home  /  Advice  /  The bankruptcy commissioner in case of the insolvency of the enterprise. The bankruptcy commissioner (external administrator) Administrative responsibility of the bankruptcy commissioner year

The bankruptcy commissioner in case of the insolvency of the enterprise. The bankruptcy commissioner (external administrator) Administrative responsibility of the bankruptcy commissioner year

Advice
08.06.2020

An arbitration manager is a responsible position whose activities are subject to control by state regulatory authorities and SROs. To obtain the status of a manager, you must go through a serious selection process.

Each candidate has certain requirements. In case of non-observance of the norms of the legislation of the Russian Federation and violation of professional ethics, the person is brought to appropriate responsibility.

An arbitration manager is a key element in a bankruptcy case of an individual or legal entity. He is appointed exclusively by the judge, however, the candidacy can be nominated by the participants trial(by the applicant or the meeting of creditors).

To become an insolvency practitioner, you must meet a number of criteria (have Russian citizenship and finished higher education, undergo an internship as an assistant manager, pass theoretical exam etc.). One of the main conditions is membership in any SRO (i.e. self-regulatory organization).

The official is entrusted with certain obligations, the failure of which is unacceptable and may cause the person to be held accountable:

  • civil law;
  • administrative;
  • disciplinary;
  • criminal.

Each type of responsibility to which a manager can be involved has certain features and nuances.

The need for insurance of liability of bankruptcy commissioners

When joining the ranks of the SRO in mandatory the bankruptcy manager's liability insurance contract is concluded. Membership in a non-profit institution is unacceptable without this condition being met.

This is necessary to compensate for the damage caused by the official in connection with non-fulfillment of obligations in the future. It is paid to the participants in the case or other citizens whose interests were affected.

The arbitration manager undertakes to act impartially and in good faith, respecting the interests of each of the parties (the debtor, his counterparties and other persons interested in the outcome of the case). The insurance contract acts as a security for the SRO in case of violation of the law by an official.

It should be noted that the minimum insurance premium is 3 million rubles annually.

Disciplinary responsibility


The professional activities of managers are subject to close supervision by non-profit organization of which they are members. The SRO monitors compliance by each official with federal legislation, Federal Law No. 127 of October 26, 2002, the institution's internal documentation and other regulations.

In relation to managers who have violated the rules professional activity, the following varieties may be used disciplinary responsibility:

  • imposition of a punitive measure, the amount of which is provided for internal documentation non-profit institution;
  • issuance of an order to eliminate violations in deadlines;
  • issuing a public warning;
  • application for the exclusion of a citizen from the SRO (the final decision can only be made by the collegial governing body).

Disqualification of an official

In case of non-compliance by the insolvency practitioner with his direct obligations or violation of the rules Russian legislation the person is subject to immediate suspension.

The decision on disqualification can only be made by the judge in charge of the case. financial insolvency.

A motivated complaint against the manager can be made by:

  • one of the counterparties taking part in the case;
  • SRO representative (if the manager is excluded from the members of the non-profit institution);
  • meeting of creditors (in this case, instead of a complaint, the judge may be sent the minutes of the meeting or the committee of creditors).

If the court's decision to dismiss the person is canceled, the bankruptcy administrator will still not be able to return to his previous position and continue to conduct the bankruptcy case.

Civil liability


Within the framework of the case on recognizing a person as financially insolvent, an application may be submitted to recover the damage caused by the insolvency practitioner.

The legal basis for bringing an official to justice is a violation of the norms of the legislation of the Russian Federation, failure to fulfill the duties assigned to him, or inaction.

The manager undertakes to compensate losses exclusively:

  • when causing material harm to any of the participants in the case;
  • when submitting an application in compliance with the deadlines limitation period;
  • if there is an appropriate court decision.

Losses incurred by the manager are payable at the expense of the insurer with whom the person has entered into a liability insurance contract.

If this amount is not enough, the fulfillment of the obligation outstanding by the insurance indemnity is carried out at the expense of the personal property of the official or the compensation fund of the SRO, in which the citizen is a member (in this case, we are talking about the subsidiary liability of the arbitration managers transferring contributions to this fund).

Administrative responsibility of an insolvency practitioner

Rosreestr and the participants in the case on the recognition of a person's financial insolvency have the right to apply to the court with a statement to bring an official to administrative responsibility.

The basis for appeal to the authority is the implementation by the manager illegal actions or failure to act, as a result of which damage was caused to the parties to the case or interested parties.

In accordance with 3 and 3.1 parts 14.13 of the Code of Administrative Offenses of the Russian Federation, in this case, the following are distinguished as punitive measures:

  • the appointment of a penalty, the value of which ranges from 25 thousand to 50 thousand rubles;
  • issuing a warning;
  • disqualification of a person for a period from six months to three years inclusive (in case of repeated commission of a similar offense).

Bringing to administrative responsibility is allowed only if no signs of a criminally punishable act were found.

In practice, judges often resort to fines, although in relation to a manager who has committed an insignificant violation that did not entail significant harm to the parties to the case, the court has the right to limit itself to announcing an oral comment.

In this case, the official is exempt from actual punishment, in accordance with the provisions of Article 2.9 of the Administrative Offenses Code of the Russian Federation.

Criminal liability

The fate of individuals and legal entities on the verge of financial insolvency, as well as their counterparties, directly depends on the effectiveness of the bankruptcy commissioner.

In the event of the theft of someone else's property or its concealment for personal gain, the destruction of important documentation required to resolve the case, or the concealment of information about the property of a bankrupt, the official shall be subject to criminal liability.

It is important to take into account that misconduct the manager caused significant damage to the participants in the case.

In such a situation, punishment is assigned depending on the composition of the offense under Articles 159 and 195 of the Criminal Code of the Russian Federation.

Didn't find the answer to your question?
Find out, how to solve exactly your problem - call right now or fill in:

Competition manager- this is a person who, according to the law of the Russian Federation of November 19, 1992 “On insolvency (bankruptcy) of enterprises, carries out.

The task of the liquidator

The bankruptcy commissioner is obliged to carry out a procedure aimed at compulsory or voluntary liquidation of the insolvent organization.

How the liquidator is appointed

Bankruptcy commissioners are specially trained people who perform certain actions at the time of the bankruptcy of an object, who are members of a self-regulatory organization of bankruptcy commissioners.

The bankruptcy commissioner is appointed by the arbitration court. The bankruptcy commissioner is the head of the insolvent facility and its management bodies, as well as the owner of the debtor's property, if any.

For the appointment of a liquidator, the court issues an appropriate ruling, which can be appealed. The action of the bankruptcy commissioner ends at the moment of termination of this bankruptcy proceedings.

To become a bankruptcy commissioner, you need to work as a lawyer, economist, or have the practice of performing chores.

Note that the bankruptcy commissioner has an irregular working schedule, works with a large amount of information, and is engaged in a complex procedure for preparing the bankrupt's property for sale.

