The Russian competition legislation in insolvency (bankruptcy) cases and in the application of bankruptcy procedures gives certain rights and obligations not only to the debtor, but also to founders (participants) of the debtor - legal entity(shareholders, partners, etc.), as well as the owner of the debtor's property - unitary enterprise (hereinafter referred to as participants).

In accordance with Article 34 of the Federal Law “On Insolvency (Bankruptcy)” dated October 26, 2002 (hereinafter referred to as the Law), the participants in the debtor are not persons participating in the bankruptcy case. At the same time, the representative of the founders (participants) of the debtor, the representative of the owner of the property of the debtor - a unitary enterprise are among persons participating in the bankruptcy proceedings(Article 35 of the Law).

Representative of the founders (participants) of the debtor- the chairman of the board of directors (supervisory board) or other similar collegial management body of the debtor, or a person elected by the board of directors (supervisory board) or other similar collegial management body of the debtor, or a person elected by the founders (participants) of the debtor to represent their legitimate interests during the bankruptcy procedures. Representative of the owner of the property of the debtor - a unitary enterprise- a person authorized by the owner of the debtor's property - a unitary enterprise to represent his legitimate interests during bankruptcy proceedings (Article 2 of the Law). According to the Decree of the Government of June 5, 2008, the powers of the owner of the debtor's property - Federal State Unitary Enterprise - are exercised by the Federal Property Management Agency - FA to manage state property.

Participants of the debtor may have the status of insolvency (bankruptcy) creditor with all the ensuing consequences. Their claims may arise from participation in the debtor legal entity. However, such creditors are not included in the bankruptcy creditors (Article 2 of the Law), and therefore their rights are limited: they cannot apply to the arbitration court with an application for declaring the debtor bankrupt, participate in meetings of creditors with the right to vote, etc.

Participants of the debtor in accordance with Articles 30, 31 of the Law take measures to financially improve the organization at the pre-trial stages in order to prevent bankruptcy.

According to Article 30 of the Law, in the event of signs of bankruptcy, the head of the debtor is obliged to send information about this to the founders (participants) of the debtor, the owner of the property of the debtor - a unitary enterprise. The founders (participants) of the debtor, the owner of the debtor's property - a unitary enterprise must take timely measures aimed at restoring the debtor's solvency in order to prevent bankruptcy. Thus, by virtue of Article 31 of the Law, the founders (participants) of the debtor, the owner of the property of the debtor - a unitary enterprise, within the framework of measures to prevent bankruptcy, the debtor may be granted financial help in an amount sufficient to pay off monetary obligations and mandatory payments and restore the solvency of the debtor ( pre-trial sanitation).

After the initiation of the competitive process, representatives of the participants of the debtor have the right to participate without the right to vote in meetings of creditors and speak on the agenda of the meeting of creditors (Article 12 of the Law).

Complaints of representatives of the debtor's participants: see paragraph 3 of Article 60 of the Law.

After the introduction of the procedure observations by virtue of Article 63 of the Law prohibited Satisfaction of the requirements of the founder (participant) of the debtor for the allocation of a share (share) in the property of the debtor in connection with the withdrawal from its founders (participants), redemption by the debtor of outstanding shares or payment of the actual value of the share (share); the payment of dividends and other payments on issuance securities is prohibited. The debtor's management bodies are not entitled to make decisions: on the payment of dividends or the distribution of the debtor's profits among its founders (participants); on withdrawal from the founders (participants) of the debtor, acquisition of previously issued shares from shareholders (Article 64 of the Law).

In the course of observation, the founders (participants) of the debtor, the body authorized by the owner of the property of the debtor - a unitary enterprise, in accordance with the procedure established by the Law, have the right to apply to the first meeting of creditors, and in the cases established by the Law, to the arbitration court with application for the introduction of financial rehabilitation. At the same time, the said petition and the documents attached to it shall be submitted to the temporary administrator and to the arbitration court not later than fifteen days before the date of the meeting of creditors. The interim manager is obliged to provide creditors with the opportunity to familiarize themselves with specified documents(Article 76 of the Law).

The decision to apply to the first meeting of creditors with a request for the introduction of financial rehabilitation is taken at the general meeting by a majority vote of the founders (participants) of the debtor who took part in the said meeting, or by a body authorized by the owner of the property of the debtor - a unitary enterprise.

The general meeting of founders (participants) of the debtor, the body authorized by the owner of the property of the debtor - a unitary enterprise, when deciding to apply to the first meeting of creditors with a petition for the introduction of financial rehabilitation, shall have the right to terminate the powers of the head of the debtor ahead of schedule and elect (appoint) a new head of the debtor.

The founders (participants) of the debtor who voted for the adoption of a decision to apply to the first meeting of creditors with a request for the introduction of financial rehabilitation, have the right to provide security for the debtor's performance of obligations in accordance with the debt repayment schedule in the manner and in the amount provided for by the Law, or arrange for the provision of such security .

The decision to apply to the first meeting of creditors for the introduction of financial rehabilitation must contain:

· information on the provision by the founders (participants) of the debtor, the owner of the property of the debtor - a unitary enterprise, of ensuring the fulfillment by the debtor of obligations in accordance with the debt repayment schedule;

· proposed by the founders (participants) of the debtor, the owner of the property of the debtor - a unitary enterprise, the period of financial recovery and the period for satisfying creditors' claims.

