Some issues arising when considering creditors' claims in a debtor's bankruptcy case (Kamenev A.L.). Creditors' claims for current payments are subject to presentation to the court in accordance with the general procedure provided for by procedural legislation, in

The bankruptcy creditors' committee is formed during the meeting. The committee must be formed if the number of subjects reaches 50. The meeting determines the number of members of the committee, its terms of reference, and makes important decisions. The number of committee members is 3-11 inclusive.

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Within the framework of the powers presented, the committee protects the property interests of the injured party in the insolvency procedure, controls the actions of the parties. According to the law, decisions of the committee are approved by a majority vote. Each member of the committee receives 1 vote.

Creditors' committee rights:

Submission of a complaint to arbitration against a manager.
Convening a meeting.
Obtaining information from the administrator about the financial affairs of the debtor.
Recommendations to the meeting on the dismissal of the receiver in case of improper performance by the latter of his duties.

Lender rights

The ultimate goal of bankruptcy proceedings is the fulfillment of financial obligations by the debtor.
In addition to citizens and enterprises, bodies authorized by the state, municipal organizations or federal subjects can act as creditors. As participants in the process also act extrabudgetary funds and the tax office. Authorized organizations are not included in the list of bankruptcy creditors with a priority position.

According to Art. insolvency law, there are two types of creditors. The first type is “ordinary” persons who want to repay their debts, the second is bankruptcy creditors. The latter have a priority position. The applications of these persons are a sufficient basis and reason for initiating bankruptcy proceedings. Bidding creditors can vote at meetings. They make decisions that can influence the outcome of the process and the subsequent distribution of the debtor's property.

Obligations of the creditor

There are cases when the work of an insolvency administrator is paid only by the creditor. We are talking about the situation when the bankrupt debtor does not have the means to pay the bankruptcy commissioner and compensate for his expenses. According to the law, the liability for expenses in the part outstanding due to the distribution of the debtor's property shall be borne by the person who initiated the commencement of proceedings.

Conditions for the occurrence of the creditor's obligations in bankruptcy:

Availability of a report on financial situation the defendant. This report is being prepared by the interim manager. The document must contain information about whether the defendant can pay legal costs and pay remuneration to the manager. The report is drawn up before the start of production.
If the debtor is unable to pay off the costs, a court hearing is scheduled. During the meeting, the parties are invited to assume material costs. The basis for the occurrence of material obligations is the written consent (indicating the amount) of the persons involved in the case to reimburse the said persons for the costs of office work.

Claims of lenders in bankruptcy

The arbitration court initiates the process of including creditors' claims in a special document - the register of claims. NS of the law, the inclusion of applications in the register is mandatory if the claims were filed at the specified time. An exception is made when it comes to claims for obtaining wages owed by the prisoner with the defendant labor contract... In this case, the arbitration manager is the initiator.

For your information

The inclusion of documents in the register is free of charge, without paying state fees.

The application must be accompanied by evidence: notification of delivery of the claim to the debtor, calculation of the amount owed and other documents. Supporting documents are included in mandatory, their absence may be the reason for refusal at the beginning of production. Lawsuits legal entity signed by the head of the enterprise. The authority of the head must be documented. Documents received from an individual are signed by a citizen or his representative.

If the application is drawn up correctly and the entire list of necessary evidence is present, the court accepts the document for proceedings. Otherwise, the claim is not included in the register until the errors are corrected.

Obligations of a creditor in an insolvency case

Lenders have both rights and responsibilities. The duty is charged with monitoring the work of the bankruptcy commissioner. The meeting of creditors can and should ensure that the manager acts effectively and within the framework of the law. In case of detection of illegal actions or unreasonable inaction, the meeting may initiate the question of its replacement.

The interested parties are obliged to request clarifications of the decisions taken by the court. Since lenders are directly interested in a positive outcome, they must take part in the process and delve into all the legislative nuances that arise. It is the creditors who are obliged to present the evidence of the debtor's debt to the arbitration court. Unfulfilled obligations must be confirmed by relevant documents - unpaid invoices, contracts, receipts.

For your information

If the property condition of the debtor does not allow him to compensate legal costs at his expense and pay the amount due to the arbitration manager, these costs are borne by the creditor (with written consent the latter).

Bankruptcy creditor

The bankruptcy creditor has priority rights. This person can influence the course of the bankruptcy case. Subjects' rights allow them to petition during the trial and vote on decisions that are important to all parties. In comparison, an ordinary plaintiff can be a party to the case, but cannot influence the state of affairs. A bankruptcy creditor is a person who has documented evidence of the debtor's obligations and has submitted claims within the time period provided by law.

The following persons do not fall under this definition:

Authorized organizations.
Privileged subjects. These are citizens making claims for the payment of fees, as well as persons demanding compensation from the debtor for damage to health or life.
The founders of the debtor's enterprise.

As a member of the meeting, the bankruptcy creditor has the right:

Be directly involved in the arbitration-appointed supervision procedure.
Participate in the organization of events aimed at improving the financial condition of the debtor.
Exercise control over the work of the bankruptcy commissioner.

Collateral lender in insolvency proceedings

The law gives secured creditors preemptive rights compared to other lenders. We are talking about persons entitled to satisfaction of material claims from the value of the property pledged by the debtor. In the course of the proceedings, the pledgee acquires special exclusive rights when distributing property.

The law establishes a clear distribution of funds received after the sale of the pledged property:

70% of the cost collateral goes to pay off the claim of the pledged creditor (within the framework of the pledge obligations).
20% of the value of the sale of the pledged property goes to meet the requirements of the rest of the subjects of the process.
Of the rest of the amount, remuneration is paid to the bankruptcy commissioner and legal costs are paid.

Information

Ratio Money changes when it comes to securing a loan agreement. 80% of the amount of the sold collateral is received by the lender, 15% is distributed among the remaining claims, the remaining amounts are used to cover legal costs and pay for arbitration.

Representation of interests of a creditor in a bankruptcy case

When a bankruptcy case starts, there is no shortage of people willing to receive the funds owed. Only a legally competent representative can ensure that legal claims are met. A representative not only attends court sessions, he can influence the course of proceedings and significantly increase the plaintiff's chances of fully satisfying material claims. In the institution of bankruptcy, representing the interests of the creditor includes a whole range of measures:

Analysis of the validity of the requirements.
Preparation of requirements.
Drawing up an amicable agreement.
Control over the entry of requirements into the register.
Sending claims to all interested parties: the court, the debtor, the manager.
Control over the competitive process.
Representation of the lender in the meeting.
Control over the debtor, preventive actions during the withdrawal of property from the company.
If necessary - appeal against the decision of the arbitration court.

Features of creditors in insolvency proceedings

The bankruptcy procedure against the dishonest debtor begins at the moment when the court accepts the creditor's statement of claim. special legal regime ... The purpose of this regime is to satisfy the requirements of all interested parties. In this sense, the deadlines for submitting applications are of great importance.

The status of the plaintiff directly depends on the deadline for filing the claims. The application can be made during observation. The countdown begins at the moment of publication of the notice of the beginning of the observation procedure. Claims filed within 30 days from the beginning of the first bankruptcy proceedings are included in the register by the bankruptcy commissioner. On the basis of the requirements included in the register, the possessing special rights bankruptcy creditors.

Also, a creditor's application can be submitted during the bankruptcy proceedings. The proceedings lasts for two months from the date of publication of the publication with the notification of the insolvency of the debtor. The lender who applied during this period does not receive priority status and does not affect the course of the case.

An application for inclusion in the register of creditors must be submitted within 30 days from the date of publication of information on the introduction of supervision in relation to the debtor. The date of introduction of supervision can be found in the file of arbitration cases by searching by the name of the debtor, or in the newspaper merchant, which publishes information on the introduction of bankruptcy. The application with the attached documents is sent to the arbitration court, in which the bankruptcy case was initiated, as well as to the debtor himself and the bankruptcy manager. If the debtor objects to the satisfaction of the submitted application, then a court session is held, at which each of the parties presents its arguments for and against the satisfaction of the application. If no objections are received, then the arbitral tribunal may consider the application without summoning the parties.

Register of creditors' claims in bankruptcy

An agreement with the registrar can be concluded only if he has a liability insurance agreement in the event of causing losses to persons participating in the bankruptcy case. Information about the registrar must be submitted by the insolvency practitioner to the arbitration court no later than five days from the date of the conclusion of the contract. Payment for the services of the registrar is carried out at the expense of the debtor, unless the meeting of creditors has established another source of payment for the services of the registrar.

4. The registrar is obliged to compensate for losses caused by non-performance or improper performance of the duties provided for by this Federal Law.

Article 16. register of creditors' claims

then - the rest of the claims for the payment of benefits and wages;
after - the requirements for the payment of remuneration to the authors of the results of intellectual activity (clause 5 of article 136 of Law N 127-FZ).

Also, in the second place, the requirements for the payment of insurance contributions for compulsory pension insurance are satisfied (clause 14 of the "Review of judicial practice on issues related to the participation of authorized bodies in bankruptcy cases ...", approved by the Presidium of the RF Armed Forces on 20.12.2016). Note that claims for wages for the periods that expired before the initiation of bankruptcy proceedings, as well as severance payments due to persons dismissed before this date, are included in the register of creditors' claims in general order... But similar debts for the periods that have elapsed after the application for declaring the debtor bankrupt was accepted by the court refer to current payments (cl.

2 tbsp. 136 of Law N 127-FZ, p.

Submission of claims of creditors in the framework of a bankruptcy case

If the size of your claims against the debtor is an insignificant share in the total volume of creditors' claims, then non-participation in the meeting of creditors may not be significant, since your vote will most likely not be decisive (the number of votes per general meeting is determined in proportion to the size of the creditors' claims: a creditor with a claim against the debtor for 1,000 rubles will have 10 times more votes than a creditor with a claim for 100 rubles). Conversely, if the size of your claims is large enough for your vote to be significant at the creditors' meeting, then failure to file an application to join the bankruptcy case within 30 days from the date supervision was introduced may negatively affect the amount that can be obtained as a result of bankruptcy. ...

How to be included in the register of creditors if the debtor is bankrupt?

Despite the fact that for some debtors, given their status (banks, developers, Insurance companies, citizens, individual entrepreneurs) there are specific differences in the bankruptcy procedure, for the lion's share of debtors and creditors the rules are the same. The formation and maintenance of the register of creditors' claims is carried out mainly in accordance with Article 16 of the Bankruptcy Law. How to go through the procedure for inclusion in the register of creditors' claims Lenders learn about the beginning of the debtor's bankruptcy procedure in different ways.

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Some of the creditors may themselves become the initiator of such trial... Someone finds out about bankruptcy from the debtor, and some from the media or in some other way. Be that as it may, already at the first stage - within the framework of the observation procedure - the appointed interim manager is obliged to identify all creditors and officially inform them about the introduction of supervision by publishing information in the Kommersant newspaper.

