Hello, Dear readers of RichPro.ru business magazine! Today we will talk about bankruptcy, what it is, what stages and stages of bankruptcy proceedings exist, on what grounds determine bankruptcy, possible consequences of this procedure for legal entities and individuals.
You will learn from the article:
- What is bankruptcy (insolvency);
- What actions are taken at each stage of the bankruptcy procedure;
- What is the essence of fictitious bankruptcy and what is its difference from intentional bankruptcy;
- What are the options for the consequences of bankruptcy.
The material of this publication will be of interest to individual entrepreneurs, businessmen, persons, who hold senior positions in enterprises, credit experts, credit debtors, students and everyone, who would like to improve their knowledge in the field of finance.
You will receive answers to these and other questions right now!
The concept of bankruptcy - what is it, how the bankruptcy procedure takes place and what stages and stages an individual and company need to go through, what are the consequences of intentional (fictitious) bankruptcy
1. The concept of bankruptcy - the essence and meaning (+ review of Federal law (FZ) about insolvency)
No company is insured against bankruptcy. Any company can face this problem, which cannot meet its obligations to creditors.
Read about the bankruptcy of legal entities in a separate article on our site.
In addition to companies (enterprises) an individual may also be declared bankrupt.
1.1. Definition of bankruptcy
Bankruptcy (insolvency) represents the inability of the debtor to answer for their debts and fully meet the financial requirements, presented by creditors, and pay all required payments.
In other words, insolvency Is a condition, when the company cannot pay the bills presented to him.
According to the law, a citizen (enterprise) may be declared insolvent, if the relevant obligations have not been paid by the debtor within 3 (three) months.
1.2. The origin of the term
The concept of "bankruptcy" is derived from the Italian phrase "banca rotta", which means "broken bench". At that time the bank was called lava, on which the moneylenders carried out their operations. In case of destruction of the moneylender, he broke the bench, thereby declaring himself bankrupt.
1.3. Bankruptcy law (can be downloaded at the link)
FZ (federal law) about insolvency: Bankruptcy Law № 127-FZ as amended by 2016 year and № 154-FZ from 29.06.2015
Currently in the Russian Federation there is a Federal Law № 127-FZ "On insolvency (bankruptcy)», valid with 27 September 2002 p., which defines the concept of bankruptcy and regulates the implementation of all stages of the insolvency proceedings.
In order to legal entity or individual were declared bankrupt it is necessary to begin consideration in arbitration court of the case on recognition of the debtor bankrupt.
Скачати закон про банкрутство фізичних осіб (from 29.06.2015)
Скачати закон про банкрутство юридичних осіб (ed. from 13.07.2015)
An application to the court can be written by a creditor or a debtor. If necessary, the application may also be submitted by an authorized person. The statement is written in that case, if the company or individual does not pay its debts within three months.
The amount of non-payment is prescribed in the current legislation. At the moment, for individuals, it is set at 500 000 rub., and for legal entities - 300 000 rub.
Entities, in respect of which the court ruled on their insolvency, are entered in the uniform federal register.
Consider the main signs and types of bankruptcy in more detail
2. Characteristic signs of bankruptcy - goals and types
Recognition of the debtor bankrupt does not release its entirely from the payment of debts. This is only an opportunity to repay the obligations in other ways or partially waive the requirements, presented by creditors.
The debtor will pay the debts by then, as long as he has real estate and movable property or until they are fully repaid.
2.1. Goals and types of bankruptcy
The main purpose of bankruptcy for legal entities is to close the business or its radical reorganization.
For individuals, the purpose of initiating bankruptcy proceedings is to stop the constant growth of loan obligations.
There are such types of bankruptcy:
- Really - bankruptcy, in which a person due to significant financial losses can not improve their own solvency;
- Conditionally (temporary) - situation, when the asset of the enterprise grows, and liabilities decrease, this situation is typical for enterprises, engaged in trade, as they may accumulate unsold products;
- Intentionally - illegal act, carried out by the owners of companies to withdraw funds from the company;
- Errors - intentional declaration of bankruptcy, to obtain from creditors appropriate reliefs and preferential terms of debt repayment. These actions are criminally punishable.
