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external management.

Among rehabilitation procedures external management is most often applied procedure, also in it the strongest regenerative potential which should help to the debtor to leave the difficult situation is put in pawn.

However, proceeding from its legislative definition, it is not obviously possible to learn, in what its essence consists.

As it has been described in chapter 1, procedure of administration which was reduced to that the persons chosen by creditors started to manage a merchant or the legal person for restoration of their solvency was an initial prototype of external management. The administration could be entered as bankruptcy procedure, and could be entered within the limits of the arrangement between the debtor and creditors; management conditions in the latter case could differ from legislative procedure.

Modern scientists differently give definitions to such procedure as external management. For example, M.V.Teljukina considers, that «external management is a rehabilitation procedure which is entered with a view of restoration of solvency for rescue as business, and organisation-legal form of the legal person - the debtor from liquidation» [187]. In turn, J.B.Jakovenko in the dissertational research makes following definition of external management:

«The regenerative procedure of bankruptcy entered by arbitration court on the basis of the decision of meeting of creditors or, in statutory cases, under own initiative for the term of no more than eighteen months, with possible prolongation, but no more, than for six months which purpose is restoration of solvency of the debtor and calculations with creditors» 1.

The given definitions give us understanding of external management, but at the same time, they do not open its maintenance completely. The author puts before itself aim to formulate such definition of procedure of external management which will be ideal to approach as to the Russian procedure, and to its foreign analogues. The author defends the point of view, that to the basic intrinsic signs external management and its foreign analogues (which will be studied in the given paragraph) are the same procedure differing only in remedial aspects. In this connection it is necessary to notice at once, that definition which will be formulated by the author, will not include any formal (remedial) aspects of procedure, for example, the basis of its introduction, term of its action etc. The author intentionally has not been take into consideration these features as in each state they are settled in own way, the basic signs of such procedure as external management are inherent in all jurisdictions that is why the made definition can approach as for Russian, and foreign legislation.

For reception of the high-grade definition reflecting essence of external management, it is necessary to describe the basic signs of the given procedure at first.

1) Discharge of a management of the debtor from management of the debtor.

Discharge of the head from a post, and also restriction of powers of participants/shareholders of the legal person also has entitled procedure - external management. According to article 94 of the law about bankruptcy discharge of the former head of the debtor is one of consequences of introduction of external management. The powers connected with an administrative office of the debtor, pass to the external managing director; it is necessary to notice also, that external operating to consider as controls of the debtor would be incorrect because neither by definition, nor under the maintenance of powers it it is not [188].

For management of the debtor the external managing director should accept its property in conducting and spend inventory, during external management it carries out functions on an administrative office of the debtor, including conducting the accounting, financial, statistical account and the reporting, realizovyvaet the actions provided by the plan of external management, and also carries out other powers, statutory about bankruptcy.

Concerning other controls of the debtor in point 2 of article 94 of the law on bankruptcy, decisions which they can accept are listed. These decisions can be divided conditionally on two categories: procedural decisions (about definition of an order of conducting general meeting of shareholders) and administrative decisions on approval or disapproval of measures on restoration of solvency which can mention expressly or by implication participants/shareholders (about replacement of actives of the debtor, about increase in the charter capital of joint-stock company by issue of additional common stocks etc.) . Other decisions, such as approval of large transactions, transactions with interest, the financial transactions involving delivery of loans, etc., are accepted any more by controls, and meeting (committee) of creditors. The statement Is represented correct, that investment of controls of the debtor with the above-stated powers is directed on hindrance of use of process of bankruptcy for unfriendly absorption and on

Protection of the rights of shareholders/uchastnikov1.

Position of the debtor during external management, according to M.V.Teljukinoj, testifies that at the debtor is absent sdelkosposobnost as there is no the individual body, having the right to operate on behalf of the legal person without the power of attorney, and external operating is recognised that cannot, as it «operates from own name with own will, realising the competence established by the legislator» [189 [190].

2) the Moratorium on satisfaction of requirements of creditors.

Necessary condition of restoration of solvency during external management is stay by the debtor of execution of its liabilities, including payment of obligatory payments. Proceeding from the definition given by the law on bankruptcy, stay of execution by the debtor of liabilities and payment of obligatory payments is the moratorium. However, proceeding from an essence of the given legal regime [191] and sense which in it puts the law on bankruptcy, the zone of its application essentially more widely and contains many exceptions.

