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§2 Rights, duties and legitimate interests of the debtor as participant of competitive relations. System of remedies of rights and legitimate interests of the debtor in competitive process

In the present paragraph of dissertational work of the right and a duty of the debtor will be characterised taking into account the nature of competitive relations as complex. As requirements of subjects of legal relations can juridi - zirovatsja in the form of legitimate interests, and legitimate interests are a part of a legal status of the debtor and possess pravoreguljativnymi qualities, the establishment in the present paragraph of concept and the maintenance of legitimate interests of the debtor will be methodologically expedient also. Because the right of defence is one of right elements, for completeness of the characteristic of the rights and legitimate interests of the debtor in the present paragraph of the dissertation in system unity I will means of their judicial protection are described.

Let's characterise legislative model of construction of rights and duties of the debtor taking into account the nature of competitive relations.

In a bankruptcy science there is no unity of opinions concerning the legal nature of competitive legal relations. In many respects it is caused by presence of pluralism of theoretical positions by definition of the general concept of legal relation [295]. Not having the independent purpose research of the nature of competitive legal relations, for the subsequent characteristic of model of construction of the rights and duties of the debtor we will note the existing points of view on this problem. K.B.Koraev, V.F.Popondopulo, R.G.Smirnov consider competitive relations as the guarding obligation with active plurality of persons. As the legal maintenance of competitive legal relation the given authors allocate incorporeal rights of creditors and duties of the debtor corresponding to them. It is thus noticed, that creditors have only the rights and have no duties [296 [297] [298]. E.G. Dorohina comes to conclusion, that competitive legal relations from financially-legal point of view it is possible to characterise as reguljativnye the legal relations arising between the debtor and each of its creditors concerning satisfaction of the initial obligation is perfectly in order and on conditions, statutory about bankruptcy. S.A.Karelin notices, that as requirements of creditors arise from the various bases so far as they have no legal unity and communication. JU.P., M.V.Teljuki-on, V.N.Tkachev, V.V. Jarkov competitive relations as define complex, combining private-law and public elements [299].

In our opinion correct last from the resulted positions is represented. In many respects our point of view is based on earlier designated perception of the bankruptcy as complex legal education (podotrasli the enterprise right), and also on understanding repeatedly confirmed on a course of research of necessity of the balanced combination of private-law and public norms at regulation of competitive relations. It is thought also, that this position allows to characterise more full legislative model of construction of the rights and duties of the debtor taking into account the various nature of the rules of law regulating competitive relations. The last in turn assumes presence at the resulted point of view of real informative potential.

In item 1 of item 34 of the Law on bankruptcy the debtor is defined as the person participating in business about bankruptcy. From item 2 of specified article also follows, that the debtor is the carrier of a complex material and laws of procedure and duties without their concrete definition in this norm.

For the characteristic of legislative model of construction of the rights and duties of the debtor it is necessary to notice, that on sense of positions of the Law on bankruptcy the debtor as the participant of competitive relations continues to remain legallistically the subject of law and the participant before the arisen legal relations provided that they do not stop when due hereunder during competitive procedures and answer the purpose of regulation of participation of the debtor in competitive relations (in particular, the debtor remains the proprietor of property, the person bearing legal responsibility etc.).

Thus, specificity of competitive relations as the complex relations arising in connection with insolvency of the legal person, and also the purpose of regulation of participation of the debtor in competitive relations the impact on model of construction of its rights and duties make. This influence is the brightest the right - and capacity of the debtor [300], and also in fastening to the debtor of additional duties is shown in statutory about bankruptcy to system of restrictions.

