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Financial recovery is possible

Bankruptcy (insolvency) - a debtor's inability to fully satisfy the claims of creditors on monetary obligations and (or) to fulfill the obligation to make compulsory payments. After registration of legal entities, this inability must be recognized by the arbitral tribunal.

Bankruptcy - a lengthy process, which is primarily aimed at the financial recovery of the debtor, the return of his ability to carry out its normal business activities, including settlements with creditors. Compulsory liquidation of the company and the sale of its assets in bankruptcy applied only when the financial recovery is impossible.

To determine the signs of bankruptcy, using two main criteria: indebted and insolvent.

Indebted means that the amount of debt exceeded the value of the debtor's property, and the ability to pay these debts do not. Both of these criteria are applied together for the citizens - entrepreneurs. A legal entity may be declared bankrupt if there is one criterion - insolvency, ie the actual non-payment of debts on its obligations within three months from the date when they should pay. In addition to these conditions, and need a certain amount of debt, which would allow the arbitral tribunal file for bankruptcy. For legal entities, the size is 100 000 rubles for citizens - entrepreneurs - 10,000 rubles.

Debts of the enterprise - the bankrupt must be confirmed by a legally enforceable judgment. The lender has the right to apply to the arbitration court to declare the debtor bankrupt after receiving the writ of execution and handling of the bailiffs. Contacting the lender before the arbitral tribunal may within 30 days of application to the court bailiffs.

Under certain circumstances, the debtor itself has a right to go to arbitration. But if the debtor's statement is false (fictitious bankruptcy), head of the organization or individual entrepreneur to pay such a statement may be subject to administrative or criminal responsibility (Article 197 of the Criminal Code).

Depending on the initiator of the process of bankruptcy, creditors distinguish between applicant and all the rest. In order to meet the requirements distinguish ordinary and extraordinary creditors.

Requirements ordinary creditors are satisfied in order of priority established by the law on bankruptcy, creditors are satisfied extraordinary demands on the capabilities of the debtor.

Court within a period of 15 to 30 days to consider the validity claimed by the creditors, then introduces monitoring and appoints a temporary administrator.

Lenders form a special body - the meeting of creditors, representing their interests in relations with the debtor.

Organize and conduct the meeting of creditors arbitration managers.

The creditors' meeting decides on the appropriateness of the external management of property of the debtor, on the conclusion of the settlement agreement, the procedure for assessment of the debtor's property, etc.

Depending on the stage of bankruptcy changing functions of arbitration manager and his name. A procedure for monitoring conducts interim manager, financial recovery - Administrative Manager, external management conducts an external manager, and finally bankruptcy proceedings - bankruptcy trustee. Learn more on the subject from http://mybkhelp.com

Observation is introduced on a review of the validity of the applicant's claim (lender) to a debtor.

In the process of monitoring the analysis of the financial condition of the debtor is determined by the value of its property, carried out an inventory, identifies creditors. The main purpose of this procedure - to establish whether a debtor is unable to meet the demands of creditors, or to fulfill the obligation to make compulsory payments in full at the time of the arbitration court of the bankruptcy petition. The introduction of this procedure makes it possible, on the one hand, to determine the financial condition of the debtor, and the other - to keep his property.

The observations were made interim manager. Following this procedure, it shall submit to the meeting of creditors and the court of arbitration complete information about the debtor: the presence or absence of signs of bankruptcy, the ability to pay its creditors before the meeting of the arbitral tribunal, etc.

It is the analysis of the financial condition of the debtor gives temporary administrator to establish the presence of intentional or fictitious bankruptcy.

In addition to the analysis of the financial condition of the debtor, interim trustee shall convene and hold the first meeting of creditors at least 10 days prior to the procedure to follow.

At the first meeting of creditors must be decided what will be the next bankruptcy, who will maintain a register of creditors' claims (it can be the trustee in bankruptcy or specialized professional securities market participant - the registrar), who will be appointed following the liquidator. However, lenders can take at this meeting a decision on the conclusion of the settlement agreement.