It is the judiciary that is responsible for determining the type of bankruptcy and initiating the appropriate procedure.
2.2. Signs of bankruptcy
There are formal and informal signs of insolvency.
Formal signs are:
- insolvency - a person can not pay their debts;
- there is a clear lack of funds;
- significant excess of the firm's costs over revenues.
Informal signs are:
- change in pricing policy;
- change in the external balance of a legal entity;
- wage debt to employees is growing, as well as debt for payment to contractors for work performed and services provided;
- there is a regular delay in the payment of dividends to investors;
- reporting is submitted late;
- there are many inaccuracies in accounting documents.
If individuals are creditors (or represent the interests of these creditors) and represent the authorized bodies, then they can apply for bankruptcy.
The main stages (stage) bankruptcy procedures and features of their conduct
3. How the bankruptcy procedure is carried out (insolvency) - main stages and stages
Bankruptcy proceedings - is a long process with many stages. In order to initiate bankruptcy proceedings, necessary, as mentioned above, submit an application to the arbitral tribunal in accordance with the approved form.
Recognition of the debtor as bankrupt is always court proceedings. Many individuals and private firms can use bankruptcy proceedings as a scheme to evade payment.. Therefore, the court is obliged to carefully consider all the nuances and circumstances of the case.
Bankrupts can be the initiators:
- Potential bankrupt (head of the firm, individual entrepreneur, citizen, etc.);
- Creditors can apply, if in the course of commercial activity of the enterprise the accounts payable were formed);
- Authorized bodies (bank, MFO).
The debtor independently declares its bankruptcy in such cases:
- If the payment of debt to one creditor entails the inability to repay the debt to other creditors;
- The liquidation of the company revealed a lack of funds, to cover all debts of the company;
- After the sale of assets, initiated to cover existing debt, the enterprise will be threatened with existence.
Any financial issues, arising from the reorganization and liquidation of a legal entity (enterprises), must be decided in court.
After the application is submitted and registered by the court, all signs of bankruptcy are checked. After this inspection, a number of measures are taken, which are called stages or stages of bankruptcy proceedings.
3.1. What is the procedure and stages of bankruptcy of the enterprise by law + table
Consider in more detail Five (five) stages of the bankruptcy process:
Stage 1. Observation
By law, this stage is allocated 7 months. At this time, a temporary manager is appointed, which should identify the following points:
- debt repayment is possible;
- whether to really restore solvency;
- whether it is possible to pay salaries to employees;
- whether the company will be able to cover court costs, and whether it has enough assets for this.
The most important event of the observation stage is the organization of creditors' meetings, where the following issues are discussed:
- further progress of the bankruptcy case;
- the possibility of terminating the bankruptcy proceedings due to the signing of an amicable agreement;
- the need for rehabilitation of the enterprise;
- competitive production;
- the need to change management.
All these issues are resolved by creditors by voting. This stage is mainly passed by legal entities (commercial companies, factories, banks, etc.. d.).
The procedure is carried out to preserve the integrity of the company's property, as well as analysis and evaluation of the current financial position of the company.
The main purpose of this stage - determining the future, which will befall the company in the near future.
Stage 2. Sanitation
Sanitation (rehabilitation) carried out to improve the solvency of the company. It is mandatory to restrict the rights of owners and managers of the company. However, they still run the company. In particular, they are can not dispose of their property.
For individuals, this stage is characterized by restructuring, that is, creditors review debt obligations.
Rehabilitation of the enterprise - Prolonged stage. It can stretch on 2 (two) years.
If the creditors 'claims are not satisfied during this time, the creditors' meeting may re-apply to the arbitral tribunal..
Stage 3. External management
This step is optional and is performed in that case, if the court decides to change the management of the company. This is happening, if the manager believes, that it will help restore the company's solvency. The term of this stage is 1 – 1,5 year.
The external management procedure provides for the following actions:
- removal of the head of the company from office;
- assigning management responsibilities to the interim manager;
- restriction of actions of governing bodies, their responsibilities are transferred to the interim manager;
- imposing a moratorium on debt repayment, that is, during this stage, the debtor may not pay the bills. These funds are used to improve the financial position of the company. During this time, creditors cannot charge penalties, penalties and penalties.
