Recently, Russian legislation contains rules governing the bankruptcy of citizens. What is their specificity? What caused the implementation of the relevant legal provisions? What is the specificity of legal acts regulating bankruptcy of citizens?
Amendments to the law
In December 2014, the President of the Russian Federation signed a law amending the Federal Law "On insolvency (bankruptcy)." Now there is a new term that includes Russian civil law - “citizen bankruptcy”. Chapter 10 of the noted Federal Law includes relevant provisions.
According to the updated wording in the Federal Law "On Insolvency", citizens of the Russian Federation can completely officially initiate the recognition of insolvency proceedings against themselves. Thus, in Russia, as many lawyers have noted, a full-fledged law on bankruptcy of citizens appeared. Let us consider in more detail the nuances characteristic of the corresponding procedure.
Features bankruptcy proceedings
Bankruptcy of a citizen must be recognized by the court. The basis provided by law is a debt of 500 thousand rubles, as well as the absence of cash flows on it, provided that they must be observed, in accordance with the contract, within three months. The debtor, the creditor, or, in the case of tax debts, the FTS have the right to go to court.
If the citizen is not an individual entrepreneur, then his case is sent to a court of general jurisdiction. However, if a person was once in the status of an individual entrepreneur and he still has debt obligations, then the case, in turn, will be considered by the arbitration court. That is, as if in its place there was an existing economic entity. Thus, bankruptcy of a citizen and individual entrepreneur in spite of the fact that both of them are physical persons, it is carried out differently.
The court, having received a statement initiating bankruptcy proceedings, approves the trustee, who represents one of the specialized structures with the status of self-regulatory organizations. This person will have to receive a fee of 10 thousand rubles, as well as interest, which depends on the subsequent payments of the debtor to the creditor.
Thus, the peculiarity of a citizen's bankruptcy is that he also pays for the procedure for declaring himself insolvent financially, as well as in involving an outside expert in this process. At the same time, this prospect, according to many lawyers, can play a positive role in the interaction of the debtor with the creditor. This is possible, in particular, due to the use of the debt restructuring mechanism. Consider its specifics.
Restructuring instead of bankruptcy
Bankruptcy of a citizen is a procedure that is primarily designed to alleviate a person’s debt burden. And therefore, according to the legislator, one of the main mechanisms of interaction between the creditor and the debtor will be the restructuring of debt obligations. This opportunity represents the definition of an optimal repayment schedule for both parties.
The maximum duration of the restructuring is 3 years. In this case, the court will allow it only if the citizen has sources of income, as well as if he is not judged by economic articles. The restructuring plan, as prescribed by the law on bankruptcy of citizens, is provided by creditors and approved by the court. A little later we will consider the specifics of its compilation.
While the restructuring is ongoing, a citizen does not have the right to conclude transactions in excess of 50 thousand rubles without agreement with the manager. If a person violates this rule, then he will have to pay a fine of 4-5 thousand rubles in accordance with the norms of the Code of Administrative Offenses of the Russian Federation.
If a person has sufficient resources for timely compliance with the conditions of restructuring, the court will not touch his property. However, if the plan that we mentioned above is not provided, approved or executed, the court has the right to initiate the sale of the debtor's property. At this stage, the restructuring turns, in fact, into bankruptcy. But not all property can go towards paying off debt. Property that is life-supporting for a citizen and his family is not subject to seizure and sale.
At the same time that a person is declared bankrupt, the court may also impose a restriction on traveling abroad with respect to the debtor. It will act until a person pays. He may also be prohibited from taking and giving out loans for a certain period of time, be a guarantor, or hold managerial positions.
Restructuring plan
Restructuring must be approved in the form of a special plan. A citizen can make it himself. However, the manager can also help in this. The relevant document should contain language on the maturity of the debt. There are some types of obligations that cannot be included in the restructuring plan.
This situation may occur if the cause of the debt is unsuccessful. entrepreneurial activity of citizens. Bankruptcy of a citizen at the restructuring stage in this case does not imply, in particular, the inclusion in the payment plan of salary requirements, severance pay for employees. Corresponding obligations thus form the first priority of payments.
The restructuring plan prepared by the debtor with the possible assistance of the manager must be approved by the creditors, as well as by the court. If the relevant document is not approved by debt collectors, then it can be sent for further revision. However, as some lawyers have noted, options are possible in which the court decides to approve the plan without the approval of the creditors.
After approval, the document is subject to execution by the debtor. It cannot be unilaterally changed by creditors. However, they have the right, if there is legal reason, to submit other requirements to the citizen separately. If a citizen concludes that he cannot pay under the restructuring plan, he is obliged to notify the creditors about this.
Is the law relevant?
Actually, why was the draft law on bankruptcy of citizens developed? According to some experts, this is due to the rather large accumulated amount of debts of Russians - to banks, tax structures, as well as to housing and communal organizations. According to some reports, the total amount of the corresponding obligations of citizens now amounts to more than 600 billion rubles.
Based on the analysis of the debt situation, a bill was developed on bankruptcy of citizens, which, first of all, describes the procedure for determining insolvent individuals who are not related to business. That is, in the previous version of the Federal Law, as noted by lawyers, there were no direct language governing how Russians who are not in the status of individual entrepreneurs should be declared bankrupt.
There is evidence that the amendments to the Federal Law on Bankruptcy of Citizens were to enter into force in 2016. But due to economic sanctions and the complicated situation in the state’s economic system, as a result of which the debt of Russians can grow, the authorities decided to put into effect the corresponding legal act earlier. So, it will enter into force on July 1, 2015. According to experts, the relevant legislative initiative is quite relevant.In addition, in world practice, such legal acts, as noted by some lawyers, have proved their usefulness.
