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§ 2.1 Supervision as bankruptcy procedure At an inconsistency of the noncommercial organisations

Supervision - the new procedure not known the Law of 1992, the pre-revolutionary competitive legislation - it was a short story of the Law of 1998; the given procedure and in the Law of 2002 a supervision Main objective - achievement of balance of interests of the debtor and creditors, prevention of possible abusings has remained.

Supervision is entered irrespective of the fact which the subject initiated manufacture excitation on business about bankruptcy [38].

Owing to express indication of the Law on an inconsistency supervision is entered not in all cases; categories of subjects to which the given procedure is not applied are allocated. These subjects concern:

- The liquidated debtor;

- The absent debtor;

- The physical person.

For all these categories of debtors it is not spent neither supervision, nor financial improvement, external management - is possible only bankruptcy proceedings and the agreement of lawsuit.

Supervision is carried out before the first court session which according to Law item 51 should take place no more than in 7 months from the date of receipt of the statement for bankruptcy in arbitration court (earlier this term was equaled to 3 months).

C the moment of introduction of procedure of supervision the debtor - the noncommercial organisation - continues to function, but for it is entered special re -

Press in which frameworks the mechanisms are created, allowing to bar possible abusings from a management of the debtor, not resorting to attachment of property of the debtor. After supervision introduction certain restrictions are imposed on the debtor [39].

The special mode is established, first, for transactions; secondly, for some other legal acts (the decisions accepted by the debtor).

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According to item 3 of item 64 of the Law the debtor during supervision cannot make following actions: - reorganisation (in all five forms - merge, joining, allocation, division, transformation); liquidation; creation of new legal bodies or participation in other legal bodies (as it is a question of transfer to other subjects of property of the debtor); creation of the isolated divisions what branches are and representations (the conclusion about possibility of creation of not isolated divisions from this follows); profit distribution; participation in any not personable formations. The listed actions cannot make neither the debtor, nor the temporary managing director [40]. It is natural, that the given position can be applied to the debtor - the noncommercial organisation taking into account that specificity which is inherent in the given organisation-legal form of the legal person.

Besides, in item 64 item 2 the group of the actions, which fulfilment by the debtor - the noncommercial organisation probably, but with the consent of the time managing director (thus in necessary cases, according to the legislation and constituent instruments, the head will be obliged to receive and the consent of controls of the legal person) is allocated. These are following actions: the order any property (both immovable, and movable) which book value exceeds 5 % of the book value of actives of the debtor on a supervision Date of Introduction; reception and delivery of loans (credits); delivery of guarantees and guarantees; a concession of incorporeal rights, delegation; establishment of confidential management of property of the debtor.

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However it is obviously not enough such restrictions for maintenance of safety of property of the debtor - the noncommercial organisation. First, the unfair head of such debtor within the rights given to it can independently conclude transactions with unprofitable conditions for the debtor, for example, buying raw materials and materials under the overestimated prices or selling finished goods for undercharges. Secondly, during supervision the debtor can is artificial to increase the size of own creditor debts in advantage affilirovannyh creditors so that subsequently such creditors had the right to extraordinary satisfaction of the requirements in bankruptcy proceedings [41]. The head of the debtor has the right to increase independently the size of wages and other payments (the award, the extra charge) to workers of the organisation-debtor since the specified actions do not constitute a transaction subject. Besides, during supervision execution under contracts which the debtor - the noncommercial organisation has concluded on the threshold of bankruptcy and which can interfere with restoration of solvency of the debtor proceeds, however affect destiny of such contracts the temporary managing director cannot. The law on an inconsistency allows the debtor - the noncommercial organisation independently, without the coordination with the time managing director, to make transactions with real estate if the sum of the transaction does not exceed 5 % of the book value of actives of the debtor. It is obvious, that such right gives the chance for abusings as small parts, within the specified 5 % of the book value of property, the debtor has the right to sell or otherwise to make real estate alienation to different persons which, outwardly not being connected between with -

Fight, actually can form a group of persons interested in acquisition of property of the debtor [42].

One of the basic duties of the time managing director is carrying out of the analysis of a financial condition of the debtor - the noncommercial organisation which is spent with a view of, defined by the Law on an inconsistency, namely:

1. Definitions of cost of property belonging to the debtor for a covering of court costs, expenses on compensation payment to arbitration managing directors;

2. Definitions of possibility or impossibility of restoration of solvency of the debtor are perfectly in order also terms which are statutory about an inconsistency [43].