In a bankruptcy science with reference to an inconsistency of legal bodies obosnovanno it is noticed, that restriction "dokonkursnoj" pravoospo - sobnosti the debtor by way of exception occurrence for it the certain rights and duties or obuslovlivanija occurrence of the rights by execution of additional duties (for example, an establishment of interdictions on fulfilment of certain actions, necessity of the coordination of transactions with the arbitration managing director and meeting (committee) creditors) is used at carrying out of procedures of supervision and financial improvement (item 63 item, 64, 81, 82 Laws on bankruptcy). As it has been noted by us in the second paragraph of chapter 1 of dissertational work, restriction of the general legal capacity of the debtor is carried out through its replacement konkursosposobnostju as by a special franchise version. Special disability of the debtor in the form of an establishment of realisation by it of the rights and duties through the controls appointed another persons (for example, a delegation of power of corporate controls of the legal person to the arbitration managing director) is used at carrying out of external management and bankruptcy proceedings (item 94 item, 96, 126, 127 Laws on bankruptcy) [301]. Legal incapacity and capacity of the debtor as subject of competitive relations act as legal means of maintenance of the competitive control that will be in more details described in the third chapter of dissertational research.

Taking into account that competitive relations has an essential remedial component, by consideration of the statement for a recognition of the debtor the bankrupt, the debtor as their participant possesses also such volume of laws of procedure and the duties listed in item 41 of agrarian and industrial complex of the Russian Federation what the respondent in the adversary proceeding possesses, including by the right to get acquainted with business materials to do extracts of them, to remove copies; to declare taps; to represent proofs and to get acquainted with the proofs presented by other persons, participating in business, prior to the beginning of proceeding; to participate in research of proofs, to give explanations, to put the arguments on all questions arising during a legal investigation etc. It is necessary to notice, that the debtor can possess and laws of procedure of the claimant in case it initiates the isolated dispute within the limits of business about bankruptcy - for example, will make in court the complaint to actions of the arbitration managing director which can refuse then on the basis and with observance of general provisions of item 2 of item 49 of agrarian and industrial complex of the Russian Federation.

Norms of item 9 (a duty on a reference to the court with the statement of the debtor), item 3.2 are devoted additional duties of the debtor, in particular. Item 64 of the Law on bankruptcy (a duty on granting by the debtor in the name of its controls to the time managing director of the information on property of the debtor and economic activities course).

Thus, it is possible to conclude, that the legislative model of construction of rights and duties of the debtor consists that the debtor as the subject of complex competitive relations has those rights and performs those duties which initially constitute the maintenance of its legal personality taking into account restrictions and the additions established by special provisions of the Law on bankruptcy. The specified restrictions and additions in essence represent the maintenance and konkursosposobnosti the debtor as special franchise and its special disability. Such model is represented correct for allows to achieve the object legal regulation of competitive relations, and also to provide appropriate participation in these relations of the debtor as their subject.

Let's establish and investigate legitimate interests of the debtor.

For definition of legitimate interests of the debtor we will specify, that interest in most general view can be presented as an objective category, under the form showing the public relation. As the maintenance of this relation the requirement having social character [302] acts. As marks S.V.Mihajlov, according to criterion of a regulation of interests the right the concept of interests can be divided on two big groups. The legitimate interests which realisation is settled by rules of law concern the first group. These interests are realised by means of norms of the objective right and rights arising on their basis. The legitimate interests which are not mediated by rules of law and not realised by means of rights concern the second group. Such legitimate interests represent interests to the blessings which are not embodied in concrete legal instructions, but do not contradict the law and follow from the general sense of the legislation, the letter and equity of statute [303 [304]. Existence of interests of the second group speaks a number of the reasons among which it is possible to name what not all interests can be mediated legal rules owing to variety, width and dynamics of public relations. For the further statement legitimate interests will be understood as interests of the second group as earlier we had already been gave the characteristic to rights of the debtor.

