Dispute resolution in the framework of bankruptcy and rehabilitation proceedings
1. The Civil Code, in order to invalidate a transaction, provides for the dishonesty of both parties, but at the same time allows for the concept of a bona fide acquirer.
According to the Law, the good faith of the acquirer does not matter.
This circumstance requires clarification in the Inventory item.
2. There are questions about disputes about subsidiary liability.
In accordance with sub-paragraphs 1), 2), 7) and 8) of paragraph 2 of Article 11 of the Law, the debtor is obliged to:
- apply to the court for declaring him bankrupt in the event that the owner of his property (the body authorized by him), the body of the legal entity, has decided to liquidate him, and the value of the property is not sufficient to satisfy creditors' claims in full.;
- to provide the court and the administrator, within three working days from the date of the appointment of the administrator, with information on financial and economic activities, including information on the debtor's property (including those encumbered with collateral), leased (leased) and (or) leased, and money held in bank accounts; account numbers and location of banks, organizations engaged in certain types of banking operations, and the amount of accounts receivable;
- transfer to the temporary manager, within three working days from the date of the court's decision declaring the debtor bankrupt, the constituent documents, seals (if any), stamps, within ten working days – accounting documents, title documents for the bankrupt's property, within twenty working days – tangible and other valuables belonging to the bankrupt;
- provide the temporary manager with access to the accounting documentation for study by viewing.
In accordance with paragraph 4 of Article 11 of the Law, for violating the provisions of subparagraphs 1), 2), 7) and 8) of paragraph 2 of this Article, if the debtor's property is insufficient to satisfy creditors' claims in full, an official whose duties include fulfilling the requirements provided for in subparagraphs 1), 2), 7) and 8 2 of this Article, bears subsidiary liability in accordance with the laws of the Republic of Kazakhstan in the amount of the bankrupt's obligations to creditors that remain unfulfilled as a result of the bankruptcy procedure.
In most cases, the grounds for claims by bankrupt managers to hold officials (managers) vicariously liable are their failure to comply with the requirements provided for in subparagraphs 7) and 8) of paragraph 2 of Article 11 of the Law.
It should be noted that judges have an ambiguous position on the application of subparagraph 8) of this rule.
Some believe that officials of the debtor are subject to subsidiary liability in case of non-fulfillment of these duties, while others consider it sufficient to perform their duties untimely (late transfer of documents, in violation of deadlines set by law).
If there are valid reasons for the debtor's violation of the deadlines for transferring documentation to the interim manager, it is necessary to distinguish between the possibility of bringing debtors who directly initiated bankruptcy to subsidiary liability under the specified rule of Law and debtors declared bankrupt by third parties.
There are cases when an enterprise has been formally registered to an individual, and the latter lacks constituent documents, seals (if any), etc., which makes it controversial whether such a person should be held vicariously liable.
Examples of judicial practice
1) By the decision of the Council of Ministers of the Turkestan region dated September 15, 2021, the claim of the bankrupt manager of Karavan-BR LLP to hold B.R. Zhumagulov (the head and sole founder of the LLP) vicariously liable was dismissed.
Due to the circumstances of the case, the LLP was declared bankrupt by a court decision dated February 24, 2021; it has accounts payable for taxes and other mandatory payments in the amount of 152,620,948 tenge.
On September 3, 2021, B. Zhumagulov handed over part of the documents to the bankruptcy trustee - a copy of the tax audit act, invoices, acts of completed works, contracts for 2019, the seal of the LLP.
The court dismissed the claim, pointing out that the reasons for the defendant's failure to comply with the obligation to transfer documentation due to pneumonia and hospitalization in the period from May to August 2021 were valid.
By the decision of the appeal dated November 30, 2021, the court's decision was overturned, the claim was satisfied.
Footing:
The defendant has not executed the letter of the interim manager dated January 8, 2021 on providing information on financial and economic activities, and the court's order on this dated January 25, 2021.
The founding and financial documents, as well as the seal of the LLP, were transferred to the bankruptcy trustee only after six months. The defendant has not provided evidence of inpatient treatment.