The governmental order of the Russian Federation from June, 25th, 2003 N 367 had been approved carrying out Rules by arbitration managing director of the financial analysis who are carried out not only the time managing director, but also other categories of arbitration managing directors at various procedures of bankruptcy in this connection the purposes of the financial analysis are wider in comparison with the purposes of the analysis of a financial condition of the debtor spent by the time managing director during supervision. Meanwhile criteria of an estimation (factors finansovohozjajstvennoj activity and the requirement to the analysis of activity of the debtor - the noncommercial organisation) and the list of the bases for analysis carrying out should be for a basis time managing director at carrying out of the analysis of a financial condition of the debtor. By the specified Rules it is established, that the temporary managing director carries out the financial analysis, using results of the annual inventory spent by the debtor, and also bases the conclusions on the analysis: The statistical reporting, the accounting and tax reporting, registers accounting and the fiscal accounting, and also (at presence)

Materials of auditor check and reports of appraisers; constituent instruments, reports of general meetings of participants of the organisation, sessions of board of directors, the shareholder register, contracts, plans, estimates, accounting; positions about the registration policy, including the registration policy for the taxation, the working plan of accounts of book keeping, schemes of document circulation and organizational and industrial structures; the reporting of branches, affiliated and dependent economic societies, structural divisions; materials of tax checks and litigations; the standard legal acts regulating activity of the debtor. At carrying out of the financial analysis the arbitration managing director should be guided by principles of completeness and достоверности1.

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Carrying out of the analysis of a financial condition of the debtor, thus, is difficult research work which includes studying, processing and generalisation of the information received by the time managing director from the analysis accounting, economic, of constituent instruments and materials. As we already marked, first of all the temporary managing director investigates a question on sufficiency or insufficiency belonging to the debtor - the noncommercial organisation of property for a covering of court costs and the expenses connected with payment of compensation by arbitration managing directors. In the literature it is noticed, that the specified question directly is connected with an estimation of liquidity of property of the debtor in this connection the time managing director money resources come to light, and also the list of other property belonging to the debtor with instructions as book value of such property, and most probable gain from its sale which can be used for a covering specified above расходов2 is defined. The minimum level of court costs, and also expenses on compensation payment to arbitration managing directors is defined by inclusion in the given expenses of the state

N.Otstranenie's 1 Smiths of the head of the debtor in supervision, f judiciary practice Questions//the Right and economy. 2002. № 10. With. 84.

2 SHipitsina O.V.Porjadok, consequences of introduction and the termination protse - SHCHk silly women of supervision//the Lawyer. 2000. № 10. With. 36.

Duties, compensations of the time managing director for all term of supervision, and also for statutory term about an inconsistency of the most probable subsequent procedure of bankruptcy of the debtor. It is necessary to add, that with acceptance of the current Law on an inconsistency to obligatory court costs it is possible to carry also the expenses connected with obligatory publication by arbitration managing directors of data, provided items 28 of the Law.

If it will be established, that cost belonging to the debtor - the noncommercial organisation of property is insufficient for a covering of court costs creditors have the right to make the decision on introduction of external management or financial improvement only at definition of sources of a covering of court costs or if such decision is not accepted or a source defined by creditors, will be insufficiently, the creditors who have voted for introduction of external management, bear a solidary duty on a covering of the specified expenses. The given rule established by item 3 of item 70 of the Law on an inconsistency, is directed on guarantee creation to the arbitration managing director, concerning the rights to reception of compensation for the work [44].

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Other purpose of carrying out of the analysis of a financial condition of the debtor - of the noncommercial organisation is definition of possibility or impossibility of restoration of solvency of the debtor terms which are statutory about an inconsistency are perfectly in order also. As restoration of solvency of the debtor - the noncommercial organisation is possible at carrying out of financial improvement or external management term by which the temporary managing director should be guided at analysis carrying out, is limited by two years. The temporary managing director should define sufficiency of liquid property of the debtor for repayment of requirements of creditors on the basis of comparison of the size of a probable gain from realisation of the specified property and the size coming under to satisfaction trebova -

ny creditors. If it will be found out, that property of the debtor - the noncommercial organisation has not enough for repayment of requirements of creditors, the temporary managing director on the basis of the analysis of financial and economic activity of the debtor, the analysis of its actives and passives, the markets on which activity of the debtor is carried out, investment appeal of the debtor develops offers concerning the further procedure of bankruptcy of the debtor.