The manager draws up an action plan, after which he sends him to court, where the plan is adjusted and approved.
The plan should include:
- taking appropriate measures to eliminate the existing signs of insolvency;
- debtor's costs;
- approximate term, which is necessary, to improve the solvency of the firm.
Measures to rehabilitate a legal entity:
- closure of production, which became unprofitable;
- re-profiling the company's activities;
- claim for repayment of receivables;
- partial sale of property available to the company;
- increase of authorized capital;
- improving pricing policy;
- issue of securities.
Stage 4. Competitive production
If no amicable settlement has been signed as a result of the bankruptcy procedure, then comes the final insolvency procedure - liquidation of the enterprise.
The court appoints a person, which is responsible for managing all the company's assets in order to repay existing debts to creditors.
The term of this procedure is 1 year, sometimes it can be extended for another six months, example, if the company's assets have not yet been fully sold.
Details about that, how to close (eliminate) TOV, including the bankruptcy of a limited liability company - in the relevant article of the resource.
The procedure is similar for citizens and individual entrepreneurs: the property is seized, and it is sold at a free bankruptcy auction.
About that, how to close a sole proprietorship, we wrote in a separate article.
Currently, bidding can be conducted online on the website of the Unified Register of Bankruptcies of the Russian Federation. Funds, earned for property at auction, are sent to creditors and employees of the enterprise, to repay debts. Part of the funds goes to cover the costs of the lawsuit.
Stage 5. The settlement agreement
If necessary, any stage of the bankruptcy procedure can be completed by concluding an amicable agreement. It is signed then, when a compromise was reached between the creditors and the debtor. The result of such a compromise is the termination of the trial.
In some cases, the conclusion of an amicable agreement is facilitated by third parties, example, interested persons (beneficiaries), intermediaries and guarantors, who pay the obligations.
The amicable settlement is in fact a full-fledged legal document. If the terms of the agreement are not met, then creditors can go to court again.
Summarize in the table all the stages of bankruptcy proceedings.
Table "Bankruptcy procedure - the main stages"
| Bankruptcy stage | Term | Goal implementer | When the stage ends | Objectives |
| Observation | Three months | Temporary manager | At introduction of reorganization or external management or in case of the beginning of competitive production or if the amicable agreement is reached. | Preservation of the subject's property, financial analysis, formation of the register of creditors' claims. |
| Sanitation | Two year | Administrative manager | Completion of bankruptcy proceedings, transition to the stage of external management, the beginning of competitive production, an amicable agreement was signed. | Improving the solvency of the entity, payment of debt to creditors |
| External management | Eighteen months | External manager | Closing the bankruptcy case, if solvency is improved, in connection with the commencement of bankruptcy proceedings, if an amicable agreement is signed | Improving solvency, imposing a moratorium on creditors' claims, payment of mandatory payments. |
| Competitive production | One year (1,5 year, if the procedure was continued) | Competitive manager | If an amicable agreement is signed | Sale of property at auction, satisfaction of creditors' claims in turn |
| The settlement agreement | Head with creditors | At any stage of the bankruptcy process | Termination of the insolvency procedure, since the entity and the creditors have signed the agreement. |
So, the legislation provides several options for the development of bankruptcy proceedings. This may be a complete restoration of the enterprise and improving its solvency or its complete liquidation with the sale of property, accounted for on the balance sheet of the firm.
Rehabilitation and external management procedures allow a legal entity to streamline its activities and increase revenues, derived from the main activities of the firm. This is beneficial to both the company's management, and creditors, because the debtor with good solvency will be able to pay off all debts in his possession.
If it is not possible to restore solvency, then the law also provides for the protection of creditors' interests, because then the liquidation of the debtor company, and his obligations are repaid through the sale of his property.
3.2. What is the procedure for bankruptcy of an individual - step-by-step instructions for declaring insolvency of individuals and individual entrepreneurs
For individuals (citizens of and individual entrepreneurs) the law also provides for an appropriate bankruptcy procedure.
Bailiffs and collection companies used to deal with the bankruptcy of individuals. In October 2015 year, the law was passed, regulating the insolvency procedure for an individual.
so, consider 5 (five) steps, which must be taken by an individual to declare himself bankrupt.
