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§ 2 Rights and duties of the arbitration managing director.

The purpose of satisfaction of requirements of creditors defines limits of competences of the arbitration managing director.

For fulfilment of transactions with property of the debtor compulsory condition is reception of this property in possession of the managing director.

Transfer connects the subject to property After that the managing director is capable to operate in interests of creditors. In the judicial certificate about appointment of the arbitration managing director is recommended to order enterprise transfer as property to the managing director and to give out the corresponding court order.

Andreev S.E. writes, that at open counteraction of controls of the debtor the temporary managing director can take advantage of the mechanism of enforcement of judicial certificates. [65]

Arbitration operating body of the legal person - the debtor is not, and realises in relation to the debtor the independent rights and duties. The debtor in which relation full arbitration management is entered, the actions for itself does not get the civil rights and duties. It is done by the arbitration managing director.

The arbitration managing director in relation to property of the debtor is the new subject of law. Division of functions of the arbitration managing director has been established earlier by the Supreme Arbitration Court of the Russian Federation. According to item 26 of the Circular from 06.08.99г. №43 «Questions of application of the Federal act« On an inconsistency (bankruptcy) »in judiciary practice» [66] discharge of the head of the debtor from a post means its discharge from performance of functions on management and the order property, i.e. mentions the first, but all block of the rights of the managing director.

Actual transfer of the enterprise to the managing director assumes occurrence at it real right - rights of possession. The arbitration managing director as the independent subject, gets signs of the innocent purchaser of property of the debtor, i.e. it is the legal holder, including that property which is got by the debtor illegally. The rights of the arbitration managing director can be carried to the limited real rights, not denying their obligations nature.

Interestingly, what exactly about assignment of the debtor after the arbitration managing director is a question in item 159 of the Law on bankruptcy.

If the arbitration managing director knows about a wrongful finding of any property at the debtor, it cannot separate it since it would contradict interests of competitive creditors, and it is obliged them to observe.

From this does not follow, that if the property has been transferred earlier to the possession of the debtor on the insignificant bases, this property cannot be obtained on demand from the bankrupt's estate at conscientiousness of the arbitration managing director. However, if the arbitration managing director realised this property to the third parties similar transactions will be lawful. An exception are cases when requirements about property return have been shown the debtor before introduction of arbitration management. In this situation conscientiousness of the managing director cannot take place. [67] in those situations when another's property was at the debtor under its obligations in time possession, at negligibility of these obligations, conscientiousness of the managing director is impossible.

Such property comes under to reclamation from the bankrupt's estate in other, rather than true recovery, an order. [68]

The arbitration managing director is not so much innocent purchaser, how many the diligent seller of the property which was in possession of the debtor. The transaction on the property alienation, made by the managing director, interrupts a chain of void contracts following one after another, void owing to negligibility of the initial transaction. Realisation by creditors of the right as item 11 of item 142 of the Law on bankruptcy according to which the creditors which requirements have not been satisfied in full during bankruptcy proceedings, have the right of the requirement to the persons who have illegally received property of the debtor, cannot be based on the transaction of the managing director who has made diligent alienation of property, were in the property at the debtor on the insignificant bases.

According to Stepanova V.V. in the USA it is supposed, that

The confidential managing director if an obligation subject - the real estate, is the innocent purchaser with all demanded

формальностями.1

Gilbet G, analyzing the legislation of the USA, writes, that in the USA exists two theories, concerning arbitration operating as innocent purchaser.

At first sight, any property which is at the debtor, is protected for the arbitration managing director as for the innocent purchaser. However, in this case, if the property is got illegal by with the illegal purposes in essence the arbitration managing director receives superficially increased bankrupt's estate therefore incorporeal rights of one creditors were satisfied at the expense of infringement of the rights of other persons that mismatches the bankruptcy nature.

On other point of view, conscientiousness extends only concerning circumstances of alienation of property of the debtor in the absence of actual transfer of a thing. In this case, the arbitration managing director

‘ Stepans V.V. Nesostojatelnost (bankruptcy) in Russia, France, England, Germany. - M.: "statute", 1999. With. 60.

Have the right to keep in the bankrupt's estate the property which is a subject of the transaction on alienation as would make this person - the innocent purchaser.

According to history of development of the legislation of the USA the status of the innocent purchaser means, that the arbitration managing director cannot be subjected responsibility in the form of return of the got property, unreasonable kept by the debtor, but received by it at own expense.

As a whole, the status of the innocent purchaser has been directed against «the latent rights» the third parties which have been "unexpectedly found out, for example, as a result of registration of the transaction"backdating".1

Let's add, that the category of the innocent purchaser allows to adjust a category of the arbitration managing director with obshchegrazhdanskimi norms and legal relations with the subjects who are not participants of manufacture on business about bankruptcy, including - from it obshchegrazhdanskim the right to property of the debtor.

In cases when before introduction of procedures of an inconsistency by the debtor the real estate in possession is received, but the property right to it is not registered, the arbitration managing director has the right to include such property in the bankrupt's estate. According to the decision of Plenum of the Supreme Arbitration Court of the Russian Federation, devoted to questions of protection of the property right, 2 in this case it is the legal holder.

When the real estate is aloof by the debtor, but the property right continues to remain formally behind it owing to absence of the state registration of its transition, the managing director has no legal grounds for reclamation of this property or fulfilment with it of any administrative actions. Other would mean occurrence of the new

1Gregg S Gumbert. The Trustee as a Bona Fide Purchaser of Real Property in Bankruptcy: Making Sense of Section 544 (a) (3)//Bankruptcy Development Journal / Fall 1998/Volume 15/Numberl.

The decision of Plenum of the Supreme Arbitration Court of the Russian Federation from 25.02.1998 №8 «About some questions of practice of the resolution of disputes, connected with protection of the property right and other real rights»//the Bulletin of the Supreme Arbitration Court of the Russian Federation, 1998, №10.

The creditor, and procedure cannot generate the participants. As to bankruptcy the debtor could not dispose of such property also the arbitration managing director cannot do it.

Disputes round noted question are generated by the visible contradiction of the purposes of arbitration management with necessity to participate in circulation in justice Establishment together with the new purchaser at registration of transition of the property right.

As the decision of this problem it is recommended a rule that at introduction of procedure of an inconsistency concerning the transaction party, property right registration is made only on the basis of the decree. Introduction of procedures of bankruptcy does not cancel the basis for the subsequent registration of the property right for the new legal owner, but causes of judicial check of the bases of its alienation before introduction of procedures of bankruptcy since arbitration operating the right to finding of fact of presence of obligations does not possess.

If the real estate received by the debtor without registration of the property right, for any reasons in a field of activity of the managing director has not got also it has not been properly issued and sold, and the debtor is liquidated, in this case the moment of transition of the property right will not come never in view of absence of the legal owner. Lawful possession of the debtor with its liquidation stops also the full proprietor again there is a former legal owner, its obligation stops (item 419 GK).

Owing to item 68 of the Law on bankruptcy, the managing director is obliged to notify on introduction concerning the debtor of procedure of supervision of creditors of the debtor, and the head of the debtor notifies on it workers, founders, the proprietor of the debtor.

The personal notice of debtors of the debtor is not provided owing to that they subjects of relations of an inconsistency are not. Meanwhile, bankruptcy mentions all legal capacity of the debtor, generates the new subject under requirements about debt receivable collecting, imposes some restrictions on possible variants of a discharge before the debtor, for example on offset. In this connection, the notice of debtors of the debtor on supervision introduction should be necessary.

Let's result the point of view of White Century S according to which are somewhat limited at commencing a suit about bankruptcy and the rights of debtors (debtors) of the debtor - such as the right to an innovation, a pardon долга.1

To notify on procedures of bankruptcy of debtors of the debtor it is especially necessary, since one of bankruptcy mechanisms is the concession of incorporeal rights realised any more by the debtor, and arbitration managing director and is carried out it can not in general, and in provided FZ «About an inconsistency (bankruptcy)» an order about what it should be known to the debtor of the insolvent person.

C Golubeva V.V. positions the opinion that there is no necessity to notify the creditors who are not monetary, is erroneous. It is necessary for time managing director to concentrate on revealing of all counterparts of the debtor which have or can have to it property притязания.2

The duty of the arbitration managing director under the notice of interested persons on bankruptcy should not be regarded as the invitation to creditors to make the demands as consider some авторы.3 Realization of the civil rights has optional character. As the arbitration managing director actions in interests already "declared" in process of an inconsistency of persons, but not structure formation enter

‘ White B.C., Dubinchin A.A., Skuratovsky ML. Legal bases of an inconsistency (bankruptcy): the Uchebno-practical grant / Under obshch. red. Prof. V.S.Jakusheva.-M.: Publishing house NORM (publishing group NORM-INFRA M), 2001. With. 114.

^arbitrazhnoe management: the theory and supervision practice / N.A.Vasileva, V.V. Golubev, A.N.Yerofeev, etc. under V.V. Golubeva's general edition. - M.: "Statute", 2000. With. 114.

The comment to the federal act about an inconsistency (bankruptcy) / Under. red. Prof. Zalessky V.V.

- M.: the edition of Mr. of Tikhomirov M. JU, 2003. With. 167.

