On the practice of applying legislation on rehabilitation and bankruptcy
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 2, 2015 No. 5.
Having studied the practice of courts applying legislation on rehabilitation and bankruptcy procedures and for the purpose of uniform application of the norms of current legislation on rehabilitation and bankruptcy, the plenary session of the Supreme Court of the Republic of Kazakhstan
Decides:
The legislation of the Republic of Kazakhstan on rehabilitation and bankruptcy procedures is based on the Constitution of the Republic of Kazakhstan and consists of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the Entrepreneurial Code of the Republic of Kazakhstan (hereinafter referred to as the Entrepreneurial Code), the Law of the Republic of Kazakhstan dated March 7, 2014 No. 176–V. "On rehabilitation and bankruptcy" (hereinafter – The Law "On Rehabilitation and Bankruptcy"), other laws and regulatory legal acts that establish the specifics of the application of rehabilitation and bankruptcy procedures in relation to individual business entities.
In accordance with paragraph 2 of Article 2 of the Law "On Rehabilitation and Bankruptcy", if an international treaty ratified by the Republic of Kazakhstan establishes rules other than those provided for by Law, the rules of the international treaty shall apply.
The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
Cases on bankruptcy, rehabilitation, accelerated rehabilitation and insolvency settlement, as well as cases on bringing officials (the debtor) to subsidiary responsibility, are considered by the courts according to the general rules of civil procedure with the specifics established by the Law "On Rehabilitation and Bankruptcy".
Cases of this category are under the jurisdiction of specialized interdistrict economic courts of the regions, cities of Almaty and Astana and are not subject to consideration in absentia.
The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
According to article 3 of the Law "On Rehabilitation and Bankruptcy", the specifics of applying bankruptcy procedures to individual business entities, depending on their legal status and line of business, may be established by the legislation of the Republic of Kazakhstan.
The specifics of the compulsory reorganization and liquidation of banks and insurance (reinsurance) organizations are established by banking legislation and legislation on insurance and insurance (reinsurance) activities.
The grounds for the compulsory liquidation of grain-receiving and cotton-processing enterprises, the specifics of the sale of property and the order of satisfaction of creditors' claims are provided for in the Laws of the Republic of Kazakhstan dated January 19, 2001, No. 143-II "On grain" and July 21, 2007, No. 298-III "On the development of the cotton industry."
Legislative acts have established specific features of rehabilitation and bankruptcy procedures in relation to accumulative pension funds and agricultural producers.
The application of bankruptcy proceedings, taking into account the legal status of the business entity – individual entrepreneurs and peasant (farmer) farms – is regulated by Article 21 of the Civil Code and Article 39 of the Entrepreneurial Code."
Rehabilitation (accelerated rehabilitation) procedures are not applied to individual entrepreneurs and peasant (farm) farms.
In the event of bankruptcy of organizations and enterprises, individual entrepreneurs who are subjects of a natural monopoly or market entities that occupy a dominant or monopolistic position in the relevant commodity market or are of strategic importance to the economy of the republic, capable of influencing the lives, health of citizens, national security or the environment, including organizations, blocks of shares (participation shares) which are classified as strategic facilities in accordance with the legislation of the Republic of Kazakhstan, as well as those declared bankrupt on the initiative of the state, in order to protect the interests of citizens and the state, the Government of the Republic of Kazakhstan has the right to establish special conditions and procedures for the sale of assets and additional requirements for buyers of assets, as well as to decide on the acquisition of assets by the national management holding in the event of bankruptcy of organizations whose shares (participation interests) are classified as strategic facilities in accordance with the legislation of the Republic of Kazakhstan, or organizations, of great strategic importance for the economy of the republic.
In case of bankruptcy of legal entities engaged in environmentally hazardous types of economic and other activities, a mandatory environmental audit of their activities is carried out in accordance with the Environmental Code of the Republic of Kazakhstan dated January 9, 2007 No. 212-III.
The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
An application for declaring an absent debtor bankrupt may be filed by the prosecutor or any creditor of the debtor, regardless of the amount of the monetary obligation and the deadline for its fulfillment.
If the amount of accounts payable for monetary obligations is less than that established by law, the court returns the application without consideration on the basis of paragraph 1 of Article 43 and paragraph 4 of Article 44 of the Law "On Rehabilitation and Bankruptcy".
