FZ-40 "On the insolvency (bankruptcy) of credit organizations" was published in 1999. However, already in 2014, it lost its legal force. All provisions regulated by law were transferred to the Federal Law "On Bankruptcy". Its provisions regulate the recognition of ordinary citizens or legal entities. persons financially insolvent, that is, bankrupt. The law itself is one of the key acts in the Russian economy.
The history of bankruptcy in the Russian Federation
FZ-127 became the third law in the history of domestic legislation regulating the recognition of a person as financially insolvent. The normative act regulates the procedure for necessary actions and the relationship of the parties.
The first act in this area was the Federal Law "On Insolvency (Bankruptcy)". Credit organizations, legal entities and individuals could obtain the status of financially insolvent back in 1992. The law itself established the features and procedure for declaring an organization a debtor. According to the law, special bankruptcy proceedings could be launched, and the satisfaction of creditors' claims was in order of priority. The 1992 law regulated market relations. The law itself was adopted at a time when there were simply no other fundamental acts on legal and economic relations. Moreover, in the Soviet Union, the practice of applying such legislation did not exist.
In 1998, No. 6-FZ "On the insolvency (bankruptcy) of credit organizations and citizens" was adopted. This law mainly related to the FSFD service, which carried out bankruptcy proceedings in Russia. By 2002, there was a need to amend the current regulatory act. This, in particular, was indicated by President Putin. The task of developing a new bill fell on the head of the FSFD Trefilov. However, in 2003 this service was disbanded, and the Federal Tax Service, the tax service, began to manage bankruptcy issues.
Federal Law "On Bankruptcy": General Description
In 2002, 127- "On insolvency (bankruptcy)" was adopted. Credit organizations were included in the list of entities under this regulatory act. The main features of this Federal Law can fit in four groups:
- Some concepts were transferred to the Criminal Code of the Russian Federation.
- Greater independence has been transferred to self-regulatory instances, of which arbitration managers are representatives.
- A concept was developed to solve the problem of the “absent debtor”. In fact, the state assumed responsibility for conducting bankruptcy cases with bankrupt enterprises.
- The ban was the practice of "sudden bankruptcy", implying an unexpected launch of the corresponding process for debtors, owners, shareholders and heads of enterprises.
The main features of the modern bankruptcy procedure will be discussed in detail below.
Signs of insolvency of a citizen
The topic of bankruptcy is incredibly popular today. The financial situation of citizens is getting worse; many people lose the opportunity to pay debts and loans on time. In this regard, the very concept of bankruptcy is surrounded by many myths and legends. So, qualified lawyers often have to listen to people that supposedly bankruptcy can leave individuals without everything. At the consultations, legal experts are forced to reassure their clients and identify real facts from practice.
Before analyzing the main myths associated with the insolvency procedure, it is necessary to characterize the direct execution of bankruptcy.
You should start by looking for signs of insolvency. According to the Federal Law on the insolvency (bankruptcy) of credit organizations, as well as other legal or natural persons. These include the following factors:
- The presence of debt from 500 thousand rubles.
- Loans overdue for more than 90 days.
- Features of the early onset of insolvency. It takes into account cases when the debtor loses the source of profit, and soon he will have nothing to pay.
At least one of the above signs may already be a reason for filing bankruptcy.
Making bankruptcy of an individual: the main stages
After the detection of the necessary signs, the next stage begins. It is referred to as a notification to creditors. If the debtor firmly decided to start the procedure for filling out his own insolvency, then you should start by contacting a credit institution. It’s not worth delaying this: the sooner a person issues a written notice of his own intentions, the better.
The next stage, according to the Federal Law on the Insolvency (Bankruptcy) of credit organizations, individuals and legal entities, is the search for a financial manager. This is an important specialist who will help the debtor throughout the procedure. Not a single business can do without a financial manager. It is necessary to find such a specialist and agree with him in advance.
The next step will be to contact a credit lawyer. In order for the debtor's application to be accepted the first time, it is required to correctly fill it out. To do this, you need to apply for a document. Judicial practice, unfortunately, indicates that the sending of documents to the Arbitration Court without proper preparation ends, as a rule, by leaving the application without consideration.
Required Documentation
In addition to the application sent to the credit institution, it is also necessary to prepare a number of other documents. The package should include the following papers:
- loan agreements, surety agreements, receipts, loans and other papers;
- calculation of the amount of debt in whole or separately; the reasons that prompted the debtor to draw up a procedure for fixing financial insolvency (dismissal, loss of most of the profit, illness or something else);
- personal information, certificate of family composition;
- legal address or other information from creditors;
- bank statements on the status of accounts, information on available deposits;
- documentation of ownership of the property.
It turns out that you need to attach to the application everything that, one way or another, has to do with the bankruptcy of a citizen. The documentation process itself is quite simple. All that is required is to collect all the necessary papers and attach them to the application.
At each stage, you need to pay fees. Because of this, by the way, the very procedure for filing bankruptcy can be called quite expensive for ordinary citizens. 25 thousand rubles will have to give the financial manager. Funds are sent at the details of the arbitration court. According to the Federal Law on the insolvency (bankruptcy) of credit organizations, other organizations and ordinary citizens, 300 rubles are received as a state duty. After the documents are submitted to the court, the bankruptcy proceedings will begin.
