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§ 2.3 External management of the noncommercial organisations at bankruptcy

External management of property of the debtor - rehabilitation procedure which is entered with a view of restoration of solvency for rescue of the debtor - the noncommercial organisation from liquidation.

The specified procedure can be entered at presence at the debtor - the noncommercial organisation of real prospects of restoration of solvency that is found out at a supervision stage. Initiate external management the meeting of creditors [87 [88] can only.

External management is entered for the term of 18 months which can be if necessary extended arbitration court for 6 months.

As a rule, external management is entered after supervision, but it can be entered and after financial improvement, however cumulative term of the given procedures cannot be more than 2 years; besides, external management cannot be entered, if financial improvement was spent more than 18 months.

The Law specially does not speak about the bases of commutation; the mention of it contains only in item 219 item 5 with reference to external management of property of a country (farmer) economy. A little unilateral approach to a problem of the preschedule termination of external management is obvious. It is represented, that the preschedule termination concerning the debtor - the noncommercial organisation is possible as for the reasons of impossibility of achievement of the purposes of external management, and in cases of achievement of these purposes, i.e. solvency restoration

The debtor. In our opinion, these bases are expedient for fixing in the Law regarding general provisions on external management.

Introduction of external management attracts approach for the debtor - the noncommercial organisation of some serious consequences (all these consequences represent the features dictated by that during external management the debtor functions, using the special mode given to it). C the moment of introduction of external management powers of the head, controls of the debtor (behind exceptions, statutory) stop; it is established, that all restrictions under the order property (including arrests) can be imposed on the debtor only within the limits of process about bankruptcy; the moratorium on satisfaction of requirements of creditors is entered. Etc. Prudnikov allocates features of re-structuring of the debtor within the limits of judicial sanitation: So, "discharge of the head of the debtor from a post and putting on of an administrative office of the debtor on the external managing director in essence is statutory re-structuring of such factor of manufacture, as management, and introduction of the moratorium on satisfaction of requirements of creditors to the debtor, restoration of solvency at the expense of realisation of a complex of special measures - elements of financial re-structuring, in which relation legislatively target dates and an order of their realisation". [89]

Preservation of certain powers of controls of the debtor is a short story of the Law of 2002 and is directed on suppression of the abusings rather extended in operation of law on 1998, when

Bankruptcy procedures in some cases were used for so-called repartition of the property [90 [91].

Controls have the kept competence of competitive relations, i.e. not own, and that which they possess owing to the corporate legislation.

Thus, do not stop with introduction of external management of power of the controls, directed on acceptance of following decisions:

- Connected with increase in the charter capital of the debtor;

- About replacement of actives of the debtor;

- About election of the representative of founders (participants);

- About sale of business of the debtor;

- About making agreement with the third party, ready to give money resources for execution of all obligations of the debtor.

The list of questions of the competence of controls of the debtor - the noncommercial organisation is settling. It is thus specially established, that the expenses connected with realisation of the given competence, are not charged to the debtor (other can be established only the plan of external management, i.e. it is solved by creditors).

The basic document operating during realisation of regenerative procedures, the plan of external management is.

Preparation (list) of the actions included in the plan of external management, is a duty of the external managing director [92]. The plan is constituted taking into account the data received at carrying out of the analysis financial

Conditions of the debtor. To develop the plan the external managing director it is obliged not later than one month from the moment of appointment (at default of this duty it is possible to bring an attention to the question on inadequate execution by managing director of the functions). The plan should provide the measures directed on restoration of solvency of the debtor (hence, achievement of this purpose each action of the plan should be proved). Successful realisation specified in respect of measures should lead to absence after its execution of signs of bankruptcy, i.e. to absence of any debts since it is a question of signs at which presence the decision on bankruptcy of the debtor is passed. We will notice, that many scientists [93] pay to problems of working out and the maintenance of the plan of external management attention.

External management - the period when the debtor continues to function - but on special conditions with special order of management. One of the basic features of activity of the debtor during this period is the moratorium on satisfaction of requirements of creditors [94]. Certainly, moratorium granting can be considered as the considerable privilege applied with a view of restoration of solvency of the debtor - the noncommercial organisation. V.F.Popondopulo, in particular, absolutely fairly notices, that rules about the moratorium create necessary conditions for realisation of the purposes of external management [95].

The moratorium represents a delay in execution of certain obligations, i.e. during external management the debtor receives lawful possibility to carry out enterprise activity, not executing obligations [96].

Besides, moratorium introduction means, that from the moment of the beginning of external management any execution, including bezaktseptnoe, including carried out under court orders comes under to stay (exceptions are established in ch. 2 items 2 of item 95 of the Law).