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The analysis of a financial condition of the debtor - the noncommercial organisation should be presented the arbitration court, the first meeting of creditors and the self-adjustable organisation of the arbitration managing directors which member is the temporary managing director [45].

At the decision managing director of a question on, whether it is possible and whether introduction of financial improvement or external management is expedient, last is guided by following positions. It is necessary to analyse activity of the debtor - the noncommercial organisation within the limits of realisation of enterprise activity by it (both real, and potential); to estimate cost of property of the debtor (including being at the third parties); to study quantity and character of obligations of the debtor, to familiarise with requirements of creditors; to compare cost of property and the size of obligations of the debtor, and also all other payments; to draw a conclusion on quantity of the means necessary for restoration of solvency.

Result of carrying out of the financial analysis - revealing of the reasons of occurrence of signs of bankruptcy; presence and degree of liquidity of property; prospects and terms of restoration of solvency in case of introduction of external management; perspectivity of certain kinds of activity,

Carried out by the debtor. The system of the actions which realisation is capable to help this debtor [46] is besides, defined.

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The analysis should include not only an estimation of separate kinds of property of the debtor - the noncommercial organisation, but also definition of market cost of a property complex as one of competitive actions is sale of business of the debtor. Also it is not excluded, that business cost (or one of biznesov) will allow the debtor to pay off with all creditors and to restore solvency. Business sale is possible and at stages of supervision and financial improvement with observance of requirements of the Law about soglasijah on the order property and general rules GK the Russian Federation about enterprise sale.

Attracts attention that fact, that the analysis of a financial condition, as a rule, is spent on the basis of the accounting analysis of the organisation and documents of the established forms applied on it [47].

The theory and practice of the financial analysis allocate certain methods of its carrying out:

- Horizontal (time or dynamic) the analysis represents comparison of values of each balance position for the accounting period with value of the given position for the previous period; rates of changes for a number of years give the chance to predict their value;

- The vertical (structural) analysis is based on the relation of values of each balance position for the accounting period to a total balance indicator - balance currency; allows to carry out the comparative analysis with uche -

Volume of specificity of branch; smoothes negative influence of inflationary processes;

- trendovyj the analysis (the variant horizontal) represents studying of the data containing in balances for the accounting period and a number of the periods preceding it, and construction of corresponding dynamic numbers on each position of balance with a view of forecasting of the future indicators;

- The analysis of relative indicators (financial factors) is based on definition of parities between separate indicators of balance and the forms of the reporting concerning by the given period of time applied on it; economic efficiency of factors is defined by that they most precisely specify weak and strong places of the subject; however serious problems are connected with order of use and interpretation of factors;

- The comparative (spatial) analysis is based on comparison of the indicators characterising a financial condition and results finansovohozjajstvennoj of activity of the legal person with similar indicators of other organisations (are considered as indicators of concrete subjects, and sredneotraslevye and sredneekonomicheskie data); the conclusion about the maintenance of business and degree of its stability as a result becomes;

- The factorial analysis consists in definition of degree, mechanisms and consequences of influence of the separate reasons (factors) on concrete indicators [48].

At realisation of the financial analysis Methodical instructions on carrying out of the analysis of a financial condition of the debtor, approved by order FSFO from January, 23rd, 2001 N 16 can be used.

Certainly, temporary managing director can and not possess the qualification necessary for realisation of the financial analysis. It has the right to involve for realisation of the functions of certain persons (experts) with payment of their services in the contract from property of the debtor. Requirements of these persons become extraordinary; they should not be brought in the register and come under to satisfaction after approach of term of their execution by the debtor.

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Unlike the Federal act from January, 8th, 1998 № 6-FZ «About an inconsistency (bankruptcy)» the Law on an inconsistency of 2002 does not provide performance by time managing director of functions of the head of the debtor in case of discharge of the last, that also influences specificity of its activity. The given short story of the Law on an inconsistency has been caused by cases of use of possibility of discharge of the head of the debtor often meeting in practice and transfers of its powers to the time managing director with a view of so-called repartition of the property and capture of management by the debtor [49]. C one party, the specified short story in aggregate with norms of the Law on an inconsistency, providing supervision introduction only after consideration by arbitration court of requirements of the applicant and the statement of the time managing director in session of the court, is, undoubtedly, a step forward in relation to the unfair creditors using procedure of bankruptcy for achievement of the purpose of "unfriendly capture» the enterprises - the debtor. C other party, it is necessary to define, whether there corresponds the given rule of the Law on an inconsistency to those purposes and problems which are put before the time managing director.