Obligations of the liquidator

The duties of the liquidator include the following actions:

    make an inventory of the bankruptcy property;

    organize property appraisal with the involvement of an appraiser;

    within a week after receiving powers, the liquidator is obliged to publish information about the bankruptcy and his property in special sources;

    control the safety of the bankrupt's property;

    search for and collect the debtor's property held by third parties;

    analyze the financial situation of the debtor;

    in case of dismissal, notify the bankrupt employees of the upcoming dismissal no later than one month from the date the debtor is declared bankrupt;

    provide information in full about the debtor and his property to applicants interested in the debtor's lot and planning to take part in the auction;

    maintain a list of creditors' claims if this task is not fulfilled specialized organization- the registrar.

The powers of the liquidator

In addition to a number of obligations, the liquidator is endowed with a whole package of powers.

The powers of the liquidator:

    own the property of a bankrupt in a legal manner and under conditions;

    to engage in the dismissal of bankrupt employees, employees in managerial positions are no exception;

    send for storage the debtor's documentation;

    present statements of claim on the invalidity of transactions carried out by the debtor;

    claim bankruptcy property, which is kept by third parties, and take other actions aimed at returning the property.

Liability of the Bankruptcy Commissioner

The powers of the liquidator are directly related to the responsibility of the liquidator. Considering that the liquidator is endowed with a number of powers, he is held accountable for violation or non-fulfillment of his duties and powers.

The prosecution may follow in the event of the following administrative violations:

    unnatural creation of insolvency of persons by special actions or inaction;

    the bankruptcy commissioner conceals the location of the debtor's property;

    does not provide the necessary information about the property;

    destroys or falsifies information about property;

    does not agree on the procedure for transferring the property of the debtor;

    does not comply with legal requirements when entering into contracts or external management;

    makes transactions in excess of official powers.

If the first and last points are violated, the liquidator runs the risk of being unemployed in this position for a time period of no more than three years.

Bankruptcy trustee's report

After settlements with all creditors are completed or the bankruptcy proceedings are terminated, the bankruptcy administrator must submit a report on the work done, on the results of this procedure, to the arbitration court.

The bankruptcy commissioner's report is a list of documents confirming:

    sale of the debtor's property;

    repayment of credit obligations;

    provision in Pension Fund(its territorial subdivision) information about the date, place of birth of the debtor, his citizenship and passport data, including full name, gender and address permanent registration bankrupt person.

In addition to the above documents, the bankruptcy commissioners must attach a register of creditors' claims to the report, which will indicate the amount of the debts paid by the bankrupt person.

After the liquidator has drawn up and submitted his report to the competent authority, he is obliged to notify the creditors of this fact.

Control over the activities of the bankruptcy commissioner

Control over the activities of the manager is carried out in accordance with Art. 143 FZ "On Bankruptcy".

According to this law, creditors (meeting or committee) receive all the information necessary for this at least once every three months, unless otherwise specified at the meeting of creditors.

The information provided for control can be in the form of reports or any separate documents showing the state of affairs during the competition or at its completion.

The bankruptcy administrator's report must contain information:

    on the inventory of the debtor's property, its assessment, if required;

    the amount of funds that were credited to the debtor and the sources of such financing;

    on the process of selling the property of the bankrupt entity, indicating the amounts received;

    on the size and number of claims for debt collection that have been brought forward to third parties;

    on the number of people working for the debtor who continue to work after the opening of the competition, and the number of dismissed (quit) employees;

    on the work that has been done to invalidate the transactions, in the interests of the debtor;

    on the compilation and maintenance of a register of creditors' claims, with information about their total amount and size separately in each queue;

    on the measures that were taken to preserve the property of the bankrupt object and to recover the property that belongs to it, but for some reason is in the possession of third parties;

    the amount of current debt, with a description of the reasons for its formation;

    on the work carried out by the bankruptcy commissioner to close the debtor's accounts;

    on bringing to subsidiary liability persons who bear obligations in connection with bringing the debtor to bankruptcy;

    all other information, the content of which is established by the liquidator, creditors or the arbitration court.

All data that relate to the bankruptcy proceedings, for example, what are the costs of the liquidator for carrying out the relevant process, the liquidator must provide at any time at the request of the arbitral tribunal.


Still have questions about accounting and taxes? Ask them on the accounting forum.

Bankruptcy trustee (external trustee): details for the accountant

  • What debts will not be written off in bankruptcy of an individual

    In one of the cases, the new bankruptcy administrator of the bankrupt company filed a lawsuit ... against the former bankruptcy administrator (CU) to recover damages in ... the bonus paid to employees whom the former bankruptcy administrator should have dismissed. The court indicated that ... about the bankruptcy of the legal entity. 2 million rubles of damages were recovered from the previous bankruptcy commissioner ...

  • Practice of the Supreme Court of the Russian Federation on tax disputes for October 2019

    Current and in case of default by the liquidator of the obligation to pay off current payments ... the court with the requirement to oblige the liquidator to fulfill this obligation. Courts also ...

  • Limitation periods for challenging transactions during bankruptcy

    The moment of imposing on him the duties of the bankruptcy trustee of the debtor. However, as always, from ... RF) cannot be challenged by the liquidator on special grounds of the Law on ... the courts noted that this requirement of the liquidator is subject to a three-year limitation period ... -ES15-13605, where it is stated: “ The arguments of the liquidator about the need to apply to transactions ..., company B (the lender), represented by the liquidator, filed a claim for recognition ...

  • Cases of compulsory property valuation

    ...) Assessment of the debtor's property by the bankruptcy commissioner (clause 2 of Art. 129 "Powers of the bankruptcy commissioner" Federal law... 127-FZ "On insolvency (bankruptcy)"). The liquidator is obliged to involve an appraiser to assess ... municipal property, sent by the external administrator, the bankruptcy commissioner to federal body executive power... for an inventory and appraisal of the debtor's property, the liquidator starts selling it. d ...

  • Subsidiary property liability of managers and founders of a debtor (bankrupt)

    Subsidiary liability may: creditors 1; bankruptcy commissioners 2; authorized bodies (including ... the debtor and the profitability of his activities; the liquidator did not provide evidence of the conclusion of transactions ..., in case No. bankruptcy commissioner source documents, material and other ... tax authorities, but also directly liquidators, which they actively use 10 ...

The creditor appeals against the actions (inaction) of the insolvency administrator, including wants to remove him

The creditor (authorized body) wants to recover damages from the bankruptcy commissioner

The applicant wants to remove the financial manager from the performance of duties

The applicant wants to recover losses from the financial manager

1. Failure to perform or improper performance of the duties imposed on the bankruptcy commissioner in accordance with this Federal Law or federal standards, is the basis for the arbitration court's dismissal of the bankruptcy administrator from the performance of these obligations at the request of the persons participating in the bankruptcy case, as well as at the request of the self-regulatory organization of bankruptcy administrators, of which he is a member.