When accepting applications from a debtor or creditor for declaring the debtor bankrupt or applying a rehabilitation procedure, the court should check whether the appropriate person (body) it is signed based on the applicant's constituent documents.
If, upon acceptance of the debtor's or creditor's application for declaring the debtor bankrupt or applying a rehabilitation procedure, the court finds that it was signed by a person without authority, or documents confirming the authority of this person and documents provided for in articles 41 and 42 of the Law "On Rehabilitation and Bankruptcy" are not attached, the court returns such application in accordance with with paragraph 1 of Article 43 of the Law "On Rehabilitation and Bankruptcy" without consideration.
In cases where the debtor's appeal to the court is mandatory on the grounds provided for in paragraph 2 of Article 43 of the Law "On Rehabilitation and Bankruptcy", the court is obliged to accept the application into its proceedings and demand the necessary documents from the applicant in order to prepare the case for trial.
The creditor's application may also be signed by his representative. In this case, according to Articles 60 and 61 of the CPC, the creditor's power of attorney confirming the representative's authority to apply to the court is attached to the application.
The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
According to article 46 of the Law "On Rehabilitation and Bankruptcy", the creditor has the right to specify several claims against the debtor in one application, and the claims of several creditors can also be combined in one application.
If the creditor's application for declaring the debtor bankrupt is submitted to the court after the initiation of proceedings against the debtor on the basis of an application from another creditor, but before making a decision on the case, the court issues a ruling on joining the application to the proceedings initiated for simultaneous consideration.
Upon receipt of an application after the entry into force of a court decision declaring the debtor bankrupt and initiating bankruptcy proceedings, the court refuses to accept the application with reference to Article 151 of the CPC.
The footnote. Paragraph 6 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
6-1. According to article 28-1 of the Law "On Rehabilitation and Bankruptcy", the court, within three working days from the date of acceptance of the debtor's application for settlement of insolvency, makes one of the following decisions:
on the application of the insolvency settlement procedure;
the refusal to apply the insolvency settlement procedure.
Based on the results of consideration of the debtor's application for the application of the insolvency settlement procedure, the court has the right to refuse to apply this procedure only if the debtor has not provided evidence of the debtor's signs of insolvency, established by article 5 of the Law "On Rehabilitation and Bankruptcy".
The court needs to establish the existence of the debtor's insolvency, not his insolvency. In this regard, courts should not necessarily request financial statements from the debtor for the last 3 years.
Cases of this category are considered by the court in a court session with the participation of the debtor.
Based on the results of the consideration of cases in this category, the court issues a judicial act in the form of a decision. When satisfying the debtor's application, the operative part of the decision must specify the consequences of such a decision, provided for in article 28-2 of the Law "On Rehabilitation and Bankruptcy", which are mandatory for execution.
The footnote. The regulatory resolution was supplemented by paragraph 6-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
Courts should keep in mind that 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 insolvent is established at the time of applying to the court.
The refusal of the court to declare the debtor bankrupt (the application of the rehabilitation procedure or accelerated rehabilitation) or the termination of bankruptcy proceedings (rehabilitation procedure or accelerated rehabilitation) on the grounds established by law (except for the termination of proceedings in connection with the liquidation of the debtor) is not grounds for refusing to accept subsequent applications for recognition of the same debtor bankrupt or applying a rehabilitation procedure or accelerated rehabilitation.
Any creditor, including a creditor who has been denied recognition of the debtor as bankrupt (application of rehabilitation or accelerated rehabilitation procedures), has the right to apply to the court again for recognition of the debtor as bankrupt or application of rehabilitation or accelerated rehabilitation procedures due to changed circumstances (a significant increase in the volume of the debtor's indisputable obligations, a significant change in his financial and economic situation, etc. others).
Articles 32 and 50 of the Law "On Rehabilitation and Bankruptcy" establish a list of possible consequences for the debtor when a bankruptcy case is initiated by a court (on the application of rehabilitation or accelerated rehabilitation) – this is a ban on the owner of property and all his bodies to dispose of property outside the framework of ordinary commercial operations, a ban on satisfying the claims of some creditors primarily to other creditors (except persons directly specified in the law), suspension of the execution of previously adopted court decisions, etc.