By the legal nature the temporary managing director should not substitute controls of the debtor, including its head. It is represented, that concerning the debtor - the noncommercial organisation the temporary managing director should or have the right discharge and appoint independently the head of the debtor, or to have the exclusive right to offer a nominee of the head of the debtor to arbitration court. The representative of founders of the debtor should be thus allocated by the right to appeal against wrongful acts of the time managing director.

It, first, will allow the time managing director is high-grade and properly to carry out the problems and functions by means of the head of the debtor, secondly, will release the time managing director from functions of an operative management unusual for it by economic activities of the debtor. The current Law on an inconsistency, building relations between the time managing director and the head of the debtor, does not contain the mechanisms allowing time operating to carry out put before it of a problem in a most favoured nation treatment as provides the right to promotion of a nominee of head of the debtor again appointed arbitration court only for the representative of founders (participants) of the debtor or other collegiate body of the debtor, and also the representative of the proprietor of property of the debtor - the unitary enterprise. The temporary managing director not only does not possess the right to representation to arbitration court of a nominee of the head of the debtor, but also has no right to expression of the opinion concerning appointment of the head. The law on an inconsistency gives the right time operating to declare the petition for discharge of the head of the debtor from execution of the duties, however it is not enough such right for effective cooperation of the head of the debtor and the time managing director since numerous change of the head of the debtor in case of its unconscientiousness under the petition of the time managing director will lead to astable activity both time operating, and most должника1.

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The same conclusion can be made and concerning restrictions of activity of controls of the debtor - the noncommercial organisation, statutory about an inconsistency as it is represented, that whatever restrictions have been established, it will not promote appropriate performance by time managing director of the problems put before it, and only znachi -

1 See: Dubinsky D.R. The head of the organisation-debtor in a course prove - f denija supervision procedures at bankruptcy//the Bulletin of the South Ural state university. Chelyabinsk: Publishing house JuUrGu, 2002. № 4: Vyp. 2. ♦ ' With. 54.

telno will charge with additional loading activity of the time managing director.

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One of the primary goals of work of the time managing director is its work with creditors of the debtor which includes some stages:

- Revealing of creditors;

- The notice of each competitive creditor about initiated in the relation of the debtor competitive process and about possibility within 30 days to make to the debtor the demands (this notice should be carried out within 14 days from the date of publication of the message on supervision introduction, accordingly, a direction of data for the publication - too a duty of the time managing director);

- Acceptance of requirements of creditors;

- Acceptance of objections under requirements of creditors (these objections can be presented within 15 days from the moment of the expiry of the term for a presentation of requirements) [50].

Establishment of the size of requirements of each creditor - one of compulsory procedures of supervision which is carried out at a stage of preparation of the first meeting of creditors and which is necessary that at voting at the first meeting each creditor possessed the quantity of voices proportional to the sum of its requirements [51].

For a presentation of the requirements the legislator has not changed time parametres. Federal act article 71 «About an inconsistency (bankruptcy)» regulates 2002:

«For participation in the first meeting of creditors creditors have the right to make the demands to the debtor within thirty days from the date of publication of the message on supervision introduction».

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The same term has been established also by Federal act article 63 «About an inconsistency (bankruptcy)» 1998. However pravoprimenitelnaja practice showed, that article 63 of the Law about bankruptcy of 1998 did not carry presekatelnogo character. And scientists - lawyers, and arbitration court noticed, that the admission of term for a presentation of requirements of the creditor to the debtor can serve as an obstacle for participation of the creditor in the first meeting as competitive creditors both tax and other authorised bodies possess at the first meeting of creditors that quantity of voices which are established at the moment of carrying out of the first meeting of creditors [52].

At the same time in the Law on bankruptcy of 1998 there was no norm which would regulate legal effects of the admission of the terms established by article 63. In this case, at arbitration court by consideration of complaints of creditors on actions of the time managing director which refused to consider the demands of the creditor made to the debtor on those bases, that they are shown behind the time frameworks established by article 63 of the Law on bankruptcy, not always there were enough legal grounds for refusal in satisfaction of such complaints.

