<<
>>

§ 3. Features of the legislation on an inconsistency (bankruptcy) of the organisations of the defensive industry

The important category of the commercial organisations which bankruptcy, according to the legislator, demands special regulation, the organisations which are carrying out the state defensive order and being especially significant for maintenance of federal state needs in the field of maintenance of defensibility and national safety of Russia are.

Here the organisations which structure includes radiatsionno-dangerous both jaderno-dangerous manufactures and objects are carried also. In our opinion, the legislator obosnovanno allocates such category of the organisations - debtors. To easy itself to present, that can occur, if the similar organisations are subjected bankruptcy procedures in the general order and sold by auction.

The law on bankruptcy does not provide acceptance of any Federal act «About features of an inconsistency (bankruptcy) of the organisations of the defensive industry». Nevertheless, such Law has been accepted by the State Duma of Federal assembly of the Russian Federation on November, 17th, 1999 in the edition offered by the comission of conciliation, and directed to the Federation Council which the decision № the 492-Council of Federation from 22.12.99 it has approved. Necessity of an establishment at legislative level of the special rules regulating features of bankruptcy of the organisations of the defensive industry, is dictated by their special role for maintenance of defensibility and national safety of Russia. Application to them of the general principles and bankruptcy conditions on a level with other commercial organisations, including regarding criteria and inconsistency signs, can lead to the extremely negative consequences for defensibility of Russia and its national safety.

The basic features of bankruptcy of the given commercial organisations according to the text of the Law on bankruptcy of the organisations of the defensive industry

Are in many respects similar to features of bankruptcy of subjects of natural monopolies of thermal power station. They concern criteria and signs of bankruptcy, requirements to arbitration managing directors, the bases of excitation of affairs about bankruptcy of debtors and an order of their consideration, carrying out of procedures

Inconsistencies. It is necessary to underline also, that statutory bankruptcies about features of the defensive organisations special rules, in case of acceptance of the given Law and its introduction into force, will have a priority over corresponding norms of the general law about bankruptcy.

The law on features of bankruptcy of the organisations of the defensive

The industry starts with other criteria of an inconsistency, than what are statutory about features of bankruptcy of subjects of thermal power station and the general law about bankruptcy. According to item 2 of this Law the organisation - the debtor is considered incapable to satisfy requirements of creditors under liabilities and (or) to execute a duty on payment of obligatory payments if corresponding obligations and (or) duties are not executed by the organisation - the debtor within six months from the moment of approach of date of their execution and short-term passives of the organisation exceed the book value of its turnaround actives, including the incorporeal rights belonging to the debtor.

Thus, in this case, as well as at bankruptcy of subjects of thermal power station, partial returning in principle practice neoplatnosti or unsatisfactory structure of balance of the debtor takes place.

The given formulation already was considered earlier. Here only we will notice, that in case of the introduction of the given Law into action, will recognise as the bankrupt probably defensive enterprise having debts, commensurable only with the turnaround actives of the enterprise which are not including fixed assets, including an industrial-technological complex. Thus to arbitration court there will be no necessity to carry out examination of structure of balance of the enterprise, for a basis last balance sheet presented to tax organs can be accepted. Creditors on the debts which sum is less the than sum

Actives, should settle the relations with the debtor a different way, for example, within the limits of litigations about default of obligations under civil-law contracts.

Some features the requirements shown to arbitration operating (item 3) differ also. By the arbitration managing director the physical person corresponding to the general requirements of the Law on bankruptcy and, having an operational experience on supervising posts in the defensive organisations, and also received the licence of the arbitration managing director and the corresponding document on the management right, given out by the federal enforcement authority which is carrying out regulation of activity in the corresponding industry can be appointed.

The circle of persons, participating in business about bankruptcy (item 4) is expanded. Such persons in addition to persons ', specified in the item of item 31 and 133 Laws on bankruptcy, admit also the federal enforcement authority which is carrying out regulation of activity in corresponding branch of the defensive industry and the authorised body of the executive authority of the subject of the Russian Federation on the location of the organisation-debtor.