From legallistic positions as the owner of an independent legitimate interest the legal body (in particular, item 1 item 2, item 49 GK the Russian Federation) acts. Because the legal body naturally cannot have social requirements, its legitimate interest is defined by us first of all as an abstract legal design. The most widespread approach in the domestic legal theory to definition of a legitimate interest of the legal person consists that its interest represents result of association of interests of its participants (shareholders), not reduced to their simple set. Interest of the legal person prevails over interests of its separate participants. Character of interest of the legal person is caused by the purposes of its activity established in the law and in the charter, and also objective legally significant general requirement of its participants (shareholders). To the general requirement of participants of the functioning business invested with the corporate form - the legal body, it is possible to carry creation of conditions at which the organisation will successfully function. This in itself will create possibilities of reception by participants of dividends or other positive result on a constant basis. The similar approach proves to be true, in particular, in a position of the Constitutional Court of the Russian Federation stated in the decision from February, 24th, 2004 № 3 P «On business about check of constitutionality of positions of articles 74 and 77 FZ« On joint-stock companies », regulating an order of consolidation placed ak -

tsy joint-stock company and the repayment of fractional actions, in connection with complaints of citizens, the companies «the Cadet Establishment» and inquiry of October regional court of a city of Penza », and also experience of the law and order of Germany closest to us.

On the basis of the received results of research it is possible to conclude, that as the basic legitimate interest of the debtor as the aspiration of the debtor realised by its controls is necessary to understand the subject of competitive relations, to restore the solvency and to settle existing debts, thereby having ceased competitive procedure and restrictions generated by it. Or, at impossibility of restoration of solvency, aspiration legally and honesty to cease unprofitable activity and the legal existence, namely: in proportion and proportionally to pay off with creditors, in the presence of the property which has remained after satisfaction creditor requirements as well with participants (shareholders), to level or minimise negative consequences of the inconsistency in other provided legal form. The made definition of a legitimate interest of the debtor in many respects is based on essence of the debtor as legal means, before the designated purpose of regulation of participation of the debtor in competitive relations and principles of its legal status. In conclusion of definition of legitimate interests of the debtor we will notice, that other legitimate interests of the debtor are defined in each concrete legal situation taking into account the debtor formulated before the basic legitimate interest, and also situational general requirements of its participants (shareholders). As an example here it is possible to result a legitimate interest of the debtor at the appeal it of inactivity of the time managing director on neprovedeniju its analysis finansovohozjajstvennoj the activity which results objectively allow to restore its solvency and to pay off with debts. In that case the legitimate interest of the debtor will consist in trustworthy information formation about its financial and economic activity for acceptance of corresponding [305 [306] adequate decisions at meeting of creditors and court. At the heart of this interest the common interest of the debtor which can be broken introduction of bankruptcy proceedings on the basis of absence of the objective analysis of its activity will lay, and also the situational general requirement of its participants (shareholders) for a possibility of the further activity of the organisation, whose financial crisis has no intrinsic character, and is caused, for example, by a situation of cash rupture.

Definition of a legitimate interest of the debtor has not only theoretical (informative), but practical necessity. Practical necessity is caused by that such interest owing to item 1 of item 4 of agrarian and industrial complex of the Russian Federation acts as independent object of a right protection and judicial protection. Thus on sense of the item of item 4, 223 agrarian and industrial complexes of the Russian Federation, item 8 item, 12 GK the Russian Federation, item 1 of item 1 of the Law on bankruptcy legitimate interests are protected by the same means and ways, as rights, for finally rights and legitimate interests are based on unconditional conformity to general principles and sense of the legislation (item 1 of item 8 GK the Russian Federation) 1.

Let's formulate system of remedies of rights and legitimate interests of the debtor in competitive process.

As V.P.Gribanov, «fairly marked the right given to the person, but not provided from its infringement by necessary protection frames, is only« the declarative right »» 2. The Right of defence is considered now as one of elements of the right which proves only in conditions when someone challenges, encroaches or breaks the granted right [307 [308] [309]. The Same thesis is applicable by analogy and to a legitimate interest.