Accepting the new Federal act «About an inconsistency (bankruptcy)», the legislator has considered presence of such problem and has solved it, having brought in Federal act article 71 «About an inconsistency (bankruptcy)» 2002 point 7: «the Requirements of the creditors shown after provided point 1 of present article of terms for a presentation of requirements, come under

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To consideration by arbitration court after introduction of the procedure following procedure of supervision ».

The novel about an inconsistency also defines the mechanism on which in a case when all requirements of creditors declared when due hereunder to the debtor have appeared not considered by day of carrying out of the first meeting of creditors, the arbitration court has the right to charge time operating the debtor - the noncommercial organisation to postpone carrying out of the first meeting for end of consideration of all declared requirements and the objections which have arrived on them [53].

The order of an establishment of requirements of creditors concerning which the debtor has not shown objections has changed. The law on bankruptcy of 1998 provided, that if the debtor will not present to week term of the objections in arbitration court, these requirements should be recognised by established. Thus, in procedure of an establishment of requirements of creditors to the debtor there was an element of absence of control which could worsen essentially a legal status of the debtor - the noncommercial organisation.

The law on an inconsistency of 2002 the sounded problem is solved by the legislator as follows.

For a presentation of objections under those requirements of creditors to the debtor which are shown by the creditor in a statutory order, the legislator has established term fifteen days from the date of the expiry of the term for a presentation of requirements. Validity of requirements of creditors to the debtor on whom the debtor has not shown objections as well as the others, it is considered by arbitration court. Having considered the demands made by the creditor, the arbitration court establishes the bases for inclusion of the given requirements in the register of creditors. By results of such consideration the arbitration

The court takes out definition about inclusion or about refusal in inclusion of requirements in the register of requirements of creditors [54].

Unlike procedure of consideration of requirements of creditors, on which the debtor shows objections and which are considered in session of arbitration court with attraction of the persons participating in business about bankruptcy, requirements of creditors on which objections of the debtor it has not been shown, can be considered arbitration court without attraction of the persons participating in business.

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If objections are declared, as preparation of business for proceeding special session of arbitration court on check of validity of objections of the debtor is held. If objections are not declared, on session of the court validity of requirements is checked. The law of 1998 established, that such session is spent in time not later than a month to consideration term in business court about bankruptcy. Now for similar term the Law does not contain instructions, that is represented its lack, capable to generate the problems connected with legal uncertainty. Moreover, item 6 of item 71 of the Law establishes, that in need of end of consideration of requirements of the creditors shown when due hereunder, the arbitration court can charge time operating to postpone carrying out of the first meeting of creditors. If to consider, that Law item 51 imperatively establishes no more than 7-month's term of supervision, and ch. 2 items 1 of the item 72 Laws imperatively establish not less than 10-day term between the first meeting and arbitration court session, there is obvious a necessity of limited interpretation of norm of item 6 of item 71 of the Law to consider their concerning a situation when the meeting has been appointed so, that after its carrying out before the termination of term of supervision expired more than 10 days. Other interpretation (in which frameworks we will tell, that the given norm allows to increase supervision term) is represented inexpedient.

By results of consideration of validity of requirements or objections of the debtor - the noncommercial organisation the court takes out definition in which the size of the requirements recognised необоснованными1 is underlined.

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Definition of the size of requirements is necessary for participation and voting of the creditor in the first meeting of creditors as the quantity of voices of each creditor at meeting is defined proportionally to its requirement.

Obviously, void creditors do not participate in the first meeting (those which time of performance of requirements has not come yet) though, certainly, such creditors not less others are interested in solvency restoration должника2.

Competitive creditors and the authorised bodies which requirements are brought in the register participate in the first meeting of creditors. We will notice, that the last participate now in all meetings, and not just in the first as it has been statutory 1998 As a result in practice of application of this Law there were the problems connected with the answer to a question on possibility of the authorised bodies to participate not only in the first, but also in any meeting in which agenda there was a decision of the questions carried to the competence of the first meeting. In our opinion, on the given question the positive answer irrespective of follows, was or not the competence by the first meeting, i.e. even is settled when already made concerning the competence of the first meeting the decision is voted on one of following meetings (told most actually for a question on elections of committee of creditors).

Position according to which the meeting of creditors is competent irrespective of quantity of present creditors under condition of the notice of everything having the right is represented expedient uchastvo -

1 See: Dorohina E.Osobennosti of activity of the time managing director f at supervision carrying out//the Right and economy. 2004. № 6. With. 36.