That it is better to understand, on what requirements the moratorium extends, probably, it will be better to open those requirements on which the moratorium does not extend, the law carries to them:

• requirements of creditors under liabilities and about payment of the obligatory payments which time of performance has come during action of external management (requirements on current payments);

• requirements about debts collecting on wages;

• requirements about payment of compensations to authors of results of intellectual activity;

• requirements about reclamation of property from another's illegal possession;

• requirements about compensation of the harm caused to a life and health, and moral harm.

During moratorium action sanctions for delay in performance, except for charge of annual interest rates for the sums of requirements of competitive creditors and the authorised bodies are not charged. The damages caused by the moratorium, connected with refusal of the external managing director of execution of contracts of the debtor cannot be claimed from the debtor. Thanks to distribution of the moratorium on similar losses, the external managing director has an opportunity to refuse a part of treaty obligations of the debtor without financial position deterioration последнего1. The current of the period of limitation Besides, stops.

In dissertational research Since Martyshinoj it is noticed, that the moratorium should carry out following problems:

• protection of actives of the debtor for development of the constructive decision in which frameworks the priority on register requirements is given to new creditors of the debtor;

• bar of claim by lapse of time of capture of actives of the debtor judicially;

• fair distribution of missing means among creditors [192 [193].

Value of the moratorium consists in creation of necessary conditions for realisation of the purpose of external management - solvency restoration. Thanks to the moratorium, during all time of action of procedure the external managing director has a possibility to spend the appeared money resources on improvement of the financial condition, instead of on satisfaction of requirements of creditors. The external managing director will have a possibility to spend the released money resources on carrying out necessary regenerative мероприятий1.

3) Regenerative actions within the limits of external management. Restoration of solvency of the debtor is accompanied by application of some actions, the part from which can be applied only within the limits of external management. Such actions are listed in article 109 of the law about bankruptcy, and they can be divided on two big groups on saldovomu (balance) principle [194 [195]:

• the actions directed on reduction of expenses and reduction of losses.

• the actions directed on increase of financial resources of the debtor which in turn share on:

• the actions changing ustavnyj the capital of the debtor;

• the actions changing organizational and industrial structure of the debtor;

• other actions directed on reception of money resources from the proprietor of the debtor and the third parties.

Let's consider each of groups more in detail. To the actions listed in article 109 of the law on bankruptcy which are directed on reduction of expenses and reduction of losses, the reshaping of manufacture and closing of unprofitable manufactures concern. As the list of actions is opened, such actions also concern this group, as opening of new manufactures,

Modernisation of the equipment and training for a new profession персонала1.

The manufacture reshaping is a complex of the actions directed on change of specialisation of the debtor (subject or technological). Certainly, similar action deserves that it has been listed among the cores regenerative, but it is necessary to notice, that manufacture reshaping, as well as other actions of this group which involve any change in manufacture, are very expensive and long in realisation.

What do not bear in itself "modernizatsionnyj" effect also concern this group of actions, for example, closing of unprofitable manufactures, reduction of the staff, reduction of number of workers. In spite of the fact that the given actions cannot be perceived by us as positive, they, nevertheless, can be very productive as do not demand the big expenses, and the effect from their application arises in the short terms. In chapter 1 of the present research it was mentioned that rehabilitation procedure not always can keep all workplaces and manufacture in the company. It has more overall aims are either to restore solvency, or to keep business that it is possible to make, including having released from burden of unprofitable manufactures and dismissal of a part of employees. Therefore the specified actions have all rights to be called regenerative as they can increase competitiveness of the debtor and improve its financial position.

The actions directed on increase of financial resources of the debtor, all other actions listed in article 109 of the law on bankruptcy are. Why all of them can be carried to this group? Because their main objective is reception of money resources by the debtor (directly or oposredovanno) for execution of the purpose of external management - restoration of solvency of the debtor. As already it has been told above,

These actions for bolshego can be divided conveniences into smaller subgroups.

