On the issue of initiating insolvency (bankruptcy) of a citizen
The new provisions of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)” (hereinafter referred to as the Law) that came into force on October 1, 2015, governing the procedures applied in the cases of insolvency (bankruptcy) of citizens, gave the latter the opportunity “Deal” with the accumulated debt obligations, while maintaining the possibility of further participation in the field of credit relations.
In the recent history of the Russian Federation, insolvency of citizens (except for individual entrepreneurs) was first settled at the level of the law and, if in cases with legal entities and individual entrepreneurs, the liquidation of the latter is expressed directly in the elimination of the subject of right and deprivation of a special status, respectively The purposes of the subsequent crediting it is enough only instructions on the fact of the bankruptcy.
A rather interesting position is expressed in paragraphs 10, 11 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of October 13, 2015 No. 45 “On some issues related to the introduction of procedures used in insolvency (bankruptcy) cases of citizens”.
So, on the basis of paragraph 1 of Art. 213.4 of the Law, the obligation of a debtor to apply to a court of arbitration for bankruptcy arises when two conditions are present:
– The size of the monetary obligations not fulfilled by the debtor and (or) the obligation to pay the obligatory payments (both with the due date and with the unfulfilled) in the aggregate is not less than five hundred thousand rubles regardless of whether they are connected with the business activity or not;
– Meeting the requirements of one or more creditors will lead to the impossibility of fulfilling obligations and (or) obligations to make mandatory payments to other creditors.
At the same time, the Law does not provide for any sanctions for non-performance of this duty.
In turn, when the debtor implements the right to appeal to the arbitral tribunal with an application for declaring it bankrupt, the amount of unfulfilled obligations does not matter.
In addition, based on the content of paragraph 2 of Art. 213.4 of the Law, when the respective right is exercised, it is taken into account, including the existence of circumstances, which obviously indicate that the debtor is not able to fulfill monetary obligations and (or) the obligation to make mandatory payments within the prescribed period.
As regards the result of the court’s consideration of the validity of the application for declaring a citizen bankrupt, the arbitration court shall make one of the following definitions, which is provided for by paragraph 1 of Art. 213.6 of the Law:
– On recognition of the said application as justified and the introduction of the restructuring of the citizen’s debts;
– On recognition of the said application as unjustified and on leaving it without consideration;
– On recognition of the said application as unreasonable and termination of the proceedings on a citizen bankruptcy case.
Thus, the insolvency (bankruptcy) of citizens begins with a recovery procedure, namely the restructuring of the debts of a citizen, which also imposes on the latter an active role in finding sufficient funds to pay off debts.
Lawyer, head of international practice