2 See: Yushkevich P.P.Nabljudenie. (Bankruptcy)//the Law. 2003. № 8.

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vat in meeting [55]. However the Law of 2002 (unlike the Law of 1998) has established the quorum requirement. Voting is spent by the rules established by item 15 of the Law; as for the decision of some questions the majority vote from the general poll of creditors situations when voices of present creditors will be insufficiently for awarding judgement are not excluded can be demanded. It is represented, that if terms will allow, at a supervision stage the repeated meeting which all decisions are accepted according to item 3 of item 15 of the Law can be held.

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The temporary managing director, the representative of founders (participants), the head of the debtor participate in the first meeting of creditors without a vote - the noncommercial organisation and the representative of workers of the debtor, however absence of these persons does not influence the validity of decisions of meeting [56].

At the first meeting of creditors the question of principle about the further destiny of the debtor dares. The meeting can come to one of following decisions:

- The decision on introduction of financial improvement;

- The decision on introduction of external management and on the reference in arbitration court with the corresponding petition;

- The decision on a recognition of the debtor the bankrupt and about bankruptcy proceedings opening;

- The decision on the conclusion of the agreement of lawsuit.

Acceptance of each of decisions attracts the reference in arbitration court with the corresponding petition.

Besides, the meeting can select committee of creditors as its activity is carried out in all stages of process; to define samoregu -

liruemuju the organisation from among which members the managing director will be appointed, and possible additional requirements to it; to solve a question on transfer of conducting the register to a registry holder (problems are connected by that the Law does not answer a question on, whether the registry holder of that самореіулируемой the organisation from among which members the managing director will be selected should be accredited; from sense of the Law the positive answer to this question) follows.

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Acceptance by meeting of the decision on introduction of financial improvement attracts necessity of the statement of the plan of financial improvement and the schedule of repayment of debts (these documents contain the answer to a question on prospective term of financial improvement and actions which should lead to solvency restoration). Besides, creditors can agree with the maintenance of execution of the schedule of repayment of debts offered by founders (participants) (this maintenance can offer and any other subject in coordination with the debtor).

If the meeting decides to enter external management creditors should be defined with prospective term of its carrying out; the plan of external management is constituted already within the limits of this stage.

V.V. Vitrjansky states absolutely fair offer directed on perfection of the legislation on bankruptcy: «At the first meeting of creditors, in the presence of the corresponding offer from the debtor or creditors, it is necessary to provide priority consideration of a question on the conclusion of the agreement of lawsuit» [57]. Unfortunately, the Law on an inconsistency of any mechanisms directed on the conclusion at the first meeting of the agreement of lawsuit, does not contain. Therefore would be quite obvious, in our opinion, to bring in the current legislation about an inconsistency position according to which at an inconsistency of the debtor - the noncommercial organisation the conclusion world the agreement would become at -

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oritetnym in connection with realisation by the noncommercial organisation of a special social role and functions.

The supervision period comes to an end with removal by arbitration court of the decision or definition which establish the further destiny of the debtor. The arbitration court on the basis of the decision of the first meeting of creditors takes out definition about introduction of financial improvement or external management, or the bankrupt and the decision on a recognition of the debtor makes on bankruptcy proceedings opening, or approves the agreement of lawsuit and ceases manufacture on business about bankruptcy.

Here the legislator has entered norm which was not in the Federal act «About an inconsistency (bankruptcy)» 1998 into the Law on an inconsistency. Under the previous Law on bankruptcy supervision procedure came to the end with acceptance by arbitration court of the decision or definition about application to the debtor of one of bankruptcy procedures: external management, bankruptcy proceedings, the agreement of lawsuit - or about refusal in a recognition of the debtor the bankrupt. And in the presence of signs of bankruptcy and if it is not accepted the first meeting of creditors of any decision or the made decision is not presented to arbitration court, the arbitration court had the right to make the decision on a recognition of the debtor the bankrupt and on opening concerning its bankruptcy proceedings [58].

The federal act «About an inconsistency (bankruptcy)» has defined 2002, that in case the first meeting of creditors has not made of the decision on application concerning the debtor of one of bankruptcy procedures, the arbitration court should postpone a legal investigation about bankruptcy. And only in a case when legal investigation terms do not allow to postpone proceeding taking into account the general seven-mouth term of a legal investigation about bankruptcy, the arbitration court makes the decision on introduction of one of the subsequent about -

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tsedur bankruptcies depending on an estimation of a financial and economic condition of the debtor, the procedure of supervision made as a result of realisation.