In the event of cancellation of the arbitration court's ruling on the removal of the arbitration manager from the performance of these obligations for failure to perform or improper performance of them, the arbitration manager shall not be subject to reinstatement by the arbitration court for the performance of these obligations.

2. In the event of an exclusion of an insolvency practitioner from a self-regulatory organization due to a violation by an insolvency practitioner of the terms of membership in a self-regulatory organization, violation by an insolvency administrator of the requirements of this Federal Law, other federal laws, and other regulatory legal acts Russian Federation, federal standards, standards and rules of professional activity, the arbitration manager is suspended by the arbitration court from the performance of the duties assigned to him in the bankruptcy case on the basis of the petition of the self-regulatory organization no later than ten days from the date of its receipt.

(see text in previous edition)

In the event of cancellation or invalidation of the decision to expel the bankruptcy commissioner from the self-regulatory organization, which served as the basis for the arbitration court's dismissal of the bankruptcy commissioner from fulfilling the duties imposed on him in the bankruptcy case, the bankruptcy commissioner cannot be reinstated by the arbitration court to fulfill these obligations.

Upon receipt by a self-regulatory organization of copies of petitions containing a requirement to suspend or release an insolvency administrator from the performance of his / her duties in a bankruptcy case and sent to an arbitration court by persons participating in a bankruptcy case, as well as when a self-regulatory organization sends a petition for disqualification to an arbitration court or the release of the insolvency practitioner from the performance of the duties imposed on him in the bankruptcy case, the self-regulatory organization shall nominate the bankruptcy trustee in the manner prescribed by Article 45

(see text in previous edition)

3. The application to the bankruptcy administrator of a punishment in the form of disqualification for committing an administrative offense shall entail the removal of the bankruptcy administrator from the performance of his duties in the bankruptcy case.

Within three working days from the date of receipt of the final court decision on the disqualification of the bankruptcy administrator, the federal executive body authorized by the Government of the Russian Federation to form and maintain a register of disqualified persons shall notify the self-regulatory organization of which the bankruptcy administrator is a member of the disqualification of the bankruptcy administrator with the attachment of a court decision that has entered into legal force on the disqualification of an insolvency practitioner by sending such a notification in a manner that ensures its receipt no later than five days from the date of dispatch. The information contained in the register of disqualified persons shall be included in the Unified federal register bankruptcy information.

(see text in previous edition)

Within three working days from the date of receipt of such notification, the self-regulatory organization is obliged to send to the arbitration court that approved the insolvency practitioner in the bankruptcy case, a petition to remove the insolvency practitioner from the performance of his duties in the bankruptcy case by mail or in another way that ensures the receipt of such notification. no later than five days from the date of its dispatch.

Removal of the insolvency practitioner to whom it is applied administrative penalty in the form of disqualification, from the performance of the obligations imposed on him in the bankruptcy case and the approval of the new arbitration manager shall be carried out by the arbitration court no later than the day following the day of the acceptance of the petition of the self-regulatory organization, without summoning the persons participating in the bankruptcy case. In this case, the requirements that are provided for by the bankruptcy creditor or the authorized body that are the applicants in the bankruptcy case, or by the meeting of creditors in accordance with paragraph 3 of Article 20.2 of this Federal Law must be taken into account.

The ruling of the arbitration court on the removal of the bankruptcy manager from the performance of the duties assigned to him in the bankruptcy case and the approval of the new bankruptcy manager shall be subject to immediate execution.

Cancellation of a judicial act on disqualification of an insolvency administrator is not a basis for his reinstatement by an arbitration court for the performance of his duties in a bankruptcy case.

4. The insolvency administrator shall be obliged to compensate the debtor, creditors and other persons for losses that are caused as a result of non-fulfillment or improper fulfillment by the insolvency administrator of the duties assigned to him in the bankruptcy case and the fact of infliction of which is established by a court decision that has entered into legal force.

The bankruptcy commissioner is obliged to reimburse the members of the self-regulatory organization of bankruptcy commissioners for losses incurred in connection with the need to bring the size of the compensation fund of this organization in accordance with the requirements of Article 25.1 of this Federal Law after the implementation of compensation payment from the compensation fund in connection with compensation for losses caused to persons participating in the bankruptcy case and other persons as a result of non-performance or improper performance by this insolvency practitioner of the duties assigned to him in the bankruptcy case, unless he acted in accordance with internal documents self-regulatory organization, standards and rules of professional activity.

5. Federal standards, standards and rules of professional activity may be established Additional requirements to ensure property liability of an insolvency practitioner for non-performance or improper performance of obligations in a bankruptcy case.

Requirements for securing property liability of an insolvency practitioner arising as a result of the obligation to compensate members of a self-regulatory organization of insolvency practitioners for losses incurred in connection with the need to bring the size of the compensation fund of this self-regulatory organization in accordance with the requirements of Article 25.1 of this Federal Law after making compensation payments from the compensation fund of this self-regulatory organization , are established by federal standards, standards and rules of professional activity. These standards may establish the obligation of the insolvency practitioner to insure the risk of such civil liability.

ANALYSIS

practice of considering cases on the involvement of arbitration
managers to administrative responsibility,
provided for in part 3 of article 14.13 of the Code of Administrative Offenses of the Russian Federation, according to the protocols on
an administrative offense made on the basis of
violations of the requirements established in the bankruptcy case
insolvency (bankruptcy) legislation

I. GENERAL PROVISIONS

In accordance with clause 3.2 of the work plan of the Arbitration Court Krasnoyarsk Territory for the first half of 2012, an analysis was carried out of the practice of considering cases on bringing bankruptcy managers to administrative responsibility, provided for in part 3 of article 14.13 of the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation), according to the protocols of an administrative offense drawn up on the basis of the established in the bankruptcy case violations of the requirements of the legislation on insolvency (bankruptcy).

The purpose of this analysis is to verify the validity of the conclusion contained in the letter of the Office Federal Service state registration, cadastre and cartography in the Krasnoyarsk Territory (hereinafter - the Office of Rosreestr in the Krasnoyarsk Territory) b / d No. 70-56 / 41250, according to which the circumstances established in the bankruptcy case and reflected in the judicial act, indicating violations of the requirements of the legislation on insolvency (bankruptcy), are for administrative body one of the proofs of the commission by the arbitration manager of an administrative offense provided for in Part 3 of Article 14.13 of the Administrative Code of the Russian Federation, however, when the court is considering an administrative case, such circumstances are not significant.

It is planned to achieve this goal by solving the following problem:

Discussions at a joint meeting with the Third Arbitration Court of Appeal of the debatable issue of whether the decision of the arbitration court, which has entered into legal force, made in the framework of the consideration of the insolvency (bankruptcy) case, is mandatory for the court considering the case on bringing the bankruptcy commissioner to administrative responsibility under Article 14.13 of the Code of Administrative Offenses of the Russian Federation in terms of conclusions on violation of insolvency (bankruptcy) legislation as evidence of the presence of signs of an administrative offense.