As well as the Law on features of bankruptcy of subjects of the thermal power station, the given Law (item 5) considerably lifts a quantitative threshold of requirements to start procedure of bankruptcy of this category of debtors: the statement for a recognition of the debtor the bankrupt can be accepted arbitration court if requirements to the debtor in aggregate constitute not less than fifty thousand minimum wage rates and the specified requirements are not extinguished within six months.

It is necessary to carry to features of bankruptcy of the given category of the commercial organisations and the arbitration court right to suspend a legal investigation about bankruptcy of the organisation-debtor and to extend for the term up to three months procedure of supervision on the basis of the petition of the federal enforcement authority which is carrying out regulation of activity in the corresponding industry, for estimation of cost of property of mobilisation appointment of the debtor (item 6). If the reason of insolvency of the debtor are the debts of the state against this enterprise for payment of the defensive order. The law provides, that under the petition of corresponding state body term of external management can be extended and till three years, however in this case corresponding authorised by the Government of the Russian Federation federal body. To the executive authority is obliged to give the corresponding guarantee for the sum of the means half-received by the organisation-debtor from the federal budget in connection with untimely payment of the state defensive order (works). Besides, according to item 12 of the Law in the presence of signs of bankruptcy of the organisations - of debtors the Government of the Russian Federation takes measures on repayment of the debts formed as a result of untimely payment of the state defensive order, and regarding outstanding debts of the organisation-debtor spends its re-structuring in conformity the legislation of the Russian Federation.

In this connection it is expedient to underline, that if the reason of insolvency of the debtor - the commercial organisation, or the subject of natural monopoly of thermal power station, the debts of the state against this enterprise for payment are unessentially defensive and it is established during corresponding audit presence of such debts should be one of the bases for dismissal of action about bankruptcy (with the right of creditors of the debtor to address with the requirement about debts repayment directly to the state).

- the defensive enterprise it is necessary to carry to features of a legal status of the arbitration operating debtor also that the arbitration managing director has not the right to refuse execution by the debtor of the contracts connected with maintenance of federal state needs in the field of maintenance of defensibility and safety of the Russian Federation if other is not statutory or the contract.

The law establishes also a number of features of the order property

Mobilisation appointment (item 8) which reflect specificity of the given property. At presence as a part of the bankrupt's estate of the organisation-debtor of such property the competitive managing director should notify the corresponding federal body, authorised to make the decision on transfer of the mobilisation task (order), on a recognition organisation arbitration court - the debtor the bankrupt and on bankruptcy proceedings opening. The given federal body should consider the problem on transfer of the mobilisation task (order) to other organisations. The property of mobilisation appointment can be sold on competition with compulsory condition of the conclusion by the buyer of the given property with the authorised federal enforcement authority of the contract on performance of the corresponding mobilisation task. In case for performance of the mobilisation task (order) presence of the special permission (licence) is necessary, the property of mobilisation appointment can be sold exclusively on sealed bids with participation of the organisations possessing such permissions.

In the given Law, as well as in the general law about bankruptcy, measures on restoration of solvency of the organisation - of the debtor (item 11) poorly enough register. As a matter of fact to. To the given measures sale of property of the debtor with the restrictions established by item 8 of the Law, noted above concerns only. The reshaping or closing of the manufacture connected with functioning of a uniform technological complex of the organisation-debtor, is not supposed. Though other measures on restoration of solvency of the organisation - the debtor if they do not lead to the termination of its activity on maintenance of federal state needs in the field of maintenance of defensibility and safety of the Russian Federation can be applied.

To similarly Law on features of bankruptcy of subjects of thermal power station, (item 13) is planned to enter the Law on bankruptcy of the organisations of the defensive industry into ex post facto and it should be applied by the arbitration

Vessels at disposal of legal proceeding about bankruptcy irrespective of when arbitration court the statement for a recognition of the organisation of the defensive industry was accepted the bankrupt. Moreover, in the Law also there is an express indication about phase-out on the affairs initiated before its coming into force if debtors on such affairs do not possess the signs of bankruptcy established by the specified Law which have been considered above.

t

*

However the bill about bankruptcy of the organisations of the defensive industry while and did not become the normative act (now from representatives of the State Duma and the Federation Council of Federal assembly of the Russian Federation the special commission on draught federal law completion is created). According to the letter from 30.12.99 № Пр-1767 [58]

The president of the Russian Federation has dismissed the offered bill as has seen in it numerous infringements of the current legislation about an inconsistency.