The following shall be attached to the decision to apply to the first meeting of creditors for the introduction of financial rehabilitation:

a financial recovery plan;

debt repayment schedule

Minutes of the general meeting of founders (participants) of the debtor or decision of the body authorized by the owner of the property of the debtor - a unitary enterprise;

· a list of founders (participants) of the debtor who voted for applying to the meeting of creditors with a petition for the introduction of financial rehabilitation;

· if there is security for the performance of the debtor's obligations in accordance with the debt repayment schedule, information about the security of the debtor's performance of obligations in accordance with the debt repayment schedule proposed by the founders (participants) of the debtor, the owner of the property of the debtor - unitary enterprise;

Other documents provided by the Law (Article 77 of the Law).

From the date of the arbitration determination on the introduction of financial rehabilitation is prohibited at satisfaction of the requirements of the founder (participant) of the debtor on the allocation of a share (share) in the property of the debtor in connection with the withdrawal from its founders (participants), the redemption by the debtor of outstanding shares or the payment of the actual value of the share (share); the payment of dividends and other payments on issue-grade securities is prohibited (Article 81 of the Law).

In the event that the debtor fails to fulfill the debt repayment schedule (non-repayment of debt within deadlines and/or in established sizes) the founders (participants) of the debtor, the owner of the property of the debtor - a unitary enterprise no later than fourteen days from the date stipulated by the debt repayment schedule, has the right to apply to the meeting of creditors with a request to approve the amendments made to the debt repayment schedule or to repay creditors' claims in accordance with the debt repayment schedule. A copy of the application is sent to the administrative manager. The administrator shall convene a meeting of creditors not later than fourteen days from the date of receipt of the application. If a decision is made to amend the debt repayment schedule, the meeting of creditors shall have the right to apply to the arbitration court with a petition for approval of the amendments made to the debt repayment schedule. If the meeting of creditors refuses to approve the changes made to the debt repayment schedule, the meeting of creditors decides to apply to the arbitration court with a petition for early termination of financial rehabilitation (Article 85 of the Law).

After the introduction external management the powers of the owner of the property of the debtor - a unitary enterprise - are terminated: the powers are transferred to an external manager (Article 94 of the Law).

The owner of the property of the debtor - a unitary enterprise, the founders (participants) of the debtor at any time before the end of external administration in order to terminate the bankruptcy proceedings has the right to satisfy all creditors' claims in accordance with the register of creditors' claims or provide the debtor with funds sufficient to satisfy all creditors' claims in accordance with the register of creditors' claims.

The owner of the property of the debtor - a unitary enterprise, the founders (participants) of the debtor are obliged to notify the arbitration manager and creditors in writing of the beginning of satisfaction of the creditors' claims. After the first notification is received by the arbitration manager, the performance of the debtor's obligations to creditors from other persons is not accepted. If the person who sent the notification did not start fulfilling obligations within a week after the notification was sent, or if the person who sent the notification did not satisfy the requirements of creditors within a month, the notification shall be considered invalid.

Upon completion of the fulfillment of the obligations of the debtor by the owner of the property of the debtor - a unitary enterprise, the founders (participants) of the debtor, the receiver must notify all creditors whose claims are included in the register of creditors' claims of the satisfaction of these claims within ten days (Article 113, 116 of the Law).

Participants of the debtor may take similar actions at the stage of bankruptcy proceedings in order to terminate the bankruptcy proceedings.

From the date of adoption by the arbitration court decisions on declaring the debtor bankrupt and on the opening of bankruptcy proceedings the powers of the owner of the property of the debtor - a unitary enterprise are terminated, however, representatives of the owner of the property of the debtor - a unitary enterprise, as well as the founders (participants) of the debtor in the course of bankruptcy proceedings have the rights persons involved in bankruptcy proceedings(Article 126 of the Law).

When determining the bankruptcy estate, if the debtor's property contains property withdrawn from circulation, the bankruptcy trustee notifies the owner of the property withdrawn from circulation about this. The owner of property withdrawn from circulation accepts this property from the bankruptcy trustee or assigns it to other persons no later than six months from the date of receipt of the notification from the bankruptcy trustee (Article 132 of the Law).

The obligations of the debtor's participants are also provided for by special provisions of the Law. Thus, according to Article 224 of the Law, if the value of the property of the debtor - a legal entity in respect of which a decision on liquidation was made, is insufficient to satisfy the claims of creditors, such a legal entity is liquidated in the manner prescribed by the Law. If these circumstances are discovered after the decision to liquidate the legal entity and before the creation liquidation commission(appointment of a liquidator) an application for declaring the debtor bankrupt must be filed with the arbitration court by the owner of the property of the debtor - a unitary enterprise, the founder (participant) of the debtor or the debtor's manager. The owner of the property of the debtor - a unitary enterprise, the founders (participants) of the debtor who have violated the specified requirement, bear subsidiary liability for unsatisfied claims of creditors for monetary obligations and for the payment of obligatory payments by the debtor (Article 226 of the Law).

The legislator for a long time "forgot" about the existence of one of the most interested persons in insolvency (bankruptcy) relations - the founders (participants) of the debtor. outcome of a bankruptcy case.

Meanwhile, during the bankruptcy proceedings, not a single person was interested in protecting the participants (founders) of the debtor. They were not among the persons participating in the bankruptcy case, as well as the persons participating in the arbitration proceedings in the bankruptcy case.

State Duma of the Federal Assembly Russian Federation, substantiating the adoption of the new Law in 2002, noted that the most topical issue the application of bankruptcy law is a violation of the rights of the founders of the debtor - their inability to carry out rehabilitation under the control of creditors in the event of an already initiated bankruptcy case; withdrawal of assets> of the debtor in the interests of a certain circle of creditors in the procedures of external administration and bankruptcy proceedings.