Actions which change ustavnyj the capital of the legal person, are increase in the charter capital of the debtor at the expense of payments of participants and the third parties, placing of additional common stocks of the debtor. As a result of their application the debtor will receive additional financing which can help to restore to it solvency. The current legislation provides some discriminating features at application of the given actions during external management in comparison with the usual analogues. Owing to that they are applied within the limits of procedure of external management and are aimed at restoration of solvency of the debtor, the legislator regulates procedure of placing of additional common stocks, establishing other terms (differing from usual terms, statutory) and making additional demands in more details. Also the given actions concern those which application should be adjusted with participants of the legal person as they can change a parity of shares/actions in the charter capital.

Considering specificity of application of procedure of external management,

Special regulation of the actions connected with change of the authorised

The capital of the debtor, it is represented to us correct, however that

Procedure could be applicable to bolshemu to number of cases, a part

Imperative legislative norms it is necessary to change on

The optional. We will consider, for example, a duty to make

Placing of additional common stocks only on the closed

To subscription. Such norm essentially narrows a circle of possible investors.

As participants of the legal person have already agreed on reduction

The shares/actions in the charter capital and to limit possibility

Solvency restoration would be wrong. Probably,

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Entering of such norm into the law is connected by that proprietors wish to receive "adequate", in their opinion, partners and only to them to offer the right to redeem the action. In our opinion, it is not absolutely correct.

Main objective of any Russian rehabilitation procedure, including external management, restoration of solvency of the debtor is. This purpose is necessary for pursuing, when the plan of external management is constituted and this or that action gets out. Realisation of rehabilitation actions with the consent of participants of the debtor expediently only when the debtor has independently handed in the statement for a recognition its bankrupt. It will testify that management and the proprietor of the debtor are really adjusted on its rehabilitation, and they can have a vision how it is better to carry out rehabilitation, the debtor, using those or other actions. As marks N.A.Semerjanova, participants should be interested in restoration of solvency of the debtor [196].

In such situation, certainly, any rehabilitation action should be adjusted with the proprietor of the legal person. The priority in this case should be the following: to keep business of the debtor with management and proprietor involving at the greatest possible preservation of a title of the operating proprietor over the debtor and its property as management and the proprietor objectively know about the company more and their involving in this process really expediently.

Thus, we have come to conclusion, that the rule about necessity of placing of additional common stocks of the debtor only on the closed subscription should be changed. The decision on a placing order in the open or closed subscription should be defined by meeting (committee) of creditors, as in each concrete business about bankruptcy

Specificity of placing can demand this or that way.

The actions changing organizational and industrial structure of the legal person, sale of the enterprise of the debtor and replacement of actives of the debtor are.

According to the law on bankruptcy enterprise sale assumes sale of the property complex intended for realisation of enterprise activity. Enterprise definition as property complex rasprostranenno in the Russian doctrine, however, proceeding from the given definition, will be not clear what enterprise to be on sale: functioning or not? The given question arises, as during process of an inconsistency it gets special importance. The functioning enterprise is more expensive and likvidnee, its sale is equitable to interests of the debtor and its creditors, however, proceeding from the analysis of the norms regulating sale of the enterprise during an inconsistency, we cannot conclude, that at enterprise sale working business will be on sale. For example, in enterprise structure does not join the rights received by the seller on the basis of the licence for employment by corresponding activity even if the sold enterprise is intended only for realisation of the specified kind of activity. Also by the law on bankruptcy in article 110 it is provided, that enterprise sale is understood as alienation of exclusively property and property rights that allows to draw a conclusion that workers do not join in perimetre of the transaction and employment contracts with workers of the enterprise do not keep the action. Also rather important question which has been not settled by the current legislation, the question of preservation of contracts with buyers/suppliers as this question will have basic value for survival rate of the new enterprise is.

Considering the above-stated, we consider, that enterprise sale cannot be perceived as business sale as is on sale

Exclusively property complex, instead of the working enterprise [197].

Moreover, very difficult procedure of sale established by article 110 of the law on bankruptcy, also does sale of the enterprise of the debtor by even more unattractive action for the potential buyer. The given transaction it will be difficult vypolnimoj, and process of its execution is strongly tightened in time. Therefore by the moment of realisation of sale of the enterprise to count that he can be sold at the market price, it is not necessary, therefore potential of sale of the enterprise as rehabilitation action it is brought to nothing.