When deciding whether or not to apply the measures to secure creditors' claims specified in article 51 of the Law on Rehabilitation and Bankruptcy, the court should bear in mind that the adoption of such measures and the issuance of a ruling on the limitation of the debtor's rights is possible only on the basis of the application of creditors and other persons involved in the case.
The security measures taken by the court must be reasonable, correspond to the purpose of ensuring the interests of creditors, the safety of property and not interfere with the continuation of work in industries with a continuous or seasonal cycle related to the life support and health of citizens, environmental protection, and national security. In connection with the above, the court may not take all the security measures provided for in article 51 of the Law "On Rehabilitation and Bankruptcy".
The initiation of bankruptcy proceedings against the debtor (on the application of a rehabilitation procedure or accelerated rehabilitation) is not a reason for the termination of proceedings in cases in which the debtor acts as a defendant. The issue of the execution of these decisions, along with other court decisions that have entered into force before the decision is made to declare the debtor bankrupt (on the application of a rehabilitation procedure or accelerated rehabilitation procedure), is resolved in accordance with articles 32 and 50 of the Law "On Rehabilitation and Bankruptcy".
A court decision on the application of a rehabilitation procedure or an accelerated rehabilitation procedure against a debtor is also not a reason for the courts to terminate proceedings in previously initiated cases in which the debtor acts as a defendant. The claims of creditors whose monetary obligations arose both before and after the introduction of the rehabilitation procedure or accelerated rehabilitation procedure are considered by the courts in a general manner.
The specifics of the debtor's execution of court decisions rendered during bankruptcy (rehabilitation procedure or accelerated rehabilitation procedure) are established by articles 36, 68 and 87 of the Law "On Rehabilitation and Bankruptcy".
The consequences of initiating bankruptcy proceedings (rehabilitation procedure or accelerated rehabilitation procedure), established by articles 32, 36, 50, 68 and 87 of the Law "On Rehabilitation and Bankruptcy", are mandatory.
According to subparagraph 2) of paragraph 1 of Article 36 and subparagraph 2) of paragraph 1 of Article 50 of the Law "On Rehabilitation and Bankruptcy", the execution of decisions of courts, arbitration courts, state revenue authorities, as well as owners of the debtor's property (authorized bodies), founders (participants) in respect of his property, adopted before the initiation of proceedings on bankruptcy, is suspended. rehabilitation or bankruptcy, as well as before the application of the accelerated rehabilitation procedure.
The courts should take into account that subparagraph 3) of paragraph 1 of Article 68 of the Law "On Rehabilitation and Bankruptcy" provides for similar cases of suspension of execution of decisions taken by courts, arbitration courts, state revenue authorities, as well as owners of the debtor's property (authorized bodies), founders (participants) in respect of his property, adopted during the rehabilitation period. procedures.
The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
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 in whose proceedings there are cases on the consideration of property claims against the debtor, 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.
According to article 5 of the Law "On Rehabilitation and Bankruptcy", the basis for a creditor to apply to a court for declaring a debtor bankrupt is his insolvency, which occurs if the debtor fails to fulfill an obligation within the time limits provided for in subparagraphs 1), 2) and 3) of paragraph 1 of Article 5 of the above-mentioned Law, from the date of its execution.
The basis for declaring a debtor bankrupt in court is his insolvency. When establishing the fact of insolvency, the debtor's monetary obligations must be taken into account, the due date of which has come, as well as those accepted and (or) under execution.
Courts should note that the current legislation on rehabilitation and bankruptcy contains different concepts of insolvency and grounds for declaring a debtor bankrupt in relation to various business entities.
In article 1 of the Law "On Rehabilitation and Bankruptcy", the insolvency of a legal entity is defined as the debtor's inability, 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 criterion for determining the insolvency of a debtor – legal entity is its insolvency.
To declare a second-tier bank bankrupt, according to Article 71 of the Law of the Republic of Kazakhstan dated August 31, 1995 No. 2444 "On Banks and Banking Activities of the Republic of Kazakhstan", it is necessary to have a sign of insolvency. At the same time, the solvency of the debtor bank is determined only by the conclusion of the National Bank of the Republic of Kazakhstan, drawn up taking into account the methodology for calculating prudential standards and other mandatory standards and limits, the size of the bank's capital, that is, a comprehensive assessment is carried out by a person authorized by law.