C the moment of acceptance of described above decisions or definitions the supervision period is considered arbitration court of one finished. Also, under the general rule, since this moment powers of the time managing director stop also. However, if for any reasons the arbitration managing director with a view of realisation of the procedure of bankruptcy appointed arbitration court has not been appointed, the court assigns execution of these duties to the time managing director and obliges time operating to hold meeting of creditors for consideration of questions on a choice of the self-adjustable organisation from among which members the administrative, external or competitive managing director should be approved, and on requirements to a nominee of such managing director [59].

In due time and the procedures of supervision properly carried out during realisation and statutory actions about an inconsistency create preconditions for the most correct adjudication about bankruptcy and preservations of balance of interests of creditors and the debtor.

Thus, supervision procedure as institute of the Russian legislation on an inconsistency (bankruptcy) has appeared for the first time with acceptance in 1998 of the Law on bankruptcy. It was not applied in the Russian pre-revolutionary bankruptcy and has not been statutory about bankruptcy of 1992. The analysis of practice of application of the Law on bankruptcy of 1992 has shown, that absence of the given procedure led to infringement of balance of interests of the debtor and creditors.

The purposes of supervision the legislator has defined: - maintenance of safety of property of the debtor during the period after commencing a suit about bankruptcy before appointment reorganizatsionnyh, improving or liquidating procedures; - finding-out of a property condition of the debtor and possibility vosstanovle -

nija its solvency; - the maximum maintenance of balance of the rights and interests of the debtor and creditors. Supervision procedure is entered by results of consideration by arbitration court of validity of requirements of the applicant. In a case when business about bankruptcy is initiated on the basis of the statement of the debtor, supervision is entered from the date of acceptance by arbitration court of the statement of the debtor to manufacture.

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According to ch. 3 items 48, ch. 2 items 33, ch. 2 items 3 of the Federal act "About an inconsistency (bankruptcy)" definition about supervision introduction are taken out in case requirements to the debtor - to the legal body in aggregate constitute not less than 100 thousand rbl. and if the specified requirements are not executed within three months from date when they should be executed. These are bankruptcy signs.

Law article 53, it is similar to item 48, provides, that presence of signs of bankruptcy is the basis for acceptance by arbitration court of the decision on a recognition of the debtor the bankrupt and about bankruptcy proceedings opening.

As we see, and at supervision introduction, and at bankruptcy proceedings opening the same circumstances during one business about bankruptcy from what follows are established, that at a legal investigation in essence the court establishes not so much signs of bankruptcy, how many the fact of absence of circumstances, their changing.

These facts testify to lacks put in pawn in the Law on bankruptcy of the concept of bankruptcy as procedural and remedial character of relations of bankruptcy assumes sequence and development where the basis of the further stages are results previous.

Supervision is a procedure which has put about bankruptcy does not come to an end. Its purpose in creation of conditions for the further application of procedures of bankruptcy by maintenance to creditors of possibility to make the decision on a kind of the following procedure and finding of fact of presence of property as of the basis for fuller further arbitration management in frameworks

Other procedures. Supervision procedure is a legitimate process of gathering of proofs on business. That information which is received during supervision, has authentic character already because it is received in a statutory remedial order. So without supervision adjudication about bankruptcy in essence is impossible. The separate creditor cannot initially possess all information necessary for adjudication about bankruptcy with participation of many persons since in usual economic activities it should not possess it. At a legal investigation about bankruptcy with participation of all creditors unreasonably to rely on the information presented only by one of them.

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The supervision period comes to an end with removal by arbitration court of the decision or definition which establish the further destiny of the debtor. The arbitration court on the basis of the decision of the first meeting of creditors takes out definition about introduction of financial improvement or external management, or the bankrupt and the decision on a recognition of the debtor makes on bankruptcy proceedings opening, or approves the agreement of lawsuit and ceases manufacture on business about bankruptcy.

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Because the current Law on an inconsistency allows the debtor independently, without the coordination with the time managing director, to make transactions with real estate if the sum of the transaction does not exceed 5 % of the book value of actives of the debtor, there is a problem of possible abusings as small parts, within the specified 5 % of the book value of property, the debtor has the right to sell or otherwise to make real estate alienation to different persons who, outwardly not being connected among themselves, actually can form a group of persons interested in acquisition of property of the debtor. For the decision of the specified collision it is considered possible to use the formulation of item 4 of item 58 of the Law on bankruptcy of 1998 according to which the head of the debtor came under to discharge in case of nonacceptance of measures on maintenance of safety of property and also if it obstructed the time managing director at

Execution of its duties or supposed other infringements of requirements of the legislation of the Russian Federation which was more successful and to the full reflected responsibility of the head of the debtor during supervision.

