation and the Law on Joint Stock Companies on the need to approve major transactions.

In satisfying the claim, the court was guided by Art. 173.1, 174 Civil Code of the Russian Federation, Art. 77–79 of the Law on Joint Stock Companies. He came to the conclusion that it was proven that the controversial transaction was carried out without the approval of the general meeting of shareholders, while it was a major one for Dalselmash.

The appeal overturned the court decision and dismissed the claim, considering that in challenging the deal of his company, Valery Kunin acted in court as his representative. However, with the introduction of bankruptcy proceedings in relation to the company, such a representative is only its bankruptcy manager. The plaintiff has the right to protect his interests only in the ways provided for by the Bankruptcy Law: to participate in meetings of creditors, to initiate the issue of challenging transactions by the bankruptcy trustee, to demand compensation for losses from the latter. The court came to these conclusions with reference to Art. 53, 65.2, 96, 174 Civil Code, art. 2 of the Law on Joint Stock Companies, Art. 61.9, 126, 129 of the Bankruptcy Law, clarifications given in paragraph 32 of the Resolution of the Plenum of the Supreme Court of June 23, 2015 No. 25 “On the application by courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation.” The district court upheld the appeal decision.

Valery Kunin filed a cassation appeal, in which he referred to the violation of the law by the appellate and district courts, taking into account paragraph 17 of the Resolution of the Plenum of the Supreme Arbitration Court of December 23, 2010 No. 63 “On some issues related to the application of Chapter III.1 of the Federal Law “On Insolvency” (bankruptcy)”, explaining the right of a company participant to file a pending claim in court in defense of their property rights according to the rules of Art. 166 Civil Code.

At the court hearing, the representative of Lidoga-Trading asked that the judicial acts be left unchanged and the cassation appeal not satisfied, pointing out abuses on the part of the plaintiff and his lack of shareholder status.

The Supreme Court decided that the shareholder was deprived of the right to judicial protection

Having studied the case, the Supreme Court noted that the subject of the cassation appeal was the resolution of the issue of the shareholder’s right to challenge the transaction of his joint-stock company - bankrupt on the grounds provided for by the Civil Code and on corporate grounds after the introduction of bankruptcy proceedings against this company.

The judicial panel for economic disputes considered that, contrary to the conclusions of the appellate and district courts, the introduction of bankruptcy proceedings against a bankrupt joint stock company does not prevent a shareholder from challenging the transaction of this company on general grounds.

“Firstly, such restrictions are not established either in the Bankruptcy Law or in other laws and do not directly follow from them. Secondly, even if a joint stock company goes bankrupt, the possibility of challenging its transactions in the general manner, that is, outside the framework of a bankruptcy case, is not excluded. Thus, in paragraph 17 of Resolution No. 63 it is explained that in a claim procedure, in compliance with the general rules on jurisdiction and jurisdiction, applications for recognizing the debtor’s transactions as invalid on general grounds, submitted by persons other than the arbitration manager, are subject to consideration. Thirdly, the judicial panel does not see any political and legal motives for interpreting the law in such a way that, in the conditions of bankruptcy proceedings, a shareholder would be deprived of the right to challenge transactions of his company. The interests of the shareholder in restoring the property mass of the joint-stock company do not contradict either the interests of bankruptcy creditors in filling the bankruptcy estate of the debtor, or the goals of bankruptcy proceedings. On the contrary, due to the property returned under the disputed transaction, the shareholder can count on satisfying the creditors’ claims and only subsequently on returning his company to a solvent state or on the debtor’s liquidation quota (Article 148 of the Bankruptcy Law),” the Supreme Court indicated.

The highest authority noted that with the introduction of bankruptcy proceedings against Dalselmash, the bankruptcy trustee is indeed the person representing this company. At the same time, contrary to the conclusions of the appellate and district courts, this status does not make him the only person authorized to challenge the debtor’s transactions. If a shareholder challenges a transaction on general grounds, along with this shareholder, the bankruptcy trustee is also a representative of the bankrupt joint stock company. The procedural position of these persons is agreed upon according to the rules set out in paragraph 32 of Resolution No. 25.