Undoubtedly, the introduced legislative novelties aimed at protecting the rights of the founders (participants) of the debtor are positive and ultimately increase the investment attractiveness of the Russian economy. However, this trend in insolvency (bankruptcy) legislation has not been completed. However, even now, despite the lack of sufficient judicial practice application of the Law, we can talk about the need for legal regulation of issues related to the protection and implementation of the rights of the founders (participants) of the debtor to participate in bankruptcy proceedings and the arbitration process, along with the introduction of rules that exclude abuse by these persons, increasing their responsibility to the debtor and creditors .

The study of the legal status of the founder (participant) of the debtor in the bankruptcy case indicates that he is in a more “vulnerable” position in comparison with other participants in the insolvency relationship. He is deprived of the right to independently apply to the arbitration court to declare the debtor bankrupt, personally represent his interests both at meetings of creditors, in bankruptcy proceedings, and in the arbitration court during the competitive process, appoint an examination on the presence of signs of a fictitious or deliberate bankruptcy of the debtor, invalidate transactions, committed by the debtor, arbitration manager to the detriment of the debtor and creditors, etc.

Lack of scientific research, publications on this issue
¦H prompted the author to devote the present study to one of the aspects
insolvency - theoretical substantiation of expediency
expansion of the rights of the founders (participants) of the debtor and the need for their
protection, as well as their comprehensive study.

In this context, the relevance of the topic of the dissertation research is caused by the need to analyze the current legislative acts that regulate the legal status of the founders (participants) of the debtor both in general in the system of civil law relations and in relation to the insolvency (bankruptcy) of the legal entity established by them, and to identify legal conflicts and development of proposals for improving legislation, taking into account law enforcement practice.

The object of the study is the social relations that arise between the founders (participants) of the debtor - a legal entity and the debtor itself, the debtor's management bodies, bankruptcy creditors and third parties, arbitration managers when an arbitration court initiates a case on insolvency (bankruptcy) of the debtor and applies bankruptcy procedures.

The subject of the study are legal status founders (participants) of the debtor in an insolvency (bankruptcy) case, ways to protect the rights of the founders (participants) of the debtor in the procedures of supervision, external management, financial rehabilitation, bankruptcy proceedings and a settlement agreement, as well as a set of legal relations arising as part of their application to the debtor.

The aim of the study is to analyze the current legislation and judicial practice of resolving bankruptcy disputes of legal entities arising from insolvency (bankruptcy) relations, as well as the correlation of certain norms of the bankruptcy law and the Civil Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, individual federal laws, to search for the most appropriate ways to protect the rights of the founders (participants) of the debtor.

This work is aimed at identifying legal conflicts and developing proposals for their elimination and improving the current legislation on insolvency (bankruptcy) in terms of determining legal status and identifying ways to protect the rights of the founders (participants) of the debtor, the liability of other participants in the bankruptcy case to the said persons; formation of conclusions of law enforcement practice concerning the exercise of the powers of the founders (participants) of the debtor and the conditions for the onset of their civil liability.

Theoretical basis of the study. The work used the literature on general theory and history of law, civil and commercial (business) law, other literary sources related to the research topic, as well as scientific works of A.B. Ageev, P. Barenboim, V.S. Belykh, M.I. Braginsky, S.N. .Bratus, E.A.Vasiliev, V.V.Vitryansky, V.P.Gribanov, A.F.Klein, D.I.Meyer, V.F.Popondopulo, N.S.Suvorova, E.A.Sukhanov , M.V. Telyukina, A. Trainin, N.A. Tur, Yu.K.
At the same time, it should be noted that there are no special works devoted to the study of the legal status of the founders (participants) of a legal entity in a bankruptcy case.

The methodological basis of the study was the methods of comparative law and logical legal research, which also made it possible to carry out historical, statistical and comparative analyzes. When writing the dissertation, the Constitution of the Russian Federation, federal laws and other regulatory acts, as well as foreign legislative acts and monuments of the history of law were used. The study is based on a critical analysis of the norms of the current Russian legislation on insolvency (bankruptcy).
The empirical base of the study was the decisions of the Constitutional Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation, as well as the decisions of arbitration courts of the constituent entities of the Russian Federation, materials of the now liquidated Federal Service Russia on financial recovery and bankruptcy.

Scientific novelty of the research. This work is one of the first comprehensive studies of the legal status of the founders (participants) of the debtor in insolvency (bankruptcy) relations and ** is an analysis of problems related to theory and practice

Application of insolvency (bankruptcy) legislation. The scientific novelty of the work found its expression in following provisions and conclusions for the defence.
1. In order to improve investment attractiveness of the Russian economy as a whole and ensuring the stability of civil circulation, the necessity of strengthening the protection of the rights of the founders (participants) of the debtor in relation to insolvency (bankruptcy) is substantiated, which will ensure their constitutional rights to the free use of their abilities and property for entrepreneurial and other purposes not prohibited by law economic activity for judicial protection.

In particular, it is proposed to give the founders (participants) of a debtor in an insolvency (bankruptcy) case the right to apply to an arbitration court to declare the debtor insolvent (bankrupt), to recognize transactions made by the debtor by arbitration managers to the detriment of the debtor as invalid; personally represent their interests in bankruptcy procedures, which, in essence, are ways to protect civil rights (Article 12 of the Civil Code of the Russian Federation).

2. A conclusion is made about unequal protection and insufficient balance of interests of persons participating in insolvency relations ((founders (participants) of the debtor and creditors;
founders (participants) and head (management) of a legal entity;
founders (participants) - owners of large blocks of shares, shares (shares) and small founders (participants), minority shareholders), which often entails abuse of the right and violates the constitutional principle of exercising the rights and freedoms of man and citizen, taking into account the rights and freedoms of others (part 3 of article 17 of the Constitution of the Russian Federation).
In particular, it is proposed to grant the founders (participants) of the debtor, along with the external manager, creditors, the right to challenge transactions made by the debtor - a legal entity within six
months preceding the filing of an application for declaring the debtor bankrupt, and related to the payment (partition) of a share (share) in the debtor's property to the founder (participant) of the debtor in connection with his withdrawal from the founders (participants) of the debtor, if the execution of such a transaction violates the rights and legitimate interests of this founder (participant) of the debtor (clause 4 of article 103 of the Law).

