Bankruptcy of legal entities - step-by-step instructions on conducting bankruptcy proceedings + 5 stages of declaring a legal entity bankrupt: consequences and liability

Hello, dear readers of the Richpro.ru business magazine! We continue a series of publications on the topic of liquidation, namely, we will talk about the bankruptcy of legal entities. So let's go!

Issues of bankruptcy of legal entities under the current federal legislation are relevant for enterprises engaged in commercial activities.

Bankruptcy of a legal entity is one of the solutions to the financial difficulties of an enterprise for mutual settlement with creditors. Let us consider in more detail the bankruptcy procedure.

In this article we will analyze:

• Concept and signs + bankruptcy law of legal entities;
• Stages and features of the bankruptcy procedure of a legal entity - step-by-step instruction;
• Nuances of bankruptcy proceedings + subsidiary liability in case of bankruptcy of a legal entity.

1. Insolvency (bankruptcy) of legal entities - the main signs and prerequisites

The basis of insolvency law is paragraphs Constitution, Civil Code of the Russian Federationwith provisions on recognition of debtors bankrupt and the forced seizure of their property in favor of creditors, Federal Laws No. 127-ФЗ dated 10.26.2002 “On Insolvency (Bankruptcy)”, and No. 482-FZ dated 01.29.2014 “On Amending the Federal Law“ On Insolvency (Bankruptcy) ”.

 Download Law on Bankruptcy of Legal Entities - Federal Law on Bankruptcy of Legal Entities of 2015

Federal law interprets the concept of insolvency (bankruptcy) as the absolute impossibility of making payments by a debtor for obligations assumed to creditors and personnel of an enterprise.

In fact, a legal entity does not have free cash to carry out financial transactions under contractual relations both in the external business environment and inside the company.

Debts of a legal entity, calculated by non-monetary assets, can be recovered by creditors only through a court.

Reasons to initiate proceedings:

• debt obligations of a legal entity in total amount not less than 300 thousand rubles. At the same time, the amount of the principal debt does not include interest and penalties charged on it. Prior to the amendment of the law on January 29, 2014, Federal Law No. 482-ФЗ, the amount of the total recovery amounted to 100 thousand rubles;
• the organization does not make obligatory payments to creditors within 3 months;
• company does not pay salaries, benefits and other mandatory payments to its employees.

In the presence of these prerequisites creditor or debtor himself may initiate bankruptcy proceedings.

The amendments made to the Law on Insolvency (Bankruptcy) on January 29, 2014 stipulate a condition on the prohibition of the choice of an arbitration manager in the event that the debtor himself initiates proceedings.

In addition to this condition, the Federal Law of January 29, 2014 No. 482-FZ amended the procedure for declaring a legal entity bankrupt by banks.

Banks are given preference upon canceling the receipt of the decision of the arbitration court on declaring the debtor bankrupt. This means that banks have the right to initiate bankruptcy proceedings as soon as there are grounds for this, without going to the arbitration court for a preliminary decision.

Otherwise, bankruptcy proceedings for other creditors are carried out in the manner prescribed by the Federal Law of October 26, 2002 No. 127-ФЗ.

After a debtor enterprise is declared bankrupt, claims on debt collection by creditors are considered by the general meeting authorized and controlling bodies and representative of the arbitral tribunal.

For the period of bankruptcy proceedings, the authority of the head of the company is assumed by the bankruptcy manager.

The term for declaring a company bankrupt is a period of duration no more than 3 months from the moment of submission of the application.

Objective reasons for the ruin of the company:

• weak or incorrect business - planning, lack of a clear development strategy for the enterprise; (We already wrote how to draw up a business plan in our previous issues)
• incompetent management team;
• lack of professionals in the workplace;
• inability to conduct the correct pricing policy;
• competition pressure.

The causes of bankruptcy are determined by many, often interrelated, factors that depend on political, economic individual country situations company development features, rationality its organizational structure management style and other factors.

Signs of Bankruptcy

The fundamental sign of insolvency (bankruptcy) of an organization is the lack of funds to pay debts to creditors. If financial difficulties last more than 3 months, then there are grounds for initiating bankruptcy proceedings.

Indirect signs of bankruptcy include an increase in receivables, a decrease in cash flows of the company, a delay in the payment of interest to investors and remuneration to staff of the company.

1.1. Why is a bankruptcy procedure of a legal entity necessary?

The bankruptcy procedure allows the debtor to solve financial difficulties by revising the plan for settlement of obligations, refinancing debts or deferring payments.

Full debt cancellation will not happen, but it will be possible to pay debts in other ways at the expense of existing movable and immovable property.

“The prospect of bankruptcy for firms means the subsequent cessation of their activities, in some cases, a complete reorganization of a legal entity”

Why is bankruptcy necessary for the debtor?

