Bankruptcy: stages, signs, deadlines

In the legislation of the Russian Federation there is such a legal category as bankruptcy. The relevant provisions in the regulatory acts may apply to both individuals and legal entities. What is the specificity of the bankruptcy procedure for both types of legal entities?

What is bankruptcy?

The concept of "bankruptcy" can be interpreted in two ways.

First, this term can be understood as a condition in which the debtor, based on objective criteria, is unable to settle with creditors. The subject of debt is most often a bank loan. But they can also have a loan issued, for example, by a microfinance organization that does not have a banking license, or a private person. The subject of recovery may also be obligations of a citizen or organization that arose in connection with mandatory payments to the state treasury (for example, taxes, alimony and other charges).

Secondly, the concept of bankruptcy can be associated with a procedure in which the insolvency of the borrower is proved legally. At the same time, it is possible that after the passage of the financial situation, the debtor's financial situation will be somewhat eased. This may be due, for example, to the fact that the creditor agrees to write off part of the debt. Providing absence of claims to the borrower or mitigation of the terms of payment, the settlement at the stage of bankruptcy can also be concluded.

The Russian legislator enables legal entities and, more recently, citizens to take advantage of the relevant procedure. Borrowers who have experienced difficulties initiating the process of bankruptcy can count on restructuring, and even at all, writing off the debt in the order established in legal acts. At the same time, the status of a bankrupt individual or organization does not receive at the moment when they show an appropriate initiative, but at the final stage of the communication process with the creditor. The first stages of the bankruptcy procedure do not at all assume that the borrower will necessarily be declared insolvent.

The status of the bankrupt by the legislation

But what are the signs of the status of "bankrupt" under Russian law? It presupposes the existence of proven facts in court, reflecting that a citizen or an organization does not have absolutely no opportunities to satisfy the creditor's requests, even on terms of restructuring and other possible benefits. In this case, once all the bankruptcy stages have been completed, the person or firm acquires the corresponding status, and the debts are returned due to the sale of the borrower's property.

Thus, the citizen or organization initiating the procedure in question is not initially considered insolvent from a legal point of view. But if at any stage of the bankruptcy process it turns out that they really can not service the debt on terms acceptable to the creditor, then in the long run the persons acquire the corresponding status. They become legally recognized bankrupt.

Consider how the stages of insolvency (bankruptcy) take place, if the borrower is an individual. It can be noted that the legislation of the Russian Federation with regard to the regulation of debt legal relations with the participation of citizens in the aspect of recognizing their financial insolvency is quite new. Earlier, the laws were fully regulated only by the bankruptcy of organizations.

Features of bankruptcy procedure for individuals

Initiation of the procedure in question begins with the appeal of the debtor or his creditor to the court. In some cases, government agencies may also be involved in the process. The citizen must submit the corresponding application at the place of residence. At this point, his total debt should be 500 thousand rubles or more. Another criterion necessary to initiate the bankruptcy procedure is the delay in payments within 3 months.

Having received a statement from a citizen, the court checks its validity. If the appeal is consistent with the law, and a person has limited solvency, then a debt restructuring procedure is implemented that involves alleviating the financial burden of the borrower. A financial manager is appointed who will deal with issues that are relevant to all the key stages of the procedure in question. He does his work not for free: it is expected to pay the borrower a fixed amount of 10 thousand rubles, as well as transfer 2% of the funds, which eventually will be recovered from the debtor in favor of the lender. The financial manager initiates the subsequent stages of bankruptcy, in particular the meeting of creditors. Its participants must form a register of claims against the debtor.

Bankruptcy of individuals: restrictions

A citizen after initiating the bankruptcy procedure and receiving a relevant application by a court, in accordance with the law, can not be a party to certain types of legal relations. A number of restrictions are also imposed on him for certain civil activities. For example, a debtor can not transfer its property to the structure of the authorized capital of any firm, act as an acquirer of shares or stakes in companies. The Borrower is also prohibited from entering into legal relations involving transactions that are of a nature free of charge. A person can not buy or sell securities, cars or other property if it costs more than 50 thousand rubles, and also transfer the property as collateral - if the financial manager does not approve the relevant activities. Has no right to act as a creditor, participate in the provision of guarantees.

The essence of restructuring

If we consider the key stages of bankruptcy in terms of financial recovery of the debtor, then one can single out restructuring. It is characterized by the following features:

- accrual of any interest, penalty amounts, as well as forfeits or penalties is terminated;

- Enforcement proceedings (if any) are suspended if maintenance does not include alimony, compensation for harm or return of property from illegal possession;

- financial claims of creditors are brought to court.

As soon as the restructuring process becomes more active, the financial manager, as well as the creditors, are entitled to challenge the borrower's civil legal transactions carried out for 3 years.

Restructuring plan

The most important component of restructuring is the corresponding plan. It can be compiled if the debtor has a permanent income, was not previously recognized in the established order as a bankrupt, and also was not convicted of economic crimes. The plan in question includes information on the magnitude, timing, and debt redemption algorithms.

The maximum duration of execution of the restructuring plan is 3 years. The corresponding document is usually drawn up by the financial manager, and it must be approved by the creditors. After the plan is coordinated with the specified participants of legal relations, it can be submitted for approval to the court.