When preparing this analysis, the subject of the study also included published judicial acts of the Supreme Arbitration Court of the Russian Federation (hereinafter - the Supreme Arbitration Court of the Russian Federation), federal arbitration courts of districts, as well as special literature on this issue.

II. DISCUSSION ISSUES

1. Is the decision of the arbitration court, which entered into legal force, made within the framework of the consideration of the insolvency (bankruptcy) case, is binding for the court considering the case on bringing the insolvency administrator to administrative responsibility under Article 14.13 of the Administrative Code of the Russian Federation in terms of conclusions on violation of insolvency legislation ( bankruptcy) as evidence of signs of an administrative offense?

The reason for raising this debatable issue was the following opposite, in the opinion of the Office of Rosreestr in the Krasnoyarsk Territory, the conclusions contained in the judicial acts of the Arbitration Court of the Krasnoyarsk Territory, the Third Arbitration appellate court and the Federal Antimonopoly Service of the East Siberian District.

№ p / p

Insolvency (bankruptcy) case

The case of bringing the bankruptcy commissioner to administrative responsibility in accordance with part 3 of Article 14.13 of the Administrative Offenses Code of the Russian Federation

Case No. A33-2129 / 2009-k7

The decision of the Arbitration Court of the Krasnoyarsk Territory satisfied the complaint of the authorized body regarding the recognition of illegal actions of the arbitration manager to attract specialists of LLC PromEco to ensure his activities in the implementation of the bankruptcy procedure, making settlements bypassing the current account of the debtor, not reflecting information about the specialists involved in the report - LLC PromEco ".

Case No. А33-11948 / 2011

The application of the Rosreestr Office for the Krasnoyarsk Territory was satisfied; the bankruptcy commissioner was brought to administrative responsibility under part 3 of article 14.13 of the Code of Administrative Offenses of the Russian Federation.

On the argument of the Office that the actions of the manager in terms of attracting a specialist from PromEco LLC do not meet the signs of good faith and reasonableness, the court indicated that the administrative body did not state sufficient arguments, sufficient evidence of violation by the arbitration manager of the requirements of Art. 20.03 of the Federal Law of 26.10.2002 No. 127-FZ "On Insolvency (Bankruptcy)" (hereinafter referred to as the Bankruptcy Law). At the same time, the actions for non-reflection in the report of information about the specialists involved - PromEco LLC, contain signs of the objective side of the offense.

OUTPUT:

When considering the case on bringing the bankruptcy manager to administrative responsibility, the courts overestimated the conclusions made by the court when considering the bankruptcy case.

In the framework of the case on bringing to administrative responsibility, the actions of the manager in terms of attracting a specialist do not form an administrative offense, while when considering the complaint, these actions were recognized as illegal.

Case No. A33-14057 / 2008-k2

The decision of the Arbitration Court of the Krasnoyarsk Territory satisfied the complaint of the tax authority regarding the recognition of the actions of the arbitration manager to attract a specialist on a contractual basis to exercise the powers of the temporary administrator as unreasonable. The court also found that the involved specialist actually fulfilled the duties of the interim manager.

Case No. А33-20300 / 2009

The courts of the first, appeal and cassation instances found it unproven that the actions of the insolvency administrator had signs of an administrative offense, since the debtor did not have cash, due to which the bankruptcy commissioner would have the opportunity to pay for the services under the contract, and the bankruptcy estate was not formed.

The courts also established the absence of evidence confirming the reimbursement of the bankruptcy administrator for the costs incurred in connection with the payment of remuneration at the expense of the authorized body and indicating that the actions of the bankruptcy administrator to attract a specialist to perform the work affected the interests of the debtor and his creditors.

Thus, the application of the Rosreestr Office for the Krasnoyarsk Territory was denied due to the lack of proof of the fact that the bankruptcy commissioner paid the specialist's remuneration.

The courts also rejected the argument that the involved specialist was actually fulfilling the duties of an interim manager, since there was evidence in the case file, from which it follows that the bankruptcy manager himself signed the documents on his own behalf and held general meetings.

OUTPUT:

Case No. A33-2314 / 2010-k5

The decision of the Arbitration Court of the Krasnoyarsk Territory satisfied the complaint of the authorized body and the actions of the bankruptcy commissioner to conclude employment contracts with the involved specialists were recognized as unfounded, since the bankruptcy commissioner is not entitled to conclude employment contracts with specialists, taking into account the norm of paragraph 3 of Article 24 of the Bankruptcy Law that the bankruptcy commissioner has the right to engage specialists exclusively on a contractual basis.

Case No. А33-8802 / 2011

By the decision of the court of first instance, upheld by the court of appeal, the requirements of the Rosreestr Office were satisfied; the bankruptcy commissioner was brought to administrative responsibility.

At the same time, in terms of assessing the actions of the insolvency practitioner in concluding labor contracts with the involved specialists, the courts concluded that, in accordance with paragraph 6 of clause 1 of Article 20.3 of the on the basis of other persons with payment for their activities at the expense of the debtor, unless otherwise established by this Federal Law, the standards and rules of professional activity, or by an agreement of the arbitration manager with creditors. Prohibition to attract persons by employment contract The law on bankruptcy, as well as the above acts is not established.

OUTPUT:

When considering the case on bringing the bankruptcy manager to administrative responsibility, the courts overestimated the conclusions made by the court during the consideration of the bankruptcy case.

Case No. А33-30947 / 2005

The court, in the reasoning part of the ruling, established the fact of destruction by the bankruptcy trustee of the primary documents, on the basis of which the expenses were incurred in the course of bankruptcy proceedings.

When considering the report on the progress of the bankruptcy proceedings, the court found that the former bankruptcy trustee Fisher V.R. destroyed the primary documents on the basis of which expenses were incurred in the course of bankruptcy proceedings. The court indicated that the actions of the former bankruptcy trustee Fischer V.R. testify to the deliberate concealment by the bankruptcy administrator of expenses incurred in the course of bankruptcy proceedings at the expense of the bankruptcy estate of the debtor, entailing a delay in the bankruptcy proceedings against the debtor, violation of rights and legitimate interests creditors. With the aim of forcing Fisher V.R. transfer the documents to the bankruptcy trustee of the debtor Kustikov The.The. the arbitration court issued a writ of execution.

Case No. А33-9264 / 2011

The court of first instance refused the Rosreestr Office for the Krasnoyarsk Territory to satisfy its application for bringing the bankruptcy commissioner to administrative responsibility, indicating that the administrative body had to establish that the bankruptcy commissioner had performed the obligation improperly, which was the reason for the destruction of documents, whether the bankruptcy commissioner complied with the requirements for storage of documents, whether all possible measures have been taken to preserve them.

The appellate court did not agree with this conclusion, pointing out that the administrative body had proved that the bankruptcy commissioner did not transfer the accounting and other documentation of the debtor to the newly approved bankruptcy commissioner. However, the decision was left unchanged due to the expiration of the statute of limitations for bringing to administrative responsibility.