Participants of process and increase thereof quantities of creditors.

Absence of the information on an inconsistency of the person at participants of a civil-law turn can lead to the conclusion them of transactions which they, knowing about bankruptcy, to conclude did not become, therefore the arbitration managing director is obliged to provide the publication in mass-media about introduction of procedure of bankruptcy concerning the debtor. Bankruptcy imposes restrictions on property use. In this connection, participants of the civil circulation should know that some transactions not peculiar to bankruptcy, with property of the debtor are made cannot be.

According to item Z item 28 of the Law on bankruptcy, at carrying out of procedures of bankruptcy come under to obligatory publication of data on supervision introduction, on a recognition of the debtor the bankrupt and about bankruptcy proceedings opening, about phase-out on business. If the quantity of creditors exceeds hundred or their quantity cannot be defined, obligatory publication is come under also by data on introduction of external management, financial improvement and the conclusion of the agreement of lawsuit concerning the debtor.

Creditors, entering manufacture on business about an inconsistency, address for protection of the rights in court, and with creditors the arbitration managing director is engaged in direct calculations. For the arbitration managing director the concrete person becomes the creditor only after there are the circumstances allowing definitely to establish іфедитора and the size of its requirements. It occurs after check by court of validity of requirements of the creditor (are available in view of the creditors which rights are broken). The proof of that the managing director has accepted such creditor in number of those persons in which interests it operates, inclusion of the person in the register of creditors will serve.

The register is the document individualising concrete persons as creditors, participants of financially-legal relations with

On

Arbitration managing director and the certificating size of their requirements to the debtor.

Novoselova L.A. allocates two primary goals of the register. First of all in all procedures of an inconsistency definition of participants of meeting of creditors and quantity of voices belonging to everyone competitive creditor is defined proceeding from the data containing in the register. At a stage of bankruptcy proceedings the satisfaction of requirements of creditors is made on the basis of register data about the size and sequence of repayment требований.1

As it is provided item 6 of item 16 FZ «About an inconsistency (bankruptcy)» requirements of creditors join in the register of requirements of creditors and are excluded from it by arbitration managing director or a registry holder on the basis of the judicial certificates which have entered validity establishing their structure and the size. In the register of requirements of creditors data on each creditor, on the size of its requirements to the debtor, about sequence of satisfaction of requirements of each creditor, and also the basis of occurrence of requirements of creditors are specified.

After satisfaction of requirements of creditors the arbitration managing director excludes them from the register independently.

Golubev V.V. notices, that the register of requirements of creditors - the through document throughout all procedures of bankruptcy. Register data are directly used in financial calculations and conclusions at carrying out of the financial analysis, at scheduling of external management. Data from the register serve one of sources of proofs on business about банкротстве.2

As the register joins creditors on the basis of the court ruling as the proof of a recognition of the person the competitive creditor and the size of its requirements the register has lost exclusive value,

' the Scientifically-practical comment (article by article) to the federal act «About an inconsistency (bankruptcy)» / Under the editorship of the prof. dokt. jurid. V.V. Vitrjanskogo's sciences. 2nd zavod. - M.: "Statute", 2004. With. 145. ^arbitrazhnoe management: the theory and supervision practice / N.A.Vasileva, V.V. Golubev, A.H. Yerofeev, etc. under V.V. Golubeva's general edition. - M.: "Statute", 2000. With. 96.

Which centre of gravity has moved on the court ruling establishing the size of requirements of creditors.

Even in the presence of the decree confirming structure and the size of monetary requirements, their inclusion in the register, nevertheless is carried out on the basis of the court ruling which in this case does not consider a question on structure and the size of requirements, and defines possibility of their presentation in process about inconsistencies and sequence погашения.1

The duty of conducting the register of creditors is assigned to the managing director since it is the participant of relations with each creditor. Conducting the register as a registry holder the professional participant of a securities market is possible.

The managing director has not the right to make legal acts (the innovation, a delay, etc.) with the obligations of the debtor which are not flowing and the requirement on which are not included in the register. Other would mean infringement of interests of those creditors which are included in the register since in this case the managing director would use property of the debtor not only in interests of participants of business on bankruptcy, but also in interest ^ other persons.

The essence of relations of the creditor with the debtor is established by the court ruling which has established its requirements as though the creditor has declared the claim regularly. For the relations of the creditor taken separately with the debtor the court ruling on check of validity of its requirements to identically decree. The court ruling on check of validity of requirements of the creditor can have pre-judicial value for the creditor and the debtor in the subsequent. In the presence of such definition, the creditor upon termination of manufacture has not the right to address any more in court with the similar requirement in the general order not only because its requirements are extinguished, but also communications with impossibility of a petition of similar requirements on the similar bases.

That fact, that bankruptcy institute includes the compulsory

‘ the Scientifically-practical comment (article by article) to the federal act «About an inconsistency (bankruptcy)» / Under the editorship of the prof. dokt. jurid. Sciences B.B. Vitrjansky. 2nd zavod. - M.: "Statute", 2004. With. 151.

The debt collection from the debtor, proves to be true article 46 which supposes acceptance obespechitelnyh measures of the declared requirements of creditors.

The situation which characterises Teljukina M. V concerning the former Law on bankruptcy is excluded: the creditor can make the same demand at different stages competitive процесса.1

Truly considers Petrova S.M., that further dispute of the creditor with the debtor cannot be a proceeding subject. On the value definition about an establishment of the size of requirements of the creditor to similarly decision on collecting monetary средств.2

In turn, Rashchevskogo E.S.'s point of view is erroneous and Mamaj A that the requirement presentation under the liability in bankruptcy procedure pursues not so much aim to receive the prompt execution of such obligation, how many to participate in business about bankruptcy, [69 [70] and as that the creditors, not wished to make the demands in bankruptcy procedures, have the right to show them after the bankruptcy proceedings termination. [71] they are mistaken at least only because after the termination of bankruptcy proceedings the debtor comes under to liquidation if there was no transition to external management, i.e. requirements to show any more to whom.

Relations on bankruptcy can be resolved in essence only after the permission on the substance of relations of the separate creditor with the debtor. The managing director as-or to react to the requirements not declared in court has not the right, for it they do not exist.

At presence in court on consideration of statements of creditors about intervention the legal investigation about bankruptcy in essence is impossible also the basic session should be postponed.

At check of validity of requirements of creditors in a subject

From

Judicial inquiry there are essential distinctions between creditors under which requirements the decree has already taken place, and other creditors since the judgement in any way cannot be ignored, it is primary for requirements of the creditor.

In a case when the decree is at a stage of revision at the moment of the statement the creditor of requirements in business about bankruptcy until decree execution will not be suspended, requirements of the creditor come under to consideration and the account according to the specified decree in business about bankruptcy. After decree stay of execution about collecting of money resources from the debtor in favour of the creditor, consideration of requirements of the creditor comes under to adjournment to results of revision of the decree.

When the creditor before awarding judgement in essence in the adversary proceeding has refused a part of the requirements, in business he has the right to declare requirements bankruptcy that size in what its requirements are satisfied by the decree as at refusal of requirements they cannot be declared again.

According to item 71 item 2; items Z item 100 of the Law on bankruptcy of objection concerning requirements of creditors can be shown in arbitration court arbitration managing director, representatives of founders or the proprietor of the enterprise - the debtor, creditors. At a supervision stage to declare the objections the debtor has the right.

The basic opponents of the creditor during this session are other creditors. This kernel of a competition of persons during bankruptcy. Each creditor who is already included in the register of creditors, has the right to object and prove the objections about requirements of the new interested person.

At the first stage of arbitration management it is necessary to define, that gets to sphere of the rights and duties of the managing director, and, that is especially important - how many it costs. It is necessary to define a subject

Arbitration management. Carrying out of inventory of property of the debtor is the first duty of the managing director.

Tal G. K recommends inventory including for decrease non-productive затрат.1

Owing to item 99, item 129 of the Law on bankruptcy inventory carrying out is a duty of the external and competitive managing director. As item 66, item 67 temporary operating to spend inventory it is not obliged, though the given inventories are necessary first of all for the decision of a question on the further procedures of bankruptcy.

Considering, that some kinds of property of the debtor are in an economic turn, the purposes of revealing of property of the debtor are served by other duty of the arbitration managing director: carrying out of the financial analysis of the enterprise - scoping and directions of movement of financial assets.

Economic definition of the enterprise can be presented as set of inflows and outflows of the money resources, taking place as a result before made инвестиций.2

The tool purpose of the financial analysis - to reveal and prove as real structure of actives, i.e. resource maintenance of the enterprise, and whenever possible not to suppose unjustified omertvlenija money resources in those or others активах.3

The general representation about the financial analysis is necessary, first of all, for an estimation of activity of the arbitration managing director in supervision as during this period the head of the debtor keeps the functions and the debtor co-operates with the arbitration managing director by granting of the information on the activity.

Owing to item 66 FZ «About an inconsistency (bankruptcy)» the arbitration managing director has the right to receive, and controls of the debtor are obliged

' Anti-recessionary management of the enterprises and banks: Ucheb.-prakt. The grant. - M.: business, 2001. With. 32. 2Ковалев V.V., Kovalev Vit. V.Finansy of the enterprises. The manual. - M.: Open Company "ВИТРЭМ", 2002. With. 18.