Absolutely differently action replacement of actives of the debtor is perceived. During its application on the basis of property of the debtor it is created one or several open joint-stock companies, ustavnyj which capital completely belongs to the debtor. With application of this action sale of the working enterprise is possible, therefore we carry it to actions reorganizatsionnoj orientations, instead of regenerative. In communication by the above-stated, in our opinion, will study more correctly the given action together with others similar reorganizatsionnoj orientations in the second paragraph of the present chapter.

Other actions directed on reception of money resources from participants of the legal person and the third parties concern the third group of actions. Them concern: reception of money resources from participants of the legal person and the third parties; debt receivable collecting; sale of a part of property of the debtor; a concession of incorporeal rights of the debtor; execution of obligations of the debtor by its proprietor or the third parties.

Thus, it is possible to make following definition of external management - the rehabilitation procedure of bankruptcy applied in business about bankruptcy to the debtor with a view of restoration of its solvency

(Legislative definition) with use of various regenerative actions and under the guidance of the arbitration managing director here comes to an end.

But it is necessary to notice, that the made definition approaches both for the Russian procedure, and for procedures of bankruptcy similar to external management in foreign jurisdictions as the basic signs characterising them by the nature are universal without dependence from the legislation, and distinctions available between them are not essential as mention only such minor signs as: term of procedure, the basis for introduction (formal criterion), a procedure of management of the debtor, etc.

To be convinced of it, we consider necessary short to describe the given procedures. We will begin with analogue of external management in the Great Britain procedures administration (administration).

The Great Britain by tradition is considered that country where interests of creditors first of all are protected, but it does not mean, that rehabilitation procedures, very much the other way there are very seldom applied. In the early eighties after presentation of the report of the Commission on the review of the law on an inconsistency (more known as the report of the commission of Cork) has been chosen the new approach to the bankruptcy procedures, directed on perfection of procedure of administration.

Since then administration procedure has strongly changed. Many perceive administration as procedure of regenerative character, but it not absolutely so. It can be used both as regenerative, and as реорганизационная1 (more is more detailed about it in the following paragraph). From the Russian external management it is possible to name the basic differences: possibility to begin procedure without the decree; more steadfast attention to creditors (in particular what requirements are provided); aiming at business preservation, instead of the legal person. At the same time such universal signs, as are inherent in it: the moratorium, discharge of a management of the debtor, application of regenerative actions. Administration period of validity constitutes one year (the manager is appointed to such term), but it can be extended under certain circumstances.

The administration in the Great Britain is very similar to pre-revolutionary Russian administration, for example, that it can be entered without the court sanction thanks to what two purposes are reached: 1) maintenance bolshej flexibility and optionality in mutual relations between the debtor and creditors; 2) possibility to begin application of rehabilitation measures in the short term. The administration can be entered without the sanction of court at the initiative of its management and the holder qualified floating залога1. At appointment of the manager without the sanction of court the initiator of this appointment is obliged to notify court on this event. Other persons the administration concerning the debtor can be entered only through court.

In the Great Britain there is no list of actions which can be applied during procedure. Instead the law does bolshy an emphasis on the procedure purpose depending on which accordingly it is possible to apply those or other actions. The purposes can be the following:

Preservations of the working enterprise (business);

Achievements for creditors of result of the best than if the legal body has been liquidated;

Sale of property for distribution of the means obtained from sale among the provided creditors [198 [199].

Within eight weeks after the appointment the manager should prepare the project of rehabilitation which will be for creditors

To describe possible ways of achievement of the purposes of administration. Creditors can approve the project completely or if the manager is agree it, with amendments. For project acceptance the consent of the majority of creditors is necessary. The maintenance of the project of rehabilitation can have or regenerative, or reorganizatsionnyj character. At the first variant the manager in most cases enters into the agreement on gradual payment of debts (thus, that in the Great Britain very much dispozitivno regulation in this area, creditors have a possibility to organise management of the debtor of the way most convenient for them) with creditors. In the second variant the special kind of administration pre-pack administration (in more details about it in the following paragraph) is applied. That is the administration is perceived as procedure in which course the way out will be found of a difficult situation, but realisation of actions for rehabilitation will already pass behind its limits.

