Bankruptcy of legal entities is a rather complicated process, involving various procedures: observation, financial recovery, external management, bankruptcy proceedings. Bankruptcy of legal entities is regulated by 127- “On insolvency (bankruptcy)” of 10.26.2002. The Institute of Bankruptcy of Organizations has begun to develop actively over the past few years, as state control over the uncontrolled change of directors and founders of companies has been strengthened, and the reorganization of companies with debts through merger has been limited.
- This is a statutory procedure for the liquidation of a company in arrears. To apply for bankruptcy of a legal entity, several conditions must be met:
- Debt to employees of a legal entity, the budget and other creditors should be more than 300 thousand rubles.
- The company should be unable to fulfill obligations to creditors and the budget for more than 3 (three) months.
In this case, the managers of the enterprise have a duty to file for bankruptcy. According to Art. 9 127- “On insolvency (bankruptcy)”, the head of the company is obliged to file a bankruptcy petition with the Arbitration Court if:
- payments to one creditors will lead to the impossibility of paying to other creditors or making mandatory payments to the budget;
- the governing bodies of the debtor decided to liquidate the company;
- levy by other legal entities or individuals on the property of the debtor - legal entity may make it impossible to continue normal business activities;
- the financial statements of the debtor contain signs of insolvency;
- there is a debt of more than 3 three months for the payment of severance pay, wages to employees of the organization, former employees of the organization established in accordance with labor legislation.
After filing a bankruptcy petition, the court may accept the petition declaring the debtor bankrupt and enter the monitoring stage by appointing an interim trustee. At this stage, the temporary (arbitration) manager appointed by the court from members of the SRO (self-regulatory organization) takes measures to ensure and preserve the debtor's property, analyzes the financial condition of the debtor organization, identifies the debtor's creditors, keeps a register of creditors' claims, notifies them of the introduction of supervision convenes and holds the first meeting of creditors (Art. 67 127-FZ).
If the meeting of creditors after the introduction of external management decides on the need for financial recovery, the administrative manager will develop a program to restore the normal financial and economic activities of the organization.
During a financial recovery, which can last for several years, the external manager maintains a register of creditors 'claims, convenes creditors' meetings, if necessary, reviews progress reports on the debt repayment schedule and financial recovery plan, and provides information on the fulfillment of the debt repayment schedule to the creditors meeting. The purpose of the financial recovery stage is to return the financial stability of the enterprise, repay existing debts to creditors, employees and the budget.
The stage of bankruptcy proceedings is the stage at which the arbitration manager directly identifies and sells the property of the debtor, this procedure ends, as a rule, with the recognition of the debtor as a legal entity bankrupt.
It is at this stage that most of the questions arise related to the opportunity to satisfy the requirements of all creditors. The bankruptcy trustee is entrusted with a great responsibility for identifying the property and other assets of the debtor, contesting transactions that could have been concluded to withdraw funds from a bankrupt company, timely valuation and putting the property of the debtor organization up for auction.
On the consequences that await the head of the bankrupt enterprise, it is worthwhile to dwell in more detail. At the end of the bankruptcy procedure, the former manager for 5 (five) subsequent years cannot occupy senior positions in organizations (enterprises), such as the general director, financial director. The former director may be liable for the debts of the company. Already in 2016, the law enforcement practice on bringing to subsidiary liability in bankruptcy cases of legal entities has changed a lot. One of the most notorious cases was the prosecution of ex-Senator Pugachev in the amount of 75.6 billion rubles. The Supreme Court of the Russian Federation in 2016 approved a decision of a lower court in the case A40-119763 / 2010 http://kad.arbitr.ru/PdfDocument/54e6f4a7-81bf-4630-afbe-05547a0b9cce/A40-119763-2010_20160129_Opredelenie.pdf.
Since July 2017, the understanding of the institution of subsidiary liability in the framework of bankruptcy of companies has been greatly expanded.
If previously it was possible to bring directors and other managers of the company to subsidiary liability only within the framework of bankruptcy, after the completion of the procedure it was already impossible, then the new law 488- allowed filing applications for bringing to subsidiary liability even in the event that the bankruptcy is completed, terminated due to lack of funds to pay expenses, if the court returned the bankruptcy petition. Creditors will now be able to submit claims to the former director within three years from the moment when the applicant found out or should have known about the existence of the grounds, but no later than 3 (three) years after the completion of the bankruptcy procedure of the legal entity.
Also, in fact, the law now indicates two grounds for holding the debtor's controlling persons accountable. One reason is subsidiary liability in bankruptcy proceedings. The second reason is the compensation for losses under the rules of Art. 15 of the Civil Code of the Russian Federation.
Claims can now be recovered from the director not only by bankruptcy creditors, employees and representatives of employees of the legal entity, but also founders (owners) of the legal entity if it is proved that the loss of the company was caused by guilty actions of the governing bodies.
To solve the problems with debt collection by creditors, the new version of the Bankruptcy Law now clarifies that when the bankruptcy procedure is introduced, if the guilt of the executives is established, but the amount of responsibility is not determined, a bankruptcy creditor may file a claim for bringing to subsidiary liability, which will be considered the same court upon completion of the bankruptcy procedure and determining the exact amount to be repaid by the debtor to this creditor.
Innovations 488-FZ fit into the overall picture of increasing the personal responsibility of company executives. Since 2016, the tax authorities have been able to collect debts from affiliates.
It is also worth noting that debts incumbent on company executives brought to subsidiary liability will not be written off through the bankruptcy procedure of an individual.
Thus, the legislator tightens the liability of legal entities not only during the liquidation of the company, but also in the conduct of bankruptcy proceedings. It is extremely important for managers of legal entities to understand that it is necessary to approach the bankruptcy procedure of companies and liquidation of companies with debts responsibly, involving specialists at all stages of work, in cooperation with the arbitration manager.
Center for Liquidation and Bankruptcy