The insolvency of agricultural producers is understood as the debtor's inability to satisfy creditors' claims for monetary obligations at the expense of his property during the next seasonal cycle.
When establishing the insolvency of agricultural producers, the obligations due no earlier than the previous year are taken into account.
Articles 4 and 5 of the Law "On Rehabilitation and Bankruptcy" establish an exhaustive list of grounds for a court decision to declare a debtor bankrupt or apply a rehabilitation procedure. The court may not declare the debtor bankrupt or apply a rehabilitation procedure on other grounds not established by law.
The applications of the prosecutor, the creditor (creditors), except in cases of filing an application on the grounds provided for in Article 82 of the Law "On Rehabilitation and Bankruptcy", may be withdrawn by the applicants before a decision is made to declare the debtor bankrupt or apply a rehabilitation procedure, in these cases the court issues a ruling on the termination of the proceedings.
Based on the results of the collection of information on 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 the failure to provide 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 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, the courts should take into account that the conclusion of the interim administrator 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.
When a bankruptcy case is initiated on the basis of a debtor's application, the duties of the interim manager include compiling a register of creditors' claims.
If a bankruptcy case is initiated at the request of a creditor or prosecutor, the interim manager, in addition to compiling a register of creditors' claims, is also required to draw up an opinion on the debtor's financial situation. Courts should take this into account when deciding on the appointment of a temporary administrator.
The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
13-1. According to subparagraph 2) of paragraph 1 of Article 58 of the Law "On Rehabilitation and Bankruptcy", the decision to refuse to declare the debtor bankrupt is made by the court, taking into account the conclusion of the interim administrator that the debtor has no creditors other than the applicant.
This provision does not apply to the case when the applicant is a creditor for taxes and other mandatory payments to the budget.
If the only creditor is another person (not a creditor for taxes and other mandatory payments to the budget), then debt collection claims are subject to resolution in a generally established judicial procedure, bypassing the bankruptcy procedure.
If there is a single creditor, there is no need for a fair distribution of the debtor's estate among creditors in accordance with the order established by law.
The footnote. The regulatory resolution was supplemented by paragraph 13-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
The 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, while the basis for applying for a rehabilitation procedure is his insolvency or the threat of insolvency when the debtor will not be able to fulfill monetary obligations when they expire 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.
The possibility of restoring the debtor's solvency should be understood as the existence of a set of interrelated real measures aimed at improving the debtor's financial activities and carried out on the basis of mutual agreement between the debtor and creditors, a group of homogeneous creditors.
Courts should keep in mind that for the application of a rehabilitation procedure, two signs must be present simultaneously.:
the debtor's insolvency or the threat of his insolvency;
there is a real possibility of restoring his solvency.
A rehabilitation procedure can also be applied in an initiated bankruptcy case. In this case, the rehabilitation plan must be developed by the debtor together with creditors, and it must be approved by the court within three months from the date of entry into force of the decision on the application of the rehabilitation procedure.
The use of rehabilitation procedures in the interests of the debtor in order to delay the fulfillment of creditors' claims is contrary to the Law "On Rehabilitation and Bankruptcy", therefore, the court does not have the right to decide on the application of rehabilitation procedures in respect of business entities that have not generally proven their insolvency or the threat of their insolvency.
The court, within two working days from the date of entry into force of the decision on the application of the rehabilitation procedure, issues a ruling on the appointment of a temporary administrator from among the persons registered with the authorized body, information about which is posted on the authorized body's Internet resource as of the date of the ruling.
The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
The Law "On Rehabilitation and Bankruptcy" establishes the procedure for the application of rehabilitation procedures: accelerated rehabilitation procedure and rehabilitation procedure.
The courts should take into account that only the debtor has the right to apply for an accelerated rehabilitation procedure. An accelerated rehabilitation procedure is applied if the following conditions are met simultaneously: no rehabilitation or bankruptcy proceedings have been initiated against the debtor; the debtor is a commercial organization; the debtor is insolvent or will not be able to fulfill monetary obligations when they become due in the next twelve months.