3Там. With. 29.

To give any information, concerning to activity of the debtor.

The specified norm does not release the time managing director from a substantiation of the reasons and the purposes in connection with which it had been enquired this or that information from the debtor.

For the financial analysis all information on activity of the debtor in a complex as the financial analysis cannot be based on partial episodes of activity of the enterprise is necessary. At inquiry time managing director of any documents on separate operation of the debtor at absence at it other materials about other operations, the inquiry cannot be motivirovan the purposes of carrying out of the financial analysis.

To analyze a financial condition of the debtor the managing director it is obliged during any procedure of bankruptcy for which realisation it is appointed (item 24 of the Law on bankruptcy). The Governmental order of the Russian Federation from 25.06.2003г. № 367 carrying out Rules by arbitration managing director of the financial analysis ».1 are approved« Is provided, that by results of the financial analysis the managing director does a conclusion about possibility (impossibility) of restoration of solvency of the debtor; a conclusion about expediency of introduction of corresponding procedure of bankruptcy.

The managing director is only the executor, therefore the estimation of expediency of those or other procedures cannot be in its competence. It is necessary to exclude the specified rule from the Law on bankruptcy. In conditions when the re-structuring or liquidation question does not depend on will of the arbitration managing director, not in its competence to form this will at others, to do conclusions about the bankruptcy form.

Finishes a starting triad of duties of the managing director connected with function by definition of a subject of management, a duty according to market cost of property of the debtor. Owing to item 70 the analysis of a financial condition of the debtor is spent with a view of cost definition

' the Governmental order of the Russian Federation from 25.06.2003 №367 «About the statement of rules of carrying out by arbitration managing director of the financial analysis»//Meeting of the legislation of the Russian Federation, 30.06.2003, №26, item 2664.

Property belonging to the debtor. Cost of all property of the debtor even if at a partial estimation it becomes clear comes under to an establishment, that the property of the debtor will suffice for repayment of court costs. The estimation carries a binding character, therefore according to item 7 FZ «About estimated activity» the book value of property of the debtor comes under to definition market, instead of.

Tal G. K notices, that the main function of an estimation in arbitration management - parity definition between costs of property and obligations предприятия.1

Attracts attention that, using the size of cost as the juridical fact, the law in all cases, except norms about conditions of sale of property of the debtor, is guided by a book value category. Bankruptcy procedures are real relations of the parties, therefore statistical data to them do not approach, real data are necessary for real results, namely - market cost of property. The book value cannot be used at disposal of legal proceeding about bankruptcy at all since the property of the debtor not potentially, and is started really up in a turn by introduction of arbitration management.

As arbitration management is interfaced to public remedial legal relations and connected with interests of many persons, appraisal of property of the debtor should be carried out with obligatory attraction of the independent appraiser. Owing to item 12 FZ «About estimated activity» the report of the independent and professional appraiser possesses quality of the proof.

The arbitration managing director is obliged to sell property of the debtor that excludes possibility to use the price of sale of property of the debtor for comparison at definition of a market price of property of other person.

In bankruptcy the property of the debtor is on sale much more cheaply its actual value. According to Gavrilovoj V. E.

‘ Anti-recessionary management of the enterprises and banks: Ucheb.-prakt. The grant. - M.: business, 2001. With. 272.

Indirect costs, i.e. falling of cost of the company in bankruptcy, constitute 30-70 its % real цены.1

Stepans V.V. write, that any communique about insolvency of the company will inevitably cause fall of stock quotations of the debtor on share рынке.2

Discrepancy meanwhile, that the arbitration managing director is obliged to expose property of the debtor on sale for its market price, that in the conditions of bankruptcy its price more low, are eliminated by sale order - the auctions on which the final price is defined. In these conditions the market price is initial, and its reduction by bankruptcy costs is reached by sale of property with lowering step. But definition of market cost of property of the debtor does not cease to be from it necessary as it is a reference point for definition of the price of the enterprise of the bankrupt already the procedure, i.e. its mechanisms.

Article ON FZ «About an inconsistency (bankruptcy)» establishes set of formal conditions at which presence the sale price can be below the initial price. The auctions with «lowering step» are not supposed, and an establishment of lower price probably at sale by the public offer.

Such order shows, that the Law on bankruptcy at regulation of an order of alienation of property of the debtor leans against similar norms of the legislation on privatisation that is noticed in Law comments about банкротстве.3

Illjuvieva E.V. as considers, that to signs of sale of property bankruptcy "has gemmated" in due time from приватизации.4 In the civil

' Gavrilova V. E. Bankruptcy in Russia: Questions of history, the theory and practice: Studies, posobie. - M.: TEIS, 2003. With. 29.

2Степанов V.V. Nesostojatelnost (bankruptcy) in Russia, France, England, Germany. - M.: "statute", 1999. With. 22.

The comment to the federal act about an inconsistency (bankruptcy) / Under. red. Prof. Zalessky V.V.-M.: the Edition of Mr. of Tikhomirov M. JU, 2003. With. 308.

4Стенограмма scientifically-practical conference on a theme: Legislative maintenance of anti-recessionary management and financial improvement of the enterprises of the Russian Federation. A building State

The right the uniform approach to an order of obligatory sale of property is formed.

On possibility to hold the auctions on sale of property of the debtor as in the negative moment specifies Gavrilova E.V. [72] In its opinion twice, the proprietor of property thus is not protected, it does not have repayment right of priority. Meanwhile, interests of the proprietor are protected not by bankruptcy proceedings procedure, and all manufacture on business about bankruptcy which provides possibility of financial improvement in interests of the proprietor. Besides, the repayment right of priority excludes the auctions, namely the auctions allow to receive as much as possible more money resources for property of the debtor.

Not being the proprietor, the managing director is obliged to provide safety of the received property. This duty in any way does not exclude administrative actions of the managing director.

With a view of preservation of property of the debtor the managing director should carry out both legal, and actual measures, Teljukina M. V [73] writes

The set-off in an inconsistency is supposed only under condition of observance of sequence and proportionality of satisfaction of requirements of creditors (item 142 item 8, item 63 of the Law on bankruptcy).

Stepanova V.V. offered by it earlier position has found in the law, that it is necessary to develop the differentiated rules with reference to concrete circumstances of carrying out of offset at an inconsistency reflexion. [74]

According to Seminoj A.I. at a stage of supervision offset should be

It is forbidden. [75]

Kolinichenko E.A. notices, that in the countries where offset carrying out is obligatory, the logic according to whom it is unfair to force the creditor who is in arrears before the debtor, to repayment of these debts in full whereas he as a result of bankruptcy proceedings will receive only a part of the sum which to it was run into debt by the debtor operates. [76]

Independently arbitration operating to declare offset of counterclaims of the basic turn have not the right, since thus property receipt in the bankrupt's estate beforehand will decrease.

All property of the debtor as it is noted in GK (item 56) is involved in sphere of arbitration management. The property limited in a turn and withdrawn from a turn Here joins, i.e. on what within the limits of final process the creditor to apply has not the right. In this case the arbitration managing director has the right to use this property or to receive its cost.

According to item 139 - 141 FZ «About an inconsistency (bankruptcy)» the competitive managing director has the right to make only three kinds of transactions: purchase and sale, a concession, replacement of actives.

Transactions during bankruptcy proceedings should have the consequence receipt of sums of money. The transactions assuming further necessity of fulfilment of new transactions, mismatch liquidation of the debtor. Such transactions as exchange, rent, reception in payment the bill are, etc. inadmissible in bankruptcy proceedings. Replacement of actives also mismatches the relations arising during bankruptcy proceedings, the specified rule should be excluded from the Law on bankruptcy.

As as a result of end of bankruptcy proceedings the debtor will be liquidated, repayment of requirements of creditors by an innovation in bankruptcy proceedings is not supposed, writes Nikitin of Island А.1

Owing to item 126 of the Law on bankruptcy from the date of acceptance by arbitration court of the decision on a recognition of the debtor the bankrupt and about opening of bankruptcy proceedings the time of performance arisen before opening of bankruptcy proceedings of liabilities and payment of obligatory payments of the debtor is considered come.

From this does not follow, that enterprise obligations cannot exist during bankruptcy proceedings. Bankruptcy proceedings consist not only in sale of property and satisfaction of requirements of creditors. According to item 139 FZ «About an inconsistency (bankruptcy)» sale of property of the debtor is carried out only after its inventory, an estimation and the statement meeting of creditors or court of an order, term and sale conditions. Till this time, in view of possible sale of the enterprise as property complex, the competitive managing director is obliged to provide functioning of the enterprise of the debtor in a mode of enterprise activity as as fairly marks White Century S, the termination of functioning of the enterprise even for the short period of time is capable to affect negatively size of a gain from its sale and to reduce volume of satisfied requirements кредиторов.2

Otherwise, than for repayment of requirements of creditors, the competitive managing director has not the right to dispose of already available money resources of the debtor.

During regenerative procedure the purpose is expressed not so much in increase of liquidity of actives, how many in increase in profit of the debtor. During external management multiturnaround and risky transactions with property of the debtor, not providing direct receipt of money resources are supposed. In this sense, transactions on replacement of actives of the debtor, made with the consent of creditors, are allocated with nothing from a legal side from other transactions, they have character usual restrukturizatsionnyh actions.