It is necessary to notice, that in the Great Britain the basic emphasis in rehabilitation of the debtor becomes on preservation of working business, instead of the legal person. Therefore during bankruptcy of the right of participants of the legal person are restrained essentially up to that at sale of business to the third party the similar transaction can spend without the coordination with shareholders/participants (what for to interfere with what will allow creditors to return the money back?). It is possible thanks to that the British legislator perceives participants of the legal person who are in process of bankruptcy, not as proprietors of the organisation, and as creditors of last turn. In this connection it is necessary to consider, that the British legislation is procreditor not to the detriment of interests of the debtor (as creditors understand value of the working enterprise), and to the detriment of its proprietors who have admitted confluence of similar circumstances.

In the USA analogue of external management is procedure

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The reorganisation, provided by Code chapter 11 about bankruptcy of the USA. As a matter of fact, reorganisation is universal rehabilitation procedure as any variant of settlement of mutual relations between the debtor and creditors can be resolved only in its frameworks. If in Russia all rehabilitation actions, are applied in three rehabilitation procedures in the USA all such actions are applied only within the limits of one rehabilitation procedure. It gives certain advantage to the parties participating in business, after all they can apply any action or all actions together. In this connection it is possible to name it analogue of external management with great reserve as it also can be analogue and the agreement of lawsuit, and financial improvement. Reorganisation procedure can be applied as in regenerative, and reorganizatsionnom a direction (studying reorganizatsionnogo directions of the given procedure is spent in the second paragraph of the present chapter).

Basis of procedure of reorganisation is the plan which is developed by the business parties about bankruptcy independently therefore in each concrete case this or that action which in vision of litigants, most approaches for rehabilitation can be applied. According to Code paragraph 1123 about bankruptcy of the USA in the plan following actions can be included:

1) preservation for the debtor of all property or its part;

2) transfer of all or parts of property of the debtor to one or more legal bodies who can be founded both to, and after the plan statement;

3) merge or joining of the debtor to one or more legal bodies;

4) sale of all or parts of property of the debtor, as charged with pledge, and without that, or distribution of all or

Parts of property of the debtor among the persons interested in its reception;

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5) satisfaction or updating of the requirements provided with pledge;

6) cancellation or updating of the let out bonds and other similar financial tools;

7) a pardon of all or debt parts;

8) prolongation of repayment or change of the interest rate or other conditions of repayment of the placed securities;

9) change of positions of the charter of the debtor;

10) release by the debtor or other person specified in item 2 or item 3, securities, with payment under such securities the cash, the available property, available securities or in exchange for incorporeal rights or other similar requirements.

The legislation on bankruptcy of the USA, under the general rule, is considered prodolzhnikovym, that is possible in bolshej parts thanks to existence of the procedure provided by chapter 11 of the Code about bankruptcy.

Within the limits of the given procedure following persons operate: the debtor believed (the state attorney, the auditor) and creditors.

The debtor is the debtor in possession, i.e. he continues to own all property and it is authorised to it to operate business during action of procedure of bankruptcy until the court will not publish the decree about appointment of the attorney. Nevertheless, the debtor in possession keeps fiduciary debts in relation to creditors and in certain cases to акционерам1.

The attorney should be distinguished from the state attorney who is the state employee of department of justice. The state attorney watches a management of the debtor in carrying out of procedures of bankruptcy; it has been allocated by such powers for the purpose of clearing of court of duties under the administrative control. It also can be appointed by court for the purpose of a business management instead of a management of the debtor.

The auditor affirms also, as well as the attorney under the petition of the state believed or other interested person participating in business. The auditor is engaged in investigation of cases of swindle, waste, incompetence, abusing powers in affairs of the debtor.

The code about bankruptcy of the USA divides creditors of the debtor into three categories:

• the provided creditors;

• poor creditors;

• participants of the legal person-debtor.

The code establishes a duty of the state attorney on convocation of committee of poor creditors, also it can assemble committee of shareholders or additional committee of creditors, that usually occurs concerning large debtors. Though it is formal at committee of creditors not so many powers, he plays a key role during reorganisation procedure. Members of committee of creditors are involved in discussion of the plan of reorganisation, with them extensive consultations are carried out, whether they anyhow influence decisions taken out by court, moreover, members of committee of creditors are obliged to check up business of the debtor is operating [200].