OUTPUT:

When considering a case on bringing an insolvency practitioner to administrative responsibility by a court of the first instance, the conclusions drawn by the court when considering a bankruptcy case were overestimated.

Judicial practice knows two diametrically opposite approaches to solving this issue.

According to first approach the court considering the case on an administrative offense is not bound by the conclusion about the violation by the insolvency (bankruptcy) legislation by the court considering the civil case. Regulatory framework for this approach is part 2 of Article 69 of the Arbitration procedural code Of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation), according to which the circumstances established by an effective judicial act of an arbitration court on a previously considered case are not proven again when the arbitration court is considering another case in which the same persons are involved.

According to the meaning of this legal provision, in order to give certain circumstances the property of a foregone conclusion (i.e. prejudice), it is necessary to have a complex legal and technical composition:

The factual circumstances were established by the court and reflected in the reasoning part of the judicial act deciding the case on the merits;

The court decision came into legal force;

In the initial and subsequent litigation the same persons are involved.

Thus, since the arbitration manager and tax authority, and within the framework of an administrative case - an arbitration manager and Rosreestr, then there is no prejudice of the established factual circumstances.

In addition, according to the supporters of this approach, the conclusion about the violation of the legislation on insolvency (bankruptcy), made by the court during the consideration of a civil case, by its legal nature is not legal fact, but represents the conclusion of the court, i.e. legal qualification, which the court came to on the basis of its inner conviction. In turn, the rules of Part 2 of Article 69 of the Arbitration Procedure Code of the Russian Federation do not apply to legal qualifications; the arbitration court is not bound by the conclusions of other courts on the legal qualification of the relations in question and the interpretation legal regulations(Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 17, 2007 No. 11974/06). In accordance with Part 1 of Article 71 of the Arbitration Procedure Code of the Russian Federation, the arbitration court evaluates the evidence according to its inner conviction, based on a comprehensive, complete, objective and direct study of the evidence available in the case. Therefore, by virtue of Articles 268, 286 of the Arbitration Procedure Code of the Russian Federation, the courts of appeal and cassation have no legal grounds for re-evaluating these conclusions of the courts.

As an additional argument in support of this approach, it can be pointed out that in the framework of a civil case, the court did not assess the actions of the insolvency administrator from the point of view of the presence of an administrative offense in them.

This approach is supported in the decisions of the Twentieth Arbitration Court of Appeal dated 28.03.2011 in case No. А68-9711 / 2010, the Eleventh Arbitration Court of Appeal dated 07.10.2009 in case No. A55-9754 / 2009.

Second approach to the solution of this issue is based on the distinction between the prejudice of judicial acts and their binding. The latter is provided for by Article 16 of the Arbitration Procedure Code of the Russian Federation, according to which the judicial acts of the arbitration court that have entered into legal force are binding on the authorities state power, bodies local government, other bodies, organizations, officials and citizens and are subject to execution throughout the territory of the Russian Federation.

This approach is set forth, for example, in the ruling of the Eighteenth Arbitration Court of Appeal dated September 19, 2007 in case No. А76-5807 / 2007.

The analysis of judicial practice made it possible to identify a number of controversial issues related to bringing arbitration managers to administrative responsibility under Article 14.13 of the Code of Administrative Offenses of the Russian Federation.

2. Is it admissible to the court when considering the possibility of applying the provisions of Art. 2.9 of the Code of Administrative Offenses of the Russian Federation on the insignificance of the offense committed by the insolvency practitioner to proceed primarily from the influence of the offense on the achievement of the public-law goal of the bankruptcy procedure applied to a particular debtor?

In judicial and arbitration practice there is no uniformity regarding the possibility of applying the provisions of Art. 2.9 of the Code of Administrative Offenses of the Russian Federation on the insignificance of an offense when a court is considering a case on bringing an arbitration manager to administrative responsibility.

So, according to first approach, since the object of this offense is relations in the field of entrepreneurial activity aimed at ensuring established order implementation of the bankruptcy procedure, which is a prerequisite for the recovery of the economy, as well as the protection of the rights and legitimate interests of the owners of organizations, debtors and creditors, it cannot be insignificant (Resolution of the Third Arbitration Court of Appeal dated 02.12.2010 in case No. A33-11553 / 2010, Resolution of the FAS Of the Volga District of October 29, 2009 in case No. A72-8687 / 2009).

According to second approach the courts, having examined the circumstances of the case, having established the presence in the actions of the bankruptcy trustee signs of an administrative offense, under Part 3 of Art. 14.13 of the Administrative Code of the Russian Federation, come to the conclusion about the possibility of applying the provisions of Art. 2.9 of the Administrative Code of the Russian Federation on the insignificance of the offense (Resolutions of the FAS East Siberian District of 05.05.2011 in case No. A33-12953 / 2010, FAS of the Ural District of 15.03.2011 in case No. case No. A37-1687 / 2010, the Eighteenth Arbitration Court of Appeal dated April 18, 2011 in case No. A76-25427 / 2010, the Seventh Arbitration Court of Appeal dated June 30, 2011 in case No. A03-2597 / 2011, dated June 27, 2011 in case No. A03 -1630/2011).

At the same time, an approach has developed in the practice of the arbitration court, supported by higher instances, according to which, when considering the issue of releasing an insolvency administrator from administrative liability due to the insignificance of an administrative offense, the courts are guided by the following criteria:

The insignificance of the offense takes place in the absence of a significant threat to the protected public relations... Circumstances such as the personality and property status of the person brought to justice, voluntary elimination of the consequences of the offense, compensation for damage caused are not circumstances that indicate the insignificance of the offense. (Clause 18 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 02.06.2004 No. 10 "On some issues arising in jurisprudence when considering cases of administrative offenses ");

The presence (absence) of a significant threat to protected public relations can be assessed by the court from the point of view of the degree of harm (threat of harm) caused directly to the established public legal order of activity. In particular, a significant degree of threat to protected public relations occurs in the event of a person's dismissive attitude to the established legal requirements and regulations (public legal obligations);

The introduction of responsibility for an administrative offense and the establishment of a specific sanction limiting constitutional law, must meet the requirements of justice, be proportionate to the constitutionally enshrined goals and protected legitimate interests, as well as the nature of the act committed. Consequently, the courts of general and arbitration jurisdiction has the right to choose a punishment in relation to the offender, taking into account the nature of the offense, the amount of harm caused, the degree of guilt of the offender and other significant circumstances of the act (ruling of the Constitutional Court of the Russian Federation dated 05.11.2003 No. 349-О);

Sanctions should not turn into an instrument for suppressing economic independence and initiative, excessive restriction of freedom of entrepreneurship (resolution of the Constitutional Court of the Russian Federation of 05/12/1998).

Releasing the insolvency practitioners from administrative responsibility in connection with the insignificance of the offense committed in cases No. public danger and damage caused to public relations protected by the state, taking into account the specific circumstances of the case (the presence of exceptional circumstances), the absence of harmful consequences and in accordance with constitutional principles proportionality and fairness in sentencing.