As was considered in the pre-revolutionary legal literature, the property of the debtor arrives in management, instead of in the administration order, therefore satisfaction of creditors is made not from the property which was at the debtor, and at the expense of the incomes received from it, and profit on trade turnovers администрации.1

At definition of conformity of the transaction of the arbitration managing director to its competences, it is necessary to consider their urgent character. Term of procedure of an inconsistency is certain by the law. Transactions of the managing director carry a special-purpose character - satisfaction of interests of the persons specified in the register of creditors. The purpose of arbitration management: not to evade from repayment of requirements of creditors, and on the contrary - them to execute. C phase-out on business or the termination of procedures of an inconsistency arbitration operating as the subject vanishes. The transaction will be lawful if its result is reflected in a property status of creditors and will take place during inconsistency procedure.

Receptions of judicial protection should possess such quality at which their use would exclude dissolution of essence of the protected right. An element of such quality is term. All procedures of an inconsistency and the right and a duty of the arbitration managing director have urgent character.

Owing to item 51 of the Law on bankruptcy business about bankruptcy should be considered within seven months from the date of receipt of the statement for a recognition of the debtor the bankrupt in court. On the basis of item 2 of item 75 of the Law on bankruptcy adjournment of a legal investigation as item 158 of agrarian and industrial complex of the Russian Federation outside of seven-mouth term is impossible. Seven months is maximum term for supervision procedure. Financial improvement is entered for term no more than two years (item 80); external management - no more than for eighteen months, is possible prolongation for six months (item 93). Bankruptcy proceedings term is defined precisely - one year, cannot be less, prolongation for six months (item 124 of the Law on bankruptcy) is possible. According to item 74 terms of procedures can be less, than it is provided in the law.

Duration of term of manufacture on business about bankruptcy is based on economically necessary term of a turn of property. According to the economic indicators, as much as possible necessary term for enterprise sale completely constitutes 18 months is a deadline of bankruptcy proceedings. For re-structuring (some turnover cycles of property) it is necessary for more time.

The increase in floating assets is favourable to achievement and maintenance of a steady financial position to the enterprise, underline composers of the textbook on anti-recessionary управлению.1

If the managing director has not met the deadline, means, he wrongfully stayed idle. According to Shershenevicha G. F in the pre-revolutionary bankruptcy the creditor could complain of a manufacture slowness дела.2

The managing director has not the right to make the transaction which consequences or their part will come after the bankruptcy termination, for example, a settling debt delay for 10 years when already debtor will execute obligations of the managing director. The managing director has the right to make similar transactions only under the decision of controls of the debtor.

For this reason the increase in the charter capital for repayment of debts can be realised managing director only under the decision of general meeting of participants of a society. According to item 64 item 5, item 114, item 115, item 156

Anti-recessionary management of the enterprises and banks: Ucheb.-prakt. The grant. - M.: business, 2001. With. 169. 2Шершеневич G.F.Konkursnyj process. - M.: "statute", 2000. With. 344.

The debtor or as the agreement of lawsuit during bankruptcy proceedings has the right to increase the by stages of supervision, external management ustavnyj the capital at the expense of additional contributions. As the charter capital increase is carried out for creditors, their consent to it is necessary: in essence it is the transaction of founders with creditors. According to the law on bankruptcy the exception constitutes only the decision on increase in the charter capital during supervision.

Ustavnyj the capital of the legal person is a guarantee of satisfaction of requirements of creditors. In inconsistency procedure all property of the debtor is used in interests of creditors. Under the decision of these creditors any operations with the charter capital of the debtor become possible.

Not to mislead other persons - possible counterparts of the debtor - it is necessary in the public reporting of a society including in publications about bankruptcy, to publish data on a way and conditions of increase in the charter capital. Participation of founders of the debtor in decision-making about aktsionirovanii confutes an argument that aktsionirovanie and replacement of actives represents repartition of the property besides will of the proprietor.

Under the general rule donation between the commercial organisations is forbidden (item 575 GK the Russian Federation), however on the basis of item 156 of the Law on bankruptcy, in the maintenance of the agreement of lawsuit can join a condition about acceptilation with the consent of the separate creditor or the authorised body if it does not break the right of other persons included in the register of creditors.

Semina A.I. believes, that in this case acceptilation within the limits of the agreement of lawsuit is a donation version on which does not extend will lock item 575 ГК.1

Teljukina M. V specifies, that time the law directly does not carry acceptilation - the unilateral contract - to donation, also a donation interdiction in

' Semin A.N.bankruptc: questions of the legal capacity of the debtor - the legal person: scientifically - practical edition / A.N.Semina - M.: publishing house "Examination", 2003. With. 108.

Bankruptcy relations at acceptilation not применяется.1

Thus there is not clear, in what a difference of acceptilation from clearing of obligations to self about what it is directly spoken in item 572 GK as about donation.

According to Egorova A.V. as the agreement of lawsuit the contract is not, on it the donation interdiction as solvency restoration is does not extend and there is a counter granting. Aim to present in this case отсутствует.2

C Solovevoj S.V.'s positions in bankruptcy should not be equated acceptilation certainly to the gift contract since is more often at acceptilation it is a question of the penalty, and clearing of contractual responsibility cannot be considered as the donation transaction. The author adheres to the contractual theory world соглашения.3

Rozhkova M. A considers, that the agreement of lawsuit on business about bankruptcy in case of participation in it of the authorised bodies is any more grazhdansko - the legal transaction, and the difficult legal education including the transaction and the agreement with participation public органов.4

Article 27 FZ «About an inconsistency (bankruptcy)» carries the agreement of lawsuit to bankruptcy procedures. Possibly, it is made because the statement of the agreement of lawsuit ceases manufacture on business about bankruptcy and in it conditions of such termination are fixed. Nevertheless, in the legal literature doubts that the agreement of lawsuit is procedure because in a case with the agreement of lawsuit it it is not found out any sign of procedure as the phenomenon having defined продолжительность.5 express

1TejIiOKHHa M.V.Kommentary to the Federal act «About an inconsistency (bankruptcy)». M.: JUrajt - Izdat., 2003. с.112.

2Cm. The Scientifically-practical comment (article by article) to the federal act «About an inconsistency (bankruptcy)» / Under the editorship of the prof. dokt. jurid. V.V. Vitrjanskogo's sciences. 2nd zavod. - M.: "Statute", 2004. With. 649. ' the Comment to the federal act about an inconsistency (bankruptcy) / Under. red. Prof. Zalessky V.V.

- M.: the edition of Mr. of Tikhomirov M. JU, 2003. With. 426-427,443.

Lozhkova M. A. The Agreement of lawsuit in arbitration court: theory and practice problems, - M.: "Statute", 2004. With. 229-230.

The 5Nauchno-practical comment (article by article) to the federal act «About an inconsistency (bankruptcy)» / Under the editorship of the prof. dokt. jurid. V.V. Vitrjanskogo's sciences: 2nd zavod. - M.: "Statute", 2004. With. 619.

In procedure of an inconsistency the pardon of a part of a debt increases volume of repayment remained требования.1

Considering, that requirements unsatisfied during bankruptcy will be extinguished, the actions of the creditor promoting their actual execution, create the blessings for the creditor that excludes gratuitousness. The pardon of all debt has the consequence no such counter granting for the creditor, therefore it possesses signs of donation in favour of other creditors.

In case of a pardon of all debt formally there is an exit of the creditor from structure of participants of manufacture on business. It is similar to refusal of the claim in the adversary proceeding, i.e. interferes with a repeated reference to the court behind compulsory realisation of the right. If the creditor wishes to achieve effect of a pardon of all debt, instead of its part, it can take advantage of the remedial tool of an exit from among participants of manufacture on business about an inconsistency.

If the transaction is made by the debtor before introduction of arbitration management, and term of its execution also has come before execution of such obligation stops for external management (the moratorium or as theorists name - competitive immunity).2 According to item 95 of the Law on bankruptcy under the moratorium fall also obligations which time of performance has come in supervision or financial improvement if it has been entered before external management. The moratorium does not extend on relations which the law has actually deduced from under bankruptcy: current requirements, requirements of creditors of the first and second turns.

According to item 71, the requirements declared in supervision after monthly term from the moment of introduction of specified procedure, are considered during the following procedure. Such requirements during the period

1Cm. Ahcoh William. The conventional law. Under obshch. red. And with the foreword d.ju.n. Prof. O.N.Sadikova - M.: «the legal literature», 1984. 464с.

2Колиниченко E.A.protection of interests of the insolvent debtor at bankruptcy. Rather - the legal analysis, - M.: "Statute", 2001. With. 53.

Supervision cannot be executed, as at the moratorium.

The moratorium is intended for the arbitration managing director, instead of for the debtor as believes Teljukina M. of Century 1 If on the managing director the duty on satisfaction of requirements of creditors it could not carry out «improvement of structure of balance» from the very beginning laid. The moratorium releases the managing director from necessity to use money resources on repayment of requirements of creditors and allows it to start up them in a turn.