One of offers on improvement of the legislation on bankruptcy is the offer on legislative fastening of position on priority consideration of a question on the conclusion of the agreement of lawsuit between participants of the specified relations.

Ir

Measures on safety of property of the debtor assume realisation of administrative functions in relation to the personnel of the debtor (the control over production sale, the control over protection divisions, accounts department and financial service etc.).

However the temporary managing director is deprived powers on organisation personnel administration, that in practice quite often leads to sabotage of activity of the time managing director.

I

Thus the Law on an inconsistency has not provided the account of opinion of the time managing director, and also other persons participating in business concerning appointment of the new head of the debtor in this connection it is possible to draw a conclusion on an obvious warp of the Law towards protection of interests of the debtor to the detriment of interests of other persons participating in business about bankruptcy, first of all creditors. It is necessary to notice, that discharge of the head of the debtor probably in case of infringement of the Law by the last about an inconsistency, that essentially narrows frameworks of the bases for possible discharge of the head of the debtor as norms of the Law on an inconsistency only in general regulate duties of the head of the debtor during supervision. The formulation of item 4 of item 58 of the Law on bankruptcy of 1998 According to which the head of the debtor came under to discharge in case of nonacceptance of measures on maintenance of safety of property, and also if it obstructed the time managing director at execution of its duties or supposed other infringements of requirements of the legislation of the Russian Federation, was more successful and in a floor -

f ache to a measure reflected responsibility of the head of the debtor during supervision.

It is represented, that concerning the debtor - the noncommercial organisation the temporary managing director should or have the right independently from - • stranjat and to appoint the head of the debtor, or to have the exclusive right to offer a nominee of the head of the debtor to arbitration court. The representative of founders of the debtor should be thus allocated by the right to appeal against wrongful acts of the time managing director.

Ir

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

More on topic § 2.1 Supervision as bankruptcy procedure At an inconsistency of the noncommercial organisations:

  1. § 1.2 Concepts and signs of an inconsistency (bankruptcy) of the noncommercial organisations
  2. § 1.1 Noncommercial organisations as subjects of an inconsistency
  3. § 2.3 External management of the noncommercial organisations at bankruptcy
  4. § 2.2 Financial improvement at an inconsistency of the noncommercial organisations
  5. CHAPTER 1. GENERAL PROVISIONS ON THE INCONSISTENCY (BANKRUPTCY) OF THE NONCOMMERCIAL ORGANIZATIONS
  6. § 3. Features of the legislation on an inconsistency (bankruptcy) of the organisations of the defensive industry
  7. § 1. Features of the legislation on an inconsistency (bankruptcy) gradoobrazujushchih the organisations
  8. LUKJANOVA Svetlana Valerevna. the INCONSISTENCY (BANKRUPTCY) of the NONCOMMERCIAL ORGANIZATIONS. The DISSERTATION on competition of a scientific degree of the master of laws. Ryazan 2006, 2006
  9. § 2.3. The noncommercial organisations as a kind not state The organisations
  10. 2. Concept of an inconsistency (bankruptcy) of subjects of business
  11. §1. Concept, criteria and signs of an inconsistency (bankruptcy) of physical persons
  12. § 3. The basic problem positions of the legislation on an inconsistency (bankruptcy) of subjects of business
  13. Paragraph 2.2 the Legal capacity of the noncommercial organisations.
  14. 2.4. Legal regulation of an inconsistency (bankruptcy) of individual businessmen.
  15. CHAPTER 2. FEATURES OF THE INCONSISTENCY (BANKRUPTCY) OF SEPARATE CATEGORIES OF SUBJECTS OF BUSINESS
  16. CHAPTER 3. PERFECTION OF THE LEGISLATION ON THE INCONSISTENCY (BANKRUPTCY) OF SUBJECTS OF BUSINESS
  17. §1. Concept, criteria and signs of an inconsistency (bankruptcy) of physical persons
  18. § I. To history of formation of institute of an inconsistency (bankruptcy) in The Russian civil law