At the same time, assessing the absence of a significant threat to protected public relations, in our opinion, the court should proceed from the public-law status of the arbitration managers. As pointed out Constitutional Court Of the Russian Federation in the decree of July 22, 2002 No. 14-P on the case on checking the constitutionality of a number of provisions of the Federal Law “On restructuring credit institutions", Paragraphs 5 and 6 of Article 120 of the Bankruptcy Law, bankruptcy procedures are of a public nature, they imply coercion of a minority of creditors by a majority, and therefore, due to the impossibility of reaching a consensus in another way, the will of the parties is formed in other ways than action proceedings, principles. Due to various, often diametrically opposed interests of persons participating in a bankruptcy case, the legislator must guarantee a balance of their rights and legitimate interests, which, in fact, is the public-legal goal of the institution of bankruptcy.

3. Does the fact that he committed essential violations of the Bankruptcy Law, in particular the submission by the bankruptcy administrator to the meeting of creditors for approval of proposals on the procedure, on the timing and conditions for the sale of the debtor's property before the inventory and appraisal?

Article 2 of the Bankruptcy Law establishes that bankruptcy proceedings are a procedure applied in a bankruptcy case to a debtor, declared bankrupt for the purpose of proportionate satisfaction of creditors' claims.

In accordance with paragraph 4 of Article 139 of the Bankruptcy Law, after the inventory and assessment of the debtor's property, the bankruptcy commissioner starts selling the debtor's property at an open auction, unless a different procedure for selling the debtor's property is established by this Federal Law.

The analysis of the above norm allows us to conclude that the main obligation of the bankruptcy commissioner in the bankruptcy proceedings is the sale of the debtor's property in order to commensurate satisfaction of the creditors' claims, the main stages of preparing the property for sale are its inventory and assessment, without which the bankruptcy commissioner is not entitled to present to the meeting creditors provision on the procedure, conditions and terms for the sale of the debtor's property. The above norm is imperative in nature, its violation refers to significant violations of the Bankruptcy Law, since it entails a violation of the rights and legitimate interests of creditors. By imposing on the bankruptcy commissioner the obligation to conduct an inventory and appraisal of the debtor's property, before submitting to the meeting of creditors the procedure, conditions and terms for the sale of the debtor's property, the legislator pursued the goal of establishing control by the meeting of creditors over the actions of the bankruptcy commissioner on the formation of the bankruptcy estate based on the results of the inventory of the debtor's property and determination of its initial selling price based on the results of property appraisal.

At the same time, the materiality of the offense, in our opinion, should be determined by the court proceeding from the public-legal purpose of bankruptcy procedures and the public-law nature of the status of the bankruptcy commissioner.

Part 3 of Article 14.13 of the Code of Administrative Offenses of the Russian Federation, establishing administrative liability for violations of the legislation on insolvency (bankruptcy), provides for the formal composition of the offense in the form of failure by the arbitration manager to fulfill the obligations established by the legislation on insolvency (bankruptcy).

In case А33-13739 / 2010, the court refused to bring the bankruptcy commissioner to administrative responsibility due to the insignificance of the act, since the approval of the Regulation on the procedure, timing and conditions for the sale of the debtor's property before the assessment of all property corresponded to a specific situation, did not lead to unreasonable actions in relation to the debtor's property and was an exceptional case. Therefore, in order to decide whether the submission of proposals on the procedure, on the timing and conditions for the sale of the debtor's property before the inventory and assessment is an event of an administrative offense, it is necessary to assess, inter alia: the situation, conditions, the nature of bankruptcy proceedings, the state of the debtor's property, the number of objects, the size of the territory, the volume of documents, the amount of measures required to complete the bankruptcy proceedings. In addition, the application of Article 2.9 of the Administrative Offenses Code of the Russian Federation corresponds not only to the interests of the person brought to administrative responsibility, but also to the interests of the state, since it is irrational to take administrative measures that are not necessary. Protected legal relations are provided with adequate protection, including by the fact of initiating an administrative case, by the procedure of administrative proceedings (decision of the Third Arbitration Court of Appeal dated February 17, 2011 in case A33-13739 / 2010, dated 05.04.2011 in case A33-15588 / 2010).

In this case, the court assessed the violation by the bankruptcy administrator of the obligation provided for in paragraph 3 of Article 149 of the Bankruptcy Law from the point of view of harmful consequences affecting the further conduct of the bankruptcy procedure, and not on the fact of the violation in terms of its materiality and consequences in the form of violation of rights and the legitimate interests of creditors.

4. Is it possible to bring an insolvency administrator to administrative responsibility under other articles of the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation), except under Article 14.13?

At present, in the practice of the Arbitration Court of the Krasnoyarsk Territory, an urgent issue is related to the application of the provisions of the Administrative Offenses Code of the Russian Federation, as well as the Bankruptcy Law, on the procedure for bringing an arbitration manager to administrative responsibility, namely: whether his illegal actions in bankruptcy are subject to qualifications only under Article 14.13 Administrative Code of the Russian Federation or qualification is possible under other articles of the special part.

The current sectoral legislation does not contain a clear answer to this question. It is not possible to find the answer in the doctrine general theory rights. In this regard, in judicial and arbitration practice, there are two mutually exclusive approaches to solving this issue.

According to first approach, the bankruptcy commissioner is not subject to administrative liability under articles other than Article 14.13 of the Administrative Offenses Code of the Russian Federation. Analyzing the norms of the current legislation, the supporters of the outlined approach proceed from the need to interpret in the normative unity the provisions of Articles 126, 129 of the Bankruptcy Law and Article 53 of the Civil Code of the Russian Federation.

So, according to paragraph 2 of Article 126 of the Bankruptcy Law, from the date of the decision by the arbitration court to declare the debtor bankrupt and to open winding up proceedings, the powers of the head of the debtor, other management bodies of the debtor and the owner of the debtor's property - a unitary enterprise, are terminated. The bankruptcy commissioner appointed by the arbitration court (clause 1 of Article 129 of the Bankruptcy Law), whose powers are strictly defined in the specified norm of the law, shall carry out economic and administrative activities in relation to the legal entity-debtor. At the same time, interpreting the above legal provisions in conjunction with Article 53 of the Civil Code of the Russian Federation, by virtue of the legal instructions of which legal entities acquire civil rights and take over civic obligations through their bodies acting in accordance with the law, other legal acts and constituent documents, it should be concluded that during the period of bankruptcy proceedings, the only governing body of a legal entity is the bankruptcy commissioner, whose powers are limited to the purposes of bankruptcy management. By virtue of the direct instructions of the law, the liquidator exercises the powers of the head of the debtor within the limits, in the manner and on the conditions established by the Bankruptcy Law. As indicated by the Constitutional Court of the Russian Federation in its Resolution No. 12-P of December 19, 2005, the 2002 Federal Law "On Insolvency (Bankruptcy)" public functions... The bankruptcy commissioner is appointed by the arbitral tribunal and publicly performs - legal functions to protect the rights and legitimate interests of the debtor, creditors, the state and employees of the debtor. The public-law status of insolvency administrators determines the right of the legislator to impose special requirements on them, and also assigns responsibility for ensuring that bankruptcy procedures are carried out in an appropriate manner.

