Limitation period after initiation of bankruptcy or rehabilitation proceedings
In judicial practice, questions arise about the application of the statute of limitations after the initiation of bankruptcy or rehabilitation proceedings.
Article 178 of the Civil Code establishes a general limitation period of three years.
For certain types of claims, legislative acts may establish special limitation periods that are shorter or longer than the general period.
At the same time, the limitation period is established to protect the violated right, it is applied at the request of the party to the dispute and can be restored.
In accordance with paragraph 1 of Article 7 of the Law, transactions are considered invalid if they were made by the debtor or a person authorized by him within three years prior to the initiation of rehabilitation and (or) bankruptcy proceedings, unless otherwise provided by this Law, if there are grounds provided for by the civil legislation of the Republic of Kazakhstan and this Law.
If bankruptcy proceedings have been applied to the debtor as a result of the termination of the rehabilitation procedure, the period provided for in part one of this paragraph shall be calculated from the date of entry into force of the court's decision on the application of the rehabilitation procedure.
Paragraph 2 of the said article also provides for other grounds for the invalidity of transactions other than those provided for by the Civil Code.
At the same time, from sub–paragraphs 4) and 5) of paragraph 2 of Article 7 of the Law, other terms are seen - six months, one year.
Subitems 7) and 11) of paragraph 3 of Article 71 of the Law specify that after the entry into force of the court ruling on the approval of the rehabilitation plan, the rehabilitation manager is obliged to identify:
- transactions made by the debtor or a person authorized by him under the circumstances specified in Article 7 of this Law, and to make demands for their invalidation or the return of property in court, including at the request of the creditor who revealed such a transaction;
- the facts of illegal actions during rehabilitation in cases where the debtor was previously managed in the rehabilitation procedure by the debtor's sole proprietor or by an authority or person authorized by the owner of the property, the founder (participant) of the debtor's legal entity or a suspended rehabilitation manager.
In practice, the question arises as to when the limitation period for a newly appointed rehabilitation manager should be calculated - from the moment when the first rehabilitation manager found out about the disputed transactions, or from the moment when the newly appointed rehabilitation manager found out about these transactions.
Example:
By the decision of the Council of Economic and Social Council of the Karaganda region dated August 24, 2017, the rehabilitation procedure was applied to "KRMZ" LLP.
Initially, the creditors' meeting of November 17, 2017 reserved the right to manage property and affairs for the director Kondratenko G.M., acting as the rehabilitation manager. Subsequently, by orders of the authorized body, other persons were appointed rehabilitation managers – on June 12, 2020 (A.K.Telegeneva), January 19, 2021 (I.M.Zholmukhamedov), April 26, 2021 (A.K.Telegeneva).
A.K. Telegeneva filed a lawsuit to invalidate transactions concluded in 2016-2017 and recover the amount.
By the decision of the Council of Europe on February 18, 2022, the claim was satisfied. At the same time
The court refused to satisfy the petition for the application of the limitation period, arguing that the limitation period must be calculated from the moment when the newly appointed rehabilitation manager A.K. Telegeneva learned about the contracts, namely from November 12, 2021.
By the decision of the Court of Appeal of June 7, 2022, the decision of the Council of Economic Cooperation was overturned with the issuance of a new decision to dismiss the claim. The Board, applying the statute of limitations, indicated that the plaintiff knew or should have known about the disputed transactions from the moment the documents of "KRMZ" LLP were handed over to the former rehabilitation managers of Kondratenko G.M.
At the same time, reliable evidence of the transfer of documents from Kondratenko G.M. to the rehabilitation manager Telegeneva A.K. was not provided.
Claims for invalidation of transactions are submitted to the courts both within three years from the date of appointment of the bankruptcy trustee, and after the expiration of the specified period.
The limitation period for such disputes should be calculated from the moment when the plaintiff became aware of the disputed transactions.
The correct application and calculation of the limitation period is defined in the relevant articles of Chapter 7 of the Civil Code.
When considering disputes arising within the framework of rehabilitation and bankruptcy procedures, it is necessary to comply with the above requirements of current legislation.
2. The concept of a probation period is not disclosed in the Civil Code.
At the same time, based on the theory of law, the legal term "preventive period" should be understood as the duration of the law itself, which is aimed at suppressing cases of non-fulfillment or improper exercise of a subjective right. It is applied by the court, and this period cannot be restored.
If the limitation period may serve as an obstacle to the enforcement of substantive law, then the pre-trial period terminates the existence of the most substantive civil law.
According to the rules of paragraph 3 of Article 7 of the Law, when revealing transactions made under the circumstances specified in paragraphs 1 and 2 of this article, the administrator is obliged, including at the request of the creditor who revealed the transaction, to apply to the court within ten working days from the date of detection to declare such transactions invalid.
The above rule of law is mandatory and imposes on the administrator the obligation to file a claim with the court within ten working days.
Failure to fulfill this obligation entails for the administrator the responsibility provided for by the current legislation (disciplinary, administrative, etc.).
In particular, failure to perform or improper performance of duties to identify transactions made by the debtor or a person authorized by him in violation of the requirements provided for by the civil legislation of the Republic of Kazakhstan and the Law "On Rehabilitation and Bankruptcy", and failure to declare claims for their invalidation or the return of property in court to the bankrupt's estate constitutes an administrative offense provided for in Part 10 of Article 179 of the Administrative Code.
At the same time, judicial practice shows that the administrator does not always apply to the court within the specified period, referring to his absence due to the time spent on collecting documents necessary to file a lawsuit.
In this case, the ten-day period is not suppressive and its expiration does not entail an unconditional denial of the claim, nor does it deprive the administrator of the right to apply to the court for protection of violated or disputed legal rights in the interests of creditors within the three-year limitation period.
In case of disagreement with the decision of the temporary administrator, the creditor has the right to appeal it to the court considering the rehabilitation case within ten working days from the date of receipt of the notification of the temporary administrator. This period is preemptive, and its omission is the basis for refusing to satisfy the complaint.
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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