The Supreme Court considered that since Valery Kunin filed a claim as a shareholder of the company and challenged the transaction on general grounds (the courts did not establish otherwise), the appellate and district courts unlawfully deprived him of the right to judicial protection.

In overturning the judicial decisions, the Supreme Court indicated that, in addition to the issue of the shareholder’s right to challenge the transaction of his company, in the appeal, Lidoga-Trading also indicated other arguments regarding its disagreement with the decision of the first instance, however, these arguments were not assessed by the appellate instance, in in connection with which the case is subject to referral for a new trial to the Sixth Arbitration Court of Appeal to make a decision on the merits of the dispute.

Experts had mixed reactions to the definition

In a commentary to “AG”, senior lawyer of PB Legal Olga Borisenko noted that the Supreme Court of the Russian Federation made a fair decision - a different approach would have led to the fact that the plaintiff would, in principle, be deprived of the opportunity to protect his violated right, despite the fact that at the time of the completion of the disputed transaction such a mechanism existed. “It is noteworthy that the Supreme Court, having identified a corresponding gap in bankruptcy and corporate legislation, eliminated it through an analysis of the political and legal goals of the legislator, in this case consisting in creating conditions for the maximum replenishment of the bankruptcy estate,” she emphasized.

According to Olga Borisenko, the definition eliminates uncertainty and provides shareholders or participants of the debtor with an additional tool for challenging the debtor’s transactions on corporate grounds in bankruptcy proceedings.

“However, in all likelihood, this instrument will not find wide application in practice and will only be of interest to minority shareholders or participants in a situation of corporate conflict. As a rule, persons controlling the debtor are not interested in challenging the debtor’s transactions, including due to the subordination of their claims, and the return of property under an invalid transaction to the bankruptcy estate in most cases is beneficial only to creditors who do not have the right to challenge the debtor’s transaction on corporate grounds,” – Olga Borisenko noted.

Lawyer of the Administration of the Kemerovo Region Pavel Kirsanov considered that the introduction of bankruptcy proceedings in relation to a business company should not deprive its shareholders or participants of the opportunity to apply to the court to challenge transactions made by such a company on general civil, including corporate, grounds.

“In judicial practice, there have not been so many cases in the past in which shareholders or members of companies challenged the transactions of their bankrupt enterprises. This can be explained by a loss of interest in an enterprise that cannot generate any income (the chance of getting something from a shareholder or participant as a result of a completed bankruptcy procedure is extremely low),” said Pavel Kirsanov.

In his opinion, a certain revival of practice on this issue can be associated with the general trend of increasing the responsibility of persons controlling the debtor. “Using this method of protecting the right, a shareholder or participant, as the Supreme Court quite rightly pointed out, can, firstly, help the arbitration manager replenish the bankruptcy estate of the debtor and, if there are grounds for bringing to subsidiary liability the persons controlling the debtor, thereby reducing the amount their responsibility (and such persons may include the shareholders or members of the company themselves). Secondly, actions aimed at replenishing the bankruptcy estate can also, in certain situations, help corporation participants avoid being held accountable in a bankruptcy case altogether,” emphasized Pavel Kirsanov.

Polina Napolskaya, a junior lawyer at the crisis management and bankruptcy practice, called the definition controversial. She noted that the debtor's shareholder, in accordance with the explanations of paragraph 16 of Resolution No. 63, has the right to file a claim to invalidate the debtor's transactions before the introduction of external management or bankruptcy proceedings. Such a claim is brought in a general action and is subject to consideration outside the framework of the bankruptcy case. The list of persons entitled to file a corporate claim for the invalidity of a major transaction in violation of the approval procedure is determined in Part 6 of Art. 79 of the Law on Joint Stock Companies.