The accelerated rehabilitation procedure does not apply to the debtor for the claims of citizens to whom the debtor is responsible for causing harm to life or health, for remuneration and compensation to persons who worked under an employment contract, has arrears of social contributions to the State Social Insurance Fund, for mandatory pension contributions and mandatory professional pension contributions, for remuneration under copyright agreements, as well as taxes and other mandatory payments to the budget.
In the case of an accelerated rehabilitation procedure, a rehabilitation plan is drawn up by the applicant (debtor) and submitted to the court simultaneously with the application for the application of an accelerated rehabilitation procedure, this plan is approved by the court when making a decision on the application of an accelerated rehabilitation procedure. No register of creditors' claims is formed during the accelerated rehabilitation procedure.
At the request of the owner of the debtor's property (his authorized body), the founders (participants), on the basis of a decision of the creditors' meeting, the court has the right to retain the right to manage the debtor's property and affairs from the moment of approval of the rehabilitation plan for the owner of the debtor's property, his authorized body, the founders (participants).
If the creditors' meeting decides to revoke the right of the owner of the debtor's property, the founders (participants) to manage the debtor's property and affairs, the creditors' meeting must nominate a rehabilitation manager from among the persons registered with the authorized body. The decision of the creditors' meeting to revoke the right to manage the debtor's property and affairs is sent to the court along with the rehabilitation plan. The authorized body is obliged to appoint a candidate submitted by the creditors' meeting as a rehabilitation manager within five working days from the date of entry into force of the ruling on the approval of the rehabilitation plan or the ruling on the removal of the owner of the debtor's property, founders (participants) from the management of the debtor's property and affairs. If the authorized body refuses to appoint the submitted candidate, the creditors' meeting is obliged to submit another candidate for appointment as a rehabilitation manager.
In cases of non-fulfillment of the repayment schedule for accounts payable for a period of more than three months and (or) detection of violations of the Law "On Rehabilitation and Bankruptcy", including those identified by the authorized body, the owner of the debtor's property, the founders (participants), who retain the right to manage the debtor's property and affairs, are removed by the court from management at the request of the person authorized by the meeting creditors, within fifteen calendar days from the date of receipt of the application.
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).
The courts should take into account the requirements of paragraph 3 of Article 101 of the Law "On Rehabilitation and Bankruptcy", according to which the claims of creditors (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 satisfaction creditors' claims filed within the prescribed period.
The temporary administrator (temporary manager) does not have the right to form a register of creditors' claims based on the decryption of accounts payable to the debtor's balance sheet, since this contradicts the Law "On Rehabilitation and Bankruptcy" and Article 8 of the Civil Code, which grant citizens and legal entities the right to dispose of their rights at their own discretion, including the right to protection. Therefore, when forming the register of creditors' claims, the temporary administrator (temporary manager) must check the availability of documents confirming the basis and amount of the claim (creditors' statements, court decisions that have entered into force, copies of contracts, recognition of debt by the debtor, etc.).
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 in proportion to the amounts of the claims, in accordance with the order set out in this paragraph.
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 courts should take into account that the transfer of collateral to a secured creditor is carried out only after repayment of the claims of creditors of the first stage and the administrative costs associated with the preservation and maintenance of collateral.
Failure to attend a creditors' meeting by a secured creditor duly notified of the time and place of the creditors' meeting is equivalent to refusal to accept the pledged property.
Paragraph 4 of Article 100 of the Law "On Rehabilitation and Bankruptcy" establishes that arrears in taxes and other mandatory payments to the budget are repaid in the third place. When verifying the correctness of the formation of the register of the third stage, the courts must apply the norms of subparagraph 61) of paragraph 1 of Article 1 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)", according to which tax arrears include the amount of arrears, as well as unpaid amounts of penalties and fines.
The footnote. Paragraph 20 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 7 (effective from the date of the first official publication).
When checking the correctness of the formation of the register of the fourth stage, the courts should pay attention 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 sanctions for non-fulfillment of obligations, the amount of losses. Since the requirements for payment of the imposed sanctions for non-fulfillment of the sanctions and compensation of 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, according to the law, under the control of the creditors' meeting.
A bankrupt manager does not have the right to independently establish the procedure for evaluating 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.