As marks Kolinichenko E.A. if creditors can use the rights without damage to activity of the manager, on their actions will not extend мораторий.2

In the legal literature there is a fair remark that, the moratorium excludes primary satisfaction of requirements of one creditors before others from the creditors possessing according to the law the right to indisputable write-off monetary средств.3

Organic communication of the moratorium with external management is confirmed Rashchevskogo E.S.'s with data that the delay of payments has appeared thanks to a presumption developed by judiciary practice, instead of законом.4

According to item 121, item 2 of item 122 of the Law on bankruptcy calculations with creditors are made by the external managing director since day of removal by definition arbitration court about transition to calculations with creditors, i.e. in the moratorium operating to repay requirements of creditors voluntary have not the right.

Pustovalova E.J. writes, that the moratorium operates for external management before removal by definition arbitration court about transition to calculations with creditors or to a recognition of the debtor

' Teljukina: the Theory and practice of an inconsistency (bankruptcy) - M.: Business, 2002. With. 275.

2Колиниченко E.A.protection of interests of the insolvent debtor at bankruptcy. Rather - legal analiz. - M.: "Statute", 2001. With. 53-54.

The 3Nauchno-practical comment (article by article) to the federal act «About an inconsistency (bankruptcy)» / Under the editorship of the prof. dokt. jurid. Sciences B.B. Vitrjansky. 2nd zavod. - M.: "Statute", 2004. With. 420. 4Ращевский E.S.requirement of creditors in administration procedure on affairs trading on Russian civil law.//the Bulletin of the Supreme Arbitration Court of the Russian Federation, 2003, №3.

банкротом.1

Owing to item 95 FZ «About an inconsistency (bankruptcy)» for the sum of requirements of the competitive creditor, the authorised body in the moratorium percent at a rate of the rate of refinancing established by Bank of Russia on a Date of Introduction of external management are charged.

External management assumes, that creditors instead of "expectation" will receive full repayment of obligations. Creditors - voluntary participants of manufacture on business about an inconsistency that testifies to absence of infringement of their interests owing to the moratorium. During arbitration management the debtor is deprived possibility to repay the requirement of creditors, therefore it cannot be punished for the moratorium. At the moratorium application of sanctions to the debtor is inadmissible.

It is remarkable, that already in the pre-revolutionary legal literature to a parity of a delay of payments with interests of creditors the element of the voluntary agreement between the defaulter and creditors about a delay for uncertain time of payment of debts, but with granting from the debtor was given to creditors of the right of participation in its management делами.2

Pobedonostsev K.P. noticed, that periodic payments should be estimated to a reference to the court. Otherwise the guilty party would answer and for a slowness in legal proceedings and for actions of the applicant to delay of this. Besides, from the date of a reference to the court relations of counterparts which become in the mutual relation tjazhushchihsja change also, answering each other for consequences процесса.3

Transactions, the time of performance on which comes in arbitration management, are not a subject of infringement from the debtor. Creditors on such sledkam do not participate in manufacture on business about

' Pustogolova E.JU.destin of requirements of creditors at bankruptcy of the debtor. - M.: "statute", 2003. With. 23 24.

2Ращевский E.S.requirement of creditors in administration procedure on affairs trading on Russian civil law.//the Bulletin of the Supreme Arbitration Court of the Russian Federation, 2003, №3 ^pobedonostsev K.P.course of civil law. A part the third: Dogovory and obligations. - M.: "statute", 2003. With. 277.

Inconsistencies. Obligations of such creditors are called as the flowing.

There is an opinion, that creditors under current requirements should vote at meetings кредиторов.1

According to item 2 of item 5 of the Law on bankruptcy of the requirement of creditors on current payments do not come under to inclusion in the register of requirements of creditors. Creditors on current payments do not admit the persons participating in business about bankruptcy. As respondents under recovery suits of current payments the debtor and the arbitration managing director act.

The moratorium on current requirements cannot extend, they come under to execution by arbitration managing director in process of approach of term of their execution.

Pustovalova E.J. divides current requirements of requirements concerning business about bankruptcy and requirements concerning corresponding procedures of bankruptcy.

The requirements arising after acceptance by arbitration court of the statement for a recognition of the debtor by the bankrupt which time of performance has come before introduction of external management concern the first group. According to item 4 of item 95 of the Law on bankruptcy on such requirements the moratorium extends.

Requirements concern the second group, on which moratorium not распространяется.2

Creditors on current payments have the right to collect debts in adversary proceeding till the moment of decision-making on a recognition of the debtor the bankrupt and about bankruptcy proceedings opening and after that to make the demands within the limits of business about bankruptcy out of очередности.3

Serditova E.N. believes, that consideration of requirements of current creditors by arbitration court in inconsistency business is the optimal. For it the question on possibility flowing is disputable

' Teljukina: the Theory and practice of an inconsistency (bankruptcy) • M.: Business, 2002. With. 184.

2Пустовалова E.JU.destin of requirements of creditors at bankruptcy of the debtor. - M.: "statute", 2003. With. 21. 3Там. With. 31.

Creditors to appeal against actions of the arbitration managing director since in spite of the fact that in item 1 of item 60 of the Law on bankruptcy the term "creditors" is used, the persons participating in business about bankruptcy are only «competitive creditors».1

Necessity of repayment of current requirements reduces volume of "pure actives», being under arbitration management. The more the size of current payments, the remains the property guaranteeing satisfaction of requirements of creditors less. It can lead to that all results of external management will go on repayment of own expenses. In order to avoid infringement of interests of creditors the limit of a parity of current obligations with a total sum of debts at which presence the further increase in the size of current requirements occurs under the control of creditors is established.

Owing to item 101 of the Law on bankruptcy of the transaction with property of the debtor which book value constitutes more than ten percent of the book value of actives of the debtor, consist external managing director only with the consent of meeting of creditors (committee of creditors). By article 104 it is provided, that if the size of liabilities of the debtor who has arisen after introduction of external management, exceeds for twenty percent the size of requirements of the creditors included in the register, the transactions involving new liabilities except for provided plan of external management, there will be be made by the external managing director only with the consent of meeting of creditors. This norm supposes such situation at which cost of procedures of bankruptcy will be above the sum of requirements of creditors (without requirements of the authorised bodies).

Bankruptcy as the compulsory mechanism has borders. Expenses for bankruptcy cannot exceed the size of requirements of the whole group of creditors in any way, differently the property of the debtor will be reduced more than by the sum of requirements of creditors in the absence of repayment of these requirements.

' Serditova E.N.presentation of requirements of creditors in competitive protsesse.//Civil practice, 2003, №3.

Exception, in view of indivisibility of a subject of the transaction, sale of the enterprise of the debtor by a uniform complex can constitute only.

Transactions of the arbitration managing director have a problem to realise bankruptcy procedures, their performance is a condition of the further satisfaction of requirements of creditors, therefore such transactions come under to execution in a prime order.

The transactions made by the debtor, which time of performance comes in arbitration management, can be such orientation, that they would be made also by the managing director. But can be and a return situation: the arbitration managing director independently to make and execute similar transactions has not the right in view of their contradiction to the maintenance and the inconsistency purposes. From this follows, that the managing director bears a duty according to character and possible consequences of such transactions. Inactivity of the managing director in this subject is wrongful. At an establishment managing director of the fact of discrepancy of consequences of the transaction to the maintenance of external management, he is obliged to declare refusal of execution of this transaction and to terminate the agreement.

Possibility of refusal of execution of transactions by the debtor - not the important privilege as it sees Semin А.Н.1 This direct consequence of that on similar transactions the moratorium does not extend. The arbitration managing director has not the right to refuse execution of obligations on which the moratorium extends and which are not flowing.

From this the inaccuracy of the assumption of Teljukinoj M. V that the obligations which have arisen before introduction of external management which time of performance is necessary for external management, should fall under the moratorium is visible. As the arbitration managing director has not declared refusal of such transactions so far as it is meant, that he would make them at their absence. In this case the moratorium on such obligations

' Semin A.N.bankruptc: questions of the legal capacity of the debtor - the legal person: scientifically - practical edition / A.N.Semina - M.: publishing house "Examination", 2003. With. 82.

^eljukina: the Theory and practice of an inconsistency (bankruptcy) - M.: Business, 2002. With. 274.

To extend should not.

According to item 102 FZ «About an inconsistency (bankruptcy)», the external managing director within three months from a Date of Introduction of external management has the right to refuse execution of transactions of the debtor who has been not executed by the parties in full or in part if such transactions interfere with restoration of solvency of the debtor or if execution of such transactions entails losses for the debtor in comparison with similar transactions.

Concerning Kolinichenko E.A.'s French legislation informs, that the managing director does not have right to terminate the contract, and there is a right simply to cease its execution. In this case the contract is not terminated and not executed. [77]

Pustovalova E.JU considers, that refusal of execution of a contract in bankruptcy is the right to its unilateral cancellation without a reference to the court. [78] it is based on norm of item 102 FZ «About an inconsistency (bankruptcy)» according to which the contract is considered terminated from the date of reception by all parties under such contract of the statement of the arbitration managing director on refusal of execution of a contract.