Step №1. Assessing the possibility of bankruptcy
An individual must assess the possibility of bankruptcy, based on financial analysis of activities.
If the monthly income of an individual is steadily declining, and credit liabilities are only growing, then declaring the debtor bankrupt may be the best solution in this situation.
More details on the recognition and declaration of individual entrepreneurs and individuals bankrupt, we wrote in a separate article.
The beginning of the bankruptcy case will not be released from payment of obligations, but psychological pressure from creditors will be reduced.
The application for the beginning of the process of declaring the debtor bankrupt is sent to the court only in that case, if the amount of debt reached more 500 000 rub., and payments on liabilities are delayed for 3 months.
Step №2. Preparation of the necessary documents for submission to the arbitral tribunal
To file a lawsuit, an individual will need to write an application in the appropriate form, and collect the following documents:
- Help, which will confirm the existence of debts of an individual;
- certificate of income;
- Property description (it must be in a certain form and must be notarized);
- Bank statement from the entrepreneur's account;
- Personal documents (the passport, SNILS, etc.).
Check the necessary documents for bankruptcy on the official websites of government agencies.
Step №3. Submission of documents to the arbitral tribunal and expectation of results
The financial analysis of the activity of an individual is carried out by the financial manager, authorized by the court.
It is his responsibility:
- Establishing signs of insolvency;
- Independent assessment of the property of an individual;
- Identify there is a possibility of debt restructuring.
Legal costs and payment to the arbitral trustee shall be paid by the debtor.
Step №4. Coordination of debt restructuring schedule
The term restructuring means a change in the debt structure of an individual. Restructuring includes:
- Increasing the loan term;
- Reduction of the monthly loan payment;
- Cancellation of interest or penalties by creditors for the time being, while the restructuring procedure will be carried out.
This concept includes measures to improve the financial affairs of the debtor.
Step №5. Sale of property
If the debtor was officially declared bankrupt, it happens sale of property at auction. This happens in that case, if you resuscitate the company failed, and the income of an individual is not enough to repay the debt.
Movable and immovable property is put up for auction, equipment and other property of the debtor, which has value.
The only living space not put up for auction, however, creditors may require a share in the property, which was earned by the debtor in marriage.
More details about the bankruptcy of individuals and the consequences for the debtor, we wrote in a separate article.
so, bankruptcy proceedings help an individual to settle financial disputes and provide an opportunity to repay existing debts, albeit with some losses.
What are the possible consequences after the bankruptcy proceedings
4. Effects, arising after the end of the bankruptcy proceedings
Consider, what may be the consequences of bankruptcy after the closure of proceedings for individuals and legal entities.
For companies the most serious consequence is the liquidation of the firm and the sale of assets from the auction.
For individuals seizure of property and its sale at auction is envisaged.
The insolvency of individuals has the following negative consequences:
- If a citizen wants to enter into a loan agreement or take a loan, then during 5 years he must notify the creditor, that he had recently been declared bankrupt by a court;
- 5 years, an individual can not file for insolvency;
- A citizen cannot work in management positions 5 years.
Bankruptcy of companies - the phenomenon is not accidental, it shows the economic situation, prevailing in the country. If the number of liquidated firms is large, this is a clear sign of economic instability and financial problems for legal entities, engaged in this type of business.
In case of insolvency of a legal entity, the law provides for the following consequences:
- Deferred debt repayment terms are considered as follows, that have come;
- Debts and interest cease to accrue on debt obligations;
- It is allowed to apply for recovery of property for debts;
- Property disputes cease, in which a legal entity participated;
- All property claims are presented to the debtor only for liquidation proceedings.
5. Qualified assistance in supporting bankruptcy proceedings
Recognizing a debtor bankrupt is a long process, which lasts more than one year, and requires significant effort, energy and nerves. To minimize all costs for this procedure, it is recommended to seek professional help.
Currently, there are many companies, providing professional assistance in bankruptcy.
Applying to such a firm will reduce the cost of the process itself and achieve the court's best decision.
Professionals provide the debtor with maximum assistance in processing documents and in reaching a compromise with creditors, etc.. d.
Bankruptcy support services
In the Russian Federation on support of insolvency cases (bankruptcy) several organizations specialize.