Consequently, from the moment of the introduction of bankruptcy proceedings and the approval of the bankruptcy commissioner and until the date of termination of the proceedings on the case or the conclusion of an amicable agreement, all legal relations are subject to transfer to the plane of the bankruptcy case, are regulated by the relevant legislation, for violation of which the bankruptcy commissioner can be brought to justice: civil law (Clause 4 of Article 20.4 of the Bankruptcy Law), administrative (Article 14.13 of the Administrative Code of the Russian Federation) or criminal (Article 195 of the Criminal Code of the Russian Federation).

This approach has been fully adopted in the practice of many arbitration courts.

In particular, due to the above reasoning, the liquidator has no obligation to provide and disclose information on the market. valuable papers, therefore, there is no composition of an administrative offense provided for in Article 15.19 of the Administrative Offenses Code of the Russian Federation (decision of the Arbitration Court of the Krasnoyarsk Territory dated October 28, 2009 in case No. by the decree of the FAS of the East Siberian District of 12/17/2009 on the same case). According to the supporters of the analyzed approach, it is also controversial to bring the liquidator to administrative responsibility for non-payment wages(Article 5.27 of the Code of Administrative Offenses of the Russian Federation) on the grounds that from the moment of recognition of the debtor organization between the bankruptcy administrator and the employees of the debtor there are relations in settlements with creditors in the order of priority established by the Bankruptcy Law: for the bankruptcy administrator, all employees are creditors of the second priority (clause 3 Article 143), and unlawful actions in bankruptcy form the offenses provided for in Article 14.13 of the Administrative Code of the Russian Federation.

Thus, in this case, it is fair to assert that the late payment of wages by the arbitration manager is not directly caused by the violation of labor relations, since he acts within the limits of special powers determined by the bankruptcy legislation (decision of the Moscow Arbitration Court of 18.12.2007 in case No. A40 -61476 / 07-94-439; Resolutions of the Ninth Arbitration Court of Appeal dated February 14, 2008 No. 09AP-280/2008-AK; FAS East Siberian District dated April 3, 2006 in case No. A74-743 / 05-F02-1247 / 06 -S1; FAS of the Moscow District dated May 28, 2008 No. KA-A40 / 4111-08).

Note that a similar conclusion was reached by the judicial board of the Supreme Arbitration Court of the Russian Federation, refusing to transfer the case to the Presidium of the Supreme Arbitration Court of the Russian Federation for review by way of supervision (determination dated 06.10.2008 No. 12137/08). The Board indicated that in this case the employees of the municipal unitary enterprise are the debtor's creditors, and this conclusion is consistent with law enforcement practice (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 11838/05 dated January 17, 2006; No. 7460/05 dated September 27, 2005).

According to second approach, who received support in the acts of arbitration courts, the initiation of a bankruptcy case does not in itself terminate the previously existing legal relationship, does not transform them legal nature, and therefore does not release the liquidator from the duties provided for by other regulatory legal acts (in particular, Labor Code RF (hereinafter referred to as the Labor Code of the RF), Federal Law dated 26.12.1995 No. 208-FZ "On joint stock companies", Federal Law of 22.04.1996 No. 39-FZ" On the Securities Market ", etc.). Consequently, the possibility of bringing the bankruptcy commissioner to administrative responsibility is not excluded. articles of the Administrative Code RF, in addition to Article 14.13.

Supporters of this approach argue their position with legal instructions set forth in Article 2.4 of the Administrative Code of the Russian Federation, interpreted in normative unity with Article 129 of the Bankruptcy Law.

So, by virtue of the note to article 2.4 of the Code of Administrative Offenses of the Russian Federation, persons carrying out entrepreneurial activity without the formation of a legal entity, who have committed an administrative offense in connection with the performance of organizational and administrative or administrative and economic functions, bear administrative responsibility as officials unless otherwise provided by law. Taking into account the rule established by Article 129 of the Bankruptcy Law, the liquidator is entrusted with the exercise of the powers of the head of the debtor and other management bodies of the debtor, it seems possible to come to the conclusion that the liquidator may be a subject of administrative responsibility, except in cases where the law provides for a special entity - entity(Resolution of the Third Arbitration Court of Appeal of 12.11.2009 in case No. A33-12674 / 2009, upheld by the decision of the FAS of the East Siberian District of 09.02.2010).

At the same time, the absence in the list of duties of the insolvency administrator of a direct indication of the obligation to pay wages to the employees of the debtor is a consequence of the fact that the Bankruptcy Law is special and contains rules governing specific legal relations in the field of insolvency (bankruptcy), and therefore in no way relieves the bankruptcy commissioner as the head of the debtor from the performance of the obligation imposed on him by other federal laws.

The analyzed approach received support in the resolution of the FAS of the Ural District of 03.06.2008 No. F09-3994 / 08-C1, upheld by the definition of the Supreme Arbitration Court of the Russian Federation dated 23.09.2008 No. 9027/08, which refused to transfer the case to the Presidium of the Supreme Arbitration Court. In these acts judicial instances the courts concluded that failure to submit a list of affiliated persons to the registering authority in the prescribed form constitutes an administrative offense provided for in Part 2 of Article 15.19 of the Administrative Code of the Russian Federation. In the resolutions of the Federal Antimonopoly Service of the West Siberian District dated 05.02.2008 No. F04-622 / 2008 (1358-A46-27); Federal Antimonopoly Service of the Ural District of May 22, 2008 No. F09-3566 / 08-C1; FAS of the Far Eastern District of 18.06.2007 in case No. F03-A51 / 07-2 / 2517; The Seventeenth Arbitration Court of Appeal dated 15.01.2007 in case No. 17AP-2923/06-AK; Of the Arbitration Court of the Vologda Region dated 08.22.2007 in the case A13-6260 / 2007 arbitration courts stated a violation of labor and labor protection legislation, pointing out the possibility of bringing the bankruptcy commissioner to administrative responsibility under Article 5.27 of the Code of Administrative Offenses of the Russian Federation.

Application

LEGAL POSITIONS,

RELATED TO THE APPLICATION OF ART. 14.13 of the Administrative Code of the Russian Federation

Document details

Basic legal positions

43. From 01.01.2011, the provisions of Article 20 of the Bankruptcy Law (as amended by Law No. 296-FZ and Federal Law No. 429-FZ dated 28.12.2010) came into force in terms of defining an insolvency administrator as a subject of professional activity engaged in private practice, as well as with regard to the exclusion of the obligation to register the bankruptcy commissioner as an individual entrepreneur.