Priority for satisfying creditors' claims in bankruptcy

In the event that the maintenance of the register of creditors 'claims is transferred to the registrar, the arbitration manager is not responsible for the correctness of the register of creditors' claims and is not responsible for other actions (inaction) by the registrar that cause or may cause damage to the debtor and his creditors. 5. In the register of creditors 'claims, creditors' claims are recorded in foreign currency Russian Federation... Creditors 'claims expressed in foreign currency are recorded in the register of creditors' claims in the manner prescribed by Article 4 of this Federal Law.
6. Creditors 'claims are included in the register of creditors' claims and are excluded from it by the arbitration manager or registrar solely on the basis of judicial acts that have entered into force establishing their composition and size, unless otherwise specified in this paragraph.

Register of creditors' claims: order of inclusion, priority

Disagreements arising between bankruptcy creditors, authorized bodies and the arbitration manager, about the composition, amount and priority of satisfaction of creditors' claims for monetary obligations or about payment mandatory payments are considered by the arbitration court in the manner prescribed by this Federal Law. Disagreements on the claims of creditors or authorized bodies, confirmed by a court decision that entered into legal force in terms of their composition and size, are not subject to consideration by an arbitration court, and statements of such disagreements are subject to return without consideration, with the exception of disagreements related to the execution of judicial acts or their revision ... eleven.

Procedure for inclusion in the register of creditors' claims

Who else should the debtor pay off After satisfying the claims of third-priority creditors, claims for transactions that have been declared invalid are extinguished (clause 4 of article 134, clause 2 of article 61.2, clause 3 of article 61.3 of Law N 127-FZ). Also, after settlements in queues, the head of the organization, his deputies, the chief accountant and some other persons holding managerial positions in the company in which the bankruptcy procedure has been introduced, are paid severance pay and compensations established by labor contracts with them (which are now being terminated), in part, exceeding the minimum payments in accordance with labor legislation(clause 2.1 of article 134 of Law N 127-FZ). Subscribe to our channel in Yandex.

Last summer, the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2012 No. 35 “On some procedural matters related to the consideration of bankruptcy cases ”(hereinafter - Resolution No. 35). The ongoing changes in the arbitration practice indicate the expansion of procedural rights creditors of the insolvent debtor in order to ensure the implementation real right on judicial protection... And although legal approaches to the interpretation and application of the clarifications contained in Resolution No. 35 are just beginning to form, the general orientation of the explanations is obvious to protect the rights of bona fide participants in a bankruptcy case, who promptly and reasonably exercise their procedural rights.

Lender concept

Analysis of the legislation on insolvency (bankruptcy), as well as the clarifications of the Plenum and the Presidium of the Supreme Arbitration Court of the Russian Federation on judicial practice allows us to single out several categories of creditors in bankruptcy cases.

In accordance with Art. 2 of the Federal Law of October 26, 2002 No. 127-FZ "On Insolvency (Bankruptcy)" (hereinafter referred to as the Bankruptcy Law), creditors are understood as persons who have rights of claim against the debtor for monetary obligations and other obligations, on the payment of mandatory payments, on the payment severance pay and remuneration of persons working under an employment contract. Further, the same article of the Bankruptcy Law contains the definition of bankruptcy creditors - these are creditors for monetary obligations, with the exceptions listed in the law.

Article 2 of the Bankruptcy Law reveals the concept of authorized bodies. Such bodies are not bankruptcy creditors by virtue of the direct instructions of the law. The authorized bodies participate in the bankruptcy case not in their own interests, but on behalf and on the basis of the instructions of the relevant authority and represent the interests of public law
education (of the Russian Federation, a constituent entity of the Russian Federation or municipality) in connection with the existence of such an entity's rights of claim against the debtor for the payment of mandatory payments or a pecuniary obligation. This is confirmed by paragraph 2 of Art. 29 of the Bankruptcy Law.

By the authorized federal body executive power that provides representation in bankruptcy cases and in bankruptcy procedures of claims for the payment of mandatory payments and claims of the Russian Federation for monetary obligations, is the Federal Tax Service of Russia. The basis is clause 1 of the Decree of the Government of the Russian Federation of 05/29/2004 No. 257 "On securing the interests of the Russian Federation as a creditor in a bankruptcy case and in the procedures used in a bankruptcy case" and clause 1 of the Regulation on the Federal Tax Service 1. Based on par. 9 tbsp. 2 of the Bankruptcy Law, only federal body executive branch, authorized by the Government of the Russian Federation. Consequently, at present such a requirement can only be made by the Federal Tax Service of Russia.

Lenders: general concept, types, rights

Face	Concept and rights	Norm
General concept lender
Creditor	A person who has in relation to the debtor the rights of claim for monetary obligations and other obligations, for the payment of mandatory payments, for the payment of severance pay and for the remuneration of persons working under an employment contract	Article 2 of the Bankruptcy Law
Types of creditors
	Creditor for monetary obligations, with the exceptions listed in the Bankruptcy Law	Article 2 of the Bankruptcy Law
Authorized organ	Not a bankruptcy creditor. Participates in a bankruptcy case not in his own interests, but on behalf of and on the basis of instructions from the relevant authority and represents the interests of a public law entity (RF, constituent entity of the RF, municipal entity) in connection with the existence of such an entity's rights of claim against the debtor to pay mandatory payments or monetary obligation	Article 2, paragraph 2 Art. 29 of the Law bankruptcy
Claimant creditor to the debtor	Not formally referred by the Bankruptcy Law to the number of persons participating in the bankruptcy case (Article 34). In fact, he is endowed with the rights of the persons participating in the case in the part that concerns the possibility of filing objections to the claims of other candidates for bankruptcy creditors of the debtor or to the claims of the authorized bodies presented to the debtor. The creditor who has filed claims against the debtor has the right to appeal against a judicial act issued based on the results of checking the validity of the claims of another creditor of the debtor	Clause 2 of Art. 71 of the Bankruptcy Law, clause 28 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 15.12.2004 No. 29
Latecomer creditor	Creditors' claims presented after the expiration of the stipulated in clause 1 of Art. 71 of the Bankruptcy Law, the time limit for filing claims is subject to review by the arbitral tribunal after the introduction of the procedure following the observation procedure. Such a creditor does not acquire the status of a person participating in a bankruptcy case	Clause 7 of Art. 71 of the Bankruptcy Law

Creditors who have filed claims against the debtor

In paragraph 2 of Art. 71 of the Bankruptcy Law and clause 28 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 15, 2004 No. 29 "On some issues of the practice of applying the Federal Law" On Insolvency (Bankruptcy) "(hereinafter - Resolution No. 29) when determining the circle of persons entitled to raise objections to claims of another creditor, creditors are indicated who have presented claims against the debtor. This category creditors are not formally referred by the Bankruptcy Law to the number of persons participating in the bankruptcy case (Art. 34). But in fact, this category of creditors is endowed with the rights of persons participating in the case in the part that concerns the possibility of raising objections to the claims of other "candidates" for bankruptcy creditors of the debtor or to the claims of the authorized bodies brought against the debtor. Creditors who have filed claims against the debtor have the right to appeal judicial act, issued on the basis of the verification of the validity of the claims of another creditor of the debtor.

The specificity of the legal status of creditors who filed a claim against the debtor is that, before the court delivers a judicial act within the framework of the bankruptcy case, the validity of their claims against the debtor has not yet been confirmed, the corresponding debt is not included in the register of claims of the debtor's creditors. But despite this circumstance, the Bankruptcy Law gives these persons the right to file objections to the claims of other creditors and to appeal against the relevant judicial acts. This is due to the implementation by the legislator of such a task of legal proceedings as the protection of violated or disputed rights and legitimate interests faces.

Obviously, as in enforcement proceedings and in the framework of a bankruptcy case, each creditor strives to maximize and promptly satisfy his claims against the debtor. Unlike enforcement proceedings in a bankruptcy case, it is very likely that the debtor's property will not be sufficient to satisfy all the creditors' claims. Therefore, the filing of objections to the claims of another creditor is one of the ways to “reduce competitors-applicants” to the bankruptcy estate of the debtor.

The practice of considering bankruptcy cases has repeatedly revealed situations where individuals (both interested in relation to the debtor and disinterested, but having an unlawful interest in the debtor's assets) illegal actions specifically "increase" the requirements for the debtor in order to gain control over the bankruptcy procedure in the form of a majority of votes at the meetings of creditors and subsequently - a large part of the bankruptcy estate. Therefore, the right of creditors who have filed claims against the debtor provided for by the Bankruptcy Law to object to the claims of another creditor is an important guarantee in the mechanism of judicial protection of violated or disputed rights 2.

In addition, one should take into account the procedure for filing objections regarding the claims of creditors, provided for in paragraph 2 of Art. 71 of the Bankruptcy Law. Objections can be filed within 15 calendar days from the date of the expiration of the time limit for filing claims, that is, starting from the 31st calendar day after the publication of the notice on the introduction of observation, up to the 45th day after such publication. Consequently, the date of the court proceedings to check the validity of the creditor's claims should not be set earlier than the expiration of the time limit for filing objections to the creditor's claims.

It is highly probable that a situation will arise in the observation procedure at the time the court checks the validity of the creditor's claim in the case, there are no creditors whose claims have already been recognized as justified and included in the register (if the debtor is the applicant in the bankruptcy case), or the only creditor whose claims are established by the court, is the creditor-applicant in the bankruptcy case.

If we exclude from the number of persons entitled to file objections against the claims of creditors other creditors who have presented their claims against the debtor, but whose claims have not yet been considered by the court, a situation may arise when such objections could be raised only by the only creditor-applicant in the case of bankruptcy or none of the creditors at all. This approach hardly meets the interests of creditors and the purposes of considering a bankruptcy case.

The fact that the Bankruptcy Law gives the right to file objections to the claims of creditors of other creditors who have filed their claims against the debtor allows
check the validity of the creditor's claims in the court of first instance in a timely manner (including without discussing the issues of restoring missed procedural deadlines for appealing judicial acts).

Let us refer to clause 30 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 23, 2009 No. 60 "On some issues related to the adoption of Federal Law No. 296-FZ of December 30, 2008" On Amendments to the Federal Law "On Insolvency (Bankruptcy)" (hereinafter - Resolution No. 60). It clarifies the moment from which a creditor who has submitted claims against the debtor receives the status of a person participating in the case, and also specifies a list of procedural rights that such a creditor has the right to use. The status of a person participating in the bankruptcy case, and the corresponding rights (in particular, to familiarize himself with the case materials in terms of claims and objections presented by all creditors, to participate in court hearings on the consideration of the claims of all creditors, on the appeal of judicial acts adopted as a result of the consideration of these claims), necessary for the exercise of the right to file objections, arise from the creditor from the moment his claim is accepted for consideration by the court.

The list of procedural rights given in paragraph 30 of Resolution No. 60 is not exhaustive.

However, in paragraph 3 of Art. 100 of the Bankruptcy Law otherwise determined the circle of persons who have the right to file objections to the claims of creditors presented in the procedures external management and bankruptcy proceedings... This is an external manager, a representative of the founders (participants) of the debtor or a representative of the owner of the debtor's property - a unitary enterprise, as well as creditors whose claims are included in the register of creditors' claims.