As a guarantee of the rights of the founders (participants) of the debtor, fix the liability of the head of the debtor for failure to fulfill the duties assigned to him to notify the founders (participants) of the debtor of the occurrence of signs of bankruptcy; on the issuance by the arbitration court of a ruling on the introduction of surveillance; on holding a general meeting on the issue of applying to the first meeting of creditors of the debtor with a proposal to introduce financial rehabilitation in respect of the debtor, conduct an additional issue of shares and other issues provided for by bankruptcy legislation (clause 1 of article 30, clause 4 of article 64, clause 3 of article .68 of the Bankruptcy Law).

In addition, in order to ensure interaction between the head of the debtor and the founders (participants) of the debtor, paragraph 1 of Article 3O of the Law proposes to establish a deadline for the head of the debtor to send the specified information to the founders (participants) of the debtor. The current version of this article contains only a reference to the circumstance - the occurrence of signs of bankruptcy, in the event of which the head of the debtor is obliged to send a notice.

3. In view of the difference in most cases between the interests of the founders (participants) of the debtor and the debtor itself, it is proposed in the Bankruptcy Law to distinguish between the concepts "representative of the founders (participants) of the debtor" and "representative of the debtor", giving them separate definitions.
Representative of the founders (participants) of the debtor - a person elected by the founders (participants) of the debtor. Each founder (participant) of the debtor has the right to personally represent his interests in the implementation of bankruptcy procedures and participate in the arbitration court.

The debtor's representative is the chairman of the board of directors (supervisory board) or other similar collective management body of the debtor, or a person elected by the board of directors (supervisory board) or other similar collegial management body of the debtor.
4. It is proposed to change the wording of paragraph 1 of clause 2 of Article 94 of the Bankruptcy Law, setting it out: “The debtor’s management bodies, within their competence, have the right to make decisions”, thereby excluding the previous wording “The debtor’s management bodies, within the competence established by federal laws, have the right to make solutions".

The expediency of changing the norm lies in the fact that some of the decisions specified in this norm of the Bankruptcy Law, taken by the debtor's management bodies, fall within their competence by virtue of referring them to the charter, other constituent documents, by-laws, and not federal laws. For example, the right to make a decision on the election of a representative of the founders (participants) of the debtor to the competence of a particular governing body of the debtor is enshrined in the charter of a legal entity, and not in federal law.

While maintaining the previous version of the Law, the debtor's management bodies, authorized by the constituent documents, will not be able to make decisions on the election of a representative of the founders (participants) of the debtor X, since this right is not assigned to their competence by the current federal laws.

Look:

In case of bankruptcy of a legal entity, the legislation guarantees the observance of the rights and legitimate interests of participants in the bankruptcy procedure: creditors, the debtor and society. The main subject of observance of their rights and legitimate interests is the arbitration manager appointed by the court to conduct the bankruptcy procedure. But this is only ideal.

In practice, the arbitration manager himself is often a violator of the rights and legitimate interests of the persons participating in the case. In this case, the debtor and creditors, in accordance with paragraph 1 of Article 60 of the Federal Law "On Insolvency (Bankruptcy)" No. 127-FZ of October 26, 2002 No. (hereinafter referred to as the Bankruptcy Law) may file a complaint with the court about the recognition of the actions or inaction of the arbitration manager as illegal and demand the restoration of violated rights. The courts in most cases take the side of the creditors and the debtor.

The legislator provided for the possibility not to remove them from the bankruptcy procedure and introduced a representative of the debtor's participants into the list of persons participating in the case, giving him the authority to attend meetings of creditors with the right to speak on agenda items, to appeal in court the actions and inaction of the arbitration manager. However, as the saying goes, “The road to hell is paved with good intentions.”

The incident lies in the fact that the participants of the debtor can choose their representative before the start of the bankruptcy procedure and submit a protocol on the election of a representative to the arbitration court considering the bankruptcy case.

If there is agreement among the debtor's participants, then even after the bankruptcy proceedings have been initiated, they can elect their representative and, thus, indirectly intervene in the bankruptcy case and monitor the observance of the law by the arbitration manager.

In the event that there is no agreement between the debtor's participants, and each of the participants does not have the required majority of votes, or the bankruptcy proceedings have already been introduced with respect to the debtor, it is impossible to elect a representative of the debtor.

Firstly, the issue of electing a representative of the debtor's participants is adopted at an extraordinary general meeting of the debtor's participants by a simple majority of votes.

Secondly, the bankruptcy trustee, who is the head of the debtor, is obliged, at the request of the participant, to convene an extraordinary general meeting. He will obviously not be interested in the appearance of another person participating in the arbitration case with the right to file complaints against the arbitration manager.

Thirdly, the consequence of the opening of bankruptcy proceedings, in accordance with paragraph 2 of Art. 126 of the Bankruptcy Law, the powers of the head of the debtor, other management bodies of the debtor are terminated, with the exception of the powers of the general meeting of participants in the debtor to make decisions on the conclusion of agreements on the conditions for the provision of funds by a third party or third parties to fulfill the obligations of the debtor. Thus, the participants of the debtor in bankruptcy proceedings will not be able to elect their representative at all.

What risks may arise for the debtor's participants if they do not choose their representative?

The main risk is related to the debtor's property and the determination of its value. This, for example, is a negligent inventory by an arbitration manager, inaction to search for the debtor's property held by third parties, or documents confirming the debtor's rights to property, poor-quality valuation or underestimation of the value of property, failure to take measures to preserve property.