For the statement of procedure of reorganisation it is necessary to submit

The statement which can be filled both the debtor, and the creditors meeting certain requirements. Within 120 days after a filing of application about the statement of procedure of reorganisation the debtor should constitute the plan of reorganisation which should contain actions for rehabilitation very often this term is enlarged by court on

60 дней1. However and this term can be extended, if case is considered

0 bankruptcy of the large legal person and the head of the debtor petitions for it [201 [202].

Further there passes voting by acceptance of the plan by creditors which is made by classes of requirements to the debtor, i.e. the status of the creditor, and character of the requirement to the debtor is important not. Division into classes of requirements is caused by that process of voting by Code chapter 11 about bankruptcy of the USA is necessary for understanding within the limits of the detrimenting concept (impairment).

The essence of the given concept is reduced to that that class of requirements to the debtor to whom the damage is not caused (i.e. creditors will receive so much, how many demand), is considered automatically voted for plan acceptance. Therefore creditors-holders of a certain class of requirements to whom the damage is not caused, are not allocated by the right to vote. And on the contrary, that class of requirements which does not receive anything within the limits of the plan of reorganisation, is considered voted against acceptance of the plan and to vote it also there is no necessity. According to article 1126 () the class is considered voted for plan acceptance if for it the majority of creditors has voted and their requirement exceed 2/3 from total amount of requirements in this class.

After acceptance of the plan of reorganisation its statement court is necessary. The court can approve the plan of reorganisation in two ways. The plan affirms as the first case, as for it all classes to which the damage is caused have voted, and it satisfies to all requisitions listed in article. 1129 codes about bankruptcy. This way is called conciliatory (consensual).

Exists also not conciliatory (non-consensual) a way also named cram-down (letters. To "press through" - a comment of the Author). It can

To be applied in the event that a class of requirements to which the damage is caused, has voted against the plan statement. For the plan statement in such a way it is necessary, that at least one class of requirements to which the damage is caused, has voted for its acceptance. In this case the plan statement through court can be "pressed through", however to the plan increases two more requisitions. The first - the plan should not contain positions on which the restrained classes will appear under «unfair discrimination», the second - the relation to the restrained classes should be fair.

After the plan is executed, the court decrees, on which reorganisation procedure stops. According to it the debtor ceases to be the debtor in possession, and powers of the attorney if it appointed, stop.

Rehabilitation of the debtor during bankruptcy process in Germany is possible with use of the competitive plan. The competitive plan under the German legislation is very similar to the rehabilitation plan under the Code about bankruptcy of the USA, as reorganisation procedure on gl. 11 Codes about bankruptcy of the USA it has been used as a basis for procedure of the competitive plan at reforming of the German legislation about банкротстве1. Therefore at these procedures it is a lot of general. The same as and in the USA, in Germany the competitive plan is a unique possible way for rehabilitation of the debtor, therefore it can be applied as the tool and restoration of solvency of the debtor, and reorganisation for the purpose of business preservation. Moreover, thanks to absence in the German law on an inconsistency of any content requirements of the competitive plan, in it it is possible to include any action which does not contradict the legislation as a whole and which creditors agree. The competitive plan has universal character thanks to the optionality. In the German doctrine following kinds of the competitive plan are allocated in

Dependences on its purpose:

• the Liquidating plan. The purpose of the liquidating plan is the organisation of liquidating actions distinct from provided by the legislation, that is the plan will provide special conditions on management and bankrupt's estate realisation.

• transfernyj the plan. In a case if the competitive plan is trasfernym, its purpose transfer of business of the legal person-debtor to other specially created legal body is considered, and the legal person-debtor ceases the activity. Transition can be, as with acceptance of obligations of the initial legal person, and without it. The detailed mechanism of payment to creditors should be defined in the plan as the legislative regulation of a substantial part of the competitive plan is absent (detailed studying of the given kind of the plan will be spent in paragraph 2.2).