The reasons why the legislator excluded from the list of persons entitled to raise objections, creditors who filed claims against the debtor are unclear. First, in practice, there are situations when the creditor made a claim against the debtor in the supervision procedure, but for various reasons such a claim was not considered at the time of the introduction of the next bankruptcy procedure. For example, the court suspended the proceedings on the consideration of the creditor's claims in connection with the appointment of an expert examination, or the ruling of the court of first instance, issued based on the results of the verification of the validity of the creditor's claims, is being appealed in the appeal or cassation procedure 3. A situation arises in which such a creditor had the right to raise objections to the claims of other creditors in the supervision procedure, but lost this right in relation to creditors who filed claims against the debtor in the external administration or bankruptcy proceedings!

Secondly, if a bankruptcy procedure is immediately introduced against the debtor (for example, the debtor is liquidated), then at the time of the decision to declare the debtor bankrupt and open bankruptcy proceedings, there are no creditors at all whose claims would be included in the register (the exception is with a statement the creditor filed for declaring the debtor to be liquidated bankrupt). A situation arises, to which attention has already been drawn in the legal literature, when creditors, who at the same time filed claims against the debtor, do not have the opportunity to raise objections against each other. The only way to defend yourself would be to appeal against a judicial act to a higher instance 4.

The clarifications contained in clause 30 of Resolution No. 60 relate to the procedure for filing and considering creditors' claims in the observation procedure, which follows from the first paragraph of this clause. Therefore, it is hardly possible to extend these clarifications to other bankruptcy procedures.

You can admit a different interpretation of clause 30 of Resolution No. 60: it is necessary to distinguish between creditors who have filed claims against the debtor in the monitoring procedure and (for example) in the external administration procedure. In the first case, the creditor acquired the status of a person participating in the bankruptcy case from the moment his claim was accepted for consideration by the court. Consequently, if at the time of the introduction of the external management procedure, the claims of such a creditor have not yet been considered by the court, regardless of the change in the bankruptcy procedure, the creditor does not lose the status of a person participating in the bankruptcy case and, as a result, has the right to raise objections to the claims of creditors brought against the debtor in the external procedure. management.

In the second case, by virtue of the straight line and peremptory norm clause 3 of Art. 100 of the Bankruptcy Law, the creditor who has filed claims against the debtor is not a person entitled to file the corresponding objections.

The foregoing testifies to the need for legislative resolution of this conflict, since the inequality of the legal status of creditors is obvious and hardly justified. At least current edition The bankruptcy law encourages bona fide creditors to submit claims against the debtor in a timely manner (in the observation procedure).

In view of the foregoing, the explanations contained in paragraph 30 of Resolution No. 35 are interesting: since any other creditor, whose claim at this point has been accepted by the court, has the right to participate in the consideration of the creditor's claim by the court, and also since, by virtue of Art. 63 of the Bankruptcy Law, all creditors for monetary obligations and compulsory payments, whose claims arose before the initiation of bankruptcy proceedings, can declare their claims already in the observation procedure, when one creditor appeals against a judicial act establishing the claim of another, the following should be taken into account.

Such a creditor has the right to submit additional evidence to the court of appeal, which was not considered by the court of first instance, only if he justifies the impossibility of submitting it to the court of first instance for reasons beyond his control (part 2 of article 268 of the Arbitration Procedure Code of the Russian Federation). The above reasons do not per se not include his failure to present his claim in the observation procedure or in the course of another procedure prior to consideration of the claim of another creditor. The term for an appeal and cassation appeal by such a creditor of a judicial act on establishing the claim of another creditor shall be calculated for him according to general rules. Failure to present his claim in the observation procedure or in the course of another procedure before considering the claim of another creditor is not in itself a sufficient reason to restore the term he missed (part 2 of article 259 and part 2 of article 276 of the Arbitration Procedure Code of the Russian Federation). These clarifications are also applied when creditors appeal any other judicial acts in a bankruptcy case, adopted after the expiration of the time limit for the creditors to declare their claims in the observation procedure, including those issued by the court before the creditor's claim is included in the register.

The practice of applying paragraph 30 of Resolution No. 35 is just beginning to take shape, there are no judicial acts of the Supreme Arbitration Court of the Russian Federation, which would take into account these clarifications. As a preliminary judgment, one can draw attention to the following.

The explanations guide the participants in the bankruptcy case towards
timely submission (by which in clause 30 is meant the observation procedure) claims against the debtor.

Attention is drawn to the thesis that "any other creditor whose claim by this moment has been accepted by the court has the right to participate in the consideration of the creditor's claim by the court." Hopefully, by doing so, the Supreme Arbitration Court of the Russian Federation overcomes the contradiction between clause 3 of Art. 100 and clause 2 of Art. 71 of the Bankruptcy Law and expands the circle of persons entitled to file objections to the creditor's claims against the debtor in the external administration or bankruptcy proceedings.

With a different approach, the question of the right to appeal against a judicial act on the establishment of the creditor's claims by a person who does not have the right to raise objections to such a claim may arise. If by virtue of paragraph 3 of Art. 100 of the Bankruptcy Law, the creditor who has filed claims against the debtor does not have the right to raise objections (that is, the legislator believes that such a person has no legitimate interest as a result of considering the claims of another creditor), then, arguing consistently, such a creditor does not have the right to appeal against a judicial act, which establishes the claims of another creditor. This approach is more than controversial.

"Latecomers" creditors

Another issue that must be taken into account when assigning a person to the number of creditors concerns the so-called late creditors. According to clause 7 of Art. 71 of the Bankruptcy Law, creditors' claims filed after the expiration of the time period for filing claims provided for in clause 1 of the named article shall be considered by the arbitration court after the introduction of the procedure following the observation procedure. Clause 27 of Resolution No. 29 states that upon receipt of such claims, the court issues a ruling on the acceptance of claims for consideration and indicates that they will be considered within a month after the introduction of the procedure following the observation procedure. Specified requirements are considered according to the rules established for the corresponding procedure following the monitoring procedure.

Since the creditor untimely appealed to the debtor in the observation procedure, he cannot be considered a "creditor who made claims against the debtor" in relation to paragraph 2 of Art. 71 of the Bankruptcy Law. Consequently, such a creditor does not acquire the status of a person participating in the bankruptcy case.

The clarified clarification contained in paragraph 35 of Resolution No. 60 indicates that the court ruling, which establishes only the fact that the creditor missed the thirty-day period for filing claims against the debtor, is not "a ruling on the acceptance of the creditor's claim for consideration." In this case, the court does not check the compliance of the form and content of the creditor's application with the requirements procedural law... When proceeding to the next bankruptcy procedure, the creditor will be obliged to comply with the requirements of the Bankruptcy Law for the creditor's application in the relevant bankruptcy procedure, for example, to reimburse the trustee in bankruptcy for the costs of notifying creditors.

It can be concluded that the concept of "creditor" used in Art. 2 of the Bankruptcy Law is general characteristic persons who have the right to claim against the debtor for obligations, as well as on the payment of mandatory payments, on the payment of severance pay and on the remuneration of persons working under an employment contract.

The category of the creditor (bankruptcy, public law formation, who presented claims to the debtor, “late”, etc.) determines his status as a person participating in the bankruptcy case, which in turn affects the range of rights and obligations in the case of bankruptcy 5.

The creditor's right to judicial protection

Let us consider some of the problems arising for the debtor's creditors when appealing against judicial acts issued outside the framework of the bankruptcy case against the debtor.

Part 1 of Art. 4 of the Arbitration Procedure Code of the Russian Federation provides the right to interested parties to seek protection in an arbitration court. The provisions of Art. 42 of the APC RF provide for protection in arbitration process rights of persons who did not participate in trial, on the rights and obligations of which the arbitration court has made a decision.

Persons not participating in the case, both indicated and not indicated in the motivational and / or operative part of the judicial act, have the right to appeal against it in accordance with the procedure appeal proceedings in case it is adopted about their rights and obligations. That is, this judicial act directly affects their rights and obligations, including the creation of obstacles to their implementation. subjective right or proper performance of an obligation towards one of the parties to the dispute. Such clarifications are contained in clause 1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 28, 2009 No. 36 "On the Application of Arbitration procedural code Of the Russian Federation when considering cases in an arbitration court of appeal ”.

Paragraph 2 of the above clarifications states that in the event that a complaint is filed by a person who did not participate in the case, the court must check whether the complaint contains substantiation of how the contested judicial act directly affects the rights or obligations of the applicant. In the absence of appropriate justification, the appeal is returned to the force of paragraph 1 of Part 1 of Art. 264 APC RF. After adoption appeal of a person who did not participate in the case, the arbitration court of the appellate instance determines whether the adopted judicial act directly affects the rights or obligations of the applicant. Having established this, he decides on the cancellation of the judicial act of the court of first instance, guided by paragraph 4 of Art. 270 of the Arbitration Procedure Code of the Russian Federation, and on bringing the applicant to participation in the case. If, after the acceptance of the appeal, it is established that the applicant does not have the right to appeal the judicial act, in relation to paragraph 1 of part 1 of Art. 150 of the Arbitration Procedure Code of the Russian Federation, the proceedings on the complaint shall be terminated.

As indicated in the Determination of the Constitutional Court of the Russian Federation dated 22.03.2012 No. 558-О-О, in accordance with Part 3 of Art. 16 of the Arbitration Procedure Code of the Russian Federation, the binding nature of judicial acts does not deprive persons not participating in the case of the opportunity to apply to an arbitration court for the protection of their rights and legitimate interests violated by these acts by appealing against these acts. The criterion in determining the persons entitled to appeal against judicial acts by the legislator is the essence of violations of procedural law committed by the arbitration court when passing a judicial act - making a decision on the rights and obligations of persons not involved in the case (paragraph 4 of part 4 of Art. 270 and clause 4 of part 4 of article 288 of the Arbitration Procedure Code of the Russian Federation).

Taking into account the foregoing, a person not participating in the case has the right to appeal the judicial act only if it is proved that when the judicial act was passed, a decision was made on his rights and obligations.

by the way

Until recently, the judicial arbitration practice of applying Part 1 of Art. 4 and Art. 42 of the Arbitration Procedure Code of the Russian Federation ruled out the possibility for the creditors of the debtor, in respect of whom the bankruptcy case was initiated, to appeal against the judicial acts adopted in the lawsuit, on the collection of any debt from the debtor or on the approval of the settlement agreement, the party to which was the debtor. This position of the arbitration courts was due to the fact that the above judicial acts did not resolve the issue of the rights and obligations of the debtor's creditor, such a creditor was not even mentioned in the judicial act, and no decision was made with respect to his property. With this approach, creditors actually did not have a legal opportunity to raise objections to the claims of other creditors based on a judicial act that entered into legal force. The fact is that disagreements on the claims of creditors or authorized bodies, confirmed by a court decision that entered into legal force in terms of their composition and size, are not subject to consideration by an arbitration court. Applications about such disagreements are returned without consideration, with the exception of disagreements related to the execution of judicial acts or their revision (clause 10 of article 16 of the Bankruptcy Law).