In this connection, it is obviously necessary to establish as construction of statutes that execution under court orders only under monetary requirements stops - other interpretation contradicts an essence of competitive relations and puts in unreasonably unprofitable position of not monetary creditors which cannot participate in meetings, but have the right of the out-of-competition requirement. Value of this right will be equal to zero if to admit stay of execution of decisions under requirements of not monetary creditors [97].

It is necessary to notice, that from a moratorium principle there are (items 95) of an exception defined by the Law:

1) requirements of creditors of the first and second turns - both confirmed with the become effective decree and court orders, and not having such acknowledgement.

2) requirements about compensation of moral harm - confirmed with the decree which has entered validity before acceptance by arbitration court of the statement for bankruptcy of the debtor.

It is obviously necessary to make to the Law the changes directed on that execution was come under by any requirements about compensation of the moral harm, confirmed with a judgement;

3) the compulsory demands confirmed with the decree which have entered validity;

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4) requirements under liabilities and the obligatory payments, arisen after acceptance by court of the statement for a recognition of the debtor the bankrupt which time of performance has come after introduction of external management.

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Last position (norm of item 4 of item 95 of the Law) is capable to cause serious problems in practice. From this norm, we, obviously, can draw a conclusion that the requirements which have arisen before excitation of competitive process which time of performance is necessary for external management do not fall under the moratorium, but the requirements which have arisen within the limits of competition fall. Both named groups of requirements are flowing is follows from definition of item 5 of the Law. From interpretation of item 1 and item 4 of item 95 of the Law follows, that the moratorium does not extend on the first group of current requirements, that as it was marked above, not quite corresponds to an essence of competitive relations (especially it is shown in situations, when under the contract concluded before excitation of competition, the counterpart has the right to demand execution at any moment - such counterpart, as a matter of fact, has an opportunity a choice of the legal regime). Distribution of the moratorium on the second group of current requirements is represented contradicting an essence of competitive relations for following reasons. Current requirements (i.e. requirements under the contracts concluded after excitation of competitive process) should be executed within the limits of the previous procedures (both supervision, and external management assume it); hence, dissatisfaction of such requirement is infringement arbitrazhno -


go (administrative, time) the managing director [98 [99]. Thus, there is a situation when the current creditor, whose rights have been broken before introduction of external management, is put by the Law in the worst position, than in relation to what infringements it has not been admitted, i.e., in other words, negative consequences for the diligent subject arise owing to actions of other subject mismatching the Law. Such situation is represented to an unreasonable and mismatching essence of competitive relations.

In this connection the position according to which the moratorium on current requirements does not extend is worthy.

Exceptions of a moratorium principle mean, that requirements of the specified categories of subjects are satisfied in process of their receipt - i.e. for them the mode identical to a mode of current requirements is established. The reference of creditors in court as the adversary proceeding, i.e. in an out-of-competition order is thus possible. Such claims come under to consideration during external management. The position YOU the Russian Federation consists that the satisfaction of such requirements should be carried out with observance of the sequence established by item 855 GK the Russian Federation [100].

Except for named above, the moratorium extends on all requirements of creditors - introduction of the partial moratorium is not supposed (we will notice, that in practice of application of the Law of 1998 creditors quite often insisted what to their requirements the moratorium is not applied) [101].

Now the civil jurisprudence allocates three concepts of the moratorium [102].

1. prodolzhnikovaja the concept.

According to it during external management together with stay of execution of requirements charge of sanctions, statutory or the contract for obligation default stops. Hence, upon termination of the moratorium creditors can count only on reception of the sum of the basic debt and the sanctions fixed at the moment of introduction of external management. Certainly, such position is extremely unprofitable to creditors (as a result they can not wish to enter regenerative procedures even in the presence of possibility of restoration of solvency of the debtor).

2. The procreditor concept.

According to it in spite of the fact that execution of requirements stops, all percent and sanctions continue to be charged. Hence, upon termination of the moratorium the creditor can demand payment of the basic debt and sanctions for all term of external management. As percent can represent the considerable sum, the presentation of such requirement can affect destiny of the debtor who has restored the solvency during external management rather negatively. Obviously, such situation is extremely unprofitable to the debtor. It is necessary to note, what exactly such concept of the moratorium existed till March, 1st, 1998 as the Law of 1992 directly did not answer a question on destiny of sanctions, and judiciary practice has gone on a way of their charge (item 16 mentioned above the Review from April, 25th, 1995 N С-1/ОП-237 established the following: « Creditors at whom the debt incorporeal right follows from the obligations which have arisen before introduction of the moratorium, have the right to charge in carrying out of external management the interests on credit provided by contracts, and also sanctions under obligations of the debtor. However a presentation to the debtor of the specified requirements probably only after the moratorium termination, i.e. after the termination of external management by property of the debtor. This rule is applied and concerning obligations of the debtor to the budget »).