The decision of the first meeting of creditors for approval by the court of arbitration, which may not agree with him and make a different definition. This determination is made not later than 7 months from the date of application to the court to declare the debtor bankrupt.

Observation terminated: since the introduction of financial rehabilitation or external management; recognition of the arbitral tribunal debtor bankrupt and the opening of bankruptcy proceedings; approval of the settlement agreement.

Financial recovery is introduced at the request of the debtor's founders in the presence of the financial recovery plan and debt repayment schedule. As founders or even third parties should be given to ensure fulfillment of the obligations of the debtor (mortgage, bank guarantee, the state guarantee, surety) in the amount of not less than 120% of the outstanding amount. The main objective of financial recovery - to restore the solvency of the debtor and follow the repayment schedule.

The legislation sets strict requirements regarding the timing and order of repayment to creditors. In particular, said the debt repayment schedule should provide for repayment beginning not later than one month after the financial recovery. Claims of all creditors included in the register of creditors must be met no later than one month before the expiry of this procedure. Claims of creditors of the first and the second stage - no later than 6 months after the introduction of financial recovery. Repayment of creditors 'claims should be done on a monthly basis, in proportion, in equal installments over a year since the start of the creditors' claims.

Financial recovery is introduced for up to 2 years. A month before the expiry of that period the debtor is an administrative receiver report, including the balance of the debtor, the profit and loss account, the documents confirming the claims of creditors. If the debt repayment schedule is not performed, the claims of creditors are repaid persons to provide security, and then these people become creditors of the debtor for the third stage.

Following consideration of the results of financial rehabilitation, as well as claims of creditors arbitral tribunal shall one of judicial acts: the definition of the dismissal of the bankruptcy case, if there is no outstanding debt, and creditors' complaints to be unfounded; definition of external administration in the case of a possibility to restore the solvency of the debtor; decision to declare the debtor bankrupt and the opening of bankruptcy proceedings, if there are no grounds for the imposition of external management.

External control is introduced for up to 18 months with a possible extension for another 6 months. Since the introduction of external control associated with a number of important legal consequences. The head of the debtor is discharged from his position, and an external control, as opposed to temporary administrative completely replaces it.

To manage the transition of external power to dispose of the property, except for the possibility to conclude a big deal, as well as transaction of interest.

Impose a moratorium on satisfaction of creditors, execution date occurred before the introduction of this procedure, with the exception of claims for recovery of wages, royalties, compensation for harm to life or health of non-pecuniary damage.

Moratorium on satisfaction of creditors' claims - the most advantageous for the debtor to the effects of foreign control. As for the moratorium accrual of penalties (fines, penalties), other financial penalties for non-performance or improper performance of monetary obligations.

After the procedure, the external control - is a transition to settlements with creditors (after accumulating sufficient funds or obtain them from the founders or third parties) or the debtor bankrupt and the opening of bankruptcy proceedings.

Bankruptcy proceedings is the final stage in the process of insolvency (bankruptcy). As a result of the bankruptcy proceedings terminated the existence of the legal entity or business activity of the citizen. This procedure opens after the arbitration court's decision to declare the debtor bankrupt. It is given for a year with a possible extension for another 6 months.

Bankruptcy trustee invites appraiser and carry out an inventory of the property of the debtor, to form the bankruptcy estate, ie cash received from the sale of property. Bankruptcy estate is all the property of the debtor in possession of at the time of the discovery and the discovery during the bankruptcy proceedings.

Creditors wishing to participate in the contest and get the satisfaction of their claims, must make a claim against the debtor in the 2-month period from the date of publication of a notice declaring the debtor insolvent; After this period the register of creditors closed.

After the record bankruptcy trustee begins to make payments to creditors in order of priority.

Priority of creditors in accordance with the Law on Bankruptcy is different from the priority provided for in the Civil Code of the Russian Federation.

