Applications of the debtor, the creditor and the prosecutor for declaring the debtor bankrupt

Jurisdiction.

In accordance with paragraph 1 of Article 27 of the CPC, cases on declaring a debtor bankrupt are under the jurisdiction of specialized interdistrict economic courts. According to the requirements of Article 29 of the CPC, claims are filed in court at the location of the debtor, a legal entity.

The circle of persons involved in the case.

The applicant (debtor) is an individual entrepreneur or a legal entity that is a commercial organization, whose insolvency is the basis for applying bankruptcy proceedings to him.

A creditor is a person who has property claims against the debtor arising from his civil and other obligations, taxes and other mandatory payments to the budget.

The prosecutor applies to the court with an application for declaring the debtor bankrupt in the following cases::

1) when they found signs of deliberate bankruptcy;

2) in the interests of the creditor – the Republic of Kazakhstan, government agencies.

The defendant is a debtor (according to the statement of the debtor himself is not provided).

The Creditors' Committee is a representative body of creditors elected by the creditors' meeting in rehabilitation and bankruptcy proceedings.

The authorized body is a state body that carries out state regulation in the field of rehabilitation and bankruptcy.

Temporary administrator is a person appointed in accordance with the established procedure during the consideration of cases in court and the conduct of rehabilitation or bankruptcy proceedings.

Circumstances to be established for the proper resolution of the civil case.

When considering cases in this category, courts should establish:

- is there a decision by the debtor (the owner of the property, the body authorized by him, the founders, participants) to apply to the court for declaring him bankrupt;

- the validity of the conclusion of the debtor, creditor, prosecutor about the debtor's insolvency;

- are there signs of deliberate bankruptcy in the actions of officials, the owner of the property, the body authorized by him, the founders, participants, in cases where the prosecutor applies to the court with such a statement;

An application for declaring the debtor bankrupt may be submitted:

- by the debtor himself, if the shareholders or participants of the partnership have decided to liquidate the legal entity, but the debtor's obligations to creditors cannot be fully satisfied at the expense of the property of the legal entity;

- by the debtor's creditor, if the debtor's total debt to creditors, based on non–fulfillment of a monetary obligation, amounts to the amount established by paragraph 4 of Article 3 of the Law "On Rehabilitation and Bankruptcy" - at least three hundred monthly calculation indices for individual entrepreneurs, at least one thousand monthly calculation indices for legal entities;

- by the tax authority, if the debtor's tax arrears amount to at least one hundred and fifty monthly calculation indices;

- by the prosecutor in the cases provided for in subitems 1) or 2) of paragraph 1 of Article 47 of the Law.  

The amount of the creditor's claims when submitting an application is determined based on monetary obligations, without taking into account sanctions for their non–fulfillment - fines, penalties, losses.

Some creditors, when applying to the court for declaring the debtor bankrupt, cite only the fact of the debtor's violation of the obligation in support of their claim and do not submit to the court a court decision that has entered into force or a written recognition by the debtor of the creditor's claim indicating the specific amount owed. In such cases, the court must return the application.

The basis for declaring a debtor bankrupt in court is his insolvency.

When establishing the fact of insolvency, the debtor's obligations, the due date of which has come, as well as those accepted and (or) under execution, must be taken into account.

Insolvency is the inability of the debtor, as established by the court, to fully satisfy creditors' claims for monetary obligations, to make wage settlements with persons working under an employment contract, to ensure the payment of taxes and other mandatory payments to the budget, social contributions to the State Social Insurance Fund, as well as mandatory pension contributions and mandatory occupational pension contributions.

The only basis for filing an application to the court for declaring the debtor bankrupt is his insolvency in the absence of the possibility of restoring solvency, whereas the basis for applying for a rehabilitation procedure (accelerated rehabilitation) is his insolvency or the threat of insolvency when the debtor will be unable to fulfill monetary obligations upon their due date in the next twelve months, if there is a possibility of restoring solvency.