The bankrupt manager has the right to apply to the court with a claim for invalidation of the reorganization of the debtor legal entity, committed by joining, dividing or separating within three years prior to the initiation of bankruptcy proceedings (rehabilitation) and which led to the illegal withdrawal of assets.
In the rehabilitation procedure, the estate is formed in the same way as in the bankruptcy procedure.
The footnote. Paragraph 22 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 7 (effective from the date of the first official publication).
22-1. According to paragraph 1 of Article 7 of the Law "On Rehabilitation and Bankruptcy", 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 bankruptcy and (or) rehabilitation 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.
Paragraph 2 of Article 7 of the Law "On Rehabilitation and Bankruptcy" lists special grounds for the invalidity of transactions, except those provided for by the Civil Code.
Courts should take into account that claims by bankruptcy and rehabilitation managers for invalidation of transactions may be based on both the special grounds provided for in paragraph 2 of Article 7 of the Law "On Rehabilitation and Bankruptcy" and the general grounds provided for in Articles 157, 158, 159 of the Civil Code.
The three-year period provided for in paragraph 1 of Article 7 of the Law "On Rehabilitation and Bankruptcy" also applies to the recognition of transactions as invalid, presented on the grounds provided for in Articles 157, 158, 159 of the Civil Code.
The footnote. The regulatory resolution was supplemented by paragraph 22-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
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.
Misuse, as well as overspending of the limit of funds for administrative expenses, is the basis for the removal of a bankrupt (rehabilitation) manager from managing the debtor's property and affairs, and for holding him accountable, in accordance with the laws of the Republic of Kazakhstan.
In accordance with paragraph 3 of Article 44 of the Civil Code, if the bankruptcy of a legal entity is caused by the actions of its founder (participant) or the owner of its property, then if the funds of the legal entity are insufficient, the founder (participant) or, accordingly, the owner of its property bears subsidiary liability to creditors.
According to paragraph 1 of Article 6 of the Law "On Rehabilitation and Bankruptcy", the founder (participant) and (or) officials of the debtor bear subsidiary liability to creditors of the insolvent debtor with their property for intentional bankruptcy.
At the same time, by virtue of paragraph 3 of Article 6 of the Law "On Rehabilitation and Bankruptcy", a bankrupt manager, if facts of intentional bankruptcy are revealed during the bankruptcy procedure, is obliged to apply to the court within one month, and creditors have the right to file a lawsuit against such a person to recover the amounts of creditors' claims that remain unsatisfied due to a lack of bankrupt property. based on the results of the bankruptcy procedure.
At the same time, the state revenue authorities also have the right to recover the amounts of damage caused by the culpable actions of the founder (participant) and (or) official of the debtor, whose claims have remained unsatisfied due to the lack of property of the bankrupt as a result of the bankruptcy procedure.
To draw the attention of the courts to the fact that the one-month period for the bankruptcy trustee to file a claim for subsidiary liability to recover the amounts of creditors' claims that remain unsatisfied due to a lack of bankrupt property as a result of bankruptcy is prohibitive, its omission is the basis for refusing to satisfy the claim.
The courts should take into account that claims for bringing the founder (participant) and (or) official of the debtor to subsidiary liability and for collecting the amounts of creditors' claims on the grounds provided for in paragraph 1 of Article 6 of the Law "On Rehabilitation and Bankruptcy" are subject to consideration in compliance with the requirements provided for in parts three, four and five of Article 76 of the CPC, if there are relevant decisions of the criminal prosecution body or the court in the case of an administrative offense.
The footnote. Paragraph 24 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
24-1. In accordance with paragraph 2 of Article 44 of the Civil Code, the founder (participant) of a legal entity or the owner of its property is not liable for its obligations, and the legal entity is not liable for the obligations of the founder (participant) of a legal entity or the owner of its property, except in cases provided for by the Civil Code, other legislative acts or constituent documents of the legal entity.
As follows from the meaning of the above-mentioned norm, legislation does not exclude cases where other legislative acts contain grounds for liability of the founder (participant) of a legal entity or the owner of its property.
When considering cases of this category, the courts must proceed from the fact that in addition to the liability of the founder (participant) or the owner of the debtor's property for intentional bankruptcy, the bankruptcy officials are also liable for failure to comply with the requirements provided for in paragraph 2 of Article 11 of the Law "On Rehabilitation and Bankruptcy" upon the occurrence of insolvency.