Consider some of them:
1. Stop Credit Company
The specialization of this company is working with clients, having disputes with various credit institutions. Here experts will help to solve problems with penalties, debts and arrears.
2. National Bankruptcy Center
The activities of this company extend to Moscow and the region, as well as in many other regions of the Russian Federation. In this company there is an opportunity for online consultation with a specialist on insolvency proceedings.
3. Advocacy
The company is headquartered in St. Petersburg, but the firm has a well-developed branch network in many cities. Here, lawyers provide quality advice on all issues of bankruptcy and, if necessary, provide reliable legal support at all stages of bankruptcy proceedings.
4. All-Russian Bankruptcy Service
This company also has branches in many regions of the Russian Federation. She also consults clients remotely.
5. CVT Law Firm
ITC Legal Supermarket provides legal support to citizens in any legal and financial matters.
The prices of these companies vary depending on the complexity of the case. Support at all stages of the bankruptcy procedure will cost the law firm from 100 000 rubles, and individuals close 20 — 100 thousand. rub.
Consequences of intentional and fictitious bankruptcy
6. Intentional and fictitious bankruptcy - signs and consequences
It is called fictitious bankruptcy first false declaration of insolvency of a company or individual, if it has caused great damage.
Importantly! Deliberate bankruptcy is an administratively or criminally punishable act.
Currently, fictitious bankruptcy is a fairly common phenomenon. This procedure gives the impression of insolvency.
The idea of intentional bankruptcy is usually put forward by the founder or head of the company.
Objectives, prosecuted in organizing the bankruptcy process, may be different:
- Misappropriation of company assets;
- Deception of company employees;
- Receiving a deferral or deviation from the payment of existing debt;
- Receiving discounts on debt payment, etc..
Upon closing the bankruptcy case, such a company declares itself insolvent and creates a residual company, where inexpensive unnecessary property remains, unskilled personnel and debts.
6.1. Characteristic signs of intentional bankruptcy
Any kind of insolvency has the following characteristics:
- The person has more than one debt 100 000 rub.
- A person cannot repay his existing debt;
- The bankruptcy of the debtor is officially recognized by the court;
As for intentional bankruptcy, then its main specific features are:
- The debtor hid the property, as well as information about its location, sold property;
- All the required responsibilities were not met when filing for bankruptcy;
- Failure of the debtor to comply with the rules of bankruptcy;
- Accounting and accounting documents were forged, and are not originals.
6.2. Detection of the fact of intentional bankruptcy
If the company was intentional bankruptcy was initiated, this can be detected as a result of inventory and financial analysis, conducted by the arbitral trustee.
The following steps are required to verify the fictitiousness of bankruptcy:
- The solvency of the company is analyzed, financial analysis is carried out;
- An asset inventory is being made, which are on the balance of the enterprise;
- The legality of the company's agreements is being verified, which could contribute to the deterioration of the financial position of the firm and lead to increased insolvency. At this stage, the agreements for the whole period are checked.
Documents, being tested, to detect intentional bankruptcy:
- Founding documents;
- Available data on the debts of the enterprise;
- Accounting and accounting documents;
- Documents on available court cases;
- Audit and audit reports.
If during the documentary inspection illegal agreements were revealed, it can be assumed, that such agreements are one of the reasons for the deterioration of the solvency of the legal entity.
An example of an illegal agreement may be the purchase and sale of movable or immovable property on unfavorable terms, etc.
in addition, there are cases, when intentional bankruptcy is expressed in the failure of the company's management to fulfill its direct responsibilities.
6.3. Effects, which entails intentional bankruptcy
If during the inspection it was proved, that the bankruptcy of the company is initiated intentionally, then to the citizen, administrative or criminal penalties are imposed on those guilty of bankruptcy.
The Criminal Code provides for administrative penalties for intentional bankruptcy.
Responsibility for intentional initiation of bankruptcy proceedings bears the head of the company or a member of the company or an individual entrepreneur.
That is a person, whose actions led to the insolvency of the company, as well as the inaction of which led to the inability to satisfy creditors' claims.
Criminal liability is provided in that case, if the damage was particularly great. The threshold value in this case is the amount - 1 500 000 rub.