3. The neutral concept. This concept is accepted as the Law of 1998, and the current Law of 2002 According to it from the moment of introduction of external management execution of requirements stops, and charge of sanctions, statutory or the contract, stops, and stops for ever - we cannot tell, that sanctions fall under the moratorium that is absolutely fairly marked by scientists [103 [104]. Charge for the sum of the basic debt of the percent provided by item 395 GK the Russian Federation Thus begins. Hence, creditors can apply upon termination of the moratorium for satisfaction of the requirement regarding the basic debt and percent on the rate of refinancing of Bank of Russia.

It is necessary to notice, that some scientists from the established rules

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The moratorium do a conclusion about procreditor character of the Law.

The moratorium on satisfaction of requirements of creditors comes to the end with the termination of external management [105].

The main objective of external management - restoration of a financial condition of the debtor - is reached by means of realisation according to the plan of external management basically economic actions which, naturally, are not regulated by the Law.

The managing director carries out a manufacture reshaping, management of it, searches for investors, buys the equipment, realises production, carries out other functions of the head. Realisation of property of the debtor, connected with usual economic activities, is carried out with restrictions about which it was spoken above. But in the course of external management there can be a requirement for realisation of all property of the debtor. Such realisation is specially regulated by the Law.

Be realised in the course of external management separate kinds of property, and a property complex (enterprise) can also, but it should be provided the plan of external management. Accordingly, if after acceptance of the plan the managing director has come to conclusion about necessity of realisation of property of the debtor, it should raise the question about modification and additions in the plan of external management. In practice of application of the Law of 1998 there were situations when realisation of sale of business for the purpose of transfer of a property complex (which cost was the unique purpose of competition has decreased under the influence of bankruptcy procedures) to interested persons. One of mechanisms of capture of business consists in it. Inadmissibility of use of the bankruptcy for others, than reception by creditors of execution of the requirements is obvious.

With a view of suppression described above abusings the Law of 2002 has entered the obligatory requirement: the initiative on sale of business during external management should proceed from founders (participants) of the legal person - the debtor. That is such action can be included in the plan of external management only on the basis of the petition of controls of the debtor - the noncommercial organisation, competent according to corporate norms to make similar decisions (owing to item 2 of item 94 of the Law the specified questions are among questions of the kept competence of controls of the debtor).

Quite corresponds to an essence of competitive relations and a rule according to which the controls of the legal person define a floor price of sale of business.

The enterprise (business, a property complex) - the most important object belonging to the debtor; scientists underline the importance correctness of definition of its structure [106].

V.V. Vitrjansky suggests to add existing regulation of sale of business of the debtor since now happens difficult to differentiate the transaction on sale of the enterprise and the usual transaction on sale of a part of property of the debtor, thus «as one of signs of sale of the enterprise (business) of the debtor it would be possible to suggest to allocate presence of real possibility from all obligations of the debtor the obligations connected exclusively with activity of the corresponding complex of property, used for enterprise activity» [107].

Obviously, realisation of property within the limits of external management should correspond to the purposes of external management, i.e. it is necessary to prove, that solvency of the noncommercial organisation will be as a result restored. It means, that from sale of business the debtor will receive enough means, first, for satisfaction of all requirements of creditors; secondly, for functioning continuation. Last aspect in practice, unfortunately, quite often is not considered (as the Law of the corresponding requirement to the plan of external management does not show); as a result quite often there is a following practical situation: the managing director realises property, satisfies requirements of creditors, and then declares impossibility of achievement of the purposes of external management and necessity of a recognition of the debtor the bankrupt. Or - as a variant - having realised property and completely having satisfied all available requirements of creditors, the managing director declares achievement of the purposes of external management, competition stops, the noncommercial organisation it is necessary to exist, but cannot function. Such situation (when actions for property realisation are spent without a real economic situation owing to what the debtor does not have delayed debts, but is not present both property, and manufactures), scientists name «liquidation without liquidation» when «that remains from the enterprise, can exist for years or demand in three months of introduction of bankruptcy proceedings and already official liquidation» [108]. Thus interests of the creditors who are not competitive - that which time of performance of requirements has not come yet, and those who has not declared the requirements to the managing director are not considered.

It is obviously possible to add in the Law with norms according to which a condition of sale of business of the noncommercial organisation should become position according to which business sale is supposed, only if the economic analysis allows to come to conclusion, that the obtained means will allow the debtor not only to pay off with creditors, but also to continue functioning. If it is impossible to restore solvency of the legal person follows others (rather than

Business sale) ways or to carry out business sale at bankruptcy proceedings stage when times of performance of all obligations of the debtor are considered as the come.

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The Russian civil legislation starts with understanding of the term "enterprise" as subject of legal relations (unitary enterprise), and object (a property complex). According to the classical concept (to which realisation our legislation aspires, limiting a circle of the enterprises-subjects) «the enterprise is not the legal body: the enterprise property belongs or to the physical person - to the proprietor of the capital of the given enterprise, or the legal body - the companies which has created the given enterprise» [109 [110].