To refuse the transaction it is possible, if it is not executed completely or in a part by both parties. If the transaction is not executed only by the debtor after cancellation of the contract the creditor remains the creditor, the bases of its requirements will change only. New consequences for arbitration management will not arise. If the transaction the counterpart of the debtor refusal of the transaction will not have other value, than has not executed the bankrupt incorporeal right to the counterpart.

Other position would mean application of institute of refusal of execution of transactions with a view of transfer of current obligations in the category of the obligations falling under the moratorium (item Z item 95 of the Law on bankruptcy). However, the specified differentiation cannot depend on will of the arbitration managing director, and is established by the law.

It is remarkable, that an accurate side between unsatisfied in full or in part the contract and the contract executed by one party and not executed another, spent still SHershenevich Ф.1 In its opinion, the right to refusal probably only concerning the first group of transactions.

Arbitration management can independently generate the legal relations beginning and terminating only during manufacture on business.

Shershenevich G. F writes, that at more attentive sight at competitive process it is necessary to notice, that he does not create any new legal relations neither material, nor formal характера.2

To change existing on date of excitation of manufacture on business about bankruptcy the relations generated by full execution of the transaction of one of the parties or both, without the consent of the debtor the managing director has not the right. If the debtor under general rules unilaterally could not terminate such agreement then the consent to transaction cancellation at introduction of procedure of an inconsistency cannot be given.

The arbitration managing director has not the right to declare refusal of execution of transactions on such bases which grow out of bankruptcy procedure. It is possible to refuse transactions, only if they from the very beginning contradict the bankruptcy purposes. The mechanism providing it, the term establishment during which the managing director has the right to declare such refusal is. Upon termination of term the right operating to refuse transaction execution passes in a duty it to execute.

White Century S supplements, that refusal of execution can be declared only concerning the mutual (bilateral) contract in view of close interpretation of requirements of the law that the contract should be neispolnen both сторонами.3 This position it is represented erroneous.

' Shershenevich G. F. Competitive process.-M.: "Sta§ut", 2000. With. 244-245.

2TaM. With. 343.

3Ecjimx Century S, Dubinchin A.A., Skuratovsky M.L.Pravovye of a basis of an inconsistency (bankruptcy): the Uchebno-practical grant / Under obshch. red. Prof. V.S.Yakushev, - M.: Publishing house NORM

Those losses which arise at the party in default from transaction execution, pay off as item 524 PS. However it is represented, that for the requirement of their compensation there are no bases since refusal of the arbitration managing director of execution of transactions is lawful. There is no the sign of illegality necessary for responsibility, especially the debtor, after all refusal of transactions is carried out by the arbitration managing director.

Refusal of execution of transactions in external management to a certain extent coincides with the purposes of norm of item 126 FZ «About an inconsistency (bankruptcy)» according to which the time of performance arisen before opening of bankruptcy proceedings of liabilities and duties of payment of obligatory payments of the debtor is considered come. It reaches the purpose of a possibility of realisation of property of the debtor.

Tal G. K names it physical and legal cleanliness of each object. The object is considered legally pure if there are no legal obstacles for its sale. The object is considered physically pure if it somehow is not used for sale date, including the third лицами.1

The managing director is obliged to make actions on collecting of debts in favour of the debtor, to declare requirements on protection of the property right of the debtor. All these claims are contest of former actions foreign in relation to the managing director of the person - the debtor, therefore the period of limitation under claims of the arbitration managing director starts to flow from the moment of introduction of that procedure of bankruptcy in which the presentation of similar claims becomes possible. Speech cannot go about assignment, in all such claims the managing director operates on its own behalf.

According to the law, under claims of the managing director about invalidity of transactions on the general bases as the claimant the debtor acts. It allows the debtor to deduce the property in a bankruptcy prediction and

(Publishing group NORM-INFRA), 2001. With. 165.

‘ Anti-recessionary management of the enterprises and banks: Ucheb.-prakt. The grant. - M.: business, 2001. With. 81.

To make formal claims about its return, subsequently refusing from claims or otherwise avoiding real collecting then the arbitration managing director, forced to operate on behalf of the debtor, cannot achieve return of property to the bankrupt's estate judicially any more in view of an existing interdiction for consideration in dispute court in the same subject and the bases to which the judicial estimation is already given.

On the affairs initiated before introduction of an inconsistency concerning the debtor in which the debtor participates as the claimant, the arbitration managing director enters business only as the head of the claimant. Therefore the period of limitation in this case is estimated since that moment when the debtor knew about infringement of its right.

The managing director has the right to enter the adversary proceeding as the third party declaring independent requirements. In this case, the period of limitation for it will be estimated from the moment of introduction of procedure of an inconsistency.

Inconsistency relations consolidate interests of debtor C interests of creditors. It means, that the arbitration managing director has the right to challenge voidable contracts when regularly the similar right is given the debtor. The debtor, on the contrary, in an inconsistency should not do it.

The purposes of procedures of an inconsistency generate the bases for a recognition of transactions the void.

In opinion to Daddy G, the number of the major problems of the competitive managing director includes opposition to actions of the debtor or the third parties, stirring to carrying out of procedure of an inconsistency and undertaken to their beginning: primary satisfaction. Requirements on which count in a prediction of bankruptcy the debtor or the third parties, невозможно.1

' to Daddy Gerhard. Inconsistency institute: the general problems and features of legal regulation in Germany. Comments to the current legislation. / the lane with. M.: Publishing house BEK, 2002. With. 112.

Owing to item 103 of the Law on bankruptcy transactions of the debtor are void: made with the interested person if as a result of their execution to creditors or the debtor were or losses can be caused; attracting preferable satisfaction of requirements of one creditors before others; connected with an exit of the participant from structure of participants of the legal person - the debtor if execution of such transactions breaks the rights and legitimate interests of creditors.

Stepanova V.V. point of view is represented correct, that for the Russian law there is a requirement of specification and detailed elaboration of special conditions of invalidity of transactions. [79]

Shershenevich G. F has allocated three theories explaining possibility of a recognition void transactions of the debtor on the bases, provided by the legislation on bankruptcy.

The delictual theory assuming as a basis an offence from the third party - the counterpart of the debtor under the transaction was considered as the most widespread.

The legal theory consists that the law the will establishes the bases of a recognition of transactions void and its this right.

The third theory is the theory of executive force according to which the refutation right is auxiliary means of execution of the basic judgement on business as bankrupt, and obshcheiskovomu. [80]

Presence of arbitration management says that property consequences of transactions of the debtor in an inconsistency infringe on interests not the debtor, and creditors. The debtor has one interest - in the termination of procedure without liquidation and with property preservation. By the transaction in an inconsistency to the debtor of losses it is caused cannot be.

The special basis for invalidity of the transaction of the debtor is causing by this transaction of losses to creditors or occurrence of threat of causing of such losses.

Presence and the size of losses can be defined after the termination of procedures of an inconsistency since only after that probably to establish, whether there is in general an outstanding part of requirements of creditors. Till this moment presence at creditors of losses is the fact uncertain, arbitration management proceeds, and the managing director always can make repayment of requirements of creditors. During an inconsistency the creditor or some creditors have not the right to show in court actions for nullity of transactions of the debtor or the managing director on motives of causing to them of losses since losses at them for the present are not present.

As a qualifying sign the term «threat of causing of losses» is used.

The interesting thought is traced at Daddy G: losses of competitive creditors are defined in comparison with exclusive кредиторами.1

Upon termination of manufacture on business losses of the creditor if they are, it is available, and consequently it has the right to make the demands in an outstanding part to the persons who have illegally received property of the debtor (item 11 of item 142 FZ «About an inconsistency (bankruptcy)»).

The creditor enters business on the will, inconsistency procedure is not the reason of losses of creditors and is not the basis for invalidity of previous transactions. On the contrary, it is a way to avoid losses.

It is possible to challenge only those transactions at which absence manufacture on business would be all the same initiated, but would pass differently. Under such transactions the managing director is the interested claimant for the purpose of removal of obstacles in a choice and application of ways

' to Daddy Gerhard. Inconsistency institute: the general problems and features of legal regulation in Germany. Comments to the current legislation. / the lane with. M.: Publishing house BEK, 2002. With. 112.

Restoration of solvency of the debtor in external management.

Shershenevich G. F writes, that the right to demand destruction of force of the actions made by the debtor is got by opening of competitive process, but does not follow directly from a being of the announcement of an inconsistency. The inconsistency is an occasion to a refutation which is based on the reasons previous it моменту.1

Proceeding from typical model of withdrawal of actives of the debtor by creation of other economic society and transfer to it ustavnyj the capital of all property or by sale at the auctions of all property of the unitary enterprise, it is possible to deduce the concrete criteria influencing quality of arbitration management.

Creditors the have less than losses, than more than regenerative measures the arbitration managing director can use. For example, at presence at the debtor of an industrial complex, along with fulfilment with it of transactions, the managing director can use manufacture for profit reception. When instead of a property complex at the debtor only actions actions of the managing director are reduced only to the rights of the shareholder. Outwardly signs of threat of losses can be expressed in a transaction subject: it is the basic part of property of the debtor (the list of property with set of positions) at which absence the majority of creditors would be not not made by the transactions with the debtor. Also the payment instalments (the bill for 10 years) here concern. The facts generating evidence of In this case take place that consequences of the specified transactions will not entail satisfaction of requirements of creditors.