Filing an application for declaring a company bankrupt at the initiative of the debtor may have various purposes, beginning from the real impossibility to pay off debts and ending protection against raider attacks.

The bankruptcy procedure in this case is an effective way of legal protection from competitive aggression from the outside. Prior to amendments to the federal law on bankruptcy of legal entities, the initiation of this procedure by the debtor had a number of advantagesincluding opportunity independent choice of arbitration manager.

After amending the law, this provision canceled, and debtors will not be able to choose an arbitration manager.

Otherwise, initiating bankruptcy proceedings has a number of advantages for the debtor in terms of suspension of debt collection measures, as well as outstripping the treatment of all creditors for collection of accumulated debts.

Why is bankruptcy necessary for a creditor?

Filing a bankruptcy application by a creditor is one of the most effective ways to recover debts. This action is especially important if the debtor’s enterprise is active, and the non-payer has property and assets against which the creditor can recover the debt.

In addition, the initiation of bankruptcy proceedings by the lender gives him advantage to appoint your manager, and also accelerate the process of debt collection, without waiting for the results of the long work of the bailiff service.

Upon completion of the insolvency procedure, the performance of obligations to creditors will be carried out in a different form.

1.2. Who can file an application and start a bankruptcy procedure for a legal entity

To initiate bankruptcy proceedings of an organization, it is necessary to submit a corresponding application to the arbitration court as the initiator of the case, which may be:

• the company itself, indebted for its obligations (founders, founders, managers, owners of the enterprise);
• creditors, third parties;
• government bodies;
• interim administration and control bodies.

Initiative debtor firms in initiating bankruptcy proceedings is a salvation decision if the debt on obligations significantly exceeds the amount of financial assets of the enterprise.

Below you can download a sample claim:

• Claim for declaring a legal entity bankrupt (Sample)

The exit from the debt hole for the company ends with the end of the bankruptcy procedure: the debt is written off and deemed to be fully repaid, even if the creditors have not actually received the due amount of payments in full, which the company has agreed to pay them.

Significant minus this way of solving financial difficulties is the inability to choose an arbitration manager, which casts doubt loyal attitude and a favorable outcome.

Nevertheless, if there are fundamental signs of insolvency, an enterprise that has debts under its obligation has a legal obligation to initiate bankruptcy proceedings.

Lenders may file with the arbitration court an application for recognition of the bankruptcy of a particular enterprise even at the moment when it continues commercial activity. If the payment of obligations is overdue, he will be able to appoint his financial manager and monitor the activities of the enterprise.

They can go to court to declare the company bankrupt government bodies: prosecutor's office and tax authorities. The reason for the appeal may be the lack of information on financial income for a long time.

Here are some examples of the recognition of the debtor - legal entity bankrupt:

• Sample bankruptcy petition from an authorized body;
• Sample bankruptcy lawsuit from a bankruptcy creditor.

In addition to the debtor, bankruptcy creditors, authorized bodies, it is also entitled to apply to the arbitration court with a statement on the bankruptcy of financial organizations by the provisional administration and control bodies.

In one of our previous issues, we wrote in detail about the liquidation of the LLC, provided step-by-step instructions, due to which the closing process will go smoothly, we recommend reading it.

Let us consider in detail the step-by-step instruction (stages) of the bankruptcy procedure

2. 5 stages of declaring a legal entity bankrupt - features and nuances of the bankruptcy procedure of a legal entity

The presence of fundamental insolvency factors determines the recognition by the court of the fact of bankruptcy of a legal entity.

Recognition of this fact as the inability of the debtor provide debt, pay taxes and fees is not a basis for the subsequent closure of the enterprise.

In addition to the stages of bankruptcy proceedings applicable at the termination of organizations, to a particular company - the debtor other types of competition may apply:

• observation;
• financial recovery;
• external management;
• bankruptcy proceedings;
• settlement agreement.

Solving insolvency cases is a complex scheme with a multi-stage solution of individual tasks.

Compliance with this sequence is not mandatory, the conduct of a bankruptcy procedure is determined depending on the actual state of affairs at the enterprise according to the results of observation arbitration manager, lenders, legal entity.

In most cases, the insolvency process does not include all stages, but limited to observation and bankruptcy proceedings without going through the rest of the steps.

Each stage is established by a decision of the arbitration on the basis of an analysis of the individual circumstances of the situation at the enterprise, presented at the general meeting of creditors.

Stage 1. Supervision Procedure for Bankruptcy of a Legal Entity

The first stage in establishing insolvency is to monitor the business activities of the debtor company.

The purpose of the observation is to identify the financial capabilities of the enterprise, as well as to analyze its position in the industry as a wealthy or insolvent participant among business entities.