• the Regenerative plan. The plan purpose is restoration of solvency of the debtor. In this case such actions can be included in the competitive plan, as: additional investments in ustavnyj the capital, acceptance of new participants/shareholders, re-structuring, a manufacture reshaping, reduction of the staff of employees, etc. should be noticed, that within the limits of the regenerative plan probably application reorganizatsionnyh actions, but it is limited, as the plan purpose - restoration of solvency of the legal person, it cannot be liquidated. Otherwise this plan should be carried to other category.

• Other kinds of plans, «the zero plan», «the moratorium plan» and т.д.1

On the other hand, it is necessary to notice, that the procedural moments of the coordination, acceptance and the statement of the competitive plan are registered in the law very in detail [203 [204]. The law divides the competitive plan for two parts: actual and the basic. The actual part describes the plan concept, gives the detailed description of the bases for its application and consequences of its action. The actual part is necessary for informing and belief of creditors in necessity of the given plan that subsequently they have voted for it. The substantial part of the plan should reflect all actions of the plan which can and will change the legal rights of creditors and a legal status of the debtor.

It is necessary to notice, that inconsistency process in G ermanii does not share on any procedures. There is only one procedure - analogue of the Russian bankruptcy proceedings. The competitive plan is not bankruptcy legal proceedings as with its acceptance manufacture on business about bankruptcy stops. But, despite it, on the debtor some restrictions on the period of action of the competitive plan (for example, realisation of a management by activity of the debtor by competitive managing director or committee of creditors, necessity to receive approval from committee of creditors on some kinds of transactions, and other features registered in the plan) can be imposed.

After the beginning of procedure of bankruptcy at the initiative of the debtor or the arbitration managing director the question on rehabilitation possibility can be brought up. If bankruptcy procedure is initiated by the debtor the competitive plan can be presented court together with documents on business opening on bankruptcy. The competitive managing director is a conductor of will of creditors, therefore if at creditors more often

There was an intention to rehabilitate to the debtor, they petition for it through the competitive managing director.

If the competitive plan does not deviate on the formal bases specified in the law, the bankruptcy court directs the plan to committee of creditors for response drawing up on it, to council of the enterprise and committee of representatives of the administrative personnel, the debtor if the plan is presented competitive managing directors, and to the managing director if the plan has been presented by the debtor. The competitive plan is accepted by creditors if for its acceptance the majority by quantity of creditors and the sum of their requirements of more half of all requirements has voted. For the statement of the competitive plan court it is necessary to receive also the consent of the debtor to the statement плана1.

Approving the competitive plan, the court takes out the decision about dismissal of action about bankruptcy concerning the debtor. The plan the control over its execution, however the similar control can be provided will be carried out outside of legal proceedings. The duty under the control over execution of the competitive plan lays down on the competitive managing director if the plan does not provide other. The similar control is especially actual in the event that the plan provides restoration of solvency of the debtor. Creditors and court, in turn, supervise the managing director or other person supervising the debtor. If the competitive managing director finds out, that the competitive plan cannot be executed, it informs on it committee of creditors and court [205 [206]. It will be the basis for opening of new business about an inconsistency.

Despite the general similarity of rehabilitation procedures in the USA and Germany, it is necessary to notice, that in these countries absolutely different

Inconsistency systems in Germany - procreditor, and in the USA - prodolzhnikovaja, therefore the plan of reorganisation and the competitive plan pursue the different aims. If the reorganisation plan is directed on protection of the debtor to which it is given the chance «new start», releasing from the prompt payment of debts the competitive plan is directed first of all on satisfaction of requirements of creditors. Rehabilitation in the USA is perceived as the purpose, and in Germany - as means. It can be tracked first of all to that in Germany procedure of the coordination of the plan is more simple, terms of the coordination of the plan are shorter, and also the debtor does not keep possibility of management of property during the beginning of legal proceedings of bankruptcy.

The French legislation on an inconsistency by right is considered the most focused on protection of the debtor. With acceptance of laws of 198485 in France the paradigm of the legislation on bankruptcy has changed, now it is directed, first of all, on enterprise protection, to the second, on preservation of workplaces, and, only, thirdly, on satisfaction of the rights of creditors. Therefore it is possible to consider position of creditors in France as the most restrained as their interests are considered in last turn.