Protection of the rights and legitimate interests of the debtor can be carried out in various usages (judicial, administrative, as self-defence) and with use of various ways (item 12 GK the Russian Federation). Owing to that competitive relations have essential remedial constituting (item 223 of agrarian and industrial complex of the Russian Federation), and the legal process is priority (item 4 of agrarian and industrial complex of the Russian Federation, item 1 of item 11 of the Law on bankruptcy) protection of the rights and legitimate interests of the debtor as participant of competitive relations is carried out judicially and in the certain statutory remedial form. The right of the debtor to judicial protection in most general view should have, in our opinion, two base components. First, protection should be given to the debtor regardless to the fact of its insolvency or an inconsistency. As the reason of granting of judicial protection protection and restoration of the rights and legitimate interests of the debtor as subject of law in whole and concrete legal relations in particular should act. Bankrupt's estate formation in that case is one of possible legal consequences of judicial protection of the rights and legitimate interests of the debtor. Secondly, the right of defence should provide presence of the legal mechanism of its effective realisation from the point of view of terms, an order, availability, other procedural aspects, and also taking into account accelerated dynamics of competitive relations.

In competitive process of the right and legitimate interests of the debtor come under to protection by means of system of special legal means [310]. System character of the given means is caused by their unity on a target orientation (protection and restoration of the broken or challenged rights and legitimate interests of the debtor), to the realisation legal process, the general I correspond to logic of a current of competitive process.

Primary protection frame of the debtor the statement of the debtor for a recognition as insolvent (bankrupt) (item 8 item, 9, 213 acts. 4. The law on bankruptcy). Use of this protection frame by the debtor is directed on manufacture excitation on business about the bankruptcy, the subsequent introduction of competitive procedure and granting to the debtor of competitive immunity (impossibility of creditors to realise the requirement to the debtor in other, not competitive, an order), and also to occurrence at it other favorable legal effects (for example, the termination of charge of penalties and other financial sanctions, percent behind an exception moratornyh percent at a rate of the refinancing rate).

The further protection frames are differentiated by us depending on character of infringement of the rights and legitimate interests of the debtor on a course of competitive process.

In a case if the rights and legitimate interests of the debtor are broken by business movement about bankruptcy and generated restrictions its right - and capacity, as protection frames will act:

- The definition appeal about acceptance of the statement of the creditor about a recognition of the debtor the bankrupt (item 35.2. Decisions of Plenum YOU the Russian Federation from June, 22nd, 2012 № 35);

- Objections (response) on the statement of the creditor for a recognition of the debtor the bankrupt at acceptance by court of the given statement to manufacture (item 47 of the Law on bankruptcy);

- The appeal of judicial certificates about introduction of competitive procedures (item 49 item 4, item 93 item 2, item 3 of item 124 of the Law on bankruptcy);

- The petition for phase-out on business about bankruptcy (item 57 of the Law on bankruptcy, item 11 of the decision of Plenum YOU the Russian Federation № 35) [311], the requirement about refusal in introduction of bankruptcy proceedings which can be remedially issued as objection on the statement for a recognition of the debtor insolvent (bankrupt) at a stage of the permission court of a question on a recognition of the debtor the bankrupt and about bankruptcy proceedings opening (item 41 of agrarian and industrial complex of the Russian Federation, the item of item 53 and 55 Laws on bankruptcy).

The following problem now has not found in aspect of application of such protection frames as the petition for phase-out on business about bankruptcy and the requirement about refusal in bankruptcy proceedings introduction the decision. According to item 1 of item 52 of the Law on bankruptcy by results of a legal investigation about bankruptcy the arbitration court accepts, including one of following judicial certificates: the decision on a recognition of the debtor the bankrupt and about opening konkurnogo manufactures; the decision on refusal in a recognition of the debtor the bankrupt; the ruling of dismissal about bankruptcy. According to item 53 item 1, item 55 of the Law on bankruptcy the award about refusal in a recognition of the debtor the bankrupt is accepted in case of absence of signs of the bankruptcy provided by the item 3 Laws - namely absence at the legal person of unsatisfied duties under liabilities or unsatisfied duties on payment of obligatory payments for the sum over 300 000 rbl. without taking into account owing to item 2 of item 4 of the Law on an inconsistency (bankruptcy) of the sums of penalties and penej, and also in case of absence of the bases for phase-out on business about the bankruptcy, provided items 57 of the Law bankruptcy. Thus, that concerning the debtor procedure of bankruptcy proceedings following the results of supervision procedure has not been entered, it is enough to last to pay only the basic sum of debts taking into account item 2 of item 4 of the Law. Other debts which are not answering to established criteria to pay it is not necessary. In that case the court will take out the judicial certificate about refusal in a recognition of the debtor by the bankrupt which on the consequences as a whole corresponds to the judicial certificate about phase-out on business on the basis of payment of all debts [312].