“Even if it is recognized that a shareholder has the right to file a claim to challenge the debtor’s transactions, then such claims after the opening of bankruptcy proceedings should be considered within the framework of an insolvency (bankruptcy) case. A different approach will create a large number of lawsuits around insolvency cases. Identical demands of the arbitration manager to invalidate the transaction may be considered within the framework of a bankruptcy case, which may lead to the adoption of competing judicial acts. In addition, an increase in the number of out-of-bankruptcy disputes (in which all persons involved in the main insolvency case can be involved) entails delaying the consideration of the case and does not correspond to the principle of procedural economy,” considered Polina Napolskaya.

The expert indicated that, in general, with the current use of bankruptcy as a mechanism for resolving corporate disputes, the recognition of the right to corporate claims for individual shareholders in bankruptcy proceedings is positive. This right helps to combat the abuses of arbitration managers “proposed by opponents” and their refusal to challenge individual transactions of the debtor.

According to Polina Napolskaya, the indication of the Supreme Court of the Russian Federation on the absence of “political and legal motives for interpreting the law” as an independent criterion for determining the right of a shareholder to challenge the debtor’s transactions deserves special attention.

Moscow AP lawyer Martin Zarbabyan noted that the highest court, in its Determination of August 14, 2022 No. 305-ES18-3667, recalled the possibility of challenging the debtor’s transactions on the general grounds established by civil law by other persons (except the arbitration manager).

In addition, the lawyer pointed out, the Arbitration Court of the Moscow District, in Resolution No. F05-20170/2019 dated November 28, 2022, recognized the right of a company participant to challenge the debtor’s transaction on general grounds outside the framework of a bankruptcy case through a claim proceeding. A similar legal position is contained in the Resolution of the Arbitration Court of the North-Western District dated April 12, 2022 No. F07-1973/2018. In case No. A55-18838/2018, the cassation instance, in fact stating the right of a shareholder to challenge transactions on general grounds in the event of bankruptcy of a joint-stock company, additionally noted that depriving a shareholder of the possibility of judicial protection of his rights both within the framework of a bankruptcy case of a company and in a lawsuit production is unacceptable.

“Thus, the observation of the Supreme Court about the deprivation by lower courts of the right of a company shareholder to judicial protection is fair. At the same time, the Court quite reasonably points out that there is no need to contrast the final goals of the bankruptcy procedure with the goals of the mechanism for challenging the transactions of a company by its shareholder, since the model of an indirect claim initially appeared in Roman law from the actio Pauliana - a claim that is a bankruptcy legal method of protecting the interests of the creditor in the event of bankruptcy of the debtor . However, the doctrine also expresses the opposite opinion, for example, that the purpose of challenging transactions on the grounds determined by the Civil Code of the Russian Federation and special legislation on legal entities is not related either to the goals of individual bankruptcy procedures or to the bankruptcy case as a whole. Nevertheless, the Supreme Court of the Russian Federation in this judicial act clearly defines the role of an indirect claim as a means of protecting the interests (property) of society,” noted Martin Zarbabyan.

How not to go bankrupt

Over the past couple of years, legislators have made sure that bankruptcy is not used as a “back door” to pay off accounts payable. They tightened laws, judicial and enforcement practices regarding unscrupulous debtors. However, there are entrepreneurs who are still trying to optimize their business in the wrong way through bankruptcy. Below are examples of what not to do.

Anti-case 1. Creating a complete clone of a toxic company

Beneficiaries with multimillion-dollar tax debt began bankruptcy proceedings and at the same time created another legal entity with the same name, founders and managers. At the same time, clients and partners of the old company switched to the new “Royal Water”.

As a result, the tax authorities proved the interdependence of legal entities, and the arbitration court transferred the payment of the debt of the old company to the new one. After the decision on Royal Water, lawyers and market participants came to the conclusion that it was not worth creating a complete “clone” of a toxic company. At a minimum, it is necessary to change the name, composition of participants or director.