The objections stated in the specified letter basically are reduced to that the bill enters special signs of an inconsistency, additional requirements to the arbitration managing director, and also its introduction in ex post facto is provided.

However, in our opinion, the resulted objections are not thorough. The signs of bankruptcy established by a bill, to some extent have found the reflexion or in special provisions of the Law on bankruptcy, or in the federal acts accepted according to it about features of bankruptcy of the credit organisations and the organisations of a fuel and energy complex. Special requirements to the arbitration managing director in general are similar shown to arbitration managing debtors - subjects of natural monopolies of thermal power station; and the law retroactive effect from which it is offered to be installed already has been applied at introduction in action of the Federal act from June, 24th, 1999 № 122-FZ.

Actually, the President of the Russian Federation in the letter recognises special character and the importance for defensibility and safety of the country of the organisations of the defensive industry. The stated remarks testify more likely to necessity of completion of positions of the draught federal law, instead of about absence of necessity for it.

Summing up, we consider necessary to focus attention on the following:

1. Necessity of an establishment at legislative level of the special rules regulating features of bankruptcy of the organisations of the defensive industry, is dictated by their special role for maintenance of defensibility and national safety of Russia. Application to them of general rules of bankruptcy of the enterprises is inexpedient, moreover, it can to have rather negative consequences.

2. These special rules should be reflected in the special law in which it is necessary to establish criteria and signs of bankruptcy, the requirement to arbitration managing directors, the mechanism of carrying out of procedures of an inconsistency.

3. Criteria of an inconsistency of the given category of debtors should differ from the criteria presented in the general law about bankruptcy and to correspond to signs and the conditions of an inconsistency established for gradoobrazujushchih of the organisations and subjects of natural monopolies of thermal power station.

4. It is necessary to establish a number of features of the order property of mobilisation appointment. In particular, performance of corresponding mobilisation tasks is obligatory.

<< | >>
A source: Krashchenko Dmitry Anatolevich. BANKRUPTCY OF SUBJECTS OF BUSINESS IN THE RUSSIAN FEDERATION: PROBLEMS OF THE LEGAL REGULATIONS. The dissertation on competition of a scientific degree of the master of laws. Volgograd 2001. 2001

More on topic § 3. Features of the legislation on an inconsistency (bankruptcy) of the organisations of the defensive industry:

  1. § 1. Features of the legislation on an inconsistency (bankruptcy) gradoobrazujushchih the organisations
  2. § 2. Features of the legislation on an inconsistency (bankruptcy) of subjects of natural monopolies of a fuel and energy complex
  3. § 1.2 Concepts and signs of an inconsistency (bankruptcy) of the noncommercial organisations
  4. § 2.1 Supervision as bankruptcy procedure At an inconsistency of the noncommercial organisations
  5. CHAPTER 2. FEATURES OF THE INCONSISTENCY (BANKRUPTCY) OF SEPARATE CATEGORIES OF SUBJECTS OF BUSINESS
  6. CHAPTER 3. PERFECTION OF THE LEGISLATION ON THE INCONSISTENCY (BANKRUPTCY) OF SUBJECTS OF BUSINESS
  7. § 2. Problems of definition of the purposes and the basic concepts of the legislation on an inconsistency (bankruptcy)
  8. § 3. The basic problem positions of the legislation on an inconsistency (bankruptcy) of subjects of business
  9. Chapter 2. SATISFACTION of PROPERTY REQUIREMENTS BY THE LEGISLATION ON THE INCONSISTENCY (BANKRUPTCY)
  10. §1. Concept, criteria and signs of an inconsistency (bankruptcy) of physical persons
  11. 2. Concept of an inconsistency (bankruptcy) of subjects of business
  12. Valujsky Alexey Vladimirovich. Problems of satisfaction of requirements of creditors under the legislation on an inconsistency (bankruptcy) of Russia and foreign countries. The dissertation on competition of a scientific degree of the master of laws. Saratov 2002, 2002