Further, there may be a risk that the arbitration manager will commit violations when selling the debtor's property. For example, violation of the bidding procedure, splitting the lot in order to reduce the sale price, selling to interested parties, writing off property.

All these violations will lead to the fact that the creditors' claims will not be satisfied to a greater extent than could be with proper control over the actions of the arbitration manager by the debtor's participants.

The consequences can be very sad: the debtor's participants, if there are grounds specified in the Bankruptcy Law, can be held subsidiary liable. The amount of subsidiary liability will be equal to the total amount of creditors' claims that have not been repaid due to the insufficiency of the debtor's property.

It is worth paying special attention to the fact that if the arbitration manager files a claim to bring the debtor’s participants to subsidiary liability, and the representative of the participants was not elected in a timely manner, then the debtor’s participants will be deprived of the opportunity to effectively protect their rights by choosing such a method of protection as challenging the actions of the arbitration manager’s inaction . This is evidenced by the numerous practice of leaving without consideration the applications and complaints of the debtor's participants on the grounds that they are not persons participating in the arbitration process in the bankruptcy case and that evidence of a meeting of the debtor's participants with an agenda to elect a representative was not presented in the case file. debtor.

How to minimize the risks of violation of the rights of the debtor's participants by the arbitration manager? The bankruptcy law provides for only one option - the election of a representative of the debtor's participants. To do this, we recommend the following:

1. Prior to the commencement of bankruptcy proceedings, hold an extraordinary general meeting of participants with an agenda to elect a representative of the debtor. This is the simplest advice when there is agreement among the debtor's participants.
2. If there is no agreement at the meeting of the debtor's participants, and it is not possible to choose one candidate for a representative, then an independent candidate can be chosen that will suit all participants. This may be a specialist of a law firm who will accompany the bankruptcy procedure in the interests of all participants in the debtor and provide legal support in the event that claims are made against the participants of the debtor for subsidiary liability.

If the debtor's representative was not elected at the meeting, then each participant will have to independently defend their violated rights. This is possible, even despite the current negative practice of admitting the debtor's participants to the bankruptcy case.

How is this possible? If a participant of the debtor proves that there is a corporate dispute between him and the other participants of the debtor, and therefore they cannot hold an extraordinary meeting of participants or cannot agree on a single candidate for a representative. In this case, we recommend applying the legal position formulated in the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 18, 2014 No. 8457/13, which states that in the event of a corporate conflict between company members holding equal shares of 50% in the authorized capital, it is significantly difficult to choose a representative of the debtor's participants. Under such circumstances, the participant of the debtor was allowed to participate in the case independently without a representative of the participants of the debtor.

Using the specified legal position and proving the impossibility of electing a representative of the debtor, it is possible to achieve consideration of the complaint of the participant of the debtor against the actions and inaction of the bankruptcy trustee. For example, specialists law firm CLIFFF Canceled Determination of the Arbitration Court of the City of Moscow in case No. A40-109106 / 11 on the return without consideration of the complaint of the participant of OOO Shalanda-M Vishnevskaya A.G. to the inaction of the bankruptcy trustee and return the issue for consideration to the court of first instance (Decree of the Ninth Arbitration Court of Appeal dated August 12, 2015 in case N A40-109106 / 11).

Let's see how the court will react to the emerging new practice, when the debtor's participants will be able to defend their rights themselves.

Gladyshev Dmitry, Head of Bankruptcy Practice, Civil Law Department, Law Firm« CLIFF»

The author of this work is Natalya Anatolyevna Emelkina, PhD in Law, Head of the Department for Supervision of Compliance with Federal and Regional Legislation of the Prosecutor's Office of the Republic of Mordovia. The paper substantiates the expediency of expanding the rights of the founders (participants) of the debtor and the need to protect them, taking into account the current legislation and judicial practice in resolving bankruptcy disputes of legal entities, as well as the correlation of certain norms of the Bankruptcy Law and the Civil Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, and certain federal laws . The issues of the legal status of the founders (participants) of the debtor in the insolvency (bankruptcy) case, ways of protecting the rights of the founders (participants) of the debtor in the procedures of supervision, external management, financial rehabilitation, bankruptcy proceedings and amicable agreement, as well as a set of legal relations arising within the framework of their application to the debtor. The social relations that arise between the founders (participants) of the debtor - a legal entity and the debtor itself, the debtor's management bodies, bankruptcy creditors and third parties, arbitration managers when an arbitration court initiates a case on insolvency (bankruptcy) of the debtor and applies bankruptcy procedures are studied. The conclusions and proposals set forth in the book can be used in research activities, law enforcement practice of judicial, law enforcement, regulatory authorities, as well as citizens in the exercise of constitutional rights to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law.

A series: Theory and practice civil law and civil process

* * *

by the LitRes company.

general characteristics the legal status of the founders (participants) of the debtor in an insolvency (bankruptcy) case

1.1. The concept of a founder (participant) of a debtor in an insolvency (bankruptcy) case

One of the main goals of the Federal Law "On Insolvency (Bankruptcy)" is to ensure the rights of real or potential creditors by creating conditions for the fair satisfaction of their economic and legal interests. In cases of insolvency (bankruptcy) (hereinafter - bankruptcy), arbitration courts establish the legal fact of the debtor's insolvency, which entails the debtor's obligations to pay its counterparties - bankruptcy creditors, whose claims are satisfied by special rules competitive production.

