Comments on article 355. Consideration of cases on the settlement of insolvency, bankruptcy of individual entrepreneurs and legal entities, accelerated rehabilitation and rehabilitation of legal entities of the Civil Procedure Code of the Republic of Kazakhstan
Cases on the settlement of insolvency, bankruptcy of individual entrepreneurs and legal entities, accelerated rehabilitation and rehabilitation of legal entities are considered by the court according to the general rules provided for by this Code, with the specifics established by the Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy".Cases on the settlement of insolvency, bankruptcy of individual entrepreneurs and legal entities, accelerated rehabilitation and rehabilitation of legal entities are considered by the court according to the general rules provided for by the CPC, with special features, established by the Law "On Rehabilitation and Bankruptcy" (hereinafter referred to in this chapter as the Law).
The Law applies to cases of insolvency settlement, rehabilitation and bankruptcy of individual entrepreneurs and legal entities, except for state-owned enterprises and institutions. The specifics of the application of rehabilitation and bankruptcy procedures in relation to individual business entities, depending on their legal status and line of business, are established by law.
Banking legislation and legislation on insurance and insurance activities have established the specifics of the compulsory reorganization and liquidation of banks and insurance organizations.
The grounds for the compulsory judicial liquidation of grain receiving enterprises, the specifics of the sale of property and the order of satisfaction of creditors' claims are provided for in the Law "On Grain".Legislative acts have established specific features of rehabilitation and bankruptcy procedures in relation to pension funds and agricultural producers. The application of bankruptcy procedures, taking into account the legal status of individual entrepreneurs and peasant (farmer) farms, is regulated by Article 21 of the Civil Code and Article 28 of the Law "On Private Entrepreneurship". Rehabilitation (accelerated rehabilitation) procedures are not applied to individual entrepreneurs and peasant (farm) farms. 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.
The insolvency settlement procedure is one of the innovations introduced by Law No. 399 of November 13, 2015.When submitting an application for the application of the insolvency procedure to the court, the debtor simultaneously notifies creditors.
In this case, the debtor does not have the right to apply to the court with such an application if one year has not expired from the date:
the court's ruling on the refusal to approve the agreement on the settlement of insolvency; the expiration of the period established by paragraph 1 of Article 28-3 of this Law, provided that the agreement on the settlement of insolvency is not concluded. The court, within three working days from the date of acceptance of the debtor's application for the settlement of insolvency, makes one of the following decisions: on the application of the insolvency resolution procedure or on the refusal to apply the insolvency resolution procedure. The reason for the court's refusal to apply the procedure for resolving the debtor's insolvency is the absence of the above three signs of the debtor's insolvency. The debtor, no later than two months from the date of entry into force of the court's decision on the application of the insolvency settlement procedure, applies to the court with an application for approval of the insolvency settlement agreement. The debtor shall attach to the application for approval of the insolvency settlement agreement an insolvency settlement agreement signed by the debtor and the creditor (creditors), and a list of all creditors indicating their place of residence or location, as well as the amounts owed. Based on the results of consideration of the debtor's application for approval of the agreement on the settlement of insolvency, the court makes one of the following determinations: on approval of the agreement on the settlement of insolvency or on refusal to approve the agreement on the settlement of insolvency.
The grounds for the court's refusal to approve the agreement on the settlement of the debtor's insolvency are:
1) violation of the rights and legitimate interests of creditors and (or) third parties;
2) the agreement on the settlement of insolvency contradicts the legislation of the Republic of Kazakhstan.
The creditor (creditors) has the right to apply to the court with a statement:
1) termination of the agreement on the settlement of insolvency and declaring the debtor bankrupt in case of violation by the debtor of the terms of such agreement;
2) declaring the debtor bankrupt in the following cases:: failure to conclude an agreement on the settlement of insolvency within the time period established by paragraph 1 of Article 28-3 of this Law; the court's ruling on the refusal to approve the agreement on the settlement of insolvency. Third parties who assume the rights and obligations provided for in the insolvency settlement agreement have the right to apply to the court for termination of the insolvency settlement agreement in case of violation by the debtor of the terms of such agreement. The creditor (creditors) may not apply to the court for declaring the debtor bankrupt during the period of validity of the insolvency settlement agreement if the debtor complies with all the terms of such agreement. 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.
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 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. 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. However, these requirements do not apply to cases of filing an application for declaring an absent debtor bankrupt. 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. 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. 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).
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 an accelerated rehabilitation procedure), is resolved in accordance with the procedure established by articles 32 and 50 of the Law. 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.
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.Cases in which the debtor acts as a plaintiff are considered according to the rules of civil procedure without any exceptions.The Law establishes the procedure for the application of rehabilitation procedures: accelerated rehabilitation procedure and rehabilitation procedure.It should be noted 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.
To apply the rehabilitation procedure, two signs must be present simultaneously:
1) the debtor's insolvency or the threat of his insolvency;
2) the real possibility of restoring his solvency.
Paragraph 1 of article 84 of the Law 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 yearParagraph 1 of article 84 of the Law 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 bankruptcy proceedings provided for in paragraph 2 of Article 84 of the Law, the term of bankruptcy proceedings may be extended by the court several times for no more than three months, and for agricultural producers - for no more than one year for each extension of the term.
After the sale of the estate and the satisfaction of creditors' claims at the expense of the sold estate, the bankrupt manager submitr the sale of the estate and the 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 liqui
LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN
Astana, 2016
UDC 347 (574)
By 63
ISBN 978-601-236-042-4
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