This allows you to determine whether the debtor has the actual ability to pay debts and make other mandatory payments in full.

The observation procedure implies decrease the authority of the head of the enterprise. In addition, she allows identify financial capabilities and solvency of a legal entity, as well as ensure the safety of his property.

Observation leads to the exclusion of a conflict of interests of a debtor legal entity and creditors.

The procedure for monitoring bankruptcy of a legal entity. The main goal of the stage is to identify the financial capabilities of the organization

The main objectives of the monitoring procedure:

• analyze the material, financial, property assets of the company and take measures to preserve them;
• compile a complete list of creditors, investors, employees for whom there is cash debt;
• compile a register of contractual obligations taking into account all available information on them;
• determine the total amount of debt obligations;
• to conduct a comprehensive analysis of the possibilities of organizing a way out of the financial crisis and returning solvency.

Throughout the observation period by the arbitral tribunal interim manager appointedhaving special knowledge and training, independent and not biased attitude to debtor and to the creditor in the process of monitoring the economic activity of the enterprise.

The interim manager has access to all information of the enterprise, including information containing secret information. The monitoring procedure has a clear limitation according to which it should be continued. no more than 7 months.

The whole period the organization continues to work as usual without the right to reorganize, the opening of new industries, departments, subsidiaries. At the end of this period, the interim manager must submit to the arbitration court a report with the results of the work.

The report should contain the following information:

• on the financial condition of the organization - the debtor;
• specific solvency recovery plan of action;
• proposals and requirements of creditors.

Based on the observation of the interim manager, the possibilities of further coordination measures aimed at removing the company from the financial crisis are considered.

After the enterprise enters the bankruptcy recognition process, the following conditions appear, implemented within the framework of the current legislation:

1. All monetary penalties to the debtor, except for current payments, filed in insolvency proceedings, and not directly to the deadbeat;
2. Executive proceedings for debt collection is suspended, arrests and other restrictions are not imposed or lifted, with the exception of certain cases provided for by law;
3. Are forbidden payment of the value or allocation of shares of the founders upon withdrawal from the company, purchase by the non-payer of the placed shares;
4. Prohibited set off counterclaims in violation of the sequence of repayment of debt to creditors;
5. Prohibited seize property by the owner of a unitary enterprise;
6. Are forbidden dividend payments, interest, share income, profit sharing;
7. Ceases accrual of penalties, interest for violation of cash payments;
8. It is necessary to obtain the consent of the temporary manager for transactions on the withdrawal of property with book value more than 5% from the assets of the non-paying company;
9. Consent required temporary manager for transactions on the receipt and issuance of borrowed funds (loans), sureties, guaranteed obligations, assignment of claims, transfer of debts and approval of management of non-payer property on the basis of a power of attorney;
10. Governing bodies do not have the right to make decisions on the termination of activity or reorganization of the enterprise, on the participation of the debtor in other organizations, the creation of other firms, subsidiaries, representative offices, branches.

All these conditions accompany the bankruptcy procedure at its first stage - observation, the main purpose of which is to analyze the financial capabilities of the non-payer to identify chances of resuming solvency, the ownership of a sufficient amount of property to cover the costs of the bankruptcy procedure and draw up a register of creditors' claims.

As a result of the analysis, the general meeting of creditors makes a decision to move to the next stage of bankruptcy.

Stage 2. Financial recovery (rehabilitation)

This stage of bankruptcy involves the preparation and approval of an action plan to return the solvency of the organization.

Purpose of a similar document - for a limited period of time to pay off debt on loan obligations and salaries to staff.

Why is financial recovery necessary?  This is a combination of logical actions aimed at restoring the functionality of the company and its new "birth".

Depending on the coherence of the actions of the company's owners and court representatives, the result of the measures taken will mark the transition to a new stage of the bankruptcy procedure.

The following conditions are met in the financial recovery procedure:

• The maximum time period for financial recovery provided by law is not more than two years;
• A specially developed plan for financial rehabilitation should contain a schedule for repayment of debt claims of creditors with a phased explanation of the possibilities of satisfying their claims;
• The debt repayment schedule should contain the signatures of the debtor's participants and be approved by the court;
• A full settlement of the creditors' existing requirements should end no later than one month before the completion of the financial rehabilitation process, and taking into account the requirements of the first and second priority, no later than six months before its end.

At this stage of bankruptcy, the arbitration manager is called the administrative manager, whose functional duty is to monitor the implementation of the action plan and schedule for paying off debts.

The legal aspects of the healing and observation procedures at most points repeat each other and imply:

• the abolition of charges of fines and penalties for the duration of the recovery procedure;
• suspension of dividend payments, interest, shares to founders and investors;
• removal of arrest from the property assets of the company;
• suspension of production under writ of execution.