In the case of, if the amount of damage is more than the specified value, then such responsibility before the law is imposed on the person:
- Administrative fine, which is 200 000 – 500 000 rub. or in the amount of personal income for 1-3 years;
- Referral of a person to perform forced labor during 5 years;
- Imprisonment for 6 years, an administrative fine is additionally assigned 200 000 rub. or in the amount of personal income for 18 months;
If the amount of losses amounted to Less 1 500 000 rub., then the responsibility for such an act is assigned differently:
- Administrative fine for an individual 1 000 – 3 000 rub.;
- An administrative fine is imposed on the head or manager of the company 5 000 – 10 000 крб. and the inability to hold leadership positions during 1-3 years.
6.4. The difference between fictitious bankruptcy and intentional
so, consider in more detail how fictitious and intentional insolvency differ from each other.
At first it may seem, that the concepts of fictitious and intentional bankruptcy mean the same thing. But in fact there are a number of obvious differences between them.
Bankruptcy is intentional, which was the result of actions by managers, which caused the firm's inability to repay existing debt to creditors. Usually, such bankruptcy is carried out for the purpose of misappropriation of assets by a person, listed on the balance sheet of the enterprise.
As for the fictitious bankruptcy, then the statement about him in court is initially erroneous. The main purpose of these actions is to obtain deferred payment of debts or evasion of debt.
With great damage to the citizen, who has committed illegal acts is punishable by such punishment:
- Assignment of an administrative fine 100 000 – 300 000 rub. or payment of the citizen's income for the last two years;
- Referrals for forced labor, the term of which will be 5 years;
- Deprivation of liberty of a citizen for 1 — 5 years;
- Deprivation of liberty of a citizen for 1 — 6 years and payment of an additional fine, size up to 80 000 rub.
7. Bankruptcy Frequently Asked Questions
In this section we will consider the most common questions, regarding the bankruptcy procedure and we will give detailed answers to them.
Question 1. What is a simplified bankruptcy procedure and how it is carried out?
Simplified bankruptcy procedure is called a procedure, in which the company is liquidated in the shortest possible time and with minimal monetary losses for the head of the enterprise.
This bankruptcy scheme applies, usually, at small enterprises, who have few assets, consisting of property and cash. Accelerated bankruptcy is recognized for 5-7 months.
Attempts at reorganization and external management are not envisaged in this procedure. Immediately after the financial analysis, accounting and accounting documents of the company, the court decides to liquidate the company and the stage of bankruptcy proceedings begins.
Question 2. Which is the only federal bankruptcy registry?
The single federal bankruptcy registry is a collection of information, relating to bankruptcy cases. The register contains information on the progress of bankruptcy proceedings in.
You can view this register on the official website of the single register on the Internet. Access to it is open to anyone.
(Official site of the Unified Federal Register of Bankruptcy Information - bankrot.fedresurs.ru)
To see more information, you need to register on the official website. This is where all the information about the company is contained, who have been declared bankrupt or in respect of whom bankruptcy proceedings have been instituted. All data on the site is regularly updated.
Prior to the existence of the single register, it was much more difficult to monitor the progress of insolvency cases.
In a special section of the site you can find information about the auction. There are dates, types and subjects of tenders. You can also read the list of items, which are put up for auction (apartments, equipment, non-residential premises, transport, etc.) which have been seized by the arbitral tribunal.
Question 3. When the bankruptcy of a citizen is his right, and when duty?
Many citizens do not always want to file for bankruptcy. But in some cases, starting a lawsuit helps to gain time and pay off debts with minimal losses.
A citizen can apply to the court to initiate bankruptcy proceedings, if he assumes, that he would soon go bankrupt, if there are circumstances, which indicate, to fulfill the obligation to pay debts and mandatory payments simply not possible.
In this case, the citizen must be insolvent, and must not own property, after the sale of which he will be able to painlessly close all his debts.
An individual is obliged to write a statement to the court to initiate bankruptcy proceedings against him then, when the payment of existing debt to one creditor entails the inability to pay mandatory payments and debts to other creditors in a timely manner.
The amount of liabilities must be at least 500 000 rub. In this case, the individual submits an application to the courts during 30 days from the moment, when he learned or should have learned of his inability to repay debts to creditors.