Bankruptcy: right or obligation?
There is an opinion that the bankruptcy of a debtor-citizen is a procedure that can be implemented as a right or initiated as an obligation. Consider both options. Bankruptcy of a citizen is a right if he assumes that circumstances are possible for him that clearly indicate the probable difficulties in fulfilling debt obligations.
In turn, this procedure becomes a duty when satisfying the claims of creditors is virtually impossible. Thus, if a person observes only signs of bankruptcy of a citizen, then he already has the right to go to court. Moreover, as we noted above, the amount of obligations should be more than 500 thousand rubles. There is evidence that the State Duma is discussing initiatives related to a possible reduction in this amount.
Documents
Consider also the nuance regarding what documents a person should send to the court, initiating bankruptcy. First of all, this statement is in the prescribed form. Next, you need to attach a list of all creditors, an inventory of the property, as well as various kinds of certificates - 2-NDFL, on taxes, on transactions with real estate and other assets, if their value exceeds 300 thousand rubles.
However, if the documents are submitted to the court by the creditor or, for example, the Federal Tax Service, the package may be slightly different. Among the general documents is a statement. A specific nuance in the aspect of the selection of documents by the creditor can be called the need to provide a decision of another court, which confirms the legitimacy of the requirements. But this is not always necessary. So, for example, a statement of bankruptcy of the debtor will be accepted from the creditor, if it is a question of collecting mandatory payments or documents will be submitted to the court, the obligations of which are recognized by the citizen. Notarized transactions are also accepted, which cause the occurrence of debts, credit agreements.
Manager Functions
Bankruptcy of a citizen is a procedure that, as we have already determined above, requires the involvement of a manager. Let us consider in more detail what its role is. According to the law, an external manager is required. At the same time, he can send requests to other experts who can help in the consideration of the case, for example, lawyers. True, the manager must coordinate these procedures with the debtor.
As we noted above, a person who performs the appropriate functions is paid a reward. Its fixed value is 10 thousand rubles. An amount corresponding to the amount of the repaid debt is also added to it. According to current law, this is 2%. In any case, both of these remuneration are covered from the funds of the debtor.
Thus, a citizen, applying to the court, is obliged to deposit the necessary funds.
In this case, the application for initiating bankruptcy proceedings should contain information on the maximum amount of expenses for paying for the services of a financial manager and other specialists involved in the consideration of a case.
At the same time, as some lawyers have noted, a person can apply for a delay in depositing funds, but only before the hearing.
If the court makes a decision reflecting the validity of the bankruptcy petition, then the administrator proceeds to fulfill the duties assigned to him. Which ones? First of all, this is the correct entry of information about the lawsuit in the relevant state register, as well as filling out other important documents. The manager is also responsible for organizing lender meetings. His next function is to analyze the financial condition of the debtor, determine its property and ensure its safety. It is the duty of the manager to identify possible signs of fictitious bankruptcy.
No interest
The bankruptcy procedure of a citizen, according to lawyers, opens up opportunities for a person with the corresponding obligations to pay off a creditor provided that interest, penalties and other penalties that can increase the amount of debt are completely stopped.
That is, as soon as the court declares the person bankrupt and approves the schedule for restructuring the obligations, the debt determined at the hearing becomes fixed. However, as some lawyers note, if a person took a loan, then interest can still be accrued on it in the amount of the Central Bank refinancing rate. The effect of current enforcement documents regarding the recovery of property may also be suspended.
Settlement agreement
Insolvency, bankruptcy of citizens may find understanding on the part of creditors. And in this case, a settlement is concluded at any stage of the procedure in question. At the same time, this document must be approved by the judge. Once he does, the bankruptcy case closes.
In some cases, a settlement means that the creditor has forgiven the debt. However, it may also provide for a number of conditions under which certain obligations may nevertheless arise before a citizen. Their failure may be the basis for the resumption of bankruptcy proceedings.
Bankruptcy Law: Assessment of Lawyers
What are the prospects for law enforcement practice regarding amendments to the Federal Law “On Insolvency”? Among Russian lawyers, there was a generally positive opinion about the legislative initiative we are considering. The fact is that for many citizens of the Russian Federation to pay loans and other debts is very problematic. Especially in the difficult conditions that have developed in the country's economy today.
Amendments to the relevant law, as noted by lawyers, are aimed precisely at alleviating the debt burden. The fact is that restructuring, the mechanism we studied above, suggests the possibility of paying off debt on favorable terms. And this, in particular, is a very significant factor for citizens who have taken loans, since it is interest payments that often form the bulk of the monthly transfers under the contract. In the case of restructuring, there is a chance, of course, if the relevant conditions are agreed with the creditor, that the total amount of the debt will be much lower than if it was paid with interest.
The Federal Law “On Insolvency” is recognized by Russian lawyers as generally necessary and fair. However, many experts speak out about the need to reduce the minimum threshold for debt to initiate bankruptcy proceedings, which now amounts to 500 thousand rubles. The fact is that this amount of obligations reflects, as experts believe, a fairly narrow group of debtors. For many, debt is close to 500 thousand rubles, but this fact does not matter for the court if the obligation is lower than the specified amount. In the end, according to analysts, the person who owes the bank, say 300 thousand rubles. at 40% per annum, it may be in less comfortable conditions than one that owes 500 thousand, but will pay without interest.
