According to the generally accepted opinion, bankruptcy of jur. persons - the process, the result of which is the final liquidation of the organization. Current legislation also provides for the rehabilitation and resumption of the enterprise. What is a bankruptcy process? What are its consequences?
The reasons
Bankruptcy jur. persons must have good reason. They are determined by federal law No. 127. Article 65 of the Civil Code of the Russian Federation states that state enterprises and institutions, political parties, foundations and religious organizations cannot be bankrupt.
When submitting an application to the arbitration court, it is required to present conclusive and documented evidence of insolvency. These include:
- list of debtor organizations;
- list of credit organizations;
- inventory records;
- fresh financial statements;
- acts of reconciliation of settlements;
- bank statement.
Typically, the process is preceded by an inspection of the enterprise by the tax office.
Who can initiate the procedure
Bankruptcy Procedure persons can be launched at the initiative of the head of the enterprise, the lender or authorized public services. In this case, for the legal entity itself, in accordance with Article 9 of this Law, appeal to the court is an obligation if:
- repayment of debt to one or more creditors will inevitably lead to the impossibility of performing other monetary obligations in full;
- the constituent documents confirm the decision to appeal to the court;
- an authorized organization that is the owner of the debtor's property has decided to appeal to the court;
- collection of property of a legal entity will create obstacles to its production or economic activity;
- there are signs of insolvency.
The head of the enterprise must submit an application to the court within 30 days from the date of detection of these signs. Lenders have the right to file an application on time at their discretion. The liquidation commission is obliged to declare this to the court within 10 business days, otherwise the chairman bears before credit organizations subsidiary liability.
Signs of bankruptcy faces
Article 4 of the Federal Law No. 127 states that when identifying signs of insolvency the following circumstances should be taken into account:
- the presence of debts for goods transferred, services rendered, work performed;
- amount of debt when accounting for interest payable;
- amount of debt that arose due unjust enrichment;
- debt arising from damage to property of credit organizations;
- liabilities for the payment of severance pay and salaries to employees;
- interest arrears under copyright agreements;
- debts to the founders of the organization.
If they are identified, the head of the enterprise can take measures to restore solvency.
The inability to repay the organization's debt to creditors within 90 days from the date of presentation of the relevant claims is the reason why bankruptcy of the legal entity can be recognized by court decision. persons. The amount of debt should be at least 100 thousand rubles.
About lenders
The creditor (or the subject of bankruptcy) can be both an individual and a legal entity.The lender has the right to demand the return of the money invested in the enterprise in accordance with the obligations to conduct business and labor contracts. Creditors may also be government agencies.
The interests of creditors are expressed at a general meeting, where each participant has a certain number of votes in proportion to the amount of debt. Bankruptcy Law persons suggests that the list of bankruptcy creditors is established in court.
The right to vote gives the opportunity:
- make suggestions;
- vote on the proposals made;
- make decisions regarding the procedure itself;
- to propose a manager;
- to receive the funds of the debtor after their distribution.
Bankruptcy stages of a legal entity
Article 27 of federal law No. 127 defines the stages of bankruptcy proceedings:
- Observation.
- Financial recovery.
- Transfer of authority to an external manager.
- Bankruptcy proceedings.
- Settlement agreement.
Each stage of the procedure represents a whole range of measures aimed at restoring the solvency of the organization. If this cannot be done, the company is subject to liquidation.
Observation
The first step of the procedure is observation. At this stage, it is important to ensure the safety of the assets of the enterprise and its property. During the observation, the financial condition of the enterprise is analyzed, all assets are identified, a list of credit organizations is compiled, and the possibility of restoration of solvency is clarified.
Supervision takes place under the supervision of an interim trustee, who is appointed by the arbitral tribunal. At the same time, the head of the enterprise is deprived of the right to make any important decisions without the participation of the manager, with the exception of organizational issues. The procedure is valid from the moment the court begins to consider the application and until the next stage is implemented.
Financial recovery
The purpose of this stage is to take a set of measures to restore the solvency of a legal entity. One of the most important steps in financial recovery is the preparation of a debt repayment schedule. The procedure can be applied only after the manager has expressed this desire in court.
Delegation of authority to an external manager
The transfer of authority relating to the management of the organization occurs by decision of the court. The external manager receives from the manager all the documentation of the enterprise. The external management phase can last up to one and a half years.
All previous debt repayment operations undertaken prior to court consideration are canceled. A ban is imposed on satisfying creditors' claims. All property of the organization is under arrest. The purpose of the external manager is to prevent the bankruptcy of legal entities. persons using the development of a plan to restore solvency and its approval at a meeting of creditors.
With a favorable outcome of this stage, the company repays all debt and returns to the usual mode of operation, the bankruptcy case closes. If the introduction of an external manager does not help, bankruptcy of the legal entity is recognized. persons and the bankruptcy proceedings are started.
Bankruptcy proceedings
This stage is final. The authority to conduct the procedure is transferred to the bankruptcy trustee, who reveals the existence of property of the debtor. For this, requests are submitted to the state registration departments, the history of illegally conducted transactions with property is tracked. The main task of the manager is the sale of all property of a legal entity and the repayment of debts to creditors. Property is sold at an electronic auction.
The degree of responsibility of the head of the enterprise
According to the current legislation, responsibility is assumed for the head of the enterprise. Insolvency (bankruptcy) legalpersons may come due to independent circumstances. Also, its cause may be certain actions or inaction of the leader.
Article 196 of the Criminal Code of the Russian Federation introduces a definition intentional bankruptcy, reasons for which the following actions may serve:
- obtaining credit funds without justified reasons;
- overstatement of wages to employees of the organization according to the results of work;
- conducting doubtful transactions;
- large and baseless business expenses;
- transfer of ownership of assets to third parties.
In judicial practice, such cases are quite rare, since deliberate actions are not always easily proven.
The deliberate actions of the leader may have consequences:
- administrative fine in the amount of 200 to 500 thousand rubles;
- a fine in the amount of remuneration paid for a period from 1 year to 3 years;
- forced labor up to 5 years;
- imprisonment of up to 6 years and a fine of up to 200 thousand rubles, or in the amount of wages for 1.5 years.
Is a settlement possible
The parties during the trial may also agree to a settlement, regardless of the stage of the process itself. The debtor makes this proposal to creditors, who can subsequently approve it at a general meeting. A third party may also participate in the process, who is ready to take on all the obligations of the organization’s debt.
The settlement agreement is concluded in writing, the procedure and nature of repayments on the debt, maturities and other conditions are indicated. All conditions described in the settlement agreement must fully comply with the current tax legislation and not contradict it. Creditors may make concessions.
Procedure Results
The purpose of the above procedures is to restore solvency and improve the enterprise. If this does not happen, the consequences of bankruptcy jur. persons turn around the liquidation of the organization. After that, all claims of creditors are considered satisfied regardless of whether the funds were paid to them or not. The company is excluded and the unified register of legal entities.
The bankruptcy process for an organization provided for by Russian law is rather complex and multi-stage. At the initial stage, a bankruptcy petition is filed. persons to arbitration court. Wellness measures follow. If it is not possible to restore solvency, the enterprise is completely liquidated. When the manager's task is solely to liquidate the organization, an accelerated or simplified bankruptcy procedure can be applied. In some cases, it is advisable to contact a qualified lawyer.