The core of the insolvency procedure in most cases is the clash of interests of the main participants or shareholders of the debtor (i.e., those who, before the start of the bankruptcy procedure, could actually determine the strategy of the debtor and, through its executive bodies, actually dispose of its property) and creditors. The degree of intensity and severity of this conflict largely depends on the amount of assets remaining with the debtor, the amount of debt both to individual creditors and in general, the degree of criminalization of the subjects of the bankruptcy procedure, ties with the authorities, etc.

Legal relations, emerging during bankruptcy, undoubtedly affect the rights and obligations of the founders (participants) of the debtor, in connection with this, the latter are always interested in the outcome of the bankruptcy case of the debtor.

As mentioned above, the Russian legislator for a long time ignored the interests of the founders (participants) of the debtor, not granting them any rights and obligations to participate in bankruptcy proceedings and in judicial consideration of cases of this category. However, the existing unsettledness in the bankruptcy case of the legal status of the founders (participants) of the debtor is perceived in two ways: some authors see this as a lack of authority for the participants in applying bankruptcy procedures, others, on the contrary, the absence of restrictions on the exercise of their rights.

Thus, V. V. Vitryansky notes that “a serious shortcoming of the provisions contained in the 1998 Law on the circle of persons participating in the bankruptcy case, as well as the persons participating in the arbitration process in the bankruptcy case, was that among them, when carrying out such basic procedures as external administration and bankruptcy proceedings, there was not a single person interested in protecting the rights of the debtor. In particular, shareholders and other founders (participants) of a business company or partnership - a debtor that has undergone bankruptcy, were not represented among the named persons. The law corrected this mistake in legal regulation. According to Art. 35 of the Law, now, along with representatives of the debtor's employees, the representatives of the founders (participants) of the debtor and the representative of the owner of the debtor's property - state or municipal enterprise. To ensure the rights and interests of the debtor, these persons are vested with the necessary powers.

The granting by law to the founders (participants) of the debtor of specific rights in a bankruptcy case is a progressive moment both in order to protect both their own interests and the rights and interests of the debtor.

As M. V. Telyukina writes, “the position of the founders (participants) of the debtor has changed significantly compared to what it was in accordance with the Law of 1998 - at present, the participants of the legal entity are granted certain rights, the purpose of which is to prevent the use competition law for the “redistribution of property”, i.e., in order to minimize the influence of the participants on the management of the legal entity, transferring it, respectively, to the subjects interested in this. From this statement it follows that the granting of rights to the founders (participants) of the debtor was carried out in order to limit their powers to manage the legal entity.

The rights of the founder (participant) of the debtor in bankruptcy, according to T. A. Lazareva, must comply with the restrictions imposed on him to manage the affairs of the debtor and dispose of his property and the legal consequences that may be imposed on him in connection with the bankruptcy of the debtor.

Analysis of the legislation on insolvency (bankruptcy), at the same time, indicates that its norms undoubtedly limit the obligations of the founders (participants) of the debtor in bankruptcy proceedings, both by direct restrictions on their rights (prohibition to withdraw from the membership) and indirectly, by limiting the competence of the debtor's management bodies, by granting part of their powers to the general meeting (committee) of creditors, the arbitration manager. In addition, according to the Law, the so-called third parties are vested with powers similar to those granted to the founders (participants) of the debtor, which can cause competitive situations. For example, a third party (third parties), as well as the founders (participants) of the debtor, have the right, in agreement with the debtor, to apply to a meeting of creditors or to an arbitration court with a request to introduce a financial recovery procedure, offering the necessary security for the debtor's performance of obligations in accordance with the repayment schedule debt (clause 1, article 78). He, along with the founders (participants) of the debtor, is given the opportunity at any time before the end of external administration in order to terminate bankruptcy proceedings to satisfy creditors' claims in accordance with the register of such claims or provide the debtor with funds sufficient to satisfy all creditors' claims (Article 113 ). It is also allowed to conclude an agreement between a third party and the debtor's management bodies authorized in accordance with the constituent documents to make decisions on the conclusion big deals, on other conditions for the provision of funds to fulfill the obligations of the debtor (paragraph 4 of article 113). In a similar manner, a third party may satisfy the claims of creditors for the obligations of the debtor and in the course of bankruptcy proceedings (clause 1, article 142).

To clarify the essence of the relationship that arises between the founders (participants) of the debtor and the debtor himself, let us dwell on the nature of the relations between the founders (participants) and the legal entity created by them as a whole.

In accordance with paragraph 2 of Art. 1 of the Bankruptcy Law, the Law applies to all legal entities, with the exception of state-owned enterprises, institutions, political parties and religious organizations. In comparison with the 1998 Law, the circle of debtors has been expanded, which makes it possible to assert the expansion of the circle of possible founders (participants) of the debtor. The recognition of a legal entity as bankrupt and its liquidation entails the termination now not only of the obligations of the founders (participants) of the debtor - commercial organizations, but also of property rights and other rights in rem.

Participants of relations regulated by civil law are citizens and legal entities. The Russian Federation, subjects of the Russian Federation and municipalities may also participate in these relations (Part 2, Clause 1, Article 2 of the Civil Code of the Russian Federation). All listed subjects of civil law relations have the right to establish legal entities. True, there are cases when the law establishes a direct prohibition for certain participants to establish specific types of legal entities.

Based on the meaning of Art. 66 of the Civil Code of the Russian Federation, Art. 10 of the Federal Law "On Joint Stock Companies" (hereinafter referred to as the JSC Law), clause 2 of Art. 7 of the Federal Law "On companies with limited liability» (hereinafter - the LLC Law) state bodies, including property management committees of the constituent entities of the Russian Federation, and bodies local government, as well as property management committees of municipalities, cannot act as participants, including founders, of economic companies, except for cases when property management committees are founders of joint-stock companies created in the process of privatization in accordance with the privatization legislation.