In addition to analogies with the observation procedure, financial rehabilitation has a number of additional prohibitions when conducting transactions:

• without agreement with the administrative manager it is impossible to conduct transactions, as a result of which accounts payable will increase by more than 5% of the amount of claims provided for in the register of creditors;
• it is impossible to acquire or alienate the property of a company, except for products obtained in the process of production or business activities of the enterprise;
• interest on money debts stipulated by the debt repayment schedule is calculated at the refinancing rate of the Central Bank of the Russian Federation. In case of full repayment of debts upon completion of the financial reorganization procedure, the court shall terminate the bankruptcy case.

If after the allotted time the financial condition of the company has not changed or slightly improved, the debt obligations have not been repaid, there is a transition to the next stage of the insolvency procedure - external management or bankruptcy proceedings (sale of property and tangible assets of the company).

Stage 3. External management (as a bankruptcy procedure) - optional procedure

The degree of external management is not mandatory in the bankruptcy procedure and is justified by the acceptability and expediency of a particular company in the current financial circumstances.

If there is a chance to restore the solvency of the organization, then as a next measure after financial recovery, a decision is made on external management. At this stage of the bankruptcy procedure, management functions and full management of all processes external manager takes over.

Acceptance of powers is carried out with the transfer of all the documentation of the company, as well as seals and stamps, after which the interim manager transgresses to fulfill the rehabilitation plan of the company.

By virtue of the existing reasons, within the framework of the approved action plan, the external manager has the full right to cancel decisions made by the other manager on the development strategy of the enterprise in the bankruptcy process.

The duration of external management is 1 year with the possibility of extension as necessary for six months.

To return the solvency of the organization, the following conditions may be provided for by the action plan of the external manager:

• closing unprofitable directions, changing the profile of activity;
• repayment of receivables;
• partial sale of debtor's property;
• assignment of the right to claims of a legal entity;
• payment of debts of the non-payer by the owner of his property, participants or third parties;
• increase in authorized capital due to contributions of participants or third parties;
• additional issue of ordinary shares owned by the debtor;
• implementation of the deadbeat organization;
• other events.

The consequences of this stage have a number of significant differences with previous procedures, expressed by the following features:

1. The authority to manage the enterprise is obtained by the external manager while the entire management team resigns for the entire period of the management process;
2. Entering a moratorium on the repayment of monetary debts.

Final inventory and property valuation give the right to the external manager decide on the partial sale of existing assets as part of an agreed management plan.

At the end of the stage, the external manager prepares reports on the work done, which he then provides at the general meeting of creditors.

In order to restore the financial solvency of the debtor, the meeting makes a decision to stop the external management process and start paying to creditors.

If the collection of all holders of obligations is satisfied, then the bankruptcy procedure is terminated. In a different situation, the debtor is declared bankrupt, and the next stage of the process begins - bankruptcy proceedings.

Stage 4. Bankruptcy proceedings in case of bankruptcy of a legal entity

The bankruptcy proceeding stage is final. The transition to this stage indicates that the recognition of the insolvency of the company - the debtor held at the level of the arbitral tribunal.

As a result of the confirmed insolvency, the property of the company is subject to sale at auction in order to cover losses. lenders, legal costs, debt payroll staff.

The period during which the bankruptcy proceedings continue 6 months, if justified, it can be extended by another 180 days.

Functions of the bankruptcy trustee:

• inventory and valuation of property of the enterprise;
• Valuation of organization assets
• reporting with a complete reflection of the bankruptcy estate, i.e. non-payer property;
• tracking the progress of the auction and the sale of property of the debtor.

Information about bankrupt enterprises is publicly available in the unified federal bankruptcy register of the Russian Federation.

Information about the organizations that have ceased their activity is reliable and fully presented; it is possible to participate in tenders for the sale of property of bankrupt enterprises.

Bankruptcy proceedings It is a fundamental measure in the process of work on the resumption of solvency of organizations - non-payers of debt obligations.

If all the previous stages of the bankruptcy procedure did not have a positive effect, then other methods of restoring the solvency of the enterprise does not exist. The only option remains the termination of the organization and the sale of property at auction.

Received during the bidding money goes to cover debts to creditors, court costs and staff remuneration.

Redemption of claims of owners of obligations is carried out in order of priority:

• current payments;
• payment of the first priority - compensation for harm to life and health;
• payment of the second priority - settlements with employees and authors of intellectual works;
• payment of the third priority - remaining payments.

Following the auction, the amount of proceeds may not correspond to the size of the total debt of the enterprise, therefore debt obligations may not be fully repaidthat does not correspond to the interests of creditors and injured personnel.