The threat of the debtor's insolvency should be understood as a state of his solvency, when in the near future he may be unable to fully satisfy creditors' claims for monetary obligations.

Applications for bankruptcy of legal entities and individual entrepreneurs are considered in a special procedure, therefore, the presence or absence of grounds for declaring the debtor bankrupt (insolvent) is established at the time of applying to the court.

When a debtor's bankruptcy case is initiated, the court takes security measures – depriving the owner of the property and all his organs of the right to dispose of the property, prohibiting the satisfaction of creditors' claims, suspending the execution of previously adopted court decisions, etc. Such security measures are possible only on the basis of an application from creditors and other persons involved in the case.

The initiation of bankruptcy proceedings against the debtor is not a reason for the termination of proceedings in which the debtor acts as a defendant.

The consequences of initiating bankruptcy proceedings (rehabilitation procedure or accelerated rehabilitation procedure), established by articles 50 and 87 of the Law "On Rehabilitation and Bankruptcy", are mandatory.

From the date of the court's decision to declare the debtor bankrupt, all property cases involving the debtor as a defendant that are in court are terminated. Creditors' property claims may be brought against the debtor only as part of bankruptcy proceedings and are considered by the court that has decided to declare the debtor bankrupt. The bankrupt manager is obliged to notify all the courts that handle cases on the consideration of property claims against the debtor of declaring him bankrupt and to send applications for termination of proceedings. Cases in which the debtor acts as a plaintiff are considered according to the rules of civil procedure without any exceptions.

Based on the results of collecting information about the debtor's financial condition, the interim manager draws up an analytical conclusion containing the following conclusions: on his solvency or insolvency; on the existence of grounds for declaring the debtor bankrupt; on the existence of grounds for applying a rehabilitation procedure; on the absence of the debtor at the address indicated in the declaration of bankruptcy; on the absence of other creditors, except the applicant; about not providing the temporary manager with access to the debtor's accounting records, which prevented the preparation of an opinion.

When the debtor does not provide the temporary manager with access to accounting documents, which was an obstacle to drawing up an opinion on the debtor's financial condition, the court must resolve the dispute based on the evidence available in the case file.

When determining the issue of the debtor's insolvency or solvency, it should be taken into account that the interim trustee's conclusion is one of the evidence in the case, therefore, on the basis of articles 64, 65 and 67 of the CPC, this conclusion should be evaluated by the court in conjunction with other evidence in the case, taking into account their relevance, admissibility and reliability. Such a conclusion has no advantage over other evidence for the court.

The court's decision to declare the debtor bankrupt, based on his recognition of his insolvency, must contain a detailed analysis of the debtor's financial and economic condition, as well as a reasoned assessment of the debtor's insolvency on the merits.

The legislation on rehabilitation and bankruptcy establishes the obligation of a temporary administrator (temporary manager) to form a register of creditors' claims. Creditors' claims against the debtor must be filed by them no later than one month from the date of publication of the notice on the procedure for filing claims by creditors. Creditors' claims filed within one month must be reviewed by the temporary administrator (temporary manager) within ten working days of their receipt, and recognized claims are included in the register.

A creditor's claim filed later than one month is included in the register of creditors' claims, but such creditor is deprived of the right to vote at the creditors' meeting until the creditors' claims filed within one month are fully satisfied. The register may also include creditors' claims that they previously filed with the court in compliance with the requirements of paragraph 2 of Article 72 and paragraph 3 of Article 90 of the Law on Rehabilitation and Bankruptcy. The temporary administrator (temporary manager) is obliged to notify each creditor in writing on the day following the day of the decision on the results of consideration of creditors' claims (on recognition or non-recognition of the claim in full or in part, indicating the reasons for non-recognition).