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06/08/2010 No. 2751/10 changed the arbitration practice and expanded the circle of persons entitled to appeal against judicial acts.

Within the framework of this case, the courts of first and appellate instances considered the dispute on the joint and several collection of the debt under the sale and purchase agreement and satisfied the claims in connection with the recognition of the claim by the defendants. In the cassation procedure, the judicial acts were appealed only in terms of the recovery of the penalty, the submitter of the complaint (one of the defendants) referred to the need to apply Art. 333 Civil Code RF. By the decision of the cassation instance, the judicial acts were left unchanged. A bank, not participating in the case, filed an application for the revision of judicial acts by way of supervision, and referred to violations of substantive law admitted by the courts. In addition, the bank indicated that one of the defendants is in bankruptcy proceedings, therefore, the contested judicial acts may serve as the basis for the plaintiff to file a corresponding claim in the framework of the bankruptcy case on the inclusion of debts established by the courts in the register of creditors' claims of the debtor. In this case, the bank, which is the bankruptcy creditor of the debtor, will be deprived of the opportunity to object to the validity of such a claim, since it is based on an effective judicial act adopted within the framework of action proceedings on debt collection.

In its resolution dated 08.06.2010 No. 2751/10, the supervisory authority indicated the following. Considering that the bankruptcy case of the company was initiated before the consideration of this dispute on the merits, the decision on this case affects the rights and legitimate interests of the bank as a bankruptcy creditor, which cannot be deprived of its right to objection to the claims of other creditors, provided for in paragraph 3 of Art. 100 of the Bankruptcy Law. Since the plaintiff's claims against the company are included in the register on the basis of a court decision in this case that has entered into legal force, the bank's right to objection can only be exercised within the framework of this case by appealing against the adopted judicial acts.

Thus, the Presidium of the Supreme Arbitration Court of the Russian Federation, on the one hand, did not recognize the bank as a person who is a direct participant in the disputed legal relationship, on whose rights and obligations a judicial act was adopted, and therefore has the right to appeal against a judicial act in accordance with Art. 42 APC RF. However, he admitted the possibility of considering the merits of the bank's complaint against judicial acts adopted in claim procedure, having established that in any other way the creditor bank will not be able to exercise the right to objections to the claims of the plaintiff-creditor, since they are confirmed by a judicial act that has entered into legal force.

In accordance with paragraph 4 of Part 4 of Art. 270 and paragraph 4, part 4 of Art. 288 of the APC RF, if the court of appeal or cassation finds that the contested judicial act directly affects the rights or obligations of the complainant who was not involved in the case and filed such a complaint in accordance with Art. 42 of the Arbitration Procedure Code of the Russian Federation, this entails the unconditional cancellation of the judicial act.

The debtor's creditor does not formally meet the criteria listed in Art. 42 APC RF. Therefore, consideration on the merits of the appeal / cassation complaint of such a creditor against a judicial act adopted in a claim proceeding is not an unconditional basis for canceling a judicial act in connection with a violation of procedural law and sending the case for a new consideration (at the stage of appeal - for the court to proceed to consideration cases according to the rules of the court of first instance). In this case, the court checks whether the creditor has the right to appeal the judicial act and, having found out this circumstance, considers the complaint on the merits or terminates the proceedings on it.

Legal position of the Constitutional Court of the Russian Federation

Let us turn to the legal position of the Constitutional Court of the Russian Federation, set out in clause 6 of the resolution dated May 26, 2011 No. 10-P "In the case of checking the constitutionality of the provisions of clause 1 of Article 11 of the Civil Code of the Russian Federation, clause 2 of Article 1 of the Federal Law" On Arbitration Courts in the Russian Federation ", Article 28 of the Federal Law" On state registration rights to real estate and transactions with him ", paragraph 1 of Article 33 and Article 51 of the Federal Law" On Mortgages (Pledge of Real Estate) "", within the meaning of Part 1 of Art. 1, art. 2, 18, 46, part 3 of Art. 55 and art. 118 of the Constitution of the Russian Federation binding the Russian Federation as constitutional state to create an effective system of protection constitutional rights and freedoms through justice, an integral element of the normative content of the right to judicial protection, which has a universal character, is the right of interested persons, including those not involved in the case, to apply to the court for the protection of their rights violated by an unjust court decision.

The above legal position of the Constitutional Court of the Russian Federation was developed in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06.12.2011 No. 7917/11.

Within the framework of this dispute, the company applied to the arbitration court with an application for extradition writ of execution on compulsory execution decisions of the arbitral tribunal to collect debts from the enterprise. The company applied to be involved in the case as a third party who did not declare independent requirements regarding the subject of the dispute. Reason: the issuance of a writ of execution for the compulsory execution of an arbitral tribunal's decision may significantly affect the rights and legitimate interests of the company as a creditor of the enterprise (the company's claims were recognized as justified in the framework of the enterprise bankruptcy case). The first instance court, with which he agreed and Court of Appeal, the company refused.

The company appealed to the court of cassation with a complaint against the ruling of the first instance court to issue a writ of execution for the compulsory execution of the arbitral tribunal's decision. The court of cassation returned the company's appeal, stating that the ruling on the issuance of a writ of execution for the enforcement of the arbitral tribunal's decision was not a judicial act adopted on the company's rights and obligations, and it was not entitled to appeal against this judicial act in cassation proceedings. At the time of the return of the cassation appeal, the company's claims based on the ruling on the issuance of a writ of execution for the compulsory execution of the arbitral tribunal's decision were included in the register of claims of the enterprise's creditors.

The Presidium of the Supreme Arbitration Court of the Russian Federation canceled the ruling of the court of first instance on the issue of a writ of execution for the compulsory execution of the arbitral tribunal's decision and sent the case for new consideration to the court of first instance, indicating the following.

As established by the court in the bankruptcy case, the company is the creditor of the enterprise in respect of which the bankruptcy procedure has been introduced. Consequently, she is an interested person in relation to the debtor-enterprise. Based on the meaning of clause 6 of the Resolution of the Constitutional Court of the Russian Federation of 05/26/2011 No. 10-P, interested parties, including those not involved in the case, have the right to apply to the court for the protection of their rights violated by the unjust decision of the arbitral tribunal. Since at the time of consideration of the company's application for the issuance of a writ of execution for the compulsory execution of the arbitral tribunal's decision by the arbitration court that was considering the application for recognizing the enterprise as insolvent (bankrupt), a ruling was made on the introduction of the observation procedure, property claims against the enterprise should have been submitted to the arbitration court considering the case about its insolvency. In this case, such claims are subject to inclusion in the register of creditors' claims in the manner prescribed by the Bankruptcy Law. A different approach creates the possibility of satisfying the claims of one of the creditors of the insolvent debtor without taking into account the rights and legitimate interests of his other creditors. In this case, the arbitration court on the basis of paragraph 2 of part 3 of Art. 239 of the Arbitration Procedure Code of the Russian Federation, it was necessary to terminate the proceedings on the issue of a writ of execution for the compulsory execution of the arbitral tribunal's decision.

Thus, the supervisory authority recognized the right to judicial protection for a person who was not a party to the disputed legal relationship, but since the claims of this person against the debtor were recognized as justified in the framework of the bankruptcy case, this entails the qualification of such a person as interested in the debtor. Another important aspect In this case, the court's reference to the fact that a different approach creates the possibility of satisfying the claims of one of the creditors of the insolvent debtor without taking into account the rights and legitimate interests of his other creditors.

Interesting is the further fate of the legal approach formulated by the supervisory instance to the interpretation of the right of the creditor of the insolvent debtor to appeal against judicial acts adopted outside the framework of the bankruptcy case.

Clause 24 of Resolution No. 35 says: if bankruptcy creditors believe that their rights and legitimate interests have been violated by a judicial act on which the claim filed in the bankruptcy case is based (in particular, if they believe that it is unfounded due to unreliability of evidence or nullity transactions), on this basis, they, as well as the insolvency practitioner, have the right to appeal against the specified judicial act in the general procedure established by procedural legislation. At the same time, if they miss the deadline for its appeal, the court has the right to restore it, taking into account when the person who filed the complaint learned or should have learned about the violation of his rights and legitimate interests. The applicant sends a copy of such a complaint to the representative of the meeting (committee) of creditors (if any), who is also notified by the court about the consideration of the complaint. All bankruptcy creditors whose claims are filed in the bankruptcy case, as well as the arbitration manager, have the right to take part in the consideration of the complaint, including submitting new evidence and presenting new arguments. Re-appeal named persons on the same grounds of the same judicial act is not allowed.

Possible problem situations and ways to resolve them

What questions may arise when applying these clarifications of Resolution No. 35 and what conclusions can be drawn from the above interpretation of the rule of law?

First, a question may arise about the interpretation of the concept of a bankruptcy creditor.

Clause 2 of Resolution No. 35 contains a clause, according to which "hereinafter, for the purposes of this Resolution, the bankruptcy creditor or creditor is also understood to be the authorized body." Since Resolution No. 35 is devoted to procedural issues, then, apparently, its explanations were not intended to show the peculiarities and differences in the legal status of creditors, bankruptcy creditors and creditors who filed claims against the debtor. The above can explain the simultaneous use in Resolution No. 35 of the above concepts as equivalent (compare, for example, sub-item 3 of item 17, item 30 and item 31 of Resolution No. 35). Therefore, when deciding whether, in the general procedure established by procedural legislation, the right to appeal against the judicial act on which the claim filed in the bankruptcy case is based is not only who has submitted his claims to the debtor, should be guided by the provisions of the Bankruptcy Law, which determine the circle of persons entitled to objection to the creditor's claim.

As it was said, in the observation procedure, such objections, of course, have the right to be raised by the creditor who made the claims against the debtor. In this regard, it seems logical and consistent position on the right of such a person to appeal in general procedural order the judicial act on which the claim of another creditor filed in the bankruptcy case is based. Otherwise, a creditor whose claims have been filed in the framework of a bankruptcy case, but have not yet been established by the court, is deprived of the legal opportunity to exercise his right to objection.

So, in the Ruling of the Supreme Arbitration Court of the Russian Federation dated April 15, 2011 No. VAS-4058/11 in case No. A45-9962 / 2009, it is said: within the meaning of the norms of the Bankruptcy Law, the creditor becomes a bankruptcy creditor and a person involved in the case after his claims are included in the register of creditors' claims. Under these conditions, the conclusions of the courts of two instances on the termination of proceedings both on the appeal and on the cassation complaints of the applicant should be recognized as correct. There are no grounds for re-evaluating them and raising the issue of revising the contested judicial acts by way of supervision. With regard to the applicant's reference to paragraph 30 of Resolution No. 60, this clarification concerns the right of the creditor as a person participating in the case, only regarding the appeal of judicial acts related to the establishment of the fact of the existence of debt to other creditors, its size and order of repayment, but not judicial acts regarding the merits of the case (in this case, the decision to declare the debtor bankrupt), adopted (made) before the applicant acquired the status of a bankruptcy creditor.