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Regulating business sale, the Law (though and to a lesser degree, than the Law of 1998) shows - proceeding from the analysis of its norms, it is possible to draw rather unilateral approach the conclusion that the Law means possibility of existence at the debtor only one business (the similar approach in certain degree is characteristic and for GK the Russian Federation). This feature is marked by scientists: «the Analysis of item 9-11 of item 86 of the Law shows, that sale of the enterprise by authors of the Law was understood as sale of all enterprises of the debtor». Actually at the debtor can be a little biznesov, some of which more or less well function and can be of interest for creditors.

So, one of lacks of norms of the Law, in our opinion, should consider the formulation ch. 1 items 3 of item 110 (which has literally repeated ch. 2 items 1 of item 86 of the Law of 1998): «At enterprise sale all kinds are alienated imu -

shchestva, intended for realisation of enterprise activity »- before us one of examples of that the Law assumes presence at the debtor only one kind of business. From close interpretation of the given norm follows, that the debtor is obliged to sell (and the buyer - to buy) only simultaneously all property even if it is intended for realisation of absolutely different kinds of activity, and for restoration of solvency it is enough to sell only one of biznesov.

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Certainly, we can say and as a whole, that in the course of external management the purpose of rescue of business of the debtor in general is put, and sale of one of property complexes can lead to rescue both this (sold) business, and all the others.

If the property complex is unique property of the debtor, before to pass to its sale, it is expedient to prove, that it is supposed to gain means, sufficient solvency for restoration - this thought has the important practical value.

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Thus, business is the property complex (enterprise) which structure defines item 132 GK the Russian Federation. According to this article the enterprise as object of civil matters - set of the rights and the duties necessary for realisation of enterprise activity. The enterprise structure includes all kinds of property intended for its activity, including the ground areas, buildings, constructions, the equipment, stock, raw materials, production, incorporeal rights, debts, and also the rights to the designations individualising the enterprise, its production, works and services (the company name, trade marks, service marks), and other exclusive rights. Enterprise sale is regulated gl. 30 GK the Russian Federation. According to item 3 of item 559 GK the Russian Federations do not come under to inclusion in structure of the enterprise the rights based on the permission (licence) to carry out certain activity.

The law on bankruptcy can define differently enterprise structure (it probably for named norms GK the Russian Federations are optional).

Differences are spent on following parametres.

First, according to item 1 of item 86 of the Law the enterprise structure does not join debts, i.e. liabilities and obligatory payments of the debtor for date of acceptance by arbitration court of the statement for a recognition of the debtor the bankrupt. Thus, in competitive process the enterprise is on sale, free from old debts - in it appeal to the buyer of such purchase consists. The buyer receives the enterprise charged only with those debts which have arisen during competitive process, i.e. are connected with maintenance of functioning of a property complex (these are current requirements which are not brought in the register and are satisfied in process of their occurrence; such requirements as a part of business can be a little as they come under to satisfaction in process of occurrence, at least, those from them which have arisen during external management - more in detail about it it has been told by consideration of exceptions of a moratorium principle). Current creditors, whose requirements have not been satisfied before business sale, should address to the buyer of business. Thus in the Law it is told nothing about necessity to receive the consent of such creditors to delegation from what it is possible to draw a practical conclusion on application of general rules GK the Russian Federation.

Secondly, there is an inclusion problem in structure of business of the rights based on the licence for realisation of separate kinds of activity. The law of 1998 (unlike current) answered this question unequivocally positively, moreover, according to ch. 3 items 1 of item 86 of the Law of 1998 in a case when the principal view of activity of the debtor is carried out on the basis of the permission (licence), the buyer of the enterprise get the right of priority to reception of this licence. Obviously, this norm matters in cases when the licence cannot be given out any subject who has given in licensing body necessary data.

The law on an inconsistency on destiny of the rights based on the licence, does not mention, of what we do a conclusion that they do not join in business structure (owing to item 3 of item 559 GK the Russian Federation), i.e. stop (as the rights personal).

In our opinion, it is inherently right, based on the licence, are not the rights personal since in overwhelming majority of situations the licence can be given out any subject corresponding to certain requirements. Meanwhile considered rights (as in itself, and as a part of business) can represent considerable value and seriously raise business cost.

C the practical point of view it is represented expedient not to exclude the rights based on the licence, from business structure, and to realise such business on sealed bids in which the persons having similar licences participate.

At definition of structure of the enterprise there is one more practical problem connected with destiny of property rights from contracts, containing a condition about inexpressible ™ to their third parties. C one party, ch. 1 item 3 of the item UNDER the Law says that the business structure does not join the rights and duties which «cannot be transferred other persons». C other party if to carry to them the rights, in the true sense personal not being, but about neperedavaemosti which it is told in the contract it can open road to considerable abusings.