The decision of the temporary administrator (temporary manager) may be appealed by the creditor, the founder (participant), the debtor within ten working days to the court considering the rehabilitation or bankruptcy case. This period is preemptive, and its omission is the basis for refusing to satisfy the complaint. If the complaint of the creditor, founder (participant) is recognized as justified, the court is obliged to determine the appropriate queue in the register of creditors' claims, which should include the claims of the creditor, founder (participant).

According to paragraph 3 of Article 101 of the Law "On Rehabilitation and Bankruptcy", creditors' claims (including collateral creditors) filed after the expiration of the period provided for in paragraph 3 of Article 90 of the Law "On Rehabilitation and Bankruptcy", but before the approval of the liquidation balance sheet, are satisfied from the bankrupt's property remaining after satisfying creditors' claims filed within the prescribed period. the deadline.

First of all, claims for compensation for damage caused to life and health are satisfied; for the recovery of alimony; for remuneration and compensation to persons who worked under an employment contract, with the payment of arrears in social contributions to the State Social Insurance Fund, mandatory pension contributions, mandatory professional pension contributions; for the payment of remuneration under copyright agreements. If the property is insufficient to repay the claims, it is distributed proportionally to the amounts of the claims, in accordance with the priority set out in paragraph 2 of Article 100 of the Law "On Rehabilitation and Bankruptcy".

The claims of collateral creditors are subject to inclusion in the register of claims of creditors of the second stage if there is a pledge property in the estate, a duly executed and registered pledge obligation and only in the part secured by the pledge. The claims of collateral creditors include the amount of the principal debt, remuneration, penalties (fines) if these claims are secured by collateral and are subject to inclusion in the register of claims of creditors of the second stage.

The claims of collateral creditors based on an improperly executed pledge agreement, as well as in the part not secured by collateral, are taken into account as part of the fourth stage.

If the creditors' meeting decides to consent to the transfer of collateral to the secured creditor, the latter is deprived of the right to vote at the creditors' meeting when making decisions on other issues within the competence of the creditors' meeting. The transfer of the pledged property to the pledged creditor is made only after repayment of the claims of the creditors of the first stage and the administrative costs associated with the preservation and maintenance of the pledged property.

In the third turn, the arrears of taxes and other mandatory payments to the budget are repaid. When forming the register of the third stage, the norms of subparagraph 32) of paragraph 1 of Article 12 of the Tax Code are applied, according to which tax arrears include the amount of arrears, as well as unpaid amounts of penalties and fines.

When forming the register of the fourth stage, attention should be paid to the procedure established by the Law "On Rehabilitation and Bankruptcy" for separate accounting of the amount of the debtor's obligations to the creditor and penalties for non-fulfillment of obligations, the amount of losses, since claims for payment of penalties for non-fulfillment of obligations and compensation for losses according to the law are subject to satisfaction as part of the fifth stage.

The estate ensures the satisfaction of creditors' claims, therefore, the actions of the bankrupt manager to form the estate are under the control of the creditors' meeting in accordance with the law. The bankrupt manager does not have the right to independently establish the procedure for assessing and selling property without a decision of the creditors' meeting.

The estate is formed by the bankrupt manager in accordance with the procedure established by Article 96 of the Law "On Rehabilitation and Bankruptcy". The powers of the bankruptcy trustee include the identification of transactions made by the debtor under the circumstances specified in article 7 of the Law "On Rehabilitation and Bankruptcy", and taking measures to return the debtor's property.

Administrative expenses in bankruptcy (rehabilitation) proceedings according to Articles 1, 100 of the Law "On Rehabilitation and Bankruptcy" include all expenses related to bankruptcy (rehabilitation) procedures, including the amount of the administrator's remuneration. Administrative expenses are covered out of turn at the expense of the debtor's property. The creditors' committee monitors the appropriate use of funds intended to cover administrative expenses.

After the sale of the estate and satisfaction of creditors' claims at the expense of the sold estate, the bankrupt manager submits to the court a final report on his activities with the attachment of the liquidation balance sheet.