However, another interpretation of the concept of a bankruptcy creditor cannot be ruled out in relation to the explanations contained in paragraph 24 of Resolution No. 35. Another approach may be that the right to appeal in the general procedure established by procedural legislation of the judicial act on which the declared in the bankruptcy case is based the claim is owned by the creditor, whose claims are recognized as justified and included in the register of claims of the debtor's creditors.

The above-mentioned resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation of 08.06.2010 No. 2751/10 and of 06.12.2011 No. 7917/11 state that the claims of creditors who filed complaints against judicial acts adopted outside the framework of a bankruptcy case and establishing the debts of organizations in respect of which a bankruptcy procedure was introduced, were deemed justified and included in the register. That is, creditors by virtue of Art. 34 of the Bankruptcy Law were full participants in the bankruptcy case.

The penultimate sentence of clause 24 of Resolution No. 35 contains the phrase: "Creditors whose claims are filed in a bankruptcy case." Let's hope that the circle of such persons also includes creditors whose claims have been declared but not considered in the bankruptcy case.

Since in paragraph 24 of Resolution No. 35 there is no reference to the bankruptcy procedure, the question remains about the concept of a bankruptcy creditor in relation to paragraph 3 of Art. 100 of the Bankruptcy Law.

In our opinion, it is necessary to develop a unified and clear approach to determining the circle of persons who have the right to appeal against judicial acts adopted outside the framework of the bankruptcy case and establishing the amount of the debtor's debt, in respect of which one of the bankruptcy procedures has been introduced. The ambiguities and contradictions that exist today can give rise to numerous litigations, which will affect not only the workload of the arbitration courts, but, unfortunately, the uniform application of bankruptcy legislation. This will require additional clarification from the Supreme Arbitration Court of the Russian Federation.

Secondly, in paragraph 24 of Resolution No. 35, attention is drawn to the phrase: "The rights and legitimate interests have been violated by the judicial act on which the claim filed in the bankruptcy case is based." The literal interpretation of this clarification means that the adoption of a judicial act against the debtor outside the framework of the bankruptcy case does not in itself violate the rights and legitimate interests of other creditors of this debtor. And even if the bankruptcy creditors have information about the existence of a litigation in which the debtor is a party, this in itself is not a sufficient circumstance for the creditor to apply to the court with a complaint against a judicial act or with a petition to join the case as an interested person. Information about the existence of a litigation can be obtained from the publicly available card index of arbitration cases posted on the official website of the Supreme Arbitration Court of the Russian Federation on the Internet, or from information provided by the bankruptcy administrator of the debtor at a meeting of creditors.

By virtue of the above explanations, bankruptcy creditors have the right to appeal against such a judicial act only after a corresponding claim has been declared on its basis in the framework of a bankruptcy case.

When considering this issue, one should not forget about the current requirements, which are not included in the register. For example, the presence of a judicial act that has entered into legal force on the collection of the current debt from the debtor will serve as the basis for the arbitration manager to settle settlements with the creditor without observing the procedure provided for in Art. 71 and 100 of the Bankruptcy Law. Since settlements with creditors for current claims are carried out at the expense of the debtor's bankruptcy estate, the creditors whose claims are to be included in the register are interested parties in terms of issues related to the distribution of the debtor's bankruptcy estate. Consequently, the persons referred to in paragraph 24 of Resolution No. 35 have the right to appeal, in the general procedure established by procedural legislation, a judicial act adopted as a result of consideration of the current claim against the debtor. At the same time, the situation under consideration is complicated by the fact that the Bankruptcy Law does not provide for the right of creditors who have filed claims against the debtor to object to the claims of creditors for current obligations.

On the day of the adoption of Resolution No. 35, the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 22.06.2012 No. 36 "On Amendments and Additions to the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 23.12.2010 No. 63" On Some Issues Related to the Application of Chapter III.1 of the Federal Law "On insolvency (bankruptcy)" ". So, clause 1 of Resolution No. 63 of June 22, 2012 was supplemented with a new paragraph as follows: if bankruptcy creditors or authorized bodies believe that their rights and legitimate interests have been violated by an amicable agreement approved by the court in another case in the lawsuit, in particular if such the agreement has the features specified in Art. 61.2 or 61.3 of the Bankruptcy Law, then on this basis they, as well as the insolvency practitioner, have the right to appeal the ruling on the approval of such an amicable agreement, while if they miss the deadline for appealing it, the court has the right to restore it, taking into account when the person who filed the complaint learned or should have learned about the violation of his rights and legitimate interests. A copy of such a complaint is sent by its applicant to a representative of the meeting (committee) of creditors (if any), who is also notified by the court about its consideration. All bankruptcy creditors and authorized bodies, whose claims are declared in the bankruptcy case, as well as the arbitration manager, have the right to take part in the consideration of this complaint, including submitting new evidence and presenting new arguments. A repeated appeal by the named persons on the same grounds of the same ruling on the approval of the settlement agreement is not allowed.

The above addition allows us to conclude that the ruling on the approval of the settlement agreement can be appealed regardless of whether its participant has applied to the debtor in the framework of the bankruptcy case (since, unlike paragraph 24 of Resolution No. 35, such a clause in Resolution No. 36 absent). Secondly, the phrase "All bankruptcy creditors and authorized bodies whose claims are declared in the bankruptcy case" inspires hope that the right to appeal against a judicial act approving a settlement agreement is recognized not only for creditors whose claims are included in the register, but also for creditors who have filed claims against the debtor.

Noteworthy is the different use of terminology and techniques of legal technology in the regulations No. 35 and 36.

Thirdly, when applying the explanations contained in paragraph 24 of Resolution No. 35, the question may arise whether the moment of adoption in the general procedure established by procedural legislation of a judicial act is of legal significance - before or after the initiation of the bankruptcy case of the defendant-debtor in the case of when the plaintiff-creditor in the framework of the bankruptcy case filed his claim against the debtor on the basis of the specified judicial act.

In our opinion, in the case under consideration does not have legal significance the moment of adoption of the judicial act in respect of the debtor. Since such a judicial act is the basis for the monetary claim of the plaintiff-creditor against the debtor in the framework of the bankruptcy case, the bankruptcy creditors should be able to exercise their right to objections in the manner provided for in paragraph 24 of Resolution No. 35.

A possible judgment that when a judicial act was adopted (for example, in a lawsuit) before the initiation of a bankruptcy case, the debtor did not have bankruptcy creditors as such, therefore, the rights of such persons could not be violated, and in this regard, after the initiation of a bankruptcy case, creditors have no right to appeal in the general established by procedural legislation of the specified judicial act, it seems to us unreasonable.

In our opinion, a significant moment in determining the boundaries of the exercise of the right to judicial protection for bankruptcy creditors is not the moment of adoption of the judicial act on which the claim of another creditor in the framework of the bankruptcy case is based (before or after the initiation of the bankruptcy case), but the fair use of the bankruptcy creditor their rights in the form of a timely appeal within the framework of a bankruptcy case with an application for the inclusion in the register of their own claim against the debtor and the timely filing of objections against the claims of another creditor in the form of an appeal in a claim (for example) proceedings with an appeal (cassation, supervisory) complaint against the relevant judicial act ...

Under a different approach, bankruptcy creditors are virtually deprived of the opportunity to appeal against a judicial act adopted before the initiation of a bankruptcy case (for example, a court decision on the basis of which another creditor applied to the court to initiate a bankruptcy case of the debtor).

It should be noted that when considering the issue of the bankruptcy creditor's right to appeal against a judicial act on which the claim of another creditor is based, Resolution No. 35 does not contain a reservation on the moment of adoption of such a judicial act (before or after the initiation of bankruptcy proceedings and the introduction of bankruptcy proceedings). In this regard, it can be concluded that this circumstance is not legally significant.

Selected issues

Limitation of actions

Clause 14 of Resolution No. 29 provides an exhaustive list of persons who have the right to file objections to the claims of bankruptcy creditors based on missing the deadline limitation period... Creditors who have filed claims against the debtor, bankruptcy creditors and authorized bodies do not have such a right (see the resolution of the Federal Antimonopoly Service of the East Siberian District of 18.10.2011 in case No. A78-7935 / 2010).

Unfortunately, the adoption of Resolution No. 35 did not entail the exclusion of these clarifications or the expansion of the circle of persons entitled to submit such objections.

Within the framework of a bankruptcy case, situations may arise when the debtor, for various reasons of a non-legal nature, or an arbitration manager acting contrary to the requirements of paragraphs 2 and 4 of Art. 20.3 of the Bankruptcy Law in the interests of only the debtor or a group of creditors, and not in the interests of all participants in the bankruptcy case and not in defense of the debtor's bankruptcy estate, do not declare that the limitation period has been passed.

Under the existing clarifications, the debtor's creditors are deprived of the right to file such an objection.

According to paragraph 2 of Art. 199 of the Civil Code of the Russian Federation, the limitation period is applied by the court only at the request of a party to the dispute, made before the court makes a decision. Since Resolution No. 29 allows a deviation from this rule and the right to raise objections based on missing the limitation period is vested in persons who are not parties to the disputed legal relationship (representatives of the founders (participants) of the debtor or the owner of the debtor's property - a unitary enterprise), the reasons are not clear for which such a right is not granted to the debtor's creditors.

As mentioned above, over the course of several years
The Supreme Arbitration Court of the Russian Federation is consistently expanding the possibilities and methods for the implementation by creditors of the right to object to claims brought against the debtor by other creditors. Assuming the possibility for the bankruptcy creditor to intervene in the claim proceeding, the debtor is a participant in (paragraph 24 of Resolution No. 35), the absence of such a creditor's right to apply for the application of the limitation period looks inconsistent. Let's hope that this contradiction will be resolved.

Clause 9 of Resolution No. 35

For the purpose of participating in the first meeting of creditors, creditors have the right to present their claims to the debtor within 30 calendar days from the date of publication of the notice on the introduction of supervision (clause 1 of article 71 of the Bankruptcy Law). As already mentioned, the claims of creditors filed after the expiration of the specified period are subject to consideration by the arbitration court after the introduction of the procedure following the observation procedure (clause 7 of Article 71 of the Bankruptcy Law).

Articles 142, 225 and 228 of the Bankruptcy Law establish the deadlines for filing claims in bankruptcy proceedings, violation of which entails refusal to include claims in the register of creditors' claims and recognition of such claims subject to satisfaction at the expense of the debtor's property remaining after satisfying the claims of creditors included in the register.

