Unfortunately, not all enterprises remain afloat, sooner or later, most of the established companies have to learn from their own experience what a bankruptcy procedure is. But do not be afraid, because in a market economy this is considered quite normal.
Bankruptcy stages
A special procedure has been developed to recognize a legal or natural person as insolvent. Indeed, to recognize the inability to fulfill obligations to the budget or to pay debts to creditors is possible only in court. The established bankruptcy procedure provides that it can be started both voluntarily by the founders or managers of the company, and at the request of creditors, extrabudgetary funds or tax.
To begin with, a lawsuit is filed with the local arbitration court. This can be done by a representative of the company itself, a state body authorized for such actions, or a person to whom borrowed funds are not returned.
And only the court can consider it appropriate to initiate bankruptcy proceedings or dismiss such a claim if it does not see signs of insolvency of the enterprise. Creditors can only make a corresponding application if the debtor has not paid for obligations for at least three months.
The beginning of bankruptcy proceedings is an observation designed to assess the state of the financial affairs of the debtor and develop a further plan of action. After that, a decision can be made on the feasibility of improving the company, the appointment of external managers or on bankruptcy proceedings, which is the final stage. But also at any time, until the company is excluded from the Unified State Register of Legal Entities, a settlement agreement may be concluded.
Observation
The introduction of bankruptcy proceedings begins at the trial. The first stage of it is observation. Indeed, otherwise the court cannot figure out whether the debtor is truly insolvent. At the beginning of this procedure, the powers of the manager are limited so that he cannot change the financial condition of the company.
It is also intended to ensure the safety of the property of the enterprise in respect of which the case of possible bankruptcy is being considered. True, there are a number of cases in which observation is not assigned. It does not apply to enterprises that are in the process of liquidation. Also, this stage is skipped if the debtor is absent or he was engaged in illegal activities related to attracting various funds. In these cases, a decision is simply made that bankruptcy should be initiated.
The observation procedure also introduces other limitations. From its inception, lenders have no right to privately contact the debtor with a demand for repayment of debts. They must be presented to the interim manager, for this the legislation sets a one-month period. If the debtor does not give reasonable objections within a week after submitting the claims, then the debts will automatically be recognized and included in the general register.
If the bankruptcy procedure has already been started, the founders of a legal entity cannot demand the allocation of their parts, even if they decide to leave the founders.Also, this process imposes restrictions on a number of business operations of the company.
For example, transactions related to any acquisition or disposal of the property of an enterprise in respect of which a bankruptcy proceeding is carried out and at a cost of more than 5% of the total value of assets, are carried out only with the consent of the interim manager. Also, without his decision, you cannot take or give loans, issue guarantees or act as a guarantor. But at the same time, the economic activity of the insolvent enterprise continues taking into account the requirements established by law.
It is also worth noting that the candidacy of the established interim manager cannot be appealed. They are judicially appointed an individual entrepreneur who has special knowledge. But it is important that he is not an interested person in this matter. His powers are terminated as soon as the court decides on the fate of the enterprise.
Responsibilities of the interim trustee
Many, starting a bankruptcy case, do not understand why an outsider should intervene in the activities of their enterprise, which is on the verge of ruin. But it is he who must draw up a report on the financial condition of the debtor and analyze the value of all his property, including the market, structure of funds in circulation. The manager studies not only the balance sheet, but also other documents relating to the activities of the enterprise. These include information about ongoing business activities, the position of the entity in the market and information about the main competitors.
It is this person who gives the conclusion whether it is possible to restore the solvency of the company. Based on this conclusion, the court decides how the bankruptcy procedure of the debtor will be conducted. The manager must also determine whether the company has been brought to an insolvent state fictitiously.
His responsibilities also include the notification of all identified creditors who themselves have not applied for debt collection, about the start of a bankruptcy case. Subsequently, he must collect them. This should happen in no less than 10 days. before the trial meetings where the case will be considered and bankruptcy of a legal entity is recognized. The procedure provides for the organization of the meeting, at which, by a simple vote, the creditors decide the fate of the enterprise.
The degree of influence of each interested person is directly proportional to the size of obligations to him. So, participants in the meeting can vote for the introduction of external management or for the opening of bankruptcy proceedings. If the creditors have not decided on the fate of the company or did not report it within 7 days after the meeting was held in court, the latter may declare the organization bankrupt and begin the relevant proceedings.