Appeal of business of the debtor is defined mainly by that its structure includes the rights of rent of certain property. By rent contract consideration it is found out, that it contains the position which is not supposing cession of rights under the contract to the third parties. In case of an exception of structure of the enterprise of the specified property rights it, most likely, will not be sold, that is unprofitable neither to creditors, nor the debtor. Between - du that it is obvious, that the condition about neperedavaemosti the rights can be included practically in any contract practically at any moment. As the exception of the specified rights of structure of a property complex is rather unprofitable to creditors, it is represented, that in competitive process it is expedient to ignore the will of creditors expressed in the contract, and to include in business structure the rights specified above as actually personal they are not. Nevertheless, on the basis of close interpretation of norms of the Law can be given reason and an opposite position.

At business sale the Law «About the state registration of the rights to real estate and transactions with it» from January, 30th, 1998 № 122-FZ according to which registration is come under by the purchase and sale contract is applied; this contract after registration realisation becomes effective. It is necessary to pay attention that as the enterprise (and, hence, and the real estate), can be considered and such property complex which does not contain in the structure of any real estate. That is transactions of purchase and sale of such business too come under to registration that is represented not quite expedient.

Business sale should be carried out from the auctions as which organizers the external managing director or the specialised organisation involved with it acts. The last is possible only on the basis of the decision of meeting or committee of creditors in the absence of signs of interest concerning the debtor or the external managing director. Unfortunately, the Law says nothing about interest concerning one of creditors that attracts occurrence of problems in practice.

As it is a question of sale of property from the auctions, necessity of application to the given relations of norms of item 447-449 GK the Russian Federation about making contract at the auctions is obvious. Attracts attention a certain collision between ch. 1 items 6 of the item UNDER the Law and item 2 of item 447 GK the Russian Federation. Last imperatively provides, that as the organizer of the auctions can act sob

stvennik things or the specialised organisation (it is obvious, that neither that, nor another the managing director is not).

The auctions should be spent in the form of auction, sale on competition can be established only the Law on bankruptcy (for example, from item 2 of item 175 of the Law follows, that business sale gradoobrazujushchego the debtor in some cases is carried out by competition carrying out).

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Conditions and a tendering order, are developed by meeting or committee of creditors. Thus we face the serious practical problem connected with distribution of powers of meeting and committee. Compulsory condition of the plan of external management is distribution of powers under transactions to what working out of conditions of the auctions does not concern. As a result it will be extremely difficult to qualify a situation when the managing director, for example, will ignore the conditions offered by meeting, and will hold the auctions, being guided by other conditions developed by committee. From Law close interpretation it follows, unfortunately, that quite probably.

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It is necessary to consider, that creditors define the initial price of sale on the basis of the conclusion of the independent appraiser involved with the external managing director; thus the initial price cannot be less minimum (expediently that it was more), established by controls of the debtor.

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Besides, creditors by working out of conditions of the auctions are connected by norm ch. 3 items 5 of the item UNDER the Law according to which «tendering conditions should provide reception of money resources from enterprise sale not later than a month before the termination of term of external management». Attracts attention a lack of legal technics of a design of the given norm: compulsion of inclusion of certain parametre in conditions of the auctions, instead of compulsion of observance of this parametre in general is established. In this connection there are problems legal kvalifi -

katsii situations when other parametre is included in conditions of the auctions (in this case other term of reception of means from sale) or about it it is not mentioned at all.

The auctions should be opened if other is not statutory. In particular, in force ch. 2 items 4 of item 110 of the Law of 2002 on sealed bids are on sale the business including ogranichenno oborotosposobnoe property (as it was marked above, the same is expedient for establishing for biznesov, including the rights based on the licence).

About tendering not later than 30 days before date of their carrying out the managing director (or the organizer of the auctions) is obliged to publish the announcement in the official publication of the state body on affairs about bankruptcy and to financial improvement, and also in the local publication on the location of the debtor (besides, at the subject, organizujushchego the auctions, there is a right to publish the announcement and in other editions). The law (in ch. 3 items 6 of the item ON) define data which in the announcement should contain necessarily; the maintenance of some of positions is concretised by other norms of item 110 of the Law.

If during demand target dates were absent or one demand for tendering the auctions admit not taken place has been submitted only and the repeated auctions (are spent they and in cases when the enterprise to sell was not possible) are held.

The practical problem is connected by that the Law does not answer a question on necessity of the publication of the announcement on the repeated auctions; moreover, from a context of norms of item 7 of the item UNDER the Law the negative answer to this question follows. In our opinion, the announcement should become, since it corresponds to an essence of relations.