In connection with the temporary restrictions provided for by the Bankruptcy Law for the presentation of creditors' claims and the establishment legal implications missing the appropriate deadline in judicial practice, questions have long been raised about the possibility of realization by bankruptcy creditors and authorized bodies in the court of first instance of the procedural rights provided for in Part 1 of Art. 49 of the Arbitration Procedure Code of the Russian Federation, after the expiration of the terms provided for in paragraph 1 of Art. 71, para. 3 p. 1 art. 142, paragraph 2 of Art. 225 and clause 2 of Art. 228 of the Bankruptcy Law. Let's list these questions:

What is the subject of the claim of the applicant creditor (authorized body) - establishment overall size the creditor's claims against the debtor (that is, the subject is the requirement to be included in the debt register) or specific obligations (monetary or compulsory payments) arising from various legal grounds;

Should a claim based on other circumstances (for example, arrears for another tax period, arrears under another civil law contract) or containing another substantive claim (besides the amount of the principal debt, a claim on the inclusion of a penalty have been declared) should be considered as an independent new statement;

If the original claim of the creditor is asserted
in a timely manner (within 30 days in the observation procedure, in bankruptcy proceedings - until the register is closed), and an increase in the demand - after the above time limits, is the court entitled to consider the amended requirement or should the petition be refused?

Judicial practice answered the questions posed in different ways. The explanations contained in clause 9 of Resolution No. 35 make it possible to form a uniform legal approach to resolving the above issues.

First of all, in the commented paragraph, it is proposed to distinguish between an increase in the amount of claims by a creditor and a change in the basis of a claim.

According to clause 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 31, 1996 No. 13 "On the Application of the Arbitration Procedure Code of the Russian Federation when considering cases in the court of first instance", a change in the subject matter of a claim means a change in the substantive claim of the plaintiff against the defendant.

A change in the basis of a claim means a change in the circumstances on which the plaintiff bases his claim against the defendant. Under increasing size claims should be understood as an increase in the amount of the claim for the same claim that was claimed by the plaintiff in statement of claim.

The increase in the size of the claim cannot be associated with the presentation of additional claims that were not declared by the plaintiff in the statement of claim.

Thus, the requirement to apply property sanctions cannot be regarded as an increase in the amount of claims in a claim for the collection of the principal debt. Such a requirement can be declared independently.

Consequently, if the creditor changes the actual circumstances from which his right to claim against the debtor follows, or in fact makes a new claim (for example, on the payment of debt under another agreement 6, penalties in addition to the principal debt), then such a claim is considered new and submitted to the moment of the corresponding change.

This approach means that the subject of the claimed in the order of Art. 71 and 100 of the Bankruptcy Law, the claim is not the establishment of the total amount of the claim of the given creditor against the debtor, but the inclusion in the register of a specific claim (obligatory or based on the obligation to pay obligatory payments).

Prior to the clarifications contained in clause 9 of Resolution No. 35, the outlined approach was formulated in clause 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 No. 58 "On some issues related to the satisfaction of the claims of the pledgee in the event of bankruptcy of the pledger" in relation to the claims of the pledged creditor.

Clauses 28 and 29 of Resolution No. 35

From the date the arbitration court makes a ruling on the introduction of surveillance, the following consequences also occur (clause 1 of article 63 of the Bankruptcy Law):

Creditors' claims for monetary obligations and for the payment of compulsory payments, the due date for which has come on the date of the introduction of supervision, can be presented to the debtor only in compliance with the procedure for filing claims against the debtor established by the Bankruptcy Law;

At the request of the creditor, proceedings on cases related to the collection of funds from the debtor are suspended. In this case, the creditor has the right to present his claims against the debtor in the manner prescribed by the Bankruptcy Law.

The claim against the debtor to collect the registered debt may be presented in the action before the introduction of the monitoring procedure. In this case, the plaintiff-creditor can choose the following way to protect their rights:

Continue the consideration of the dispute in the claim proceeding, and after the entry into force of the judicial act, apply within the framework of the bankruptcy case with the requirement to be included in the register of the debt, confirmed by the court decision;

Submit a motion to suspend the proceedings in order to file the same claim against the debtor, but within the framework of a bankruptcy case.

In any case, the creditor's claims will be satisfied only within the framework of the bankruptcy case in the course of bankruptcy proceedings. The foregoing is confirmed by the explanations contained in clause 1 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 No. 59 "On some issues of the practice of applying the Federal Law" On Enforcement Proceedings "in the event of initiating a bankruptcy case" and in clause 6 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 07/23/2009 No. 58 "On some issues related to the satisfaction of the claims of the pledgee in the bankruptcy of the pledger."

The creditor has the right to file a claim in the framework of the bankruptcy case only after, at his request, the proceedings on the collection of the debt, the presence of which justifies the claim against the debtor, is suspended. The obligation of the court to suspend the proceedings under these circumstances follows from the provisions of Part 2 of Art. 143 of the Arbitration Procedure Code of the Russian Federation and clause 1 of Art. 63 of the Bankruptcy Law.

If the action is not suspended, and the creditor applies within the framework of the bankruptcy case to the debtor with the same claim, the court on the basis of paragraph 1 of part 1 of Art. 148 of the Arbitration Procedure Code of the Russian Federation leaves such a requirement without consideration. Procedural legislation does not allow for the simultaneous consideration by different courts of the same dispute between the same persons. In this case, the plaintiff used the right to appeal to the court, having realized the right to judicial protection by filing an independent claim to recover the debt from the debtor. Grounds for reconsideration the same dispute between the same persons, but only within the framework of the debtor's bankruptcy case, is not available.

The stated approach was formed by judicial arbitration practice before the adoption of Resolution No. 35 7 and is currently confirmed by the explanations contained in paragraphs 28 and 29 of the said resolution.

The provisions of par. 2 and 3, paragraph 29 of Resolution No. 35 are aimed at maintaining stability in the legal relationship established by a judicial act and preventing possible abuse. These norms completely exclude the situation when the creditor or the debtor, who did not inform the court of first instance, considering the requirement to be included in the register, about the presence of an unstoppable and unresolved claim, could choose the "favorite" judicial act or would have the opportunity to unconditionally cancel the "unfavorable" judicial act, informing the higher court of the presence of "parallel" action proceedings.

1 Approved by Decree of the Government of the Russian Federation of 30.09.2004 No. 506.

2 In this sense, the decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of 04.10.2011 No. 6616/11 is indicative.

3 The arbitral tribunal does not always issue a ruling in accordance with paragraph 6 of Art. 71 of the Bankruptcy Law on the postponement of the consideration of the bankruptcy case.

4 "Legal positions of the Presidium of the Supreme Of the Arbitration Court Of the Russian Federation: Selected Resolutions for 2005 with Comments ”(edited by AA Ivanov) //“ Statute ”, 2010. Commentary author Egorov A.V. “The case“ Dispute of creditors in the bankruptcy case of the company “Samara flour mill No. 2” ”. The link is given according to the text posted in the ConsultantPlus system.

5 The arbitral tribunal does not always issue a ruling in accordance with paragraph 6 of Art. 71 of the Bankruptcy Law on the postponement of the consideration of the bankruptcy case.

6 Resolution of the Federal Antimonopoly Service of the Volga District of 02.08.2012 in case No. A57-11163 / 2011.

7 Determination of the Supreme Arbitration Court of the Russian Federation of 22.07.2011 No. VAS-8798/11 in the case of the Arbitration Court of the City of St. Petersburg and the Leningrad Region No. A56-95689 / 2009, resolution of the FAS North-West District of 16.08.2010 in case No. A52-6974 / 2009 , Resolution of the Federal Antimonopoly Service of the Povolozhsk District of 12/15/2011 in case No. A12-6354 / 2011.

15. When applying the fifth paragraph of clause 2 of Art. 213.5 of the Federal Law of October 26, 2002 N 127-FZ "On Insolvency (Bankruptcy)", the court must check the validity of the creditor's monetary claim, regardless of the fact that the debt is recognized by the debtor.

Referring to the existence of arrears in payment for services under the contract of order, D. applied to the arbitration court with an application for declaring S. insolvent (bankrupt).

By the ruling of the court of first instance, left unchanged by the decisions of the court of appeal and the arbitration court of the district, the application was recognized as justified, a debt restructuring procedure was introduced with respect to the citizen (S.), D.'s claim was included in the third priority of the register of creditors, a financial manager was appointed. In this case, the courts proceeded from the fact that in order to recognize the claim as justified, there is no need to submit a court decision that has entered into legal force, since the debt is recognized by the debtor himself.

Pointing out that the contract of order is an imaginary transaction, the parties to which artificially formed a debt to the detriment of the interests of the debtor's creditors, the bank appealed to the Supreme Court of the Russian Federation with cassation appeal on the indicated judicial acts.

Judicial board The Supreme Court The Russian Federation canceled the aforementioned judicial acts and sent the case for a new trial on the following grounds.

By general rule the creditor must submit an effective court decision confirming the existence of a debt (clause 1 of article 213.5 of the Federal Law of October 26, 2002 N 127-FZ "On insolvency (bankruptcy)"; hereinafter referred to as the Bankruptcy Law). The relevant application can be filed by the bankruptcy creditor without submitting a final judicial act, in particular if his monetary claims are recognized by the debtor, but are not fulfilled (paragraph five, clause 2 of article 213.5 of the Bankruptcy Law).

At the same time, this does not mean that the mere fact of recognition by the debtor of the presence of debt and failure to fulfill the obligation to repay it is sufficient for the recognition of the creditor's application as justified and the introduction of bankruptcy proceedings.

The absence of an effective judicial act confirming the existence of the debt, in any case, imposes on the court the obligation to verify the creditor's claim on the merits.

As explained in the applicable and in case of bankruptcy of citizens, clause 26 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 22, 2012 N 35 "On some procedural issues related to the consideration of bankruptcy cases", verification of the validity and size of creditors' claims is carried out by the court independently from the presence of disagreements regarding these claims between the debtor and the persons entitled to raise the appropriate objections, on the one hand, and the creditor who made the claim, on the other hand. When establishing the claims of creditors in a bankruptcy case, the courts should proceed from the fact that only claims in respect of which sufficient evidence of the existence and amount of debt has been submitted can be recognized as established.

When considering this separate dispute, the bank argued and presented evidence of the absence of the debtor's debt to D. and the fictitiousness of this transaction, however, none of the bank's arguments in violation of the provisions of Art. 71, and the Arbitration Procedure Code of the Russian Federation did not receive any legal assessment from the lower courts.

Definition N 305-ES16-12960

Society (seller) and natural person(buyer) a purchase and sale agreement has been entered into land plot, which will be created in the future by dividing the land owned by the company (contract for the sale and purchase of a future thing). The purchaser has paid the purchase price to the public.

The Judicial Collegium of the Supreme Court of the Russian Federation overturned the aforementioned judicial acts and refused to satisfy the claim on the following grounds.

As explained in clause 34 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 22, 2012 N 35 "On some procedural issues related to the consideration of bankruptcy cases" non-monetary claims of creditors property nature(on the transfer of property into ownership, the performance of work and the provision of services), which are considered according to the rules of Art. 100 of the Bankruptcy Law.

Within the meaning of the above clarifications, the creditor's register claim against the debtor for compulsion to make a provision in kind is unenforceable, it is subject to assessment and transformation into a monetary claim by including it in the register of claims of the debtor's creditors.