If a company is not created by privatization of state (municipal) property, the owner represented by the committee for managing state (municipal) property does not have the right to act as its founder. This circumstance is the basis for satisfaction by the courts of claims for invalidation constituent documents company and the withdrawal from the latter of the property contributed by the property management committee as a contribution to the authorized capital.

For example, the prosecutor of the city of Moscow challenged the normative legal acts of the Government of the city of Moscow on the procedure for making land use rights as a contribution of the city to the authorized capital of established joint-stock companies. According to these acts, the city, as a result of the introduction of land use rights, became a shareholder and received the opportunity to receive dividends from the activities of joint-stock companies. Meanwhile, practice is ambiguous.

In Russian legislation, there are no definitions of "founder of a legal entity" and "participant of a legal entity", but only lists the actions performed by them when creating a legal entity. So, according to Part 2, Clause 2, Art. 52 of the Civil Code of the Russian Federation in the memorandum of association founders undertake to create a legal entity, determine the procedure joint activities on its creation, the conditions for the transfer of its property to it and participation in its activities. The agreement also defines the conditions and procedure for distribution between participants profit and loss, management of the activities of a legal entity, exit founders (participants) from its composition.

Often, they try to identify the differences between the founder and participant of a legal entity using the example of founders (participants) joint-stock company. It is necessary to distinguish between founding shareholders and shareholders who have become members of the company as a result of subscription to shares. From the meaning of Art. 98 of the Civil Code of the Russian Federation, it can be concluded that under the founders the legislator means persons who have concluded an agreement between themselves that determines the procedure for their joint activities to create a company. The JSC Law established that “the founders of a company are citizens and (or) legal entities that have made a decision to establish it” (Article 10). From the point of view of V. Mamai, such a definition of the concept of founders is incomplete, since the establishment of a company includes not only the decision to establish a company, but also the performance of other actions aimed at creating a company (subscribing for shares, approving the charter of the company, paying part of the authorized capital etc.). Founders, in his opinion, should be understood as persons who have made a decision to establish a company and have taken actions aimed at its creation, culminating in state registration society as a legal entity. According to D. R. Bilalova, the concept of "shareholder" (participant) is broader than "founder", and refers to persons who have acquired shares of a joint-stock company (in established by law and the articles of association) and have rights of obligation in relation to this company. At the same time, she notes that only the founders of the company can become its shareholders at the time of the company's establishment. She also concluded that a joint-stock company created in the process of privatization cannot have founders, since it is created by reorganizing an already existing legal entity. In our opinion, the founders of a legal entity are the persons who signed the memorandum of association on the establishment of the legal entity, and in the case of one founder, the person who made the decision to establish the legal entity. Persons who have acquired shares or shares (stakes) in the authorized capital of a legal entity subsequently become participants in the legal entity.

By general rule, enshrined in paragraph 3 of Art. 56 of the Civil Code of the Russian Federation, the founder (participant) of a legal entity or the owner of its property is not liable for the obligations of the legal entity, and the legal entity is not liable for the obligations of the founder (participant) or owner. The founder, having contributed his property or property rights as a contribution to authorized capital legal entity, initially and knowingly risks the value of this contribution.

In this regard, the question arises: why protect the rights of the founders (participants) of a legal entity in civil law relations, including in relation to the insolvency (bankruptcy) of the debtor? Normal civil circulation implies not only the recognition of certain civil rights for the subjects, but also the provision of their reliable legal protection. Like any subjective right, the right to protection includes, on the one hand, the possibility of the authorized person performing his own positive actions and, on the other hand, the possibility of demanding certain behavior from the obligated person.

At the same time, the Civil Code of the Russian Federation, the Bankruptcy Law and other federal laws contain a number of rules on the civil liability of the founders (participants) of the debtor. In particular, Art. 10 of the Bankruptcy Law "Responsibility of the citizen-debtor and the debtor's management bodies" contains grounds for bringing the guilty founders (participants) to subsidiary liability and the obligation to compensate for the losses caused to the debtor and creditors.

What causes the need to protect the rights of the founders (participants) of the debtor in insolvency (bankruptcy) relations? For example, M. V. Telyukina notes: “... classifying the participants (founders) of a legal entity as non-competitive creditors is usually justified by their status, since these are persons who are directly involved in the activities of a legal entity and risk their contribution to the capital of a legal entity (general partners, limited partners , shareholders, owners of shares in limited and additional liability companies, as well as in a cooperative). In addition, it is possible that, to one degree or another, the actions of the founders (participants) caused the debtor to face financial difficulties.” However, in our opinion, these are possible special cases that are more typical for the management bodies of a legal entity.

On the same occasion, V. V. Vitryansky writes: “Obligations to the founders (participants) of the debtor - a legal entity arising from such participation (for example, obligations to pay dividends to shareholders) are internal character and cannot compete with the so-called external obligations, i.e., the obligations of the debtor as a participant in property turnover to other participants in property turnover. The founders (participants) of the debtor - a legal entity must bear the risk of negative consequences associated with the activities of such a legal entity. Therefore, all that the founders (participants) of the debtor can do is to claim their rights to the debtor's property remaining after the repayment of its obligations to other creditors.

In our opinion, the protection of the rights of the founders (participants) of the debtor in insolvency (bankruptcy) relations is caused both by the protection of public state interests and the private interests of legal entities and individuals, which, in turn, affects the attractiveness of investments and the stability of civil circulation.