External management
If it was decided in the arbitration court that the firm could still be "put on its feet", then the procedure bankruptcy of an enterprise paused. Since the beginning of external management, a moratorium has been imposed on the satisfaction of any claims of creditors.
This means that not only the execution of any relevant court decisions is suspended, but also penalties and various forfeits or penalties cease to accrue. But in order to avoid deterioration of the state of creditors and the state in the event of problems with the payment of mandatory payments, interest will be charged on the recoverable amount in the amount of the refinancing rate established by the Central Bank.
Health improvement of the enterprise is carried out under the guidance of an external manager according to the plan, which was approved by the board of creditors. It should indicate the measures that will be taken to improve the financial condition.These include the reprofiling of production, the recovery of receivables, the partial sale of property, production complexes, the termination of contracts that promise profit only in the long term or may lead to losses.
Also at a meeting of creditors, the manager can offer the sale of the enterprise. If such a strategy is approved, a complete inventory is carried out and open tenders are scheduled. But even if they did not take place, the company can be sold without them to one buyer. Under the same conditions, partial sale of property complexes is carried out.
Settlements with creditors are carried out according to the established register in almost the same order of magnitude as when conducting bankruptcy proceedings.
Recognition of insolvency
But not all creditors want to wait for the restoration of the financial condition of the company, preferring to immediately begin bankruptcy proceedings. If the court recognizes the insolvency of the enterprise, bankruptcy proceedings will be opened. As a result of this procedure, the existence of legal entities ceases, and their property is sold. The proceeds go to repay the claims of creditors in the established order.
From the moment the court makes a decision to start bankruptcy proceedings, a manager is appointed. It is he who is responsible for ensuring the bankruptcy procedure. All management rights of the company are transferred to the appointed bankruptcy trustee, and management is completely suspended. Within three days from the date of his appointment, the heads of the company are obliged to transfer to him all the documentation, seals and other values. Control over the activities of the manager is carried out by the general meeting or nominated by a committee of creditors.
In the course of its work, the bankruptcy trustee monitors the safety of bankruptcy property, collects receivables, has the right to object to the claims of creditors and to refuse to fulfill contracts if this can lead to losses.
He also informs employees about future dismissal. But its main task is the formation of a bankruptcy estate - a list of material objects that are to be sold. It may not include assets already withdrawn from circulation, leased or held by the debtor. Realization of objects is carried out at the auction. The order and terms of sale are established by the manager and approved by the creditors.
If a bankruptcy procedure is carried out in relation to a company and a decision is made to begin bankruptcy proceedings, then all known accounts must be closed, only one remains - the main one. Funds are credited to it when selling property, and payments to creditors are also made from it. And this is done in the prescribed manner. Out of turn paid court expenses, money is paid to managers, current operating and utility payments and borrower claims arising in the course of bankruptcy proceedings. After that, obligations to privileged creditors are covered and only then to the rest. If, after paying off all debts, funds remain, they are transferred to the founders or owners.
The completion of proceedings takes place in the arbitration court after reviewing the report of the manager. Based on its results, a determination is made, which the authorized person provides to the registration authority of legal entities. There, a record is made of the liquidation of the enterprise.
Settlement agreement
Even if the bankruptcy procedure of the organization is at the stage of bankruptcy proceedings, the parties may still agree.Creditors and an insolvent company can conclude an amicable agreement between themselves, but for this it is necessary that all those members of the meeting, whose debts are secured by the property of the troubled enterprise, vote for it. A global solution may include an installment plan or a temporary deferment of fulfillment of established obligations, their fulfillment by third parties, the assignment of rights of the debtor's claims, a discount and other ways of peaceful resolution of financial problems.
This is a perfectly acceptable way to resolve contentious issues. So can be completed the bankruptcy of LLC, CJSC or other entities. In this case, the debtor continues to work. He simply directs all the profit received to pay off obligations. But if the debtor does not fulfill the agreed conditions, then the creditors have the right to submit their claims in court. If, in relation to an insolvent organization, a new bankruptcy case is launched, then the amount of obligations will be established in the amount indicated in the settlement agreement.
Simplified Bankruptcy Procedure
It is no secret to anyone that from the moment of applying to the court for recognition of the insolvency of the enterprise and until its liquidation, several months or even years can pass. But not everyone is satisfied with such terms, therefore, the legislation provides for a simplified bankruptcy procedure. It lies in the fact that in the first place they begin to carry out the liquidation of the enterprise. In this case, when applying to the court to conduct the procedure for recognizing the insolvency of the subject, the observation stage is automatically skipped. Financial recovery and the introduction of external management also becomes impossible. Bankruptcy begins immediately with bankruptcy proceedings, which significantly reduces the time of the procedure. Moreover, the use of this method does not affect the final result.