In some cases, given this fact, The arbitration court criminalizes the head of the organization with a fine.

The bankruptcy proceedings are ending with the closure of the enterprise and the termination of its activities.

Stage 5. The conclusion of a settlement agreement

The procedure for establishing bankruptcy at any level between the participants in this process can be taken settlement agreement.

The initiator of a conflict-free solution to the situation is any of the parties - debtor or lenders in the general composition. One more party can also take part in this process - company or authorized bodyproviding a guarantee of repayment of debt obligations.

Peace agreement feasible with the full consent of all participants in the procedure.

By concluding a peace treaty, the parties to the agreement terminate the bankruptcy proceedings. The agreement is made in writing on a copy of each party.

Essential clauses of the contract:

1. Terms of payment;
2. Form of payment of debt;
3. Duration of the agreement;
4. Other conditions.

All clauses of the contract should not contradict the current legislation.

You can download the sample below at the link:

• Sample amicable agreement for bankruptcy of legal entities.

In the case of a settlement, creditors may be offered preferences for lowering interest and increasing the period of payments, and debtors may also make proposals with certain concessions.

If one of the parties does not comply with the terms of the peace agreement, the insolvency procedure renewed.

For clarity, we present a table of the stages of the bankruptcy procedure:

3. Possible consequences of bankruptcy for a legal entity

Federal law dated October 26, 2002 No. 127-FZ the consequences are foreseen for a legal entity after being declared bankrupt. The consequences may be financial and legal.

What consequences of bankruptcy await a legal entity

The onset of the financial consequences of bankruptcy is characterized by the following features:

• there comes a deadline for payment of monetary debts that arose before bankruptcy proceedings, as well as mandatory payments of taxes, fees, material payments to employees of the enterprise;
• the property of the enterprise is sold at auctions;
• all types of forfeits, fines and interest on all debt obligations of the non-payer are not charged;
• information on the financial situation of the enterprise ceases to be confidential or is a trade secret;
• official duties of the management of the company and its bodies do not require further performance in connection with its liquidation;
• any types of transactions are prohibited to be executed on behalf of a bankrupt company;
• the arrest imposed on the property of the debtor earlier is removed;
• there is a dissolution of personnel, the company - the bankrupt is liquidated and completely ceases its activities.

At the end of the bankruptcy procedure and the removal of the company from the Unified State Register of Legal Entities, documents relating to the organizational measures of the process, filed into the file and archived.

The company ceases to exist and with it all debt related to commercial activities is liquidated.

In some cases, for enterprises absorbed by obligations under loan agreements, the bankruptcy procedure becomes a way out of the vicious circle of overwhelming payments on loans. A similar exit from a business ends after various measures have been taken to repay debts to creditors as much as possible.

3.1. Accounts payable

The usual outcome of a bankruptcy proceeding is the closure of the enterprise and the cancellation of all its debts without collection from the owners of the company. Lenders do not receive cash at a loss.

For the owners of the company, the completion of the activity means the loss of a share in the authorized capital of the company. Attract them to the payment of debts are not even able to court.

The General Director, in addition to the absence of any costs associated with bankruptcy, receives all the mandatory payments due to staff under the labor law: salary, severance pay, compensation for unused vacation (unless the head of the limited liability company is its sole founder).

3.2. Criminal liability

The liquidation of the organization by recognition of its insolvency entails the onset legal consequences for the management team responsible for transactions.

The legal consequences for the Director General and his deputies are to bring to court and assignment to them the obligation to pay debts at the expense of personal property.

If there were irrational solutions founders and management of the enterprise, which involved the company in a financial crisis and are fictitious or deliberate in nature, they may be charged with an administrative charge a fine.

If law enforcement authorities identify a deliberate intent to conduct bankruptcy proceedings against persons participating in this process, a criminal case may be instituted.

The basis for this is a statement submitted by one of the participants:

• creditors who have suffered losses and worsening financial position due to the liquidation of the enterprise - debtor);
• an observer with an impartial and independent opinion on the state of affairs in the organization);
• external manager;
• competition manager;
• founders;
• other interested parties (for example, affected employees of the company).

Upon receipt of the application by law enforcement agencies verification of the actions of the founders and enterprise managers for intentional actions in initiating bankruptcy proceedings.

If the insolvency procedure is already underway, then the state of the company is checked for the fact of its lack of solvency.

3.3. Restriction of rights

Bankruptcy and closing organizations do not mean that owners can not open new firms and engage in commercial activities. They can develop new business projects and participate in the creation of organizations.

The classical outcome of the bankruptcy process implies further freedom of action in the field of entrepreneurship.

An exception may be cases where the outcome of the insolvency procedure was the identification of intentional actions by the management team.