By virtue of the requirements of paragraph 5 of Article 11 of the Law "On Rehabilitation and Bankruptcy", for violation of the above provisions of the Law in the event of insufficient property of the debtor to satisfy the claims of all creditors, officials of the debtor, whose duties include fulfilling the requirements provided for in subparagraphs 1) to 6) of paragraph 2 of Article 11 of the Law "On Rehabilitation and Bankruptcy", jointly and severally bear subsidiary responsibility in accordance with the laws of the Republic of Kazakhstan.
According to paragraph 4 of Article 11 of the Law "On Rehabilitation and Bankruptcy", in case of violation by the founder (participant) of the debtor, the owner of the property or officials of the debtor of the legislation of the Republic of Kazakhstan, these persons are held accountable with compensation for losses caused as a result of their actions.
Explain to the courts that the responsibility of the debtor's official for his obligations, provided for in paragraph 5 of Article 11 of the Law "On Rehabilitation and Bankruptcy", is an independent type of subsidiary liability, and therefore it occurs regardless of whether the actions of its founder (participant) or the owner of its property led to the debtor's bankruptcy within the meaning of the norm provided for in paragraph 3 of Article 44 of the Civil Code, and also does not require the establishment of circumstances necessary to resolve the issue of recovery of damages, namely: the presence of harm, the illegality of the action (inaction) that caused the harm, the causal relationship between the action (inaction) and the resulting result (harm), the fault of the harm-doer.
To draw the attention of the courts to the fact that the liability provided for in paragraph 5 of Article 11 of the Law "On Rehabilitation and Bankruptcy" is aimed at ensuring the proper performance by officials of the debtor of the duties defined in subparagraphs 1) to 6) of paragraph 2 of Article 11 of the Law "On Rehabilitation and Bankruptcy", and is aimed at protecting the rights and legitimate interests of the interests of persons involved in rehabilitation and bankruptcy procedures.
24-2. Paragraph 1 of Article 357 of the Civil Code provides for a condition for bringing to subsidiary liability, according to which, before making claims against a person who, in accordance with the law or the terms of the obligation, is additionally liable to the liability of another person who is the principal debtor (subsidiary liability), the creditor must make a claim against the principal debtor.
If the principal debtor has refused to satisfy or has not fully fulfilled the creditor's claim, or the creditor has not received from him a response to the claim within a reasonable time, this claim in the unfulfilled part may be presented to the person bearing subsidiary responsibility.
When considering cases of this category, courts should proceed from the fact that, according to the requirements of articles 72, 90 of the Law "On Rehabilitation and Bankruptcy", during the rehabilitation and bankruptcy procedures, the administrator forms a register of creditors' claims based on creditors' claims for the inclusion of their amounts owed.
To draw the attention of the courts to the fact that the requirement provided for in paragraph 1 of Article 357 of the Civil Code is subject to execution by creditors during the formation by the administrator of the register of creditors' claims of the debtor, respectively, its repeated execution during the filing by the bankrupt manager of a claim for bringing the founder (participant) and (or) official of the debtor to subsidiary liability and recovery of the amount of damage is not allowed. required.
24-3. Based on the provision of paragraph 3 of Article 96 of the Law "On Rehabilitation and Bankruptcy" in cases where the laws of the Republic of Kazakhstan provide for subsidiary liability of other persons for bringing the debtor to bankruptcy, the amount of this liability is determined as the difference between the total amount of creditors' claims and the bankrupt's estate.
In this regard, the courts, when considering the amount of damages to be recovered, must establish the existence of the estate, its sale and repayment of creditors' claims.
24-4. In accordance with paragraph 3 of Article 6, paragraph 3 of Article 96 of the Law "On Rehabilitation and Bankruptcy", the administrator (bankruptcy administrator) must apply for subsidiary liability and recovery of the amount of damage in the interests of all creditors. The presentation of such claims by individual creditors in their own interests is not allowed.
Explain to the courts that if the state revenue authorities are the debtor's sole creditor, then the state revenue authorities, whose claims have remained unsatisfied due to a lack of bankrupt property as a result of the bankruptcy procedure, also have the right to recover the amounts of damage caused by the culpable actions of the founder (participant) and (or) official of the debtor.
