Trying to explain
Debtors use bankruptcy as a means to escape from debt, to recognize the representatives of the banking community. Perhaps this is partly due to the decision and "The bankruptcy proceedings of individual entrepreneurs", adopted on 30 June plenum of the Supreme Arbitration Court (IAC). Now the document is proofreading, and then be signed by the Chairman of EAC and the public. This ruling clarifies the courts of arbitration, how to apply these or other items of the existing bankruptcy law.
"The current bankruptcy law has many gaps, - says Natalya Silk, deputy chief of department on work with troubled assets of VTB 24 .- Explanation of the higher judiciary are not the source of law. Therefore, a sufficient measure to protect the rights of not only creditors but also to other participants the bankruptcy process will be the introduction of appropriate changes in legislation. " In this case, however, Natalie Silk stipulates: According to her, any clarification of the Supreme Arbitration Court of Russia, can eliminate these gaps and ensure uniform application of the law, of course, creditor banks are perceived positively.
According to the EAC in 2010, about five thousand citizens of entrepreneurs were declared bankrupt. But because of the bankruptcy case lasted more than a year, this figure reflects only the number of people added to the total amount held in the bankruptcy proceedings of former entrepreneurs.
"In general, they do not so much as a bankrupt - legal entities, - said Andrei Yegorov, deputy chief of staff YOU .- But in this case their number is steadily increasing and is already more than a quarter of the total number of decisions on bankruptcy (a total of 16 thousand . such decisions in 2010). Unfortunately, the statistics of intentional and fictitious bankruptcies, we do not know. "
"To speak of some statistics is difficult because creditors to identify possible intentional, fraudulent bankruptcy of the debtor are minimal" - confirms Natalia Silk.
According to the official SAC, these issues are primarily the responsibility of the investigating authorities - such a serious accusation against the Court of Arbitration to nominate a citizen can not. "My subjective feeling is that the criminal cases of deliberate or fictitious bankruptcy is much less than would be worth", - Andrey Egorov.
Bankruptcy as a goal
Not surprisingly, some media and experts have clung to this decision point VAS, which recalls the responsibility of the debtor for willful failure. The document states that in cases where the signs will be installed intentional or fraudulent bankruptcy or other circumstances, evidence of misconduct knowingly to the detriment of creditors (for example, the assumption of a known unfulfillable commitments, providing false information to the bank, the concealment or destruction of property, asset stripping and t . etc.), the court will be entitled to specify in the definition of the completion of bankruptcy proceedings for non-use of the debtor exemption from the rules of performance. In fact, and there is nothing new: the responsibility for intentional bankruptcy was still spelled out in the Criminal Code. This article scare lenders like borrowers.
The forum "United Internet conference experts on bankruptcy" Alics user tells his story: "I am an individual entrepreneur. In fact, the activity was discontinued about two years ago, is now filed for bankruptcy. The most important duty - outstanding credit of the Savings Bank, he was taken in 2007 and was about 800 thousand rubles. redeemed only at the third (the first few months of payments were successful, then covered his business with a copper basin, and all). Now security officials of the Savings Bank in defending the interests of the mother organization, not wanting this bankruptcy, threatening the involvement of criminal liability for intentional bankruptcy (Article 196 of the Criminal Code) and indicate that allegedly will be able to present the case to prosecutors so that the loan I took a deliberate, suggesting a subsequent bankruptcy. "
In fact, according to Alics, no intention on his part was not - was a simple financial folly, error of planning tools and, finally, the decline in sales during the crisis. "I note also that during the said two years overdue payments on the loan are: salaries of my wife's monthly police officers are 50% in favor of the bank because it was poruchitelnitsey" - says an unsuccessful businessman. The liquidator under the name "Nick" calming "The bank simply separates you, to prove intentional bankruptcy is very difficult, law enforcement is not interested."
Lawyer Maxim Bugaev of Decker Consulting Group confirms that the rules on intentional bankruptcy not work well even for large companies, to say nothing about individual entrepreneurs. "Identify the signs of an intentional failure is extremely difficult," - said the lawyer. Yes, in addition to law enforcement authorities is not very interesting, and work with small amounts.
In counting on YOU more enthusiasm on the part of law enforcement. "From the police I would expect that they will prosecute the deliberate bankruptcy and to understand the actions of the debtor, not only in cases when an arbitration case received opinion on the signs of a fictitious or deliberate bankruptcy, and in all situations where such signs visible to the naked eye, "- said Andrei Yegorov.
That is, without law enforcement efforts even after the adoption of Resolution YOU law relating to the deliberate bankruptcy, in fact, will not work.
Property to cover debt
"If you touch the more specific questions, the draft decree prohibited the implementation of the bankruptcy process a single dwelling, which belongs to the debtor, - says Natalya Silk from VTB 24 .- We believe that this approach violates the rights of the lender and should be adjusted over time. Shall be provides for the possibility of implementing a single dwelling, belonging to the debtor, if living area significantly exceeds the legal requirements related to housing or the elite. In this case, the funds, the proceeds from the sale of residential premises shall be used to purchase economy-class housing by the debtor to current standards of living space, and the rest - to meet the demands of creditors. "
From the point of view of protecting borrowers from unscrupulous lenders consider particularly significant clarification of the mode of repayment of creditors' claims by the debtor during the bankruptcy process (and subsequent cessation of this process). The interpretation stresses that the satisfaction of creditor claims is possible due to community property.
"With regard to community property ruling clarifies that the trustee should not assume that this property is likely to be in common ownership - he looks, what property the debtor written (bankrupt), and include it in the bankruptcy estate . If the other spouse considers their rights have been violated, he said a lawsuit, "- said the representative of YOU.
Issues of marital property regime - one of the most difficult and complicated in today's Russian Property Act. The only Plenum YOU solve all the problems could not. "The need for legislative change is long overdue, but unfortunately, nobody takes the initiative to develop acceptable legislation. And to do it very seriously, with an analysis of experience of foreign countries, and fairly quickly," - said Andrei Yegorov. In this case the RF out on these issues with the legislative initiative will not - debate on the division of common property are within the competence of courts of general jurisdiction.
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