If the document in question is not approved in accordance with the established procedure, then the citizen in this case must be declared bankrupt. But if the plan is approved by all subjects of legal relations within the framework of the procedure for recognizing the borrower as insolvent, then this is accompanied by legal consequences:

- creditors can not change the claims to the debtor, which are approved in the plan, and also have no right to expect damages that accompany the adoption and approval of the relevant document;

- If the court has taken certain measures related to the security of creditors' requests, they are canceled;

- any penalties provided for non-fulfillment of obligations reflected in the restructuring plan are also canceled;

- the amount of the debt of the borrower increases with respect to the refinancing rate of the Central Bank (in percent per annum), while the reduction of the corresponding value is possible with the agreement of the parties.

The restructuring plan has a clear deadline. A month before its expiration, the financial manager must prepare a report reflecting how well the payment discipline of the borrower is maintained under the document. If a person can not pay off the debt in accordance with the plan, the creditors, as well as the manager, can apply to the court with a request to annul the document.

The court, having studied how a citizen fulfilled his obligations under the plan, makes a decision concerning the completion of such a stage of bankruptcy as restructuring, or revokes the document and recognizes the borrower as insolvent.

Recognition of bankruptcy

So, if the plan in question is not fulfilled by the debtor, then the court will most likely approve the citizen as a bankrupt. After this, the borrower's obligations to creditors must be satisfied at the expense of selling his property. In this case there are categories of property objects that can not be recovered.

If the court acknowledges bankruptcy, the stages of subsequent activities of legal entities participating in the relevant communications should be implemented within 6 months. For this period a citizen can get a ban on traveling abroad. Some restrictions may also be imposed on its activities. For example, a ban on the opening of accounts and deposits in credit and financial organizations. The corresponding authority is transferred to the financial manager.

Consequences of bankruptcy for natural persons

To what extent will a citizen be able to exercise his rights after all the stages of the bankruptcy procedure have passed? So, there are a number of nuances concerning the entry of a person into some legal relations. For example, if a person who is declared bankrupt, within 5 years after the completion of the relevant procedure, wants to take a loan, he will have to notify the creditor of his status. Also, within 3 years after the recognition of financial insolvency, a citizen can not hold high positions in the management structure of organizations.

Settlement agreement

One of the noteworthy nuances that characterizes such a procedure as bankruptcy is an amicable settlement. It can be treated in two ways.

First, through a negotiated settlement, the creditor and the debtor can agree on a write-off of the debt. Secondly, the relevant subjects of legal relations have the right to initiate the cancellation of the bankruptcy procedure - also in court. In this case, the borrower continues to service the debt on terms that are acceptable to the lender.

Bankruptcy of legal entities

We examined the main aspects characterizing bankruptcy (stages, terms, participants of the procedure) in relation to natural persons. We will now study the specifics of recognizing the financial insolvency of organizations.

It can be noted that the main stages of bankruptcy of legal entities as a whole coincide with those that are typical for the corresponding procedure with the participation of citizens. In both cases, most of the activities are performed by the same subjects of legal relations - the creditor, the borrower, the financial manager (in the case of legal entities - the arbitration), as well as the court. Among the procedures that necessarily accompany the bankruptcy initiated in respect of the legal entity, is the stage of surveillance aimed at ensuring the security of the property of the firm. But there are other aspects of the process of recognizing insolvency that are typical only for organizations. It will be useful to study them.

Bankruptcy of legal entities: the amount of debt

Organizations at the stage of bankruptcy (that is, those experiencing objective financial difficulties associated with debt servicing) can apply to the court if their debt is from 300 thousand rubles. As we see, here the corresponding criterion is even lower than for natural persons.

If it concerns strategic enterprises, as well as those organizations that have the status of natural monopolies, then the financial threshold for applying to the court for them is much higher - 1 million rubles.

Appointment of manager

Yurlitsa, initiating the procedure for bankruptcy, can not choose the manager. Note that this rule appeared in the legislation quite recently. Prior to its introduction, as some experts have pointed out, organizations could appoint acquaintance managers, that is, people who are more likely to show increased loyalty to them. However, the creditor can express his opinion on the appointment of a person to the relevant post.

Bankruptcy and decisions of arbitration courts

The consideration of disputes involving legal entities is often carried out by arbitration courts. Their status differs significantly from state institutions. In the law regulating the bankruptcy of legal entities, there is a rule according to which an insolvency petition is possible only if there is a writ of execution based on the results of decisions of the arbitration courts. This rule applies to creditors that are not registered in accordance with the established procedure as financial organizations that specialize in issuing the appropriate type of loans. It can be noted that this rule appeared earlier in the judicial practice, but recently it was fixed in the legislation at the federal level.

Liability of legal entities in bankruptcy

At any stage of the bankruptcy of legal entities, employees of organizations holding key positions are responsible for providing the manager with all necessary information, as well as for equitably satisfying the interests of all creditors and correct, from the point of view of the law, conduct. If the officials of companies in respect of whom the bankruptcy procedure is carried out, will admit violations, then they may be subject to administrative fines. They can be about 100 thousand rubles.

We examined the key signs and stages of bankruptcy for individuals and the distinctive features of the corresponding procedure for organizations. It can be noted that the legislation of the Russian Federation provides participants in legal relations in the sphere of loans with fairly fair legal instruments for resolving problems related to debt repayment.