Extraordinary requirements deemed payment of court costs, payment of remuneration to the arbitration manager, the repayment of utilities and maintenance costs, current assets and current salary. Current requirements are the obligations incurred by the debtor has since started the process of bankruptcy.

- Lenders are primarily citizens who have requirements associated with causing harm to life and health;
- Creditors of the second stage - the citizens, to whom there is an obligation to pay severance pay, wages, royalties;
- To the third stage includes all other creditors, among them - mortgagees that meet their requirements due to the cost of the collateral.

In the summation of all the best possible timing of bankruptcy procedures (7 months - observation, 2 years - financial rehabilitation and external management and a half years - the bankruptcy proceedings), we get more than 4 years. In practice, the restoration of the solvency of large enterprises takes at least 5 years.

Bankruptcy Bankruptcy (insolvency) - recognized by the arbitral tribunal or the debtor declared inability last fact, claims of creditors in full, or to fulfill the obligation to make compulsory payments. The state of insolvency of the debtor is transformed into insolvency (bankruptcy) only after ascertaining the arbitral tribunal signs of insolvency of the debtor.

Debtor - citizen, including individual entrepreneur or legal entity who find themselves unable to meet the demands of creditors on monetary obligations and (or) to fulfill the obligation to make compulsory payments within the time limit set by the Bankruptcy Law (within three months from the date when they should have been done).

Lenders - persons with respect to the debtor the right to claim under liabilities and other liabilities, of the mandatory payments of severance pay and on remuneration of persons employed under an employment contract.

Bankruptcy proceedings in the Russian Federation is regulated by the Federal Law "On Insolvency (Bankruptcy) No 127-FZ, followed by the Bankruptcy Law.

Bankruptcy cases of legal entities and individuals, including sole proprietors, the arbitral tribunal considers the location of the debtor - legal entity or place of residence of a citizen.

In a case of bankruptcy of the debtor - legal entity, the following bankruptcy proceedings:

. observation;
. financial health;
. external control;
. bankruptcy proceedings;
. settlement.

The main objectives of the bankruptcy procedures are:

. repayment of debts to creditors;
. restoration of the conditions necessary for the continuation of the legal entity of its business.

Bankruptcy procedures carried out accordingly:

. Surveillance - Interim Manager;
. financial recovery - Administrative Supervisor;
. external control - external manager;
. bankruptcy proceedings - bankruptcy trustee;

Monitoring

Observation - bankruptcy procedure applicable to the debtor in order to safeguard the assets of the debtor, the analysis of the financial condition of the debtor, in which the register of creditors' claims and the first meeting of creditors.

Observation is the preparation procedures and the need to use it due to the fact that before liquidate or reorganize the company, he should be given time to carry out the collection of the necessary documentation, notification of interested parties and preparing decisions on the basis of financial analysis. In contrast to such bankruptcy proceedings, as financial recovery, external control, bankruptcy proceedings and the settlement agreement, which apply in cases of bankruptcy is not always the observation is mandatory.

to begin bankruptcy proceedings

In principle, the question of the opening of bankruptcy legally can be solved in different ways. Thus, according to the US bankruptcy law, the debtor immediately opened or liquidation proceedings or reorganization (at the request of the debtor or creditor). But then, the liquidation procedure may be converted to reorganization, and vice versa. In France, as in Russia, there is an auxiliary monitoring procedure. In Germany, all cases immediately start bankruptcy proceedings, and then can be introduced restructuring plan.

In determining the arbitral tribunal to impose surveillance shall indicate:

. recognition of the applicant's claim reasonable and the need for follow-up;
. approval of a temporary administrator;
. remuneration interim manager and source of payment.

If you make a determination on the introduction of surveillance is not possible to nominate a temporary administrator, the arbitral tribunal shall issue a determination to defer consideration of the approval of a temporary administrator for a period not exceeding 15 days.

Determination of the introduction of surveillance and identification of approval shall be temporary administrator immediately and may be appealed, that does not suspend their execution.

Table 1. Observation of the procedure of bankruptcy

 
 
     
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