24-5. When considering administrators' applications for approval of the debtor's final report and liquidation balance sheet, the courts must establish the existence of measures taken by the administrator to identify the debtor's persons who violated the requirements provided for in paragraph 1 of Article 6, paragraph 5 of Article 11 of the Law on Rehabilitation and Bankruptcy.
To draw the attention of the courts to the fact that the issuance of judicial acts approving the final report of the administrator is carried out taking into account the completion of enforcement proceedings to recover from the founder (participant) and (or) official of the debtor the amount of damage resulting from the imposition of subsidiary liability or its transfer to creditors of the appropriate queue according to the rules provided by the CPC and the Law of the Republic of Kazakhstan dated 2 April 2010 No. 261-IV "On Enforcement Proceedings and the Status of Bailiffs
The footnote. The regulatory resolution was supplemented by paragraphs 24-1, 24-2, 24-3, 24-4 and 24-5 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
According to subparagraph 3) of Article 1 of the Law "On Rehabilitation and Bankruptcy", an administrator is a temporary administrator, rehabilitation, bankruptcy and temporary managers appointed in accordance with the established procedure during the consideration of cases in court and the conduct of rehabilitation and bankruptcy proceedings. The administrator acts as the sole governing body of the debtor and is obliged to exercise his powers at the location of the debtor. The administrator is appointed by a person registered with the authorized body.
The administrator may be removed from managing the debtor's affairs and property in the same manner as he was appointed to exercise these powers.
The Law "On Rehabilitation and Bankruptcy" dated March 7, 2014 entered into force on March 26, 2014, therefore, on the basis of Article 4 of the Civil Code, Article 3 of the CPC and Article 43 of the Law of the Republic of Kazakhstan dated April 6, 2016 No. 408-V "On Legal Acts", its provisions apply to cases submitted to the court after its entry into force.
The provisions of the Law "On Rehabilitation and Bankruptcy" also apply to cases submitted to the courts before its entry into force. This applies to actions (extension of time limits, preparation and approval of the final report, etc.) performed by the rehabilitation (bankruptcy) manager and the authorized body during the rehabilitation or bankruptcy procedure.
Issued by the authorized body before its entry into force Decisions of the Law "On Rehabilitation and Bankruptcy": on the appointment of bankruptcy (rehabilitation) managers; on the approval of the composition of the creditors' committee and the register of creditors' claims; the establishment or extension of the terms of bankruptcy (rehabilitation) proceedings; remain legally binding if they do not contradict The Law "On Rehabilitation and Bankruptcy".
The footnote. Paragraph 26 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
Paragraph 1 of Article 84 of the Law "On Rehabilitation and Bankruptcy" provides for the duration of the bankruptcy procedure, which is determined by a court decision and may not exceed nine months. This period may be extended by the court at the request of the bankrupt manager with the consent of the creditors' meeting for no more than three months, and for agricultural producers – for no more than one year.
In cases where there are one or more grounds for extending the term of the bankruptcy procedure provided for in paragraph 2 of Article 84 of the Law "On Rehabilitation and Bankruptcy", the term of the bankruptcy procedure may be extended by the court several times in compliance with the requirements of paragraph 1 of paragraph 1 of Article 84 of the Law "On Rehabilitation and Bankruptcy", that is at the request of the bankruptcy trustee, with the consent of the creditors' meeting, for no more than three months, and for agricultural producers – for no more than one year with each extension of the term.
Invalidate them:
1) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 28, 2000 No. 3 "On certain issues of application of Bankruptcy legislation by Courts of the Republic of Kazakhstan";
2) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 28, 2002 No. 14 "On Amendments and Additions to Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan No. 3 dated April 28, 2000 "On Certain Issues of Application of Bankruptcy Legislation by Courts of the Republic of Kazakhstan";
3) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2008 No. 11 "On Amendments to Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated April 28, 2000 No. 3 "On certain Issues of Application of Bankruptcy Legislation by Courts of the Republic of Kazakhstan".
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of its official publication.
Chairman
The Supreme Court
Republic of Kazakhstan
K. MAMIE
Judge of the Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
K. SHAUKHAROV
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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