In the middle 2000 to France reform of the legislation on an inconsistency the regulation of the new rehabilitation procedure named de la sauvegarde (letters was which basic result has been spent. - guarding procedure). The debtor can apply for application of this procedure at satisfaction of following conditions:

• the legal body should face serious problems. The "problem" term in the law is not defined, but, possibly, it will be interpreted widely, including economic, legal, financial or labour problems;

• the legal body cannot independently overcome

The arisen problems because of insufficient financing;

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• the legal body yet has not suspended payment of payments, but will inevitably make it as a result of the arisen problems. The law does not define the period for an estimation of inevitability of a suspension of payments, but the probability of approach of bankruptcy should be demonstrable; that is, the court can demand granting of the proofs confirming impossibility of payment under accounts when there will come the time of performance обязательств1.

Guarding procedure is spent under the supervision of a commercial court. In its frameworks the management keeps the powers on management of the debtor, but, together with it, the court appoints the arbitration managing director who carries out the control over its activity. Also it has special powers which cannot be kept at a management, for example, only the arbitration managing director can give up or continue execution under continuing contracts which have started to operate prior to the beginning of guarding procedure. It is necessary to notice, that the French legislation forbids unilateral refusal of treaties in force creditors of the debtor after the beginning of guarding procedure. Thanks to a similar rule economic stability in mutual relations with creditors that is very important at application of rehabilitation procedures is provided.

According to article 662-17 of the French commercial code after the beginning of guarding procedure the moratorium on satisfaction of requirements of the creditors, all payments to creditors starts to operate are forbidden, except for that are necessary for the purposes of procedure [207 [208]. Thanks to the moratorium, the management of the debtor will have an opportunity to understand the reason of the arisen problems and to develop the plan on rehabilitation.

Plan acceptance is the purpose guarding процедуры1. The plan can contain any rehabilitation action, except for sale of all legal person to the new proprietor as as it was fairly marked in the French doctrine, in this case the plan will be not so regenerative [209 [210].

Creditors of large debtors share on two committees: one of them represents the financial institutions, the second - other trading counterparts. Committees should be assembled within 30 days from the moment of the procedure beginning.

Within two months from a date started of procedure the debtor should present to committees of creditors the plan project. Committees should answer the debtor within 30 days from the moment of document reception. For plan acceptance the consent more than 50 % of creditors in each committee is necessary. After that it goes on the statement to court which should check up, that the rights of creditors are not broken with acceptance of this plan. If creditors have not answered during 30-day term or have voted against plan acceptance, the debtor can together with arbitration operating to arrange additional negotiations with each of creditors. Negotiations can pass before the expiration of six months from the procedure beginning; guarding procedure so much lasts. Under certain circumstances this term can be extended.

The legislation on an inconsistency of France and the USA concerns to prodolzhnikovym, and very often French legislation concerns to considerably prodolzhnikovym, and American - to moderate. But if to compare the French guarding procedure and reorganisation procedure on level of infringement of the rights of creditors in the legislation of the USA of the right of creditors can are restrained much more essentially. For example, in the French legislation possibility is not provided

"prodavlivanija" (cram-down) the plan of rehabilitation procedure, i.e. is not present possibility to accept the plan contrary to will of creditors. In the USA it is possible to reduce unilaterally requirements on payments, in France it is impossible to reduce the size of requirements of the creditor if its committee has voted against it. In France it is impossible to carry out reorganisation of the debtor which can mention the rights of participants to management of the legal body without their consent whereas in the USA such actions to spend it is possible without the consent of the proprietor if it helps to be kept to the debtor afloat. It is marked including by the French researchers [211].

Having carried out the general analysis of such procedure as external management, having revealed its basic signs, and also having studied its foreign analogues, we can formulate its definition. As already it has been told above, the made definition does not include any formal (remedial) signs of procedure, such as: the bases of its introduction, term of its action etc. Thus, external management is the procedure of bankruptcy directed on restoration of solvency of the legal person, during it the moratorium on satisfaction of requirements of creditors operates, the part or all powers on management of the debtor pass to the arbitration managing director who should develop the plan on the solvency restoration, including various rehabilitation actions.

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A source: MALIKOV AJVAR FANILEVICH. LEGAL REGULATION of REHABILITATION PROCEDURES of the INCONSISTENCY (BANKRUPTCY). The dissertation on competition of a scientific degree of the master of laws. Moscow 2017. 2017

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