The recognition of similar transactions osporimymi will lead to occurrence of the innocent purchaser at repeated alienation of property even if this purchaser has been informed, whence to it the property and in this connection it has left possession of the debtor has come. The purchaser can

‘ Shershenevich G. F. Competitive process. - M.: "statute", 2000. With. 271-272.

To refer to that he knows nothing as there is no fact of a recognition court of the initial transaction void. The category of the innocent purchaser will protect the possessor male fide, i.e. value of institute of diligent acquisition is deformed. To avoid it, transactions, void on the bases, statutory about bankruptcy, should be insignificant. Thus, considering, that the bases of their invalidity are statutory about bankruptcy, interested persons in similar claims are all creditors. As in interests of all creditors the managing director operates, it and is the person, capable to challenge the transaction on the given bases.

The law does not support this position. Owing to item 103 of the Law on bankruptcy about a recognition void transactions on the bases connected with bankruptcy, any of creditors, except the claims connected with interest has the right to declare claims both arbitration operating, and. Similar transactions are osporimymi.

Semina A.N., moreover, believes, that to all transactions connected with norms of the legislation on bankruptcy, voidability is characteristic. For example, she considers osporimymi the transactions made by the debtor in supervision without the consent of the time managing director as the consent of the time managing director is an element of the form of the transaction, and infringement of the form of the transaction attracts its invalidity only in the cases provided законом.1

Teljukina M. V notices, that the transactions of the debtor made in supervision without the consent of the arbitration managing director, are ничтожными.2

Kolinichenko E.A. approves, that negligibility of transactions on the "bankrupt" bases is hardly justified, as at the moment of them

' Semin A.N.bankruptc: questions of the legal capacity of the debtor - legal a linden: scientifically - practical edition At A.N.Semina - M.: publishing house "Examination", 2003. With. 47.

Teljukina M.B. The Bankruptcy: the Theory and practice of an inconsistency (bankruptcy) - M.: Business, 2002. With. 243.

Fulfilment the debtor still was платежеспособен.1 - there are in view of the transaction, manufactures made before excitation on business about bankruptcy.

According to item 60 of the Law on bankruptcy the creditor, the debtor, the representative of workers, the representative of participants (founders), the representative of the proprietor of the debtor have the right to appeal against actions of the arbitration managing director.

Manufacture on business about an inconsistency contains an element of a compulsory order of realisation of the right, therefore, challenging legality of the maintenance of actions of the arbitration managing director, the creditor has not the right to receive the court order about objazanii operating to make those or other actions - to consolidate an inconsistency with final process. The appeal of actions of the arbitration managing director to similarly appeal of actions of the judicial police officer-executor (item 90 FZ «About final process»).

In disputes of creditors with the operating there can be a speech about an establishment of those or other facts - disputes under the register or disputes on admission of legality or illegality of actions of the arbitration managing director (satisfaction of requirements, fulfilment of transactions).

The principle of integrated approach of management of property excludes possibility for the creditor to challenge a choice managing director of those or other transactions, so - and their legality. In procedure of bankruptcy creditors act as benefitsiary, instead of as operating the debtor. Benefitsiary wait for results, instead of show activity. Infringement by the transaction of interests of one creditor cannot have a place since its consequences are intended for all creditors in which interests the managing director operates, making the transaction.

In the USA the question on for a long time already is discussed, whether is fair and whether interest of one creditor in the actions influencing on many (the doctrine of the general fund) deserves payment.

‘ Kolinichenko E.A.protection of interests of the insolvent debtor at bankruptcy. Rather - legal analiz. - M.: "Statute", 2001. With. 112.

In particular, there is a point of view according to which application of this doctrine should be excluded from bankruptcy area. As Edward Stone writes, participation in business about bankruptcy of the debtor is connected with presence of already existing requirements of creditors. Therefore all actions on increase in the bankrupt's estate from one creditor lead only to that creditors in bolshej degrees will receive that they and so should receive owing to what for it there is no necessity платить.1

Projecting specified in the Russian model, the claim of one creditor about a recognition of the transaction of the arbitration managing director of the void has under itself no new independent interest of the applicant caused by bankruptcy so, is inadmissible.

In an ideal the role of creditors, considers Tal G. K, should be reduced to that they come to process only two times, the first - to establish size of the requirements, and the second - in cash desk where pay money by results банкротства.2

In the legal literature interest is caused by restitution consequences under the void transaction with the debtor - the bankrupt.

Gutnikov O. V characterises the given consequences on the basis of Roman Law principles - return is made with a view of restoration of actives of the debtor in that kind in what they were to the transaction. The return purpose is not enrichment должника.3 However, in bankruptcy the counterpart of the debtor is deprived possibility to realise restitutsionnoe the requirement: in competitive process of property for this purpose does not suffice. Besides, application of the bilateral restitution is inexpedient at contest of transactions of the debtor. The main task consists in compensating to its debtor потери.4

1Edward A. Stone. Encouraging Creditors Participation: Integrating the Allowance of Administrative Expenses with the Common Fwd Theory.//Bankruptcy Development Journal / Fall 1998/Volume I5/Numberl.

2Стенограмма scientifically-practical conference on a theme: Legislative maintenance of anti-recessionary management and financial improvement of the enterprises of the Russian Federation. The State Duma building. Small зал.10 October 2001г.

3Гутников O.V.Nedejstvitelnye of the transaction in civil law. The theory and contest practice. - M.: Berator - the Press, 2003. With. 519.

4TaM. With. 531.

The special bases of invalidity of the transactions, containing in the Law on bankruptcy therefore are proved what exactly at the restitution bear itself benefit for bankruptcy. It does not exclude in any way the restitution and requirements of counterparts under such transactions should be repaid as flowing. It is necessary to consider and that under such transactions, as a rule, counterclaims are absent or are shown to a minimum.

In one case it is represented to the managing directors of interests of the separate creditor valid infringement - in case of fulfilment of the transaction by it without the consent of creditors in all situations when such consent is necessary. Infringement of is formal-legal conditions of fulfilment of the transaction, the interests of all creditors established with a view of protection and everyone here takes place.

All questions on contest of actions (bezdejstvy) the managing director, including transactions, should dare within the limits of business on bankruptcy. The transaction of the managing director is its action, therefore the requirement about a recognition of the transaction of the managing director void is an appeal of actions of the arbitration managing director that is possible only in the course of manufacture on business about bankruptcy. Pravoprimenitelnyj the certificate of the managing director mentioning the rights of one creditor, is challenged as action, and infringing on interests of all creditors - as the transaction including. Because the Law on bankruptcy directly provides an appellate procedure of actions of the arbitration managing director, legality of its actions so also transactions, it can be checked only within the limits of this procedure. In a case when the transaction of the managing director is recognised void, the court order for application of consequences of its invalidity should stand out. The sheet stands out not concerning the arbitration managing director and the debtor, and concerning the counterpart and the debtor. Concerning the arbitration managing director the court order cannot be given out, since the managing director himself is the executor of judicial certificates.

Teljukina M. V notices, that the position according to which all requirements about a refutation of transactions are considered within the limits of competitive процесса.1 is proved

The unity of manufacture on business about bankruptcy and manufactures about contest of transactions provides possibility to all creditors to participate in consideration of a question on the transaction of the managing director since all creditors are interested in proceeding results.

The legal capacity of the arbitration managing director is

Special and its activity is not equivalent activity of the head of the debtor. "Usually" operate the enterprise the debtor could also.

Special franchise of the competitive managing director is defined directly in the law. In external management concrete borders of the legal capacity are established by the plan of external management having signs of the agreement.

As the plan is the offer of the managing director, it can and should comprise the basic transactions (their criterion), which fulfilment «leads to restoration of solvency of the debtor, in any way not contradicting the thesis about impossibility of definition in the law concrete \the transactions made to managing directors since the plan is the offer of the managing director made it at the choice.

Article 99 of the Law about bankruptcy fixes the general rule according to which the external managing director disposes of property of the debtor only according to the plan of external management. In item 4 of item 101 FZ «About an inconsistency (bankruptcy)» separate kinds of transactions which the managing director has the right to make despite their absence in respect of external management, but with the consent of meeting of creditors are specified. These are such transactions, as the loan, the guarantee, a guarantee, cession, delegation, the transactions connected with actions, shares in the charter capital, confidential management of property. Other transactions, at absence about them of instructions in respect of the external

‘ Teljukina: the Theory and practice of an inconsistency (bankruptcy) - M.: Business, 2002. With. 246.

Managements, external operating to conclude have not the right. For their fulfilment it is required to make changes to the plan of external management that comes under to the statement arbitration court.

From item 101, item 104 it is visible, that the plan of external management can not contain the exhaustive list of transactions of the external managing director, i.e. it can be pointless.

Denisov With. A believes, that large transactions and transactions with interest are made with the consent of meeting of creditors irrespective of presence of their conditions in respect of external управления.1

Semina A.N. considers, that the external managing director has not the right to dispose of property of the debtor if it falls outside the limits the plan external управления.2 in any case

Repayment of requirements of creditors in an inconsistency has remedial character, therefore fulfilment conditions external managing director of transactions with property of the debtor do not extend on transactions on repayment of requirements of the creditors included in the register.