Anti-case 2. Dependent companies

Since the end of November 2016, legislators have introduced new rules. Now tax arrears are collected from those who are recognized by the court as dependent on the taxpayer who has arrears. They can be organizations, individual entrepreneurs and individuals. That is, not only companies affiliated with a bankrupt enterprise or created by owners specifically for the removal of business and assets are under attack. Parallel companies that are part of the same holding structure as the debtor, and even those who legally acquired all or part of the debtor’s business on market conditions may also suffer.

In 2016, the managers of Intercross Wholesale proved their independence as a subject of financial and economic activities. They argued that it was not the division of the business into two dependent entities, but the acquisition of the company by an independent legal entity - Interos. Consequently, the application of the provisions of Article 105.1 of the Tax Code of the Russian Federation is impossible. However, the Supreme Court of Russia came to the conclusion that the companies are objectively dependent on each other. The reasons for this were:

— creation of Interos shortly before the end of the tax audit; — the same information and contact numbers on the websites of organizations; — transfer of employees from one company to another; — continuation of work with the taxpayer’s counterparties on behalf of the new organization; — receipt of the taxpayer’s proceeds to the account of a dependent person; — free transfer of business; — transfer of business through the payment of funds to an individual - the only participant of Intercross Wholesale. At the same time, the entrepreneur did not alienate his share in the taxpayer’s authorized capital, although there were no reasonable economic reasons for this.

Anti-case 3. “Friendly” lenders

Entrepreneurs often use this trick - they launch bankruptcy proceedings at the request of a “friendly” creditor or include it in the register if other creditors have already filed an application. In this case, the debt of the debtor company to the creditor exceeds the entire remaining amount of debts.

Why is this done:

- to seize the initiative and appoint a familiar arbitration manager to coordinate actions during bankruptcy. This is very important, since a lot depends on the arbitration manager; — with the largest amount of debt in the register of creditors, you can “push through” any decisions of the creditors’ meeting. According to the law, the number of votes at the meeting is proportional to the amount of debt, that is, the majority creditor makes decisions almost without regard to the opinions of other creditors.

It would seem that the situation is extremely simple. However, even here difficulties may arise related to the reality of the debt, the affiliation of the creditor with the debtor, its managers or beneficiaries.

In 2013, Sberbank issued a loan of 70.4 million rubles for the purchase of real estate so that she could rent it out (this is exactly what the organization did). However, instead, a month later, the company entered into an agreement for the supply of 344 tons of meat for a slightly larger amount - 78 million rubles - with individual entrepreneur Alexey Kulmizev. Then the entrepreneur stated that the goods had not been paid for and demanded to collect the debt under the contract along with interest - 1.8 million rubles. RosEcoProduct did not object to the claim, and the Arbitration Court of the Moscow Region satisfied it.

Then Kulmizev filed an application for the debtor to be declared bankrupt. Sberbank intervened in the situation and appealed the decision to the appellate court. The bank proved that the supply agreement transaction is imaginary, and its main goal is to create artificial debt. The bank gave many arguments - for example, that a large volume of meat was delivered in a short time. In addition, RosEcoProduct had never done this before; it didn’t even have special equipment. Also, the company never worked with Kulmizev and, despite this, contrary to the contract, delivered most of the goods without payment. But neither the appeal nor the cassation of the Moscow District Arbitration Court was cast into doubt: Kulmizev’s claim was again fully satisfied. The courts believed the “supplier’s” references to the invoices, which confirmed the transfer of meat and were correctly executed.

When considering the dispute, the Economic Collegium of the Supreme Court nevertheless recognized that Sberbank was right. She pointed out that if transactions are suspected of being fictitious, one must take into account what they were aimed at - to create the necessary legal consequences or only to create a “friendly debt”. Another stop sign for a scheme with “friendly” creditors is the likelihood of a criminal case being initiated under the Criminal Code article on deliberate bankruptcy at the request of another creditor.