It is represented, that the developed situation hardly can be to the full recognised by normal and fair. Its correction can be carried out a formulation at level of the higher degree of jurisdiction (for example, in the form of position in the decision of Plenum of the Supreme Court of the Russian Federation or in the form of the answer to a question in periodically let out by the Supreme Court of the Russian Federation judiciary practice reviews) a legal position according to which if at the decision of a question on introduction or on refusal in introduction of bankruptcy proceedings following the results of supervision procedure, it will be established, that the debtor, demanding to give up in bankruptcy proceedings introduction on the basis of repayment to them to the debts which are meeting the requirements of item 2 of item 4 of the Law on bankruptcy, had real possibility to extinguish and the debts which are not meeting the requirements of item 2 of the item 4 Laws on bankruptcy, but has not extinguished it, and it is thus established, that the debtor taking into account its current financial condition and reasonable forecasts of development will be obviously incapable to pay off under all remained obligations, in that case the court has not the right to refuse in bankruptcy proceedings introduction only on the basis of repayment by the debtor of the debts which are meeting the requirements of item 2 of item 4 of the Law on bankruptcy. Correctness of the offer formulated by us can be confirmed by the Full court position on economic disputes of the Supreme Court of the Russian Federation reflected in definition from August, 15th, 2016 № 308-ES16-4658 on business № А53-2012/2015. In particular, in the given definition the Supreme Court of the Russian Federation has specified, that incomplete repayment of the requirement of the creditor - the applicant (to threshold value in 300 000 roubles) can be unfair behaviour and not interfere with introduction of competitive procedure on the basis of the statement of this creditor, in a case if the debtor will remain all the same insolvent, and fulfilment of actions on repayment of the requirement to threshold value are caused by necessity of maintenance of introduction of competitive procedure on the basis of the statement of other creditor having signs affilirovannosti with the debtor or its participants (shareholders).

In a case if the rights and legitimate interests of the debtor are broken by the creditor requirements declared to it, a legal protection frame will be objections on requirements of creditors, including on motive of the expiry of the term of limitation of actions (item 71 item 2, item 3 of item 100 of the Law on bankruptcy). This protection frame can be supplemented with contest of legal grounds of these requirements (at voidability of the transaction) in the general remedial order.

If the rights and legitimate interests of the debtor are broken by the arbitration managing director, in that case as a protection frame acts:

- The complaint to actions (inactivity) of the arbitration managing director (item 60 of the Law on bankruptcy);

- The petition for discharge of the arbitration managing director and collecting from it losses (item 20.4. The law on bankruptcy, the Circular of Presidium YOU the Russian Federation from May, 22nd, 2012 № 150 «the Review of practice of consideration by arbitration courts of the disputes connected with discharge of competitive managing directors» [313]);

- The petition for refusal in the statement arbitration operating (item 56 of the Decision of Plenum YOU the Russian Federation № 35).

It is necessary to mean, that owing to the legal position stated in item 2 of the Circular of Presidium of YOU the Russian Federation № 150, arbitration court can consider in common the complaint of the person participating in business about bankruptcy, to actions of the competitive managing director and the petition of this person for its discharge. Differently, for the statement of the petition for discharge of the arbitration managing director in business about bankruptcy there is no necessity of separate representation before the judicial certificates which have entered validity about satisfaction of complaints to its acts or omissions within the limits of the same business about bankruptcy.