Compulsion of publication is provided for the announcement of following auctions. The announcement should be published within 14 days from the date of summarising of the repeated auctions. Thus it is necessary to consider, that

The third auctions are spent, only if it is expedient, though from mandatory provision close interpretation ch. 3 items 7 of item 110 of the Law can be made and an opposite conclusion (accordingly, it is necessary to make the changes giving the formal bases to start with of reasons of expediency to the Law instead of to hold the third auctions in any case).

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Decrease in the initial price for carrying out of the third auctions (not earlier than), however no more than on 10 % from originally established is supposed, and the price cannot be less minimum, defined controls of the debtor. C the practical point of view this norm ch. 4 items 7 of item 110 of the Law require specification to consider a floor price established by last decision of controls, accepted, probably, after carrying out of the previous auctions.

If also the third auctions have not led to enterprise sale the meeting (committee) can establish other order of sale from the auctions, including by means of the public offer, however in any case business cost cannot be less the minimum, established controls (as it was marked, possibility of controls to reduce the price is represented rather disputable).

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Sale by means of the public offer assumes making contract with the person who within a month after the corresponding publication has offered the greatest price.

As we see, sale of business without tendering is impossible now. It is the important short story of the Law; however the Law does not allow to answer a question on their possible maximum quantity in this connection in practice problems in situations when the managing director spends, for example, the eighth auctions in the conditions of obvious inexpediency of their carrying out are possible.

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If the auctions have taken place, in day of their carrying out the organizer of the auctions signs with the winner of the auctions the report of tendering, which not

Is valid the contract (i.e., as a matter of fact, such position mismatches item 5 of item 448 GK the Russian Federation). At business sale in external management - no more than within 10 days from the date of competition carrying out, the enterprise contract of purchase should be signed; he subscribes only external managing director (other organizer of the auctions of such rights has no) and the winner of the auctions.

The deposit brought by the winner of the auctions, refused report or contract signing, is lost by this person and comes under to inclusion in the collation of the debtor minus costs of the organizer of the auctions on their carrying out. As in that case property the organisation managing director of following auctions will not be sold, possible.

After tendering the managing director compares quantity of the received means and the size of obligations of the debtor.

If realised from sale of business of the sum it is not enough for satisfaction of all requirements, the managing director can develop conditions of the agreement of lawsuit and suggest creditors it to conclude. It is quite logical, as to creditors can be favourable, not leading up the debtor to bankruptcy and liquidation to receive certain satisfaction of requirements of stages of external management. However the norm ch is absolutely illogical. 2 items 10 of item 86 of the Law of 1998, imperatively establishing, that at nedostizhenii arbitration court under the statement of the external managing director make of the agreement of lawsuit the decision on a recognition of the debtor the bankrupt and on bankruptcy proceedings opening. From close interpretation of this norm follows, that, first, operating to offer creditors the agreement of lawsuit it is obliged; secondly, at it nezakljuchenii a unique variant - bankruptcy of the debtor. Meanwhile at the debtor can be in properties both other property complexes, and other property which can be realised. In this case we have faced one more display of that the Law means possibility of presence at the debtor roofing felt -

To one property complex which includes absolutely all property of the debtor. The law of 2002 of similar norm does not contain, though the general orientation remains, that keeps probability of occurrence of the described problems.

Moreover, it is the most expedient to offer to sale a property complex (or one of them) at early stages of external management when it is still charged by smaller quantity of debts, and then to start realisation of other property.

It is obviously necessary to fix in the Law, that business sale can be carried out independently (including simultaneously) from sale of others biznesov or separate kinds of property.

Features of sale of separate kinds of property of the debtor are established Law item 111. According to item 1 of this article after inventory and appraisal of property carrying out the external managing director has the right to start sale of property of the debtor at the open auctions if it is provided by the plan of external management and other is not statutory about bankruptcy.

The general rule of realisation of property - open auction; sealed bids are spent, in particular, in need of realisation ogranichenno oborotosposobnogo property. It can be sold to persons who can have such property in the property or other real right. As it was marked, it is represented expedient to extend the same mode on realisation of the property rights based on the licence.

Without tendering (on the basis of the plan of external management) the property in cost less than 100 thousand roubles can be sold.

The law of 1998 established, that while the initial price of a property complex is defined by meeting or committee of creditors, the external managing director if it is not forbidden to it by the plan of external management can define the initial price of other property

(The plan can establish other order of definition of the price, for example, to oblige operating to involve the independent appraiser).

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The law of 2002 has a little changed a legal regulation of the given questions, having established, that sale of property in cost not less than 100 thousand roubles is carried out according to the plan of external management in an order provided by item 4-9 of item 110 of the Law. Thus the initial price is established by meeting (committee) on the basis of the market cost of property defined by the independent appraiser.

Sending presence to item 4-9 of item 110 of the Law means application of the corresponding norms established for sale of business. Thus there is the practical problem connected by that it is the extremely difficult to answer a question on, whether the will of the legal person on property sale is necessary, and whether establish controls of the debtor a sale floor price. From absence of sending to item item 2 ON the negative answer, and from this follows, that in item item 7 ON is mentioned a floor price, the answer positive follows.