Question 4. What restrictions on the rights of a citizen may be imposed by a court upon completion of bankruptcy proceedings against him?
Upon completion of the bankruptcy proceedings, the arbitral tribunal may be a ban on the departure of a citizen has been established, declared bankrupt abroad. This prohibition will be valid until the court decides to end the bankruptcy proceedings or until the signing of an amicable agreement between the debtor and creditors.
From the moment the decision to declare a person bankrupt and from the moment the property is sold is made, standing on the balance sheet of the debtor, all rights to this property, including the right to dispose of it, carried out exclusively by the financial manager.
After, as the bankruptcy procedure was closed the bankrupt person cannot conclude credit agreements and loan agreements, without specifying the fact of bankruptcy.
in addition, during the same period of time, the citizen cannot re-initiate the bankruptcy procedure.
Question 5. An apartment may be sold in bankruptcy?
The debtor's apartment can be sold in that case, if it is pledged (example, mortgage lending).
Question 6. What are the consequences for a citizen of repeated bankruptcy?
If the citizen was declared bankrupt again, then for three years he has no right to be a manager of companies.
Question 7. If a citizen is declared bankrupt, it is possible to repay at the expense of a third party his debt to the budget in the form of taxes and fees?
The Tax Code of the Russian Federation approved the norm, that every taxpayer must repay his debts to the state for taxes and fees.
However, somewhat different rules are approved by the Federal Law "On Insolvency (bankruptcy)». It provides in law that a third party can pay all the debtor's existing obligations. To do so, a third party must file a statement with the court.
Question 8. It is possible to use reorganization / external management in case of insolvency of an individual entrepreneur?
No, these procedures apply only to legal entities.
Question 9. If the debtor is declared bankrupt, the order in which creditors' claims will be met?
The legislation provides for the following priority of satisfaction of the requirements declared by creditors:
- Legal costs, remuneration of the arbitral trustee;
- Arrears, existing before the citizens, whose health and life have been harmed;
- Arrears, existing before employees on the payment of benefits and wages;
- Other debt.
Question 10. The bankruptcy process is the same for all companies?
As discussed above, the insolvency procedure involves passing 5 stages. But the legislation does not provide for the need for the company to go through all these stages.
Of great importance in this matter is the organizational and legal form of the debtor company. According to this criterion, organizations can be: simple, insurance, credit, banking, city-forming and agricultural.
Everyone is required 5 (five) The stages of bankruptcy should be simple, city-forming and agricultural enterprises.
For the other three forms of organization there is a possibility of a slightly different order of bankruptcy proceedings:
- If, when creditors are bankrupt, only bankruptcy proceedings are required;
- The peculiarity of agricultural enterprises is that, that their activities are seasonal. The result of their activities is largely determined by weather conditions and seasonality. Therefore, the arbitral tribunal may assign them a stage of supervision, external management and reorganization at its discretion. As for practical activities, then the implementation of the appointment of the court is carried out during the season, suitable for the main activity of the enterprise.
- In insurance companies, the stages of enterprise recovery and external management are excluded from the bankruptcy process.
Question 11. Which is a meeting of creditors? What issues are addressed at this meeting?
Individuals are recognized as creditors, who in relation to a legal or natural person have the right to claim monetary or other obligations. Competitive creditors may take part in the creditors' meeting, as well as authorized bodies.
The claims of all these entities on the date of the meeting must be reflected in the register of claims.
Creditors' meetings are formed in any competitive process, except in cases, when the company has debts to only one creditor.
The organization and holding of the meeting is carried out by the arbitration trustee 2 (two) weeks. This condition must be strictly adhered to by the manager otherwise he may be prosecuted. Notification of participants is also the prerogative of its activities.
The law does not provide for any liability for failure to comply with this obligation, but if the lender proves it, that he did not appear at the meeting because he did not receive a notification, then he has the right to raise the question of the incompetence of the meeting. In this case, it is a failure of the manager to perform his direct duties.
Lenders, suffered losses as a result of convening the meeting, it is allowed to demand repayment from the manager. The debtor will also incur losses, because he needs funds to convene and hold a second meeting.
