The Presidium of the Supreme Court approved a review of practice on the participation of managers in bankruptcy cases

The Supreme Court allowed citizens to go bankrupt in the absence of an arbitration manager (AM), if all measures to find one were taken, but were not successful. In this case, the courts have the right to write off the citizen’s debts without conducting a full-fledged insolvency procedure. The Supreme Court proposed such a solution to the problem of managers’ reluctance to conduct the affairs of individual debtors without property in a review of practice devoted to the position of the AU. Lawyers call this proposal “breakthrough” and useful, although it conflicts with the rules of bankruptcy law.

The Presidium of the Supreme Court approved a review of practice on the participation of managers in bankruptcy cases. The 38-page document covers a wide range of issues and contains 32 points with explanations and case studies. Managing Partner of BFL | Arbitrage.ru” Daniil Savchenko calls the review “long-awaited, since the last time such close attention was paid to managers was by the Supreme Arbitration Court in 2012–2013.”

No and no manager

One of the most pressing issues in the review was the problem of the absence of an AU candidacy in a citizen’s bankruptcy. The fact is that insurance companies often refuse to handle bankruptcies of individuals with small debts and without significant assets.

According to the Supreme Court, in the case where a creditor has filed for bankruptcy of a citizen, the absence of an AU does not allow the procedure to be started (unless the debtor himself insists), and the case must be terminated. But if a citizen wants to go bankrupt, the absence of an AU candidacy cannot deprive him of the opportunity for financial rehabilitation through consumer bankruptcy. Therefore, after taking all measures to find a manager (including proposals from creditors to increase the amount of the fixed remuneration of the owner), the court has the right to declare the citizen bankrupt and immediately complete the procedure by writing off the debts.

“This is an obvious example of our legal order’s perception of the social and rehabilitation function of consumer bankruptcy,” says Daniil Savchenko. AU Sergei Domnin calls the position of the Supreme Court “an effective way to protect citizens who do not fall within the parameters of extrajudicial bankruptcy, but do not have property and money to finance the procedure.” At the same time, AU Maxim Dotsenko notes that the Supreme Court’s proposals “contradict” the articles of the law on the mandatory participation of AU in judicial bankruptcy.

Engagement and responsibility

For bankruptcy of companies, the most pressing issue raised in the review is the possible bias of the manager. “This is a gaping wound on a bankrupt body,” emphasizes Case by Case lawyer Yulia Mikhalchuk. “A passive owner does not look for assets, does not give 100% when challenging transactions, does not try to sell property at auction at a profit.”

The Supreme Court notes that the managing director must be “independent of the debtor and creditors,” and if there is “reasonable doubt,” the manager is not approved. Even if a company goes into bankruptcy from liquidation, creditors should be able to choose a receiver, the review says. This is another thesis in favor of fighting debtor-friendly creditors and managers, notes Maxim Dotsenko.

At the same time, the Supreme Court calls on not to allow excesses: the mere fact that a creditor offers the same managing agent for the bankruptcy cases of different debtors “does not yet indicate the dependence of the manager.” Mr. Domnin explains that the latter applies primarily to systemic creditors (banks), allowing them to choose “proven financial institutions with high professional qualities and an impeccable business reputation.” Thus, Mr. Savchenko believes, the Supreme Court is “trying to maintain a balance between the idea of ​​the independence of the manager and the pro-creditor model of regulating the procedure.”

With regard to challenging the debtor’s transactions and collecting receivables, the Supreme Court clarifies that the agency is obliged to take these actions if it is “real for collection”, and the cancellation of transactions entails “replenishment of the debtor’s bankruptcy estate” or reduces the debt burden. The point is for the AU not to take formal actions if it is obvious that they will be useless for the bankruptcy estate (for example, if the statute of limitations has passed and the defendant clearly indicates this), believes Sergei Domnin.

Depending on the volume, complexity and quality of the work performed by the manager, the Supreme Court allows the courts to both increase the amount of the fixed remuneration of the managing director and reduce or completely deprive the interest remuneration (reliable for repaying debts). In the absence of assets from the debtor legal entity, the AU’s remuneration may be recovered from the bankrupt owners.

The review also touches on issues of responsibility of the AC. So, if the court finds the violation to be insignificant, then there are no grounds for removing the manager. Separately, the Supreme Court clarifies that for the manager’s failure to publish non-mandatory information in the Federal Resources Agency (which is not required to be published by the bankruptcy law), he does not need to be held administratively liable under Part 3 of Art. 14.13 Code of Administrative Offences. Maxim Dotsenko welcomes the consolidation of this position at the level of the Presidium of the Supreme Court, explaining that such information includes, for example, messages about creditors’ claims against an individual debtor.

Stuck questions

Recognizing the relevance of the review, lawyers raise a number of important issues that were ignored by the Supreme Court. Thus, Daniil Savchenko points out the lack of statements on the “painful topic of the presence of property among relatives of a bankrupt citizen in the context of the problem of imaginary owners.” In addition, according to the lawyer, given the actual status of the AU as an anti-crisis specialist and an effective manager, it would be possible to extend to him “the rule of protecting a business decision as one of the main guarantees for any manager in a corporation.”

Ms. Mikhalchuk notes the lack of detailed positions of the Supreme Court on the actions of the AC in cases of subsidiary liability, since almost six years have passed since the decision of the plenum on this and “a number of problems have accumulated.” Finally, Sergei Domnin considers it necessary for the Supreme Court to clarify the mechanism for joint decision-making between the AU and the meeting of creditors, including during the sale of the debtor’s only luxury home.

Anna Zanina