It is represented expedient to consider will of founders (participants) of the legal person at sale of any property in external management.

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Attract attention of feature of legal regulation of sale of property: first, it is established, that such sale should not lead to impossibility of realisation by the debtor of the economic activities; secondly, realisation of property of the debtor received as a result of economic activities, is carried out without any coordination by will of the external managing director (irrespective of the size of property).

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Thus, now the plan of external management can provide sale only property in cost less than 100 thousand roubles, or not growing out of economic activities.

In some cases it is represented expedient to admit sale of property without the auctions.

The concession of incorporeal rights of the debtor represents a special case of realisation of property, however a legal regulation of a concession has essential differences.

The concession of incorporeal rights of the debtor is carried out by the managing director with the consent of meeting (committee) of creditors. The initial price of the rights is defined the same as the initial price of property - meeting (committee) according to the report of the independent appraiser, but without opinion of controls of the debtor.

Under the general rule the concession is carried out by the external managing director on the basis of the contract, which conditions (except for the price) are developed by him. Besides, in item 2 of item 112 of the Law it is established, that the right contract of purchase should provide reception of money resources for the sold right not later than in 15 days from the date of making contract and that right transition will be carried out only after its full payment. The design of the given norm is extremely unsuccessful, as does not establish obligatory parametres for counterparts, and demands their inclusion in the contract. Accordingly, in the absence of the named norms in the contract we will be forced to come to conclusion about its negligibility (such is close interpretation), that is, of course, inexpedient and capable to entail negative consequences.

In practice quite often there are situations when the managing director, carrying out sale of property of the debtor - the noncommercial organisation in parts, operates not in interests of the debtor. So, V.S.Terushkin allocates situations when the managing director breaks property on prizes in such a manner that each of them becomes much less valuable, than all or a little in aggregate therefore «sale of a part of property is carried out so, that the property which has remained after the first sale has no value neither for the debtor, nor for foreign buyers. Then the one who has got the property sold first, gets also all other property, and also incorporeal rights on debt receivable which there is a chance to collect, on perfect to undercharges» [111].

In our opinion, at detection of similar actions of the managing director it is possible to bring an attention to the question on its attraction to responsibility (in particular, in the form of the indemnification), thus should not have value, whether there was a managing director is guilty of realisation of the specified actions, or honesty was mistaken, including their proved (as the status of the individual businessman allows to make it accountable without fault). To bar the named abusings it would be possible, having established, that the order of realisation of property is defined by controls of the debtor.

Following the results of external management the managing director is obliged to constitute the report and to present to its meeting of creditors. The external managing director is obliged to give to creditors possibility to familiarise with the report no more than for 45 and not less than 10 days prior to meeting convocation.

According to item 3 of item 117 of the Law the report of the managing director should contain:

- Balance of the debtor for last accounting date;

- The report on movement of money resources during external management;

- The account of profits and losses of the debtor;

- Data on presence of free money resources of the debtor which can be directed on satisfaction of requirements under obligations and obligatory payments;

- Decoding of the remained debt receivable of the debtor and data about remained non-realised incorporeal rights of the debtor;

- The information on the satisfied register requirements;

- Other data on possibilities of repayment of the remained creditor debts of the debtor.

Obviously, the information on the property of the debtor which was not realised or not offered to realisation can concern these other data, and also data on the carried out actions of external management and the actions which realisation is spent to the considered period. The argument of necessity of carrying out of additional actions under condition of prolongation of external management is besides, possible.

The register of requirements of creditors from which it will be possible to draw a conclusion on the size of the established requirements should be enclosed to the report.

Besides, it is practically necessary to specify in the report the size available, but not declared requirements of creditors as they can be declared at any moment at will of the creditor, that in some cases will essentially affect satisfaction of already established requirements. Also it is necessary to specify the size of requirements of void creditors (under the obligations which time of performance has not come yet) as on term approach such requirements, most likely, will be declared. Also it is necessary to specify the presumable size of means, sufficient for continuation of normal functioning of the enterprise - the debtor.

Having presented to meeting of creditors the report, operating informs creditors the opinion on prospects of the debtor. It will be the message or on necessity to cease external management in connection with restoration of solvency of the debtor and transition to calculations with creditors; or about necessity of prolongation of external management; or about phase-out on business about an inconsistency (bankruptcy) in connection with udovle

Creation of all requirements according to the register; or about impossibility to achieve the object external management in this connection it is necessary to recognise the debtor as the bankrupt and to liquidate. Besides, the managing director can develop conditions of the agreement of lawsuit and suggest creditors it to conclude.