Bankruptcy of a legal entity
The procedure for giving insolvency to a legal entity is not much different from the similar procedure, but with respect to an individual. It also requires the collection of documents, payment of fees and litigation. According to the Federal Law on Insolvency (Bankruptcy), credit organizations, as well as other legal entities, can be declared bankrupt only by decision of the arbitration court. The factual basis for making such a decision is the continued lack of the ability to pay off debt to creditors on obligations incurred.
The law defines the financial and temporary signs of bankruptcy of a legal entity. faces. As an example, we can take the concept of insolvency (bankruptcy) of credit organizations. To declare a company insolvent, a default of more than three months is required. Moreover, the amount of debt cannot be less than 300 thousand rubles.
Participants in bankruptcy proceedings, namely representatives of a legal entity, are divided into three groups. These are persons of personal interest, of state interest, as well as citizens who contribute to justice. The Bankruptcy Insolvency Law of credit organizations and other individuals and legal entities determines that the first group includes the debtor directly, that is, the legal entity person and lender. Employees of the company are right there. The second group includes participants of the Federal Tax Service of the Russian Federation, as well as regional executive authorities. Finally, the third group includes participants in the trial and the arbitration manager.
The advantages and disadvantages of bankruptcy proceedings
A careful study of the bankruptcy procedure should identify both positive and negative factors that affect the interests of its subjects. Among the advantages should be highlighted the increased likelihood of debt collection, especially in comparison with the process of enforcement proceedings. It is possible to obtain finances even for a legal entity that does not have property according to current reports. By the way, this factor is a fundamental sign of insolvency (bankruptcy) of a credit institution or any other company.
You can achieve direct finance by using three simple tools:
- contesting transactions of the debtor;
- holding representatives and founders liable for subsidiary type;
- initiation of criminal proceedings on intentional bankruptcy.
Among the negative aspects of the bankruptcy of the creditor should be highlighted the fact that other entities that could not have been previously known could claim the funds of the debtor. It should also be noted the need for potential costs of time and financial type.
So, from the point of view of the debtor, bankruptcy is a fairly effective legal instrument for the elimination of debts.
Credit Bankruptcy Prevention Measures
A little more should be told about the credit institutions preparing to formalize bankruptcy proceedings. Among the measures to prevent financial insolvency, the following points should be highlighted:
- reorganization of the credit institution;
- appointment of an administration to regulate the situation in a banking institution;
- reorganization - monetary improvement of a credit institution.
Separately, it is necessary to indicate the adoption of measures to prevent bankruptcy of a credit institution that has a license to attract finance in deposits. The license itself is issued by the Bank of the Russian Federation in the manner regulated by the Federal Law "On Banks". Measures to prevent bank bankruptcy are implemented in accordance with the decision of the Board of Directors of the Bank of the Russian Federation. The Bank of Russia itself is capable, in the manner regulated by regulatory enactments, of requiring the bank to implement measures for monetary recovery or reorganization of the company.
All of the above measures to prevent insolvency and bankruptcy of credit organizations, as well as other legal entities will be described in detail below.
Debt Restructuring
For both individuals and legal entities, there is a procedure called debt restructuring. Typically, banks provide such a service on not the most favorable terms. Often the client is not even able to pay off his debts, because he simply has nothing to pay the loan. But even if the bank offered the service, one should be aware that paying on the proposed terms will not always work out. Therefore, you should send an appeal to the Arbitration Court.
It should be remembered that the judicial restructuring procedure itself is significantly different from the similar banking procedure. Here are its main features recorded by the Federal Law on Insolvency and Bankruptcy Procedure of Credit Organizations, Legal Entities and Individuals:
- only the main part of the loan is taken into account, that is, without interest;
- late fees and penalties are not taken into account; it is possible to close the debt even when paying only parts of the loan;
- the terms provided are quite loyal, unlike banking (they are a maximum of three years).
In the case of an individual, it is required that there be certain factors that allow you to pay for loans and settle accounts with creditors. A stable income is also required, at least 30 thousand per month.
Realization of property and conclusion of an agreement
The process of the sale of property is introduced either immediately with the beginning of the restructuring, or only after the consideration of the case. The implementation itself incorporates the following steps:
- inventory of property of the debtor;
- analysis of transactions that were completed earlier;
- identification of debtors of the debtor and creditors;
- sale of bankruptcy property and subsequent settlement with creditors.
Most of the procedures are implemented by the financial manager. In particular, this is an inventory of property, inclusion of creditors in the accompanying register of claims, holding meetings of creditors, as well as the creation of various kinds of reports. The Federal Law consolidates similar features about the insolvency (bankruptcy) of credit organizations, legal entities and individuals.
The last possible scenario is a settlement. It should be noted right away that this is a rather rare scenario. However, the study of the concept and signs of insolvency (bankruptcy) of credit organizations involves the study of this scenario. So, the debtor can find a common language with the lender. They will conclude their own agreement, and the bankruptcy process itself simply will not be needed. In addition, for most lenders, the process of insolvency of a debtor simply cannot be beneficial.