Part 3 of Article 14.13 of the Code of Administrative Offenses of the Russian Federation, as well as on compensation for damages to them on the basis of paragraph 4 of Article 20.4 of the Bankruptcy Law, continue to belong to the jurisdiction of arbitration courts even after 01.01.2011, regardless of whether the bankruptcy commissioner is registered as an individual entrepreneur.

6. Part 3 of Article 14.13 of the Code of Administrative Offenses of the Russian Federation provides for administrative liability for failure by the arbitration manager to fulfill the obligations established by the legislation on insolvency (bankruptcy).

Since after the adoption of Law No. 296-FZ, in addition to new edition Law in individual cases on bankruptcy, the old version of the Law continues to apply, based on the specifics of the legislative regulation of the composition of this administrative offense, the adoption of Law No. 296-FZ cannot serve as a basis for releasing an insolvency practitioner from administrative liability provided for in the aforementioned article, with reference to the provisions of Part 2 of Article 1.7 of the Code of the Russian Federation about administrative offenses.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 29, 2011 No. 7803/11

As an objective side of the composition of an administrative offense, the insolvency practitioner is charged with failure to fulfill the obligations established by the legislation on insolvency (bankruptcy), expressed in violation of the order of repayment of current debt and violation of the calendar sequence of satisfaction current requirements creditors.

In the case under consideration administrative offenses are considered complete from the moment the extraordinary payment is made for each period.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 11.10.2011 No. 5811/11

If the arbitration court made a decision to refuse to satisfy the requirement of the administrative body to bring the bankruptcy commissioner to administrative responsibility and to release him from this responsibility due to the insignificance of the offense , that is, in fact, the decision was not made in favor of the bankruptcy commissioner, therefore court expenses incurred by him at the stage of consideration of the case by the court, collection from the administrative body are not subject .

In case No. А33-15588 / 2010, the deadline for the submission by the bankruptcy administrator of the minutes of the creditors' meeting was violated by one or two days, that is, the deadline was missed slightly.

In case No. А33-21344 / 2009, offenses were committed by the bankruptcy administrator during the period of bankruptcy of the debtor as absent, the procedure of simplified bankruptcy proceedings was applied to the debtor. Under the simplified bankruptcy procedure, compliance with the monthly frequency of meetings of creditors is not relevant, the insolvency practitioner has the right to determine the necessity of holding a meeting of creditors himself.

For insolvency administrators, liability measures have been tightened and the terms for bringing bankruptcy commissioners to justice have been increased.

The bankruptcy legislation was amended (Federal Law dated December 29, 2015 No. 391-FZ), which reform activities of bankruptcy commissioners.

Some changes:

  • limited the remuneration of the interim manager in terms of interest to the amount of 60 thousand rubles;
  • banned the insolvency administrator without a judicial act to involve persons to ensure the fulfillment of the obligations imposed on him in the bankruptcy case at the expense of the debtor's property when the amount of payment for such services established in the bankruptcy law is exceeded (clause 6 of article 20.7 of Law No. 127-FZ).

Bringing bankruptcy commissioners to liability

The court within a year will not be able to approve the bankruptcy administrator in the bankruptcy case after the dismissal. If the insolvency practitioner admits non-performance or improper performance of obligations, which will entail losses to the debtor or creditors, and will be rendered judicial act on this basis, the dismissal of the manager, for him it means a ban on the profession for a period of one year (clause 2 of article 20.2 of the Federal Law "On Insolvency (Bankruptcy)" No. 127-FZ).

Disqualification of an insolvency practitioner for a repeated violation

The bankruptcy manager's liability for violation is determined by Art. 14.13 of the Code of Administrative Offenses of the Russian Federation, where part 3.1 appeared, which establishes the liability of arbitration managers for repeated failure to fulfill obligations in the form of disqualification for a period of six months to three years.

Now any repeated violation may result in disqualification: the insolvency practitioner will be prohibited from practicing this profession for a certain period. Moreover, it does not matter whether the violation caused damage to the debtor or creditors. That is, arbitration managers can be disqualified even for minor violations.

Terms of Bringing the Bankruptcy Manager to Responsibility

Now the statute of limitations for bringing the bankruptcy commissioner to administrative responsibility is three years.

The statute of limitations for bringing to administrative responsibility for violations of bankruptcy legislation has been increased to three years (Part 1 of Article 4.5 of the Administrative Offenses Code of the Russian Federation). Since in practice, arbitration managers were most often involved for such violations, the amendment is intended, first of all, for them.

The minimum size of the SRO compensation fund and the maximum amount of payments from it have been increased

Arbitration managers will have to incur additional costs, since the compensation fund is formed at the expense of contributions from SRO members.

The minimum size of the SRO fund has been increased

SROs of bankruptcy administrators are obliged to form their own compensation fund to compensate for losses caused by the administrators to the participants in bankruptcy cases or other persons in the course of the case.

Currently, the minimum size of the SRO compensation fund has been increased - 20 million rubles. And from 2017 this amount will be increased to 50 million rubles. (Clause 2, Article 25.1 of Law No. 127-FZ). An increase in the size of the fund is an additional cost for the insolvency practitioners, since the fund is formed from the contributions of the SRO members.

The maximum payout from the fund has been increased

From January 1, 2017, the maximum amount of payment in compensation for losses caused by the insolvency administrator to the participants in bankruptcy cases will be 50% of the fund (clause 11 of article 25.1 of Law No. 127-FZ). And also the rule that such a payment cannot exceed 1 million rubles has been canceled.

What will the toughening of the liability of arbitration managers affect?

The innovations can affect the reduction in the number of insolvency administrators, the rise in the cost of bankruptcy and the refusal of managers from cases that are unpromising for them.

There will be fewer arbitration managers

Some of the insolvency practitioners will be disqualified, in addition, the increase in contributions to the SRO fund and the risks of a ban on activities reduce the attractiveness of the insolvency practitioner.

The number of SROs may decrease, but the composition will increase

It has become more profitable for arbitration managers to unite in an SRO with a number of more than 1,000 people in order to reduce fees and at the same time meet the requirement for the minimum amount of the organization's compensation fund.

Arbitration managers can refuse bankruptcy cases of individuals

Since the remuneration of the financial manager in the bankruptcy case of a citizen is 10 thousand rubles per procedure, even before the introduction of the institution of bankruptcy of citizens, it was discussed that the arbitration managers were not ready to work for such a remuneration. With the adoption of the amendments, the arbitration courts have already postponed consideration of the validity of the citizen's bankruptcy petition, since there was no manager.

With the new changes, the risks of the manager increase, which makes bankruptcy cases of individuals unpromising for him, and it can be expected that the bankruptcy proceedings of an individual will be terminated in accordance with paragraph 9 of Art. 45 of Law No. 127-FZ, since the financial manager was not approved within three months.

Rising cost of bankruptcy

A decrease in the number of managers and an increase in their costs will lead to an increase in prices for the services of managers.