The court approves the bankruptcy trustee's report and the liquidation balance sheet and issues a ruling on the completion of bankruptcy proceedings. The liquidation of the debtor entails the release of the insolvent debtor from outstanding debts. The liquidation is considered completed, and the debtor is deemed to have ceased to exist after making an entry about it in the state register of legal entities.

It follows from the meaning of paragraph 4 of Article 48 of the Law "On Rehabilitation and Bankruptcy" that when submitting an application for bankruptcy by the debtor himself, the interim manager is not obliged to submit an opinion and collect information about the debtor's financial condition. The burden of proving insolvency and the impossibility of its restoration lies with the debtor applicant.

The list of the main documents attached to the statement of claim

In accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the debtor applicant bases his claims.:

- documents confirming the debtor's insolvency;

- contracts, reconciliation reports, debt repayment schedules concluded with all counterparties;

- a list of creditors indicating the amount of debt (with a breakdown of the principal debt, penalties and fines), the date of its formation and a breakdown by groups of homogeneous creditors;

- information about the obligations of the debtor, the deadline for which has not arrived;

- calculation of all accounts receivable, indicating the date of their occurrence, the name of each debtor, with a breakdown of the principal debt, penalties and fines;

- a list of movable and immovable property with an indication of their book value, whether they are pledged, leased and (or) leased;

- information about money held in bank accounts, account numbers and location of banks;

- the decision of the debtor's body (the owner of the property, the body authorized by him, the founders, participants) to apply to the court for declaring him bankrupt;

- financial statements for the last three years and at the time of filing the application, tax reports on all obligations of the debtor for the specified period;

- minutes of the creditors' meeting on remuneration, at which their representative was elected by secret ballot to participate in the bankruptcy case;

- the conclusion of the authorized body responsible for the management of natural monopolies and regulated markets, in cases where the debtor is a natural monopoly entity;

- the conclusion of the antimonopoly authority, if the debtor is a market entity occupying a dominant (monopoly) position in the relevant commodity market;

- information on claims against the debtor accepted for production by the courts, as well as claims submitted for undisputed cancellation.

In accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the creditor applicant bases his claims.:

- documents confirming the sending of copies of the creditor's application and the documents attached to it to the debtor and the authorized body;

- the debtor's obligations to the creditor, as well as the existence and amount of debt on these obligations;

- the validity of the creditor's claims (enforcement documents, court decision, or written recognition by the debtor of the creditor's claim);

- documents confirming that the debtor is absent, in cases of filing an application for declaring the absent debtor bankrupt;

- evidence confirming the creditor's handling of claims against the debtor;

- information known to the creditor about the debtor's property;

- other circumstances on which the creditor's application is based.

In accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant prosecutor bases his claims.:

- documents confirming the sending of copies of the prosecutor's statement and the documents attached to it to the debtor, creditors and the authorized body;

- the debtor's obligations to the creditor, as well as the existence and amount of debt on these obligations;

- the validity of the creditor's claims (enforcement documents, court decision, or written recognition by the debtor of the creditor's claim);

- documents confirming that the debtor is absent, in cases of filing an application for declaring the absent debtor bankrupt;

- evidence confirming the creditor's handling of claims against the debtor;

- information known to the prosecutor about the debtor's property;

- documents confirming the signs of deliberate bankruptcy, when the prosecutor filed an application on the specified grounds

Laws to be applied in the consideration and resolution of cases

The Constitution.

GK.

GPC.

The Business Code.

The Tax Code.

Laws:

- dated March 7, 2014 No. 176-V "On Rehabilitation and Bankruptcy"

- dated December 21, 1995 No. 2709 "On the Prosecutor's Office of the Republic of Kazakhstan".

Regulatory Resolution of the Supreme Court of October 2, 2015 No. 5 "On the practice of applying legislation on rehabilitation and bankruptcy"

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