Intentional or fictitious bankruptcy legal entity It is a serious reason for restricting the rights of executives in further commercial activities. Such decisions on disqualification are made by the court and extend to a period of up to several years.

Nevertheless, the bankruptcy procedure is one of the ways out of the financial crisis of the organization with a minimum of monetary losses and consequences for the owners of the company.

The main danger in case of subsidiary liability of bankruptcy of a legal entity is criminal liability

4. Subsidiary liability in case of bankruptcy of a legal entity - purpose, concept, conditions, etc.

Subsidiary liability is a kind of personal responsibility of the owners and managers of the company. This type of responsibility implies mutual responsibility of the "top" of the company to pay debts to creditors with personal property in the event of loss of solvency and lack of assets firms for their repayment.

The joint liability of all debtors involved in payments means that when fulfilling obligations in their part by at least one person from a group of joint debtors, he is entitled to demand payment of debts from other members of this group. This norm of subsidiary liability is provided by paragraph 2 articles 325 of the Civil Code.

4.1. The essence of subsidiary liability

Any company can experience financial difficulties and fall into insolvency for various reasons, especially if there is a recession in the country's economy.

There are many reasons for pushing a company to bankruptcy; sometimes a combination of various factors leads to this.

The underlying causes of bankruptcy are:

• incompetent management of company affairs;
• lack of coordination of the interests of the founders and management;
• improper prioritization in budget planning and priority payment schedules;
• intentional non-fulfillment of contractual obligations to counterparties;
• inaction in solving production and financial issues of the enterprise.

Regardless of the reasons that involved the enterprise in financial collapse, settlements with creditors existing debts will have to be made to the owners and managers both through the sale of assets of the enterprise, and through personal property.

4.2. Term concept

The definition of subsidiary liability implies additional liability for payment of debt obligations by one obligated person, if the first person is not able to make payments.

These persons include founders and organization leaderson which subsidiary liability for the existing debts of the enterprise will extend its effect.

4.3. Legal regulation

The regulation of subsidiary liability is carried out under the federal law from 10.26.2002 No. 127-ФЗ “On insolvency (bankruptcy)”, providing for the mandatory procedure for payment of the debt of the organization. In the process of recognizing insolvency in the precarious financial situation of a firm, its assets may not be enough to repay the total amount of debt.

“The Civil Code also establishes liability for the payment of debts at the expense of the owners and directors of the organization”

The requirements on obligatory payments on debt obligations of the company on the basis of subsidiary liability in the laws on limited liability companies and on joint-stock companies are duplicated.

4.4. The onset of subsidiary liability in the bankruptcy proceedings of legal entities

Talk about the occurrence of subsidiary liability should be in the case of impossibilities the owners of the company creditors' debt claims, make obligatory payments on the payment of taxes and fees, pay employees due to lack of property and related assets.

In this case, subsidiary liability is imposed on all liable persons, which include:

• founders - co-owners of the enterprise;
• the management team, as a result of which the company came to a state of bankruptcy;
• authorized representatives of the shares of the enterprise;
• other persons who are not legally linked to the company, but who actually manage it for two years before the insolvency proceeding;

The determination of a person’s involvement in the management of a company’s affairs is provided for in Article 2 Federal Law of October 26, 2002 No. 127-ФЗ On Insolvency (Bankruptcy) and characterized by signs:

1. issuance of instructions and instructions by an individual to employees of the company for execution;
2. insisting a person on certain actions and decisions, guided by unquestioned authority and persistence;
3. the provision of psychological influence and pressure on the leaders of the company when making decisions in implementing the development strategy of the enterprise.

Under the influence of influential individuals, who actually have no legal rights to manage the affairs of the company, an unexpected deterioration in the financial situation may occur with its subsequent bankruptcy.

To impose liability on a given person, it is necessary to prove his guilt before the court by documentary.

This type of subsidiary liability is called status and has a number of characteristic features:

• subsidiary responsibility lies with the bankruptcy proceedings with the participation of the arbitration manager;
• documentary evidence of the guilt of the obligated persons in the insolvency of the enterprise;
• lack of legal basis for the implementation of regress requirements to the non-payer.

The second type of subsidiary liability is called “contractual” and implies the prosecution of a person participating in a contractual relationship between a defaulter and a creditor.

An example of the imposition of such liability is the implementation of the requirements of a surety agreement, under the terms of which the surety assumes all responsibility for the payment of loan amounts in case of refusal of the debtor under the agreement.

