Restoration of solvency The debtor's statement on the application of the insolvency settlement procedure to him

Jurisdiction.

In accordance with paragraph 1 of Article 27 of the CPC, bankruptcy cases of individual entrepreneurs and legal entities and rehabilitation of legal entities are under the jurisdiction of specialized interdistrict economic courts. According to the requirements of Article 29 of the CPC, claims are filed in court at the place of residence of the debtor, an individual entrepreneur, or the location of the debtor, a legal entity.

The circle of persons involved in the case.

The applicant (debtor) is an individual entrepreneur or a legal entity that is a commercial organization, upon the occurrence of one or more of the conditions established by subitems 1), 2) and 3) of paragraph 1 of Article 5 of the Law "On Rehabilitation and Bankruptcy", has the right to make a decision on the settlement of his insolvency before the debtor and (or) creditors apply to a court with an application for the application of a rehabilitation procedure and (or) declaring the debtor bankrupt. The defendant is not provided for. A creditor is a person who has property claims against the debtor arising from his civil and other obligations, taxes and other mandatory payments to the budget (participates in the case only at the final stage of this procedure – when the court approves the agreement concluded between the debtor and creditors). The authorized body is a state body that carries out state regulation in the field of rehabilitation and bankruptcy.

Circumstances to be established for the proper consideration and resolution of the case.

When considering cases in this category, courts should establish:

- is there a decision of the debtor (the owner of the property, the body authorized by him, the founders, participants) on the settlement of his insolvency;

- whether one or more of the conditions set out in paragraphs 1), 2) and 3) of paragraph 1 of Article 5 of the Law on Rehabilitation and Bankruptcy have occurred;

- check whether there are any cases in the court proceedings on the application of the rehabilitation procedure and (or) recognition of bankruptcy in relation to this debtor;

- verify the validity of the debtor's conclusion about his insolvency;

- check whether one year has expired from the date of the court ruling on the refusal to approve the agreement on the settlement of insolvency and (or) the expiration of the period established by paragraph 1 of Article 28-3 of the Law "On Rehabilitation and Bankruptcy", provided that the agreement on the settlement of insolvency is not concluded.

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 insolvency settlement, makes one of the following decisions: 1) on the application of the insolvency resolution procedure; 2) on the refusal to apply the insolvency resolution procedure.

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 court decision.

When satisfying the debtor's application, the operative part of the court 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 debtor shall immediately notify the authorized body and creditors of the decision taken by the court. Within two months from the date of entry into force of the court's decision on the application of the insolvency settlement procedure, the debtor is obliged to conclude an agreement with all creditors on the settlement of insolvency. The insolvency settlement agreement must contain provisions on the terms of the agreement, the procedure, methods and deadlines for fulfilling the debtor's obligations to the creditor (creditors) and is concluded for a period of no more than three years.

The debtor, no later than the deadline set by paragraph 1 of Article 28-3 of the Law "On Rehabilitation and Bankruptcy", applies to the court with an application for approval of the insolvency settlement agreement. The debtor shall attach to this application:

- an agreement on the settlement of insolvency, signed by the debtor and the creditor (creditors);

- a list of all creditors indicating their place of residence or location, as well as the amounts owed.

If the court approves the insolvency settlement agreement, the consequences provided for in article 28-5 of the Law "On Rehabilitation and Bankruptcy" will occur. Therefore, these consequences should be listed in the operative part of the court's ruling on the approval of the agreement as binding.

It is an erroneous opinion that the consideration of the case on the application of the insolvency settlement procedure should be with the participation of creditors. 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 addition, there is no provision of the law on the participation of a creditor in the consideration of a case in this category.

In cases where the debtor has not attached to the application documents confirming his insolvency, as well as confirmation of notification of these circumstances to creditors, the court returns the application to the debtor with reference to subparagraph 3) of the first part of Article 152 of the CPC.

The list of the main documents attached to the statement of claim

In accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the applicant bases his claims.:

- a document confirming the notification of all creditors of their decision to apply to the court for the application of this procedure;

- documents confirming the applicant's insolvency;

- contracts, reconciliation reports, debt repayment schedules concluded with all counterparties;

- lists of all creditors and debtors;

- calculation of all accounts payable, indicating the date of their occurrence, the name of each creditor, indicating the principal debt, penalties and fines;

- calculation of all accounts receivable, indicating the date of their occurrence, the name of each debtor, indicating the principal debt, penalties and fines;

- a list of movable and immovable property with an indication of their book value, whether they are pledged;

- the decision of the debtor's body (the owner of the property, the body authorized by him, the founders, participants) to apply to the court for the application of this procedure;

- a copy of the judicial act, if the debtor has previously applied to the court with a similar statement.

Laws to be applied in the consideration and resolution of cases

The Constitution.

GK.

GPC.

The Business Code.

The Tax Code.

The Law of March 7, 2014 No. 176-V "On Rehabilitation and Bankruptcy".

Regulatory Resolution of the Supreme Court of October 2, 2015 No. 5 "On the practice of applying legislation on rehabilitation and bankruptcy"

 

 

 

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