Consequences of bankruptcy of a legal entity

After the bankruptcy case is closed, the bankruptcy trustee goes to look for new clients, and the documents of the liquidated enterprise are transferred for storage to the state archive. The entry on the existence of a bankrupt legal entity is excluded from the Unified State Register of Legal Entities.

The court canceled most of the debts. No one has the right to make claims on them to the bankrupt anymore.

The founders are left without their shares in the company.

Employees join the workforce of the unemployed.

The founders of a bankrupt company, unless they were accused of fraud, will not experience any restrictions. They are allowed to open a new business immediately. The general director receives all payments due to personnel under the Labor Code upon dismissal due to bankruptcy of the enterprise.

Probability of criminal liability

Managers guilty of bankruptcy may be forced to pay off the company's debts with their own property. In addition, administrative fines are possible, both small ones - up to five thousand rubles, and large ones - up to half a million wooden ones. In a criminal case, you can be imprisoned for up to six years with a fine of up to three hundred thousand.

A criminal case can be opened at the request of any interested person:

• creditors who lost money in this bankruptcy;
• bystanders outraged by injustice;
• arbitration manager;
• founders;
• employees of a bankrupt enterprise.

As soon as such a paper lands on the police desk, an investigation will begin. Which will not end well for someone suspected of bankruptcy fraud.

Restriction of rights

Being found guilty of deliberate bankruptcy will be grounds for imposing restrictions on the company's management. The decision to disqualify them for a sufficiently long period of time is made in court. They will not be allowed to hold any leadership positions for three years. And if we are talking about banks, then for ten years.

Vicarious liability

This is the name given to the liability of the management of a bankrupt company for personal property to creditors. It is described in. It is imposed on the management “top” of an enterprise that has experienced bankruptcy when the guilt of these personalities in the bankruptcy has been undeniably proven.

The motivation is as follows: if bankruptcy occurred due to force majeure (for example, lightning struck the workshop and it burned down completely), or suppliers, debtors, etc. failed, creditors are paid with money from the sale of the company’s property at auction. And if bankruptcy was the result of deliberate actions, then the perpetrators are obliged to compensate for the damage from their own pockets. The approach is correct: so that in future it will be discouraging.

Liquidation of commercial loans

I have always argued and continue to argue that extreme debt - both banking and commercial - is one of the main reasons for the liquidation of enterprises due to their insolvency. This is especially noticeable during times of economic crisis. Debts are becoming more and more difficult to repay, but they accumulate almost like a snowball.

When the accounts payable of a CJSC, OJSC and JSC, PJSC becomes exorbitant, the situation can develop according to three different scenarios:

1. The debtor and creditor resolve the issues amicably (through, for example, restructuring or other deferment).
2. A joint stock company, in an attempt to financially stabilize, independently applies to arbitration with a request to initiate bankruptcy proceedings.
3. The creditor himself goes to court with an insolvency claim.

If the judge recognizes the requirement to declare a company bankrupt as justified, then from that moment on a monitoring procedure is introduced in relation to the company, and all the existing debts of the enterprise, in a certain sense, “hang in the air.” They cannot be recovered in any way other than through bankruptcy proceedings. This means that even if the court (in addition to the bankruptcy process) is considering a debt collection case/cases (no matter what type), all of them can be suspended under certain circumstances. The creditor, if he wishes, can present the corresponding requirements in bankruptcy proceedings. But enforcement proceedings (that is, when the debt has already been collected and the court decision is at the execution stage) are suspended without fail.

With all this, there is only one way to completely get rid of debts on commercial loans: the joint-stock company must pay them off. Otherwise, even if this fails to be done at the stage of bankruptcy proceedings (that is, essentially, at the stage of sale of the enterprise), the company will be liquidated. And this is the only circumstance that allows you to write off debt on commercial loans.