“Do not confuse subsidiary liability with joint liability. The main difference between joint liability is expressed in the recovery of debt from one person (defendant) by decision of the creditor. In case of subsidiary liability, the total amount of debt is divided among all obligated persons in equal proportions, which increases the chance of regular payments. ”

A significant nuance in this case is the fact that when a claim is filed by a surety to recover a debt, the court will divide the payment amount in equal proportions between two parties to the contractual relationship - guarantor and debtor. This is a fundamental difference between subsidiary liability and joint liability.

4.5. Basic conditions and initiators of the procedure

Opening a bankruptcy case does not entail the emergence of subsidiary liability, as many mistakenly believe debtors and lenders.

In order for it to form, a number of conditions should be taken into account:

• a judicial act with a decision to declare the insolvent organization insolvent, which shall enter into force from a certain moment;
• should determine the total amount of debt claims of creditors. A bankrupt enterprise may have no debts to other firms;
• full implementation of the bankruptcy estate.

These conditions allow you to take into account the total amount of liability of joint debtors, which can be defined as the difference between amount of claims of creditors and the amount from the sale of property of the defaulter, namely cash received from the bankruptcy estate.

According to the article 10 Federal Law on Insolvency subsidiary liability may be appointed subject to a shortage of non-payer property assets for settlement with debts to creditors.

The involvement of the management team and owners of the non-payer company in subsidiary liability may not be recognized by the court as a legitimate action if the requirements for assignment of liability are made prematurely, that is, until the formation of the bankruptcy estate.

This means that without taking into account all the property of the debtor, without exception, it is impossible to calculate the final amount of liability to creditors, which can lead to the unlawful appointment of subsidiary liability to obligated persons.

The right to nominate subsidiary liability is entitled bankruptcy lenders except in situations where it has already been done arbitration manager.

The initiator of imposing subsidiary liability may be a bankrupt enterprise. Benefit such an action for the debtor is to change the terms of mutual settlements on debt obligations after entering the insolvency recognition procedure.

This is significant for the debtor, if he knows for sure that compliance with the terms of payments under the contracts is impossible due to the difficult financial situation of the company. In addition, he gains the ability to control bankruptcy proceedings.

To independently initiate bankruptcy, the non-payer enterprise has the right to apply to the court in cases provided for by federal legislation:

• in case of improper performance of monetary obligations to creditors;
• the impossibility of continuing commercial activity due to seizure of the property of the debtor company;
• the non-payer enterprise has all the main signs of insolvency.

A standard practice in initiating bankruptcy cases is when a bankruptcy creditor initiates the process.

Based on debt payer bankruptcy creditor The right to appeal to the arbitration court.

In order for such an appeal to have legal grounds, the following conditions must be met:

• total debt exceeds 300 thousand rubles;
• the debtor's insolvency period is more than three months;
• the amount of debt is confirmed by a court decision.

When applying to the court, it should be borne in mind that penalties, penalties and forfeits will not be counted.

Another interesting fact is that one lender with the amount of debt claims less than 300 thousand rubles. may draw up a joint statement with other creditors, reaching the minimum debt threshold for going to court.

4.6. Penalties for bringing a company to bankruptcy

There are no strict penalties in federal law for bringing an enterprise to bankruptcy conditions unlike the countries of the foreign world. Therefore, the perpetrators are not afraid of responsibility for inaction in the process of loss of solvency and bringing the company to a financial crisis.

The Civil Code of the Russian Federation provides for subsidiary liability of the management and owners of the enterprise for the payment of debt obligations.

The size of subsidiary liability is determined individually, taking into account the specific financial situation and the guilt of individuals in the results of the organization.

4.7. Guilty in business

The subsidiary liability is imposed on the guilty persons, who are recognized by court decision founders, management team and third partiesthat influenced the activities of the company.

Provision of subsidiary liability is governed by Art. 401 of the Civil Code of the Russian Federation.

The legal grounds for awarding subsidiary liability to the guilty persons are the conditions:

• Illegal actions in relation to a person performing official duties assigned to him;
• The proven guilt of the person in causing losses to the enterprise;
• Reasonable causal relationship of unlawful actions of a person and the occurrence of losses at the enterprise;
• Illegal actions of the culprit must be fully justified and proved by the court.

Failure to comply with the above conditions excludes the possibility of bringing liable persons to subsidiary liability.

The presence of all these conditions must be confirmed in writing in the form of duly executed documents. The procedure for identifying cause-effect relationships, the debtor’s guilt is complicated due to the low reliability and contestability of the facts presented, therefore the evidence is formed on based analysis of financial and accounting statements, payment dynamics, the study of increasing liabilities of the enterprise.

The main objective of the analysis of information for the plaintiff is to confirm the intentionality and intent in bringing the company to bankruptcy. This task is difficult and not always provable.