The plan subject joins the conditions considering features of activity of the debtor that it is impossible to reflect in the law.

The plan of external management necessarily should contain schemes and sources of repayment of requirements of creditors in external management. The plan should be subject, instead of abstract. The duty on plan preparation lays on the managing director since it was caused to carry out operation of business and the result of business depends on its abilities.

In item 2 of item 106 of the Law on bankruptcy declarative position that the plan should contain a substantiation of restoration of solvency contains.

As believes to Daddy G, from the formal point of view the plan should consist of two parts: descriptive in which the undertaken are stated

‘ the Scientifically-practical comment (article by article) to the federal act «About an inconsistency (bankruptcy)» / Under the editorship of the prof. dokt. jurid. V.V. Vitrjanskogo's sciences. 2nd zavod. - M.: "Statute", 2004. With. 446. ^semina A.N.bankruptc; questions of the legal capacity of the debtor - a legal lead: scientifically - practical edition / A.N.Semina - M.: publishing house "Examination", 2003. With. 75.

Measures and consequences of their realisation; and establishing, establishing changes in the rights of participants процедур.1

The plan of external management should provide terms of realisation of the actions provided by it - writes Teljukina M.V.Eti terms should not be beyond term external управления.2

Besides, the plan of external management can contain an order of granting and the maintenance of reports of the arbitration managing director before кредиторами.3

Plan basis - such criterion of restoration of solvency, as cost rupture between cost, with which the company possesses now (and this cost necessarily should be above zero), and potential cost of the enterprise after реструктуризации.4

In the legal literature it is underlined, that the plan of external management necessarily should contain positions about allocation of money resources on preparation, convocation and functioning of the higher and intermediate controls of the debtor and creditors, other will roughly break right as the debtor, and участников.5 Besides, the plan maintenance should not break it operating законов.6

As the transaction of the managing director with creditors, and marks it Teljukina MB., 7 plan of external management can be recognised by the void arbitration court considering case about bankruptcy (item 6 of item 107 of the Law on bankruptcy). Communication of jurisdiction with business about bankruptcy means, that corresponding statements can be brought an action only during the period

' Pale Gerhard. Inconsistency institute: the general problems and features of legal regulation in Germany. Comments to the current legislation. / the lane with. M.: Publishing house BEK, 2002. With. 134.

Teljukina: the Theory and practice of an inconsistency (bankruptcy) • M.: Business, 2002. With. 269.

3Там. With. 272.

4Аистова M.D.Restrukturizatsija of the enterprises: management questions. Strategy, coordination of structural parametres, resistance decrease preobrazovanijam. - M.: Alpina Pablisher, 2002. With. 186. The comment to the federal act about an inconsistency (bankruptcy) / Under. red. Prof. Zalessky V.V.-M.: the Edition of Mr. of Tikhomirov M. JU, 2003. With. 261.

6KoMMeHrapHft to the federal act about an inconsistency (bankruptcy) / Under. red. Prof. Zalessky V.V.-M.: the Edition of Mr. of Tikhomirov M. JU, 2003. With. 288.

7Телюкина M.V.Kommentary to the Federal act «About an inconsistency (bankruptcy)». M.: JUrajt - Izdat., 2003. With. 264.

Manufactures on business about bankruptcy, but not after its termination.

Scientists pay attention that contest is come under by the plan of external management, instead of the decision of meeting of creditors on its statement. However it does not interfere with court to state an estimation and to the decision of meeting of creditors. The recognition void decisions of meeting of creditors attracts with arbitration court invalidity of the plan of external management in целом.1

On the basis of a legality principle at disposal of legal proceeding by arbitration court (item 6 of agrarian and industrial complex of the Russian Federation) the arbitration court does not approve the plan of external management at infringement by its conditions of the rights and legitimate interests as participants of manufacture on business, and other persons. In cases when circumstances of infringement of valuable interests of the persons who are not participants of manufacture on business about bankruptcy, were not a judicial inquiry subject at the plan statement, such persons, nevertheless, have not the right to appeal against the court ruling about the statement of the plan as item 42 of agrarian and industrial complex of the Russian Federation. They can challenge the plan by the statement for a recognition of the plan the void.

The statement of the plan of external management of court means authorisation of actions of the managing director. In this connection, transactions of the managing director, which condition be provided in respect of external management cannot are recognised by void on these conditions and corresponding actions of the managing director - illegal without a recognition of the plan of external management in a corresponding part void or without court ruling cancellation about the statement of the plan of external management.

In the absence of the plan of external management the external managing director has not the right to dispose of property of the debtor, except for calculations with creditors and fulfilment of some kinds of transactions with the consent of meeting of creditors (item 101 item 4). In this case the court can accept the certificate about transition to bankruptcy proceedings.

‘ the Scientifically-practical comment (article by article) to the federal act «About an inconsistency (bankruptcy)» / Under the editorship of the prof. dokt. jurid. Sciences B.B. Vitrjansky. 2nd zavod. - M.: "Statute", 2004. With. 469.

Documentary registration of results of external management before calculations with creditors is the report of the managing director. In the report data about the financial analysis of the procedure of management, inventory of property at the moment of the procedure termination, the characteristic and results of execution of all transactions in external management, first of all, should contain. The report is the proof of the maintenance of procedure of bankruptcy and an integral part of materials of business on bankruptcy.

Under the report the court can estimate legitimacy of activity time управляющего.1

In item 67, item 88, item IIT-118, item 147 of the Law on bankruptcy the duty on drawing up of the report (conclusion) and its representation in court for consideration not only for the external managing director, but also for the time managing director, the administrative operating and competitive managing director is provided. The government of the Russian Federation approves «General rules of preparation of reports (conclusions) of the arbitration managing director».2 Is established, that in the report (conclusion) the information which can have essential value for decision-making (other certificates) arbitration court should contain. Value of the report arbitration operating as proofs on business about bankruptcy which comes under to consideration and an estimation from this follows. The report of the external managing director on termination of procedure of external management comes under, besides, to the statement arbitration court. neutverzhdenie the report means necessity of additional actions on arbitration management prior to the beginning of calculations with creditors.

The report statement means acknowledgement by court of the fact of fulfilment by managing director of certain actions and legality of their spectrum (but not legality of concrete transactions). Included in the report approved by court

‘ the Comment to the federal act about an inconsistency (bankruptcy) / Under. red. Prof. Zalessky V.V.

- M.: the edition of Mr. of Tikhomirov M. JU, 2003. With. 168.

The governmental order of the Russian Federation from 22.0S.2003 №299 «About the statement of general rules of preparation of reports (conclusions) of the arbitration managing director» H Meeting zako nodatelstva the Russian Federation, 26.05.2003, №21, item 2015.

The managing director of the transaction cannot be challenged subsequently on motives nezakljuchennosti, passing revision of the judicial certificate about the report statement.

In item 133 of the Law on bankruptcy it is fixed, that the competitive managing director prepares the report on movement of money resources - the report on calculations, as in satisfaction of requirements of creditors the bankruptcy proceedings maintenance.

The report is constituted and by results of supervision. The maintenance of such report are data about structure and cost of property of the debtor, including results of the financial analysis. This report defines a subject of the further arbitration management, therefore it should be approved court, that, however, by the law is not provided.

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A source: Belolikov Alexey Igorevich. BANKRUPTCY AS the WAY of PROTECTION of the BROKEN RIGHTS. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2004. 2004

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  1. § 1 Requirements shown to the arbitration managing director.
  2. management of a society under the control of the managing director or court
  3. SECTION 1. PROTECTION of the RIGHTS of INVESTORS In the CONTEXT of the GENERAL PROBLEM of PROTECTION of the RIGHTS of MANAGING SUBJECTS
  4. §2. Arbitration courts as subjects pravoprimenitelnogo oposredovanija fundamental laws, freedom and duties of the person and the citizen
  5. §2. Arbitration courts as subjects pravoprimenitelnogo oposredovanija fundamental laws, freedom and duties of the person and the citizen
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  9. § 1. A principle of the guaranteed realisation of the rights and discharge of duties
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  11. THE CHAPTER II. PRAVOSUDNOE MAINTENANCE OF FUNDAMENTAL LAWS, FREEDOM AND DUTIES OF THE PERSON AND THE CITIZEN AND ARBITRATION JUDICIARY PRACTICE IN THE RUSSIAN FEDERATION
  12. the CHAPTER II. PRAVOSUDNOE MAINTENANCE of FUNDAMENTAL LAWS, FREEDOM And DUTIES of the PERSON And the CITIZEN And ARBITRATION JUDICIARY PRACTICE In the RUSSIAN FEDERATION
  13. §4. The contribution of the Supreme Arbitration Court of the Russian Federation in konstitutsionalizatsiju the mechanism pravosudnogomaintenance of fundamental laws, freedom and duties of the person and the citizen
  14. Chapter 6. TSELEPOLAGAJUSHCHIE PRINCIPLES of REALIZATION of the RIGHTS And DISCHARGE OF DUTIES
  15. § 2.2. The administrative rights and duties of subjects Civil society.
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  18. § 2. THE RIGHTS AND DUTIES OF THE PARTIES UNDER THE CONTRACT OF THE AUTHOR'S ORDER
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