The meeting should consider the following issues:
- Determining the start or end time of the reorganization and external management procedure or the extension of these procedures, which were previously agreed;
- The enterprise rehabilitation plan is approved;
- The schedule of repayment of the existing debt is approved;
- Selection and approval of necessary requirements, which will be nominated for management at all stages of the procedure;
- Definition of the registrar;
- Signing an amicable agreement;
- A decision is made, that it is time to put the debtor's property up for sale to cover the proceeds from the sale of existing debt claims;
- An authorized representative is elected by voting;
- The activities of the creditors' committee are organized.
Question 12. What are the differences between arbitration, competitive and external managers?
The court first appoints an arbitration trustee, which solves all the main points, related to the organization and implementation of the bankruptcy process.
It must be a professional in his field, and it should be part of the organization of arbitration trustees.
In fact, the concept of "arbitral trustee»Is common, and at different stages of the bankruptcy procedure it has its own special name, depending on the functions, which he performs.
The observation procedure is carried out by the temporary manager. It is responsible for resolving such issues: conducting financial analysis of the debtor, participation in the court's consideration of claims for debt t. d.
During the reorganization procedure, an administrative manager is appointed. It is his responsibility to monitor compliance with the established debt repayment schedule.
The external management procedure is supervised by an external manager. He is obliged to take measures to restore the company's solvency.
At the stage of bankruptcy proceedings, the bankruptcy trustee is involved in the case, who monitors the sale of the debtor's property and from the money received repays the debt to creditors in the order of approved priority.
Arbitration trustee does not participate only in the last stage of the bankruptcy process - the signing of an amicable agreement.
Question 13. Is there a need for special preparation of the organization for bankruptcy?
If the head of the enterprise understands, that bankruptcy proceedings could not be avoided, it is in his best interest to prepare the company for bankruptcy.
Properly prepared for bankruptcy will contribute to the successful completion of the bankruptcy case.
Conducting special training helps reduce risks, arising from the insolvency proceedings, examples of which are risks:
- detect fictitious or intentional bankruptcy;
- the risk of involvement of the tax authorities of the founder of the company or person, who holds a managerial position to subsidiary responsibility;
- change of the bankruptcy trustee in the course of the case, etc..
Preparing for bankruptcy in advance, the company insures against these risks, allows you to objectively assess the current situation in the company before the bankruptcy proceedings.
Actions, which will help prepare for the initiation of bankruptcy proceedings and reduce risks, described above:
- Analysis of the current structure of liabilities, which will be the basis of the structure of debt to creditors;
- Carrying out the analysis of the formed structure of assets, which will assess the amount of property, which will eventually be put up for sale at a free auction;
- Analysis of transactions, which were concluded by the head of the enterprise for the last three years, which will reveal the existence of illegal agreements, which means reducing the risk of intentional bankruptcy;
- Analysis of the possibility of declaring bankruptcy fictitious or intentional, as well as the possibility of bringing management to subsidiary responsibility.
8. Conclusion + video on the topic
So, bankruptcy proceedings (insolvency) is a complex process, which consists of several stages. It can be simplified or complete.
At the time of the court's case of insolvency legal or individual is released from the payment of accounts payable, as well as interest, fines and penalties.
However, recognition of the subject as insolvent by the arbitral tribunal, does not release him from full payment of the debt. The procedure only allows the debtor to pay his obligations to creditors in a slightly different way.
Bankruptcy can be fictitious, that is, planned, for the purpose of misappropriation of assets or obtaining a deferral of payment of debts. In this case, it is a crime.
The law provides for this option administrative and criminal liability. To reduce risks, arising from the initiation of bankruptcy proceedings, it is recommended to conduct preliminary training, which will help to fully assess the situation.
Experts recommend legal entities and individuals to initiate bankruptcy proceedings only as a last resort, when solving financial issues in another way is simply not possible.
If you have questions on the topic, then we recommend watching a video from the radio "Lighthouse" about the bankruptcy of individuals:
And a video about the insolvency of enterprises, where the question "How to save assets" is revealed, "What is the need for business bankruptcy" and so on:
The team of Richpro.ru wishes you success in legal and financial matters. If you still have or have questions about bankruptcy, then ask them in the comments below.