І

The managing director should assemble meeting of creditors for consideration of its report and removal of one of named above decisions in strictly certain terms. The meeting should take place no more than one month prior to an expiration date of external management (we will notice, that the Law of 1998 supposed carrying out of meeting no more than in 10 days after the expiry of the term of external management). If it is a question of the preschedule termination of external management (in communication both with solvency restoration, and with impossibility) the meeting should take place within 3 weeks (earlier this term it was equaled to month) after occurrence of the bases for the preschedule termination. The meeting, having considered the report of the managing director, solves the further destiny of the debtor (one of the ways specified in item 3 of item 118 of the Law).

I

The managing director is obliged to direct the decision made by creditors to arbitration court within 5 days from the moment of carrying out of meeting of creditors together with the appendix of the report, the register for date of carrying out of meeting and complaints of the creditors who were voting against the decision or not accepting participations in voting. To take to court the meeting decision it is not necessary, if the meeting has been assembled at the initiative of the persons, having the right to demand its convocation (i.e. without necessity, statutory) and thus has not accepted any important decisions (items 118 of the Law named in item 3), i.e., as a matter of fact, has given up to initiators.

In techenie'mesjatsa from the moment of reception of documents the arbitration court considers the report and complaints.

*

At absence at arbitration court within a month after the termination of term of external management of the decision of meeting of creditors, it makes the decision on a recognition of the debtor the bankrupt and on bankruptcy proceedings opening under own initiative. The court checks validity of the decision of meeting and approves or does not approve it. If the meeting considers solvency restored and petitions for the termination of external management and transition to calculations with creditors, the court can or approve the report of the managing director, or to establish absence of signs of restoration of solvency (including according to complaints of creditors). In the latter case the court refuses in the statement of the report of the managing director.

І

Definition about refusal in the report statement is the basis for removal by court of the decision on a recognition of the debtor the bankrupt. The same decision is taken out in the presence of the corresponding petition of meeting of creditors or at non-presentation by managing director of the report in court.

In this case the external managing director fulfils the duties before transfer of affairs to the competitive managing director (certainly, it can be appointed by the competitive managing director, but with observance of the general order, i.e. the self-adjustable organisation can and not to name its nominee in the list, or its nominee can be taken away). External management comes to the end with the term termination for which it has been entered or extended. Success of the given procedure can be defined as full satisfaction of requirements of creditors within the limits of the named terms, and readiness of the debtor it to make. In the latter case the debtor declares (it follows from the report of the managing director), that it has enough means for satisfaction of all requirements.

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A source: LUKJANOVA Svetlana Valerevna. the INCONSISTENCY (BANKRUPTCY) of the NONCOMMERCIAL ORGANIZATIONS. The DISSERTATION on competition of a scientific degree of the master of laws. Ryazan 2006. 2006

More on topic § 2.3 External management of the noncommercial organisations at bankruptcy:

  1. § 2.1 Supervision as bankruptcy procedure At an inconsistency of the noncommercial organisations
  2. § 1.2 Concepts and signs of an inconsistency (bankruptcy) of the noncommercial organisations
  3. Functions, principles and methods of strategic management of the noncommercial organisations in the conditions of crisis
  4. § 2.3. The noncommercial organisations as a kind not state The organisations
  5. System model of management of the noncommercial organisation with use of tools of anti-recessionary management
  6. 3.1 Methodical approach to strategic management of the noncommercial organisation with use of tools of preventive anti-recessionary management
  7. Factors of occurrence of crisis in the noncommercial organisations
  8. Paragraph 2.2 the Legal capacity of the noncommercial organisations.
  9. § 1.1 Noncommercial organisations as subjects of an inconsistency
  10. CHAPTER 1. GENERAL PROVISIONS ON THE INCONSISTENCY (BANKRUPTCY) OF THE NONCOMMERCIAL ORGANIZATIONS
  11. CHAPTER 2. THE REHABILITATION PROCEDURES APPLIED AT BANKRUPTCY OF THE NONCOMMERCIAL ORGANIZATIONS
  12. Identification of crises in activity ofthe noncommercial organisations
  13. Definition of a problematics and tendencies of strategic development of the noncommercial organisations in the conditions of uncertainty and risk
  14. TEORETIKO-METHODICAL BASES of MANAGEMENT of the NONCOMMERCIAL ORGANIZATIONS With USE of TOOLKIT of ANTI-RECESSIONARY MANAGEMENT
  15. § 2.2 Financial improvement at an inconsistency of the noncommercial organisations
  16. System of indicators of an estimation of activity of the noncommercial organisations in the conditions of realisation of anti-recessionary strategy of development
  17. the Analysis of a modern condition of the noncommercial organisations to Russia, a role and a place of the crisis phenomena in their activity
  18. external management
  19. external management.
  20. § 3. Features of the legislation on an inconsistency (bankruptcy) of the organisations of the defensive industry