The simplified bankruptcy procedure, as well as the usual one, ends with the sale of the debtor's property, repayment of all claims of the creditors and liquidation of the subject. True, for its application several conditions must be fulfilled. As mentioned earlier, in order to start conducting a simplified bankruptcy procedure, it is necessary to make a decision on liquidation. After this, it is necessary that the enterprise itself (its founders or owners) apply to the arbitration court for declaring it bankrupt. Moreover, the value of the common property of the debtor must be insufficient in order to satisfy all the requirements of the creditors. It is determined by a special independent appraiser.
Subject to these conditions, the arbitral tribunal shall appoint or approve the bankruptcy trustee, and the further procedure shall be carried out in accordance with the established procedure.
Bankruptcy IP
If there are problems with the payment of assessed contributions or repayment of debts, a businessman, like a legal entity, may be declared insolvent. This is possible if more than three months have passed since the deadline for payment of obligations and the amount of debts exceeds the value of his property.
The bankruptcy procedure of an individual entrepreneur will be started in an arbitration court only if his debt is more than 10 thousand rubles. The corresponding statement of claim may be filed by the businessman himself or by any of his contractors. The bankruptcy procedure of entrepreneurs has a number of features. So, when considering a business insolvency case, the observation stage is skipped. The legislation also excludes the possibility of financial recovery of a business organized by a private person.
The bankruptcy procedure applied to businessmen leads to the cancellation of licenses issued to them for certain types of activities. In addition, with the beginning of bankruptcy proceedings, their state registration as entrepreneurs is no longer valid.Also, after the completion of the bankruptcy case, such a person for another year can not be registered as a businessman.
Bankruptcy of individuals
For several years now, the government has been considering a bill that will make it possible to recognize citizens as insolvent, if necessary. But the existing edition requires significant amendments, because the bankruptcy procedure of an individual cannot be agreed at the state level. Ideally, such a law is designed to help a person plan how to fulfill obligations to creditors and restore his solvency in the future.
It is also aimed at maintaining the social and property status of the debtor. Lenders are also waiting for its signing, because they are interested in assigning such a status to their borrowers. For them, this is a chance that the debts will be repaid in proportion to the resulting debt until their requirements are fully satisfied. But, on the other hand, when obtaining bankruptcy status, a person will have the right to repay only part of his obligations within the limits of his financial capabilities.
Currently, no one has the right to declare a citizen insolvent. But according to the draft law in question, after its adoption, it is possible to apply to the court with a statement that the bankruptcy procedure of an individual is initiated, by an authorized body, a bankruptcy creditor, or a citizen himself. It is planned that during the proceedings the plan will be adopted. debt restructuring, which must be performed by a citizen within the prescribed period.
Now, only lenders can file a lawsuit in the court to recover debt from the borrower. When the legitimacy of the requirements is recognized, the court takes an appropriate decision, and after that the work of the bailiffs, who have the right to describe the debtor's property as debt, begins.
Bankruptcy of banks
Nowadays, not only companies, entrepreneurs or ordinary citizens, but also financial institutions can stop dealing with paying off accumulated debts. At the same time, the bankruptcy procedure of a bank has its own peculiarities, since it should be guided by a separate law. It aims to regulate the process of recognition of insolvency of various credit organizations.
So, you can only start a bankruptcy case against a bank after revoking its license. At the same time, signs should be observed indicating its financial insolvency. Non-payment of mandatory payments within 14 days from the date determined for their transfer is one of the signs that indicates bankruptcy. In addition, the signs include the presence of creditor claims that are not fulfilled for a month, and their size exceeds 1000 minimum wages. If the value of the assets is less than the amount of liabilities, then we can also talk about the possible insolvency of a financial institution.
A feature of bank bankruptcy is that the financial recovery process is appointed by the CBR, and not by the court. At the same time, certain conditions must be met for it to start. Among them: the amount of equity is less than the authorized capital of the bank, repeated violations of creditors' requirements, untimely transfer of obligatory payments in the last six months, violation of established liquidity standards.
If a bankruptcy lawsuit has been filed, the arbitral tribunal may decide to initiate bankruptcy proceedings or refuse to recognize the bankruptcy of the plaintiff.