To hold executives accountable, the requirements must be followed.:

1. An appropriately executed statement on bringing the head to subsidiary liability stating all the reasons indicating the guilt of the person, with reference to the current legislation;
2. Provide documents with information about the financial audit of the activity of the non-payer enterprise;
3. To prepare a complete register of debt claims presented by the meeting of creditors;
4. Provide a statement of bank account to confirm the impossibility of the enterprise - the debtor to make financial transactions;
5. A significant document in the annex to the application is a copy of the request to the head of the enterprise from the manager for providing access to accounting documents, which will serve as a weighty fact in the decision on prosecution;
6. Extract from the Unified State Register of Legal Entities of the debtor enterprise.

The fundamental reasons for bringing to subsidiary liability are:

• property losses of creditors arising from transactions with a debtor company;
• accounting documents, profit and loss statements, reports on financial indicators required to be drawn up and handed over to authorized bodies in accordance with the requirements of current legislation are inadequately drawn up or completely absent;
• inaccurate information in accounting documents and reporting, resulting in loss-making activities of the enterprise.

4.8. Bankruptcy Officers

The provisions of the federal insolvency law clause 4 articles 10 it is stipulated that controlling persons are companies or persons that during two years gave instructions for execution in the course of the business of the enterprise.

They may be liable as subsidiaryand jointly at the discretion of creditors, who may require payment of debts both from one person and immediately from all persons in equal proportions.

If there is a shortage of property assets of the non-payer for full compensation of losses by the bankruptcy trustee, any persons recognized as controlling the activity of the non-payer may be held liable in any amount corresponding to the amount of outstanding debt.

In this case, the court may be granted relief or exemption from subsidiary liability of certain persons. This is due to the ratio of the harm caused and the size of the claims against the debtor.

If the controlling person proves its non-involvement in the deterioration of the financial condition of the enterprise, which led to bankruptcy, then court is entitled to exempt from subsidiary liability.

Sometimes the actions of the debtor are controlled by the participants of the liquidation commission, which include:

• persons who have the appropriate authority on the basis of a general power of attorney to complete transactions on behalf of the enterprise, which in the future has become bankrupt;
• persons who have full control over the full package of shares, the size of which leaves 50% + t shares;
• persons owning the main share of the authorized capital;
• Director

The jointly indicated group of persons bearing subsidiary liability is called “joint debtors”, to which each creditor may individually or as part of the general meeting collect debt.

The application for collection can be sent both separately to each obliged person, and to their group as a whole.

4.9. Holding to subsidiary liability

Holding to subsidiary liability of persons who have affected the bankruptcy of an enterprise requires documentary evidence of their guilt. Otherwise, impose liability on them and collect money to repay the resulting debt not seems possible.

Evidence of guilt must be recognized by the court. In addition, the appointment of subsidiary liability does not have a legal basis after the liquidation of the debtor enterprise, if the bankruptcy procedure has not been carried out based on the results of its activities.

Provision Art. 419 of the Civil Code provided for termination of liability from the moment liquidation firms. The article argues that the cause of the failure of the organization, which resulted in the sale of property and the liquidation of the organization, is the fault of a certain person whose incompetent actions led to this outcome.

To impose subsidiary liability, the relationship between the effects of a particular person on the bankruptcy of an organization must be documented. Otherwise, it will be impossible to hold anyone guilty of bankruptcy accountable.

The imposition of subsidiary liability without fail requires a bankruptcy proceeding. Without it, not a single participant in commercial activity can be imposed subsidiary liability.

The top management and owners of the company can avoid imposing subsidiary liability by independently initiating bankruptcy proceedings at the appropriate time. it the only way to keep personal propertyif the financial position of the company is already irreparable, and the assets and property are insufficient for settlement with creditors.

The legislative introduction of the institution of subsidiary liability for bankruptcy of an enterprise bears legal protection of the interests of creditors in the process of declaring the organization - the debtor insolvent.

Its presence ensures compliance with the responsibility of owners and heads of organizations in carrying out commercial activities, and also forms legal etiquette as a whole.

5. Conclusion + video on the topic

Bankruptcy is a complex, multi-stage process that requires special knowledge and training. If financial predicament, and the crisis period has dragged on, it is worth thinking about the beginning of the bankruptcy procedure.

Video: Bankruptcy of legal entities - procedures + nuances

In the video, the lawyer talks about the basics of the legal entity procedure, liquidation with debts, as well as about the nuances of alternative liquidation.

For a favorable outcome of a bankruptcy case with minimal costs and without additional liability, it is better to prepare for this procedure in advance, involving in assistance of experts and professionals in carrying out this procedure.

The team of Rich Pro magazine wishes you success in legal and financial matters. If you still have or have questions about bankruptcy, then ask them in the comments below. We will also be grateful if you rate the material and share your comments.

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