Thus, the provisions of Art. 398, and clause 3 of Art. 487 of the Civil Code of the Russian Federation in relation to the register requirements after the opening of bankruptcy proceedings against the debtor due to special provisions of the bankruptcy legislation are not applicable. With the opposite approach, the creditor would receive preferential satisfaction of his claims from the bankruptcy estate before other creditors, which contradicts the principle of priority and proportionality of satisfaction of creditors' claims (paragraphs 2 and 3 of Article 142 of the Bankruptcy Law).

In this case, the courts, having excluded from the bankruptcy estate the property that was the subject of the sale and purchase agreement, and thereby giving the buyer the opportunity to further recognize the ownership of it, violated the prohibition established by the above-mentioned provisions of bankruptcy legislation, thereby infringing upon the rights of bankruptcy creditors the debtor, who reasonably counted on the sale of plots from the auction and the repayment of their claims at the expense of the proceeds from the sale of funds.

Definition N 308-ES16-12236

17. When approving the settlement agreement, the court must determine whether its terms are consistent with the objectives of this rehabilitative bankruptcy procedure and whether they do not violate the reasonable expectations of all creditors.

In the register of claims of the debtor's creditors, with satisfaction in the third stage, only Ya's claims are included in the amount of 270,940,840 rubles. and society in the amount of 253,923,122.22 rubles.

At the meeting of the debtor's creditors, a decision was made by a majority of votes to conclude an amicable agreement. The terms of the settlement agreement provide for an installment plan for the debtor to fulfill his obligations to creditors (from December 2016 to January 2019) and forgiveness of about half of the debt. As a source of execution of the settlement agreement, the operation and subsequent sale of the real estate objects of the debtor, as well as the funds belonging to the latter, placed on the deposit account of the notary in the amount of 191,750,000 rubles, are envisaged.

The society drew attention to the impracticability of the amicable agreement, since in relation to credit institution, in which the notary's deposit account is located, a liquidation procedure is underway, and therefore the satisfaction of creditors' claims at the expense of the indicated funds is unlikely. The company also referred to the lack of proof of the possibility of repayment of creditors' claims through the operation of the debtor's real estate and their subsequent sale, given that the debtor does not conduct any economic activity. The bankruptcy manager's reports on the results of the debtor's activities, accounting and other financial documents testifying to the opposite were not presented to the court. By the ruling of the court of first instance, left unchanged by the ruling of the arbitration court of the circuit, the said settlement agreement... The courts concluded that the society's disagreement with the terms of the settlement agreement is not grounds for refusing to approve it. In case of non-fulfillment of the settlement agreement, the company has the right to terminate it in judicial procedure(Art. 164 of the Bankruptcy Law) or submit your claims in the amount stipulated by the amicable agreement in accordance with the general procedure (Art. 167 of the Bankruptcy Law).

The Judicial Collegium of the Supreme Court of the Russian Federation canceled the aforementioned judicial acts and sent the debtor's insolvency (bankruptcy) case for new consideration to the court of first instance on the following grounds.

The conclusion of an amicable agreement is aimed at a fair and proportionate satisfaction of the claims of all creditors by providing them with equal legal opportunities to achieve legitimate private economic interests while maintaining the debtor's activities by restoring his solvency (Articles 150 and 156 of the Bankruptcy Law).

Despite the fact that the relationship arising from the conclusion of an amicable agreement is based on prescribed by law coercion of a minority of creditors by a majority due to the impossibility of reaching a consensus in another way, the rules of the Bankruptcy Law governing the decision to conclude an amicable agreement do not mean that such a decision can be made arbitrarily.

Whether each of the bankruptcy creditors has claims against the insolvent debtor determines their legal status and a legitimate interest, which is the receipt of more as a result of the settlement agreement than what could be expected as a result of the immediate distribution of the bankruptcy estate. The conclusion of an amicable agreement in itself does not guarantee the unconditional achievement of the specified result, since the result of the future economic activity the debtor depends on many, including difficult to predict, factors. However, the procedure for approving a settlement agreement in any case should ensure the protection of the minority of creditors from the actions of the majority in a situation where, already at the stage of its approval, it is obvious that the intended result cannot be achieved.

The basis for the refusal by the arbitration court to approve the amicable agreement is the contradiction of the terms of the amicable agreement to the named law, other federal laws and other regulatory legal acts(Clause 2, Article 160 of the Bankruptcy Law).

In this regard, when approving an amicable agreement, the court needs to find out for what purposes the amicable agreement is concluded - whether it is aimed, as determined by the legislator, at the renewal of the debtor's solvency, including the satisfaction of creditors' claims, or is not applied in accordance with the purpose of the institution of the amicable agreement (resolution The Constitutional Court Russian Federation dated July 22, 2002 N 14-P).

An amicable agreement, the terms of which are economically unjustified, is not subject to approval.

The court of first instance did not find out whether in this case the proposed terms of debt repayment and a significant debt reduction were justified or such conditions contradicted the meaning and goals of the settlement agreement as a rehabilitation procedure for bankruptcy and therefore could not be considered a normal method of settlements with creditors.

Determination N 305-ES15-18052 (2)

18. In the event that the pledged property is sold during bankruptcy proceedings at a price that exceeds its appraised value, the volume of claims of the pledged creditor actually extinguished depends on the proceeds actually received and is not limited by the appraised value.

Within the framework of the bankruptcy case of an entrepreneur, the bank's claims against the entrepreneur as a surety and a pledger who is not a debtor under the main obligation were recognized as justified and included in the register of claims of the debtor's creditors with satisfaction in the third priority, including a number of claims as secured by a pledge.

Subsequently, the bank applied to the court with an application to amend the register of claims of the debtor's creditors, in which it asked to increase the amount of claims secured by the pledge of the debtor's property, referring to the increase in the value of the pledged property, revealed by the results of the assessment carried out by the arbitration manager.

By the ruling of the court of first instance, upheld by the ruling of the court of appeal, the bank's application was satisfied.

By the decision of the arbitration court of the district, the decision of the court of first instance and the ruling of the court of appeal were canceled, the application was refused.

The Judicial Collegium of the Supreme Court of the Russian Federation upheld the decision of the Arbitration Court of the Circuit unchanged on the following grounds.

As explained in paragraphs six and eight, clause 20 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 23, 2009 N 58 "On some issues related to the satisfaction of the claims of the pledgee in the bankruptcy of the pledger", when establishing the claims of the pledged creditor in the bankruptcy of the pledger , who is not a debtor on the main obligation, their size is determined as the amount of monetary satisfaction that the pledgee can claim at the expense of the pledged property, but not more than the assessed value of this property. The value of the pledged property is determined by the arbitration court on the basis of the assessment of the pledged property provided for in the pledge agreement, or the initial sale price established by the court decision on foreclosure on the pledged property, taking into account the arguments of interested parties about the change in the specified value up or down. If the proceeds from the sale of the pledged property exceed the amount of the pledgee's claims according to the register of creditors' claims, determined on the basis of the above explanations, the repayment of the pledged creditor's claims is carried out at the expense of the specified proceeds within the amount of the claim secured by the pledge.

Thus, the assessed value of the pledged property is taken into account at the stage of considering the issue of the validity of the claim of the secured creditor, is, in essence, of an accounting nature and is used in the future for the purpose of reflecting the claim of the secured creditor in the register, determining the scope of his rights when voting at meetings of creditors the debtor and when making decisions in the framework of bankruptcy procedures.

(Strelnikova M.V.)

(Prepared for the ConsultantPlus system, 2014)

Document text

Prepared for the ConsultantPlus system

POSSIBILITY OF CREDITORS TO INCREASE THE SIZE OF REQUIREMENTS

IN BANKRUPTCY AND ITS LEGAL CONSEQUENCES

The material was prepared using legal acts

M. V. STRELNIKOVA

Strelnikova Maria Vladimirovna, leading legal adviser.

Currently, creditors of debtors who are in the stage of bankruptcy are often faced with the question of the possibility of clarifying the amount of claims already filed for inclusion in the register of creditors' claims in the framework of the debtor's bankruptcy case. Would the court consider the initially stated requirement for inclusion in the register to be filed on the date the clarifications were submitted? Indeed, in such bankruptcy procedures as supervision and bankruptcy proceedings, current legislation sets specific deadlines for creditors to present their claims, and the omission of such deadlines entails certain legal consequences.

In accordance with the current legislation on bankruptcy, at the stage of the supervision procedure, creditors have the right to present their claims against the debtor within thirty days from the date of publication of the notice on the introduction of supervision in the official publication, at the stage of the bankruptcy procedure - within two months from the date of publication of information on declaring the debtor bankrupt and the opening of bankruptcy proceedings (for a debtor in liquidation - within a month from the date of publication of the announcement of declaring the debtor in liquidation bankrupt) (Articles 71, 100, 142, 225 of the Federal Law "On Insolvency (Bankruptcy)").

The provisions of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 26, 2005 N 93 "On some issues related to the calculation of certain time limits in bankruptcy cases" provide for the consequences of missing the above deadlines in the form of the impossibility of their restoration. The bankruptcy law does not contain provisions allowing the restoration of such a term, and the provisions of the Arbitration Procedure Code of the Russian Federation on procedural terms (Chapter 10) in terms of the possibility of restoring the term if there is good reason his passes in this case do not apply, since in the legislative regulation of relations arising in bankruptcy cases, the priority is, respectively, the Bankruptcy Law. As a result of missing the deadline for filing a claim in the supervision procedure, the creditor is deprived of the right to participate in the first meeting of the debtor's creditors; The consequence of missing the deadline for filing a claim in the bankruptcy proceedings is the impossibility of including such a claim in the register, since if the claims are recognized as justified, they will be satisfied at the expense of the property left after the claims of creditors already included in the register have been satisfied.

Lenders often make claims in an amount that needs to be increased later. This occurs, among other things, for credit obligations of bankrupt debtors, where debt on interest for the use of credit funds, penalties and fines provided for in credit agreements are also charged for the periods that have occurred after the filing of the initial claim and as of the date of its consideration by the court, which leads to an increase in the amount of claims already filed on time.

According to Art. 32 of the Federal Law "On Insolvency (Bankruptcy)" and Art. 223 of the Arbitration Procedure Code of the Russian Federation, insolvency (bankruptcy) cases are considered by the arbitration court in accordance with the rules provided for by the Arbitration Procedure Code of the Russian Federation, with the specifics established federal laws regulating issues of insolvency (bankruptcy).

Thus, the presentation of clarifications of the creditor's claims for inclusion in the register of the debtor's claims is regulated by analogy with Part 1 of Art. 49 of the Arbitration Procedure Code of the Russian Federation, according to which the plaintiff (in our case, the applicant, the creditor) has the right, when considering the case in the arbitration court of first instance, before the adoption of the judicial act, which ends the consideration of the case on the merits (that is, before the adoption of the ruling on the inclusion / refusal to include in the register of creditors' claims), change the basis or subject of the claim, increase or decrease the amount of claims.

The question is what consequences the creditor will incur in the event of a change in the basis of claims, an increase or decrease in the amount of claims for inclusion in the register.

Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 22, 2012 N 35 clarified the following: the courts must take into account that, unlike an increase in the amount of a claim when the creditor changes the basis of the claim on which his application for declaring the debtor bankrupt is based, his application is considered filed at the time of the corresponding change, which taken into account when determining the sequence of consideration of applications for declaring the debtor bankrupt. In the same way, similar statements of the creditor should be qualified in relation to his claim, presented by him in the bankruptcy case in accordance with Art. 71, 100 Bankruptcy Law.

The explanations contained in the Resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation are binding on the arbitration courts.

Thus, an increase in the amount of claims is not considered a basis for the courts to recognize the date of submission of the initial claims as the date of filing an application for an increase in the amount of claims, since the circumstances on which the creditor bases his claims do not change, new claims are not submitted.

However, there remains a question that is typical of loan obligations, for which the amount of debt consists of several components, such as the amount of the principal debt, the amount of interest on the loan, the amount of penalties and penalties provided for by the loan agreement: if initially one of the components of the total the amount of debt (for example, a forfeit or a fine) was not declared, is it possible to declare it for inclusion in the register of claims of the debtor's creditors by filing an application for an increase in the amount of claims? Will not this action the creditor was regarded by the court as a change in the basis of the originally filed claim?

In accordance with clause 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 31, 1996 N 13 "On the Application of the Arbitration Procedure Code of the Russian Federation when considering cases in the court of first instance," a change in the subject of the claim means a change in the substantive claim of the plaintiff against the defendant. A change in the basis of a claim means a change in the circumstances on which the plaintiff bases his claim against the defendant.

The same Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation stipulates that an increase in the amount of claims should be understood as an increase in the amount of a claim for the same claim that was declared by the plaintiff in the statement of claim. An increase in the amount of claims (in our case, the size of claims for inclusion in the register of creditors 'claims) cannot be associated with the presentation of additional claims that were not declared by the plaintiff (creditor) in the statement of claim (the requirement for inclusion in the register of creditors' claims).

Based on the established judicial practice, an increase in the amount of debt to the same creditor for the same obligation does not constitute a change in the basis of the claims declared by the creditor.

It should be noted that with the advent of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 22, 2012 N 35, the issue under consideration is often encountered and arises among creditors, however arbitrage practice at present it is not numerous (only for 2012 - 2013). To say that the courts have come to some kind of uniformity in this matter is not only difficult, but practically impossible. Some courts associate the change in the basis of claims with the presentation of new evidence in the case by the creditor, others with a change in the circumstances of the case, and others with an increase in the amount of claims for new periods, which in the latter case contradicts Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 35.

Different approaches of the courts to solving the same problems indicate that each specific case has its own difficulties, which does not allow developing a unified decision-making tactics. Difficult situations often prevail over simple ones. Let's consider what the options for solving a particular problem may be.

Based on the established practice, there are several situations.

Situation No. 1. The lender declares clarifications indicating other significant circumstances that differ significantly in their content and basis from initial evidence requirements.

Solution. These circumstances indicate that when handling a revised statement, the creditor changed the grounds for the stated claims, which excludes their identity with the original ones. Requirements in the specified part, if they are filed with the omission of the deadline for filing such a claim, cannot be included by the court in the register of claims of the debtor's creditors in the procedure at which the creditor's application is considered.

Situation No. 2. The creditor declares clarifications indicating an increase in the amount of debt for new periods that have occurred after the presentation of the initial claim and as of the date of its consideration in court.

Solution. These circumstances in 90% of cases indicate an increase in the originally filed claims, which allows the court to include these claims in the register of claims of the debtor's creditors when establishing their validity, regardless of when the application was filed to clarify the amount of claims, the main thing is that the initial claims were presented in the deadline set for this.

However, it should be noted that judicial practice in this situation adheres to different positions. Presumably, this may be due to the nature of the debt that has arisen. For example, the courts do not consider an increase in claims when the tax authority charges taxes for subsequent periods after the initial claim was submitted. The same situation occurs with electricity debts for new periods of electricity use, even if under the same energy supply agreement. Perhaps this is due to the fact that tax arrears for new periods are confirmed by new decisions. tax authority; electricity debt for new periods is confirmed by new issued payment documents, respectively.

Situation No. 3. Initially, the stated requirements are based on agreement A. Subsequently, clarifications were announced with the requirement to be included in the register of creditors' claims legal costs by the decision, according to which, in the course of a claim proceeding from the debtor in favor of the creditor, the amount of debt under the agreement A.

Solution. If the clarifications are announced with a skip of the deadline, the court will not include in the register of creditors' claims the court costs in the procedure at which the creditor's application is considered, since it will regard the clarifications as a change in the basis of the claim in connection with the following. Initially, the stated requirements are based on contract A, in support of which the specified contract A and the documents related to its performance / non-performance are presented. When clarifying the requirements regarding the inclusion of court costs, these requirements are based on the court's decision, which was not previously referenced in the creditor's claim, was not submitted to the court in the annex to the initial claim. By virtue of the above requirements, based on the court decision, in terms of court costs, they will be regarded as not identical to the requirements based on contract A, even if the decision was made to recover from the debtor in favor of the creditor the amount of debt under the said agreement A.

Situation No. 4. The creditor applied with a requirement to include in the register of creditors' claims the amount of the debt and the amount of the penalty (for example, contractual forfeit). Subsequently, clarifications were announced, according to which the creditor asks to include in the register instead of one declared penalty another (for example, instead of a contractual penalty, interest for the use of other people's funds).

Solution. These circumstances indicate a change in the basis of the claim, in connection with which, in this part, the claims will be considered declared after the expiration of the period for filing claims in the considered procedure (in case of missing the period established by law).

Based on the opinion of the courts, if the stated clarifications are recognized as a change in the basis of the claims, then the initial claims, upon recognition of their validity, will be included in the register of claims of the debtor's creditors, and the claims in the specified (amended) part (in case of missing the deadline for the presentation of such claims) in the procedure under consideration bankruptcy will not be included in the register. We can say that the creditor is taking risks in part, but, given again the different approach of the courts on the same issue, one cannot be one hundred percent sure, since there is always the possibility that the court will refuse to include the claims in full, linking the amended claim with originally filed and, accordingly, with the term of their presentation to the court.

As for the debt, consisting of several components, as in the case of credit obligations, with an increase in the amount of claims due to the accrual of interest, penalties, fines, etc. for the periods that have occurred after the presentation of the initial claims and until the date of their consideration by the court, the issue will be resolved, as in situation No. 2, if the claims are based on the same loan agreement. If, in the clarifications, the lender declared the amount for any penalties provided for by the loan agreement, earlier in initial requirements not specified, most likely, this action of the creditor will be regarded by the court as a change in the basis of the claim. But at the same time, it is difficult to say definitely that the court's decision will be exactly this, and not different, because in each of these situations there is a nuance.

It is worth noting that the lender may well have a question about reducing the amount of claims originally declared. This issue is not regulated by legislation like an increase in the amount of claims or a change in the basis of claims. It is assumed that a decrease in the size of claims should be considered by the court by analogy with an increase in the size of claims. If the creditor wants to remove one of the constituent parts of the total debt by reducing this part to zero, this can hardly serve as a reason for the court to recognize the change in the basis of the claim. In essence, this will constitute a waiver of the requirements in the part that is provided for in Part 2 of Art. 49 of the APC RF.

In any case, and when the size of claims is reduced by a certain amount, and when the size of claims (here - one of the components of the total debt) is reduced to zero by waiving the claims in part, the presentation by the creditor of such a clarification does not entail any legal consequences for him.

The issue with the increase in the originally filed claims and the presentation of new ones is complicated by the fact that at present the courts adhere to the position when the creditor can enter the register of the debtor's creditors' claims for the same obligation once, whereas earlier creditors came to court with demands for inclusion in the register in each of the bankruptcy procedures introduced in relation to the debtor (in this case, we do not mean doubling the debt under the same obligation, but an increase in the period of its existence due to the subsequent default by the debtor of its obligations). Now creditors can only use the right granted to them to increase the amount of claims. Moreover, often under the conditions contractual obligations the creditor is obliged to accrue certain amounts, such as: interest, penalties, until the debtor fully fulfills his obligations. The legislation, among other things, gives creditors the full right to do so, limiting only when opening bankruptcy proceedings against the debtor, which is established by Art. 126 of the Federal Law "On Insolvency (Bankruptcy)", according to which one of the consequences of opening bankruptcy proceedings is the termination of the accrual of interest, penalties (fines, penalties) and other sanctions for non-performance or improper performance monetary obligations... It should be borne in mind that the accrual of interest, penalties and other sanctions on the obligation not fulfilled by the debtor for new periods and the presentation of the amounts received for inclusion in the register of creditors' claims by specifying the amount of claims are not a method of enrichment for the creditor, since in accordance with tax legislation the creditor pays the corresponding taxes to the budget from recognized by the court amounts. Considering that often the solvency of the debtor in bankruptcy procedures does not allow satisfying not only a part, but almost all of the existing claims of creditors, the payment of taxes on profits from the amounts included in the register will be paid by the creditor at his own expense, which carries an additional burden for him. In this connection, there is no need to talk about the abuse of creditors 'rights to submit claims for inclusion in the register of creditors' claims with a subsequent increase in their size.

Thus, if it is necessary to declare requirements different from those originally submitted, one should carefully focus on those established by the current legislation. procedural terms, since their omission carries the above-described consequences for the creditor.

I would like to believe that the courts will find a unified approach to resolving such situations, taking into account the individuality of each person coming for their consideration and resolution of the dispute.

This article is based on the review of the Federal Law "On Insolvency (Bankruptcy)", Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 22, 2012 N 35 "On some procedural issues related to the consideration of bankruptcy cases", information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 26, 2005 N 93 " On some issues related to the calculation of certain time limits in bankruptcy cases ", Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 31, 1996 N 13" On the Application of the Arbitration Procedure Code of the Russian Federation when considering cases in the court of first instance ", Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 27, 2004 2353/04 in case N А60-14530 / 03-С4, Resolutions of the FAS MO dated July 27, 2012 in case N А40-121892 / 11-123-555B, Resolutions of the FAS MO dated 06.08.2013 in case N А41-19314 / 12 , Resolutions of the FAS VCO of 09/17/2013 in case No. A19-11062 / 2011, Resolutions of the FAS SKO of September 27, 2012 in case No. A53-21432 / 2011, Resolutions of the FAS PO dated 10/08/2013 in case No. A55-13917 / 2011, Resolutions FAS PO dated 20.11.2012 in case N A12-11822 / 2010, Resolutions of the FAS MO on t 01.07.2013 in case N A40-150049 / 10-73-724B, Resolutions of the FAS DO dated 12.10.2012 N F03-4466 / 2012 in case N A04-218 / 2012, Resolutions of the FAS SKO dated 22.10.2012 in case N A32 -12269/2011, Resolutions of the Federal Antimonopoly Service of 04.06.2013 in case N A49-7571 / 2012.

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