At infringement of the rights and legitimate interests of the debtor decisions of the creditors, an appropriate protection frame will be the complaint to decisions of meeting of creditors, committee of creditors (gl. 9. 1. GK the Russian Federation, item 15 item, 17 Laws on bankruptcy) [314 [315]. Besides it, in cases, statutory, an independent subject of contest can be both other legally significant documents and actions which were a consequence of the creditors of decisions accepted at meeting, for example, the plan of external management (item 6 of item 107 of the Law on bankruptcy), the auctions on sale of property of the debtor (item 110 item, 139 Laws on bankruptcy, item 449 GK the Russian Federation) etc.

With reference to a question on realisation of legal protection frames of the debtor there is a following natural question - how use of protection frames should be carried out at the termination of powers of controls of the debtor in connection with introduction of procedures of external management or bankruptcy proceedings? It is represented, that the given question should dare as follows. Owing to item 23 of the decision of Plenum YOU the Russian Federation from December, 15th, 2004 № 29 «About some questions of practice of application of the Federal act« About an inconsistency (bankruptcy) »follows, that the right of the former head of the debtor to fulfilment of legal proceedings on behalf of the debtor is strictly limited by the appeal of judicial certificates about introduction of external management or bankruptcy proceedings [316]. For this reason under the general rule to use protection frames of the rights and legitimate interests of the debtor should arbitration operating as its legal representative. The same protection frames, including against illegal acts of the most arbitration managing director, the representative of founders of the debtor (the proprietor of property), which according to item 3 of item 126 of the Law on bankruptcy and the items can use also. 14 and 41 decisions of Plenum YOU the Russian Federation № 35 from the moment of introduction of external management or bankruptcy proceedings get the rights of the person participating in business about bankruptcy. Using protection frames, the representative of founders of the debtor (the proprietor of property) will act as well in protection of the debtor owing to primary intrinsic identity of their legitimate interests. The position resulted by us finds the additional acknowledgement, for example, in definition of the Supreme Court of the Russian Federation from June, 14th, 2016 on business № 304-ES15-20105 [317].

The basic conclusions:

1. The legislative model of construction of rights and duties of the debtor consists that the debtor as the subject of complex competitive relations has those rights and performs those duties which initially constitute the maintenance of its legal personality taking into account restrictions and the additions established by special provisions of the Law on bankruptcy. The specified restrictions and additions represent the maintenance konkursosposobnosti the debtor as special franchise, and also the maintenance of its special disability as the subject of competitive relations;

2. Realised through bodies of a corporate governance aspiration of the legal person in competitive relations to restore the solvency, thereby having ceased competitive procedure and restrictions generated by it, or legally and honesty to cease unprofitable activity and the existence, in proportion and proportionally having paid off with creditors, and in the presence of the remained property - and with participants (shareholders), comes under juridizatsii in the form of the basic legitimate interest of the debtor. The basic legitimate interest of the debtor acts as an element of its legal status as subject of competitive relations and independent object of a right protection and judicial protection in competitive process. Other legitimate interests of the debtor are defined in each concrete legal situation taking into account the basic legitimate interest of the debtor, and also situational general requirements of its participants (shareholders);

3. In competitive process of the right and legitimate interests of the debtor come under to protection by means of system special (konkursnopravovyh) means. System character of the given means is caused by their unity on a target orientation (protection and restoration of the broken or challenged rights and legitimate interests of the debtor), to the realisation legal process, the general I correspond to logic of a current of competitive process and the purpose of legal regulation of participation of the debtor in competitive relations.

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A source: Galkin Sergey Sergeevich. the LEGAL STATUS of the DEBTOR - the LEGAL PERSON In the RUSSIAN LEGISLATION On BANKRUPTCY. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2016

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