2) By the decision of the Council of Economic and Social Council of the Karaganda region dated June 4, 2020, the claim of the bankrupt manager of Snab Trade Compani LLP against Sharafutdinov A.N. for subsidiary liability and recovery of an amount in the amount of KZT 7,671,450 was satisfied.
The court proceeded from the fact that Snab Trade Compani LLP was declared bankrupt by a court decision dated December 13, 2019 at the request of Tsentrkazenergomontazh JSC, respectively, Sharafutdinov A.N. violated subparagraph 3) of paragraph 2 of Article 11 of the Law as amended before December 27, 2019 (failure to apply to the court within six months).
By the decision of the appeal dated August 5, 2020, the decision was overturned, and the claim was denied.
Footing:
The law of December 27, 2019 excluded the above provision, the amendments entered into force on January 8, 2020 and do not apply to relations that arose after their entry into force.
Since the court's decision of December 13, 2019 does not contain a conclusion on its immediate execution, the date of its entry into force is January 21, 2020.
At the time of the formation of the debt of Snab Trade Compani LLP to Centrkazenergomontazh JSC, bankruptcy legislation did not provide for subsidiary liability for failure to apply to the court within any time frame for declaring the debtor bankrupt.
3) By the definition of the Council of Economic and Social Council of Kostanay region dated June 3, 2020, the application of the rehabilitation manager of Irgiz LLP for the extension of the rehabilitation procedure for a period of six months was satisfied.
By the ruling of the appeals board dated September 9, 2020, the ruling of the court of first instance was canceled.
In accordance with article 64 of the Law, the court has the right, at the request of the rehabilitation manager, with the consent of the creditors' meeting, to extend the rehabilitation period once, but not more than six months.
At the same time, it was established that the rehabilitation procedure of the LLP lasts from April 10, 2013 and was previously extended by a court ruling dated October 25, 2019 for a period of six months.
In addition, an application for an extension was submitted after the end of the rehabilitation period. By virtue of the above-mentioned rule, the application had to be submitted twenty working days before the expiration of such period.
The introduction of a state of emergency was not recognized by the appeal as a valid reason for missing the deadline.
Among other things, a representative of the authorized body was not involved in the consideration of the application by the court.
4) By the decision of the Council of Economic and Social Services of the Karaganda Region dated September 25, 2020, the claims of the rehabilitation manager of Karaganda Repair and Construction Plant LLP (hereinafter referred to as KRMZ LLP), A.K. Tlegenova, were denied to Avtotekhinservice LLP to invalidate contracts on assignment of the right of claim, with reference to the fact that the contracts were concluded on the basis of an agreement on cooperation and joint activities, long-term partnership relations are confirmed by reconciliation reports.
By the decision of the appeals board dated December 15, 2020, the decision was overturned with a new decision on the satisfaction of the claim, 5 contracts were declared invalid.
Footing:
The court found that on the part of KRMZ LLP, the contracts were signed by the director of the partnership, A.F. Derbentsev, who currently holds the position of director of Avtotekhinservice LLP. The accountant of the latter, Kondratenko G.M., previously held a similar position and had the right to manage the rehabilitation procedure of KRMZ LLP. These persons were reliably aware of the debt owed to the budget.
5) By the decision of the Council of Economic and Social Council of the Almaty region dated August 20, 2020, the application of Ufimtsev V.A. to appeal the actions of the temporary administrator of Dala LLP was partially satisfied. His actions regarding the deprivation of the creditor's voting rights, V.A. Ufimtseva, were recognized as illegal when making decisions by the creditors' meeting and the creditors' committee in the debtor's rehabilitation procedure. The minutes of the meeting were declared invalid.
By the decision of the appeal dated December 8, 2020, the decision was overturned, the case was sent for a new hearing to the same court in a different composition.
Footing:
The participants of the creditors' meeting were not involved in the case, despite the fact that the disputed protocol was adopted based on their opinions and votes. Thus, the court deprived them of the right to judicial protection, which is an unconditional reason for the cancellation of the court's decision.
Summary of judicial practice in the application of legislation on rehabilitation and bankruptcy in cases considered by the courts for the period 2020-2021 and the 1st half of 2022.
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