The Constitution of the Russian Federation guarantees freedom of economic activity, which is one of the foundations of the constitutional order of the Russian Federation (part 1 of article 8), as well as such basic inalienable human rights and freedoms as the right to free use of one’s abilities and property for entrepreneurial and other not prohibited the law of economic activity (part 1 of article 34), the right to own property, to own, use and dispose of it both individually and jointly with other persons (part 2 of article 35). The principle of economic freedom predetermines the constitutionally guaranteed powers that make up the main content of the constitutional right to freely use one's abilities and property for entrepreneurial and other economic activities not prohibited by law. By exercising this right, enshrined in Art. 34 (part 1) of the Constitution of the Russian Federation, citizens have the right to determine the scope of this activity and carry out relevant activities individually or jointly with other persons by participating in a business company, partnership or production cooperative, i.e. through the creation of a commercial organization as a form of collective entrepreneurship, independently choose an economic strategy for business development, use their property taking into account the guarantees of property rights established by the Constitution of the Russian Federation (part 3 of article 35) and state support for fair competition (part 1 of article 8; part 2 of article 34).

The activities of the founders (participants) of legal entities are not entrepreneurial, since they are not independent activities carried out at their own peril and risk, the purpose of which is the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services to persons registered as such in in the manner prescribed by law. The activities of the founders (participants) of legal entities are classified as other economic activities not prohibited by law. It also entails certain economic risks, since the legal entity itself carries out entrepreneurial activities. The basis of the constitutional and legal status of participants (founders) of a legal entity, as noted above, is their right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law. This right is exercised by them through the ownership of shares and shares, certifying the rights of obligations in relation to the legal entity. Property rights of claim are also covered by the concept of "property", and, therefore, are provided with constitutional and legal guarantees, including legal protection of the rights of founders (participants) of a legal entity, including small founders (participants), minority (small) shareholders as a weak side in the system corporate relations, and judicial protection of violated rights (Articles 35, 46 of the Constitution of the Russian Federation).

According to the Constitution of the Russian Federation, state protection of the rights and freedoms of man and citizen in the Russian Federation is guaranteed (Part 1, Article 45). Thus, since this is a constitutional right, it should be provided with constitutional and legal guarantees, including the protection of the rights of participants (founders) of a legal entity and judicial protection of violated rights (parts 1 and 3 of article 35, part 1 of article 46 of the Constitution of the Russian Federation). In turn, these guarantees are aimed at achieving such public goals as attracting private investment in the economy and ensuring stability public relations in the sphere of civil circulation. Based on this, the Civil Code of the Russian Federation and the legislation on certain types legal entities, a mechanism should be established to protect the rights of founders (participants) of legal entities, including in case of insolvency (bankruptcy) of a legal entity.

Entrepreneurial activity in the organizational and legal forms provided for by the Civil Code of the Russian Federation affects the interests of a large number of persons - the founders (participants) of the debtor, creditors, investors, as well as public interests. By regulating the procedure for the creation and legal status of individual legal entities, the rights and obligations of their founders (participants), as well as ensuring the protection of the rights and interests of the founders (participants), the state acts within the limits determined by the Constitution of the Russian Federation, based on the fact that it has no right to deprive legal persons of their powers, which constitute the main content of the constitutional right to the free use of their abilities and property for entrepreneurial activity.

Since in the process of entrepreneurial activity of a legal entity, and even more so in insolvency (bankruptcy) relations, the interests of founders (participants) and creditors, founders (participants) and managers (management) of a legal entity, founders (participants) - owners of large blocks of shares, shares (shares) and small founders (participants), such as minority shareholders, one of the main tasks of civil law, including insolvency (bankruptcy), is to ensure the balance of their legitimate interests taking into account the fact that the Constitution of the Russian Federation enshrines the principle according to which the exercise of the rights and freedoms of a person and a citizen should not violate the rights and freedoms of other persons (part 3 of article 17), and guarantees everyone judicial protection of his rights and freedoms (part 1 of article 46).

In the development of these constitutional provisions and on the basis of the general legal principles of legal equality, inviolability of property and freedom of contract, the Civil Code of the Russian Federation, as the main principles of civil legislation, establishes equality, autonomy of will and property liability of participants in civil law relations, the inadmissibility of arbitrary interference by anyone in private affairs (Clause 1, Article 1 of the Civil Code of the Russian Federation). In Art. 10 of the Civil Code of the Russian Federation establishes the principle of preventing the implementation of actions of citizens and legal entities solely with the intent to harm another person, as well as abuse of the right in other forms.

The study of the legal status of the founder (participant) of the debtor in a bankruptcy case indicates that the founders are in a more “vulnerable” position compared to other participants in insolvency relations. As noted above, they are deprived of the right to independently apply to the arbitration court to declare the debtor insolvent (bankrupt), to personally represent their interests both in creditors’ meetings, in bankruptcy proceedings, and in the arbitration court during the competitive process, to appoint an examination of the presence of signs of fictitious or deliberate bankruptcy of the debtor, recognition of transactions as invalid, committed by the debtor, as well as arbitration managers to the detriment of the debtor, etc. In fact, the legislation on insolvency (bankruptcy) of the founders (participants) of the debtor restricts their civil rights.

The rights to own, use and dispose of property, as well as the freedom of entrepreneurial activity and freedom of contract, may be restricted by federal law, but only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and the security of the state (part 3 of article 55 of the Constitution of the Russian Federation), which corresponds to the provisions of art. 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, by virtue of which the right of every natural and legal person to respect for and protection of his property (and the resulting freedom to use property, including for business purposes), does not detract from the right of the State to enforce such laws as it deems necessary to exercise control over the use of property in accordance with the general interest.

Therefore, by regulating the business activities of commercial organizations through civil law, the federal legislator, in accordance with Art. 71 (clauses “c” and “o”) of the Constitution of the Russian Federation must take into account that, within the meaning of the provisions of Art. 55 (part 3) of the Constitution of the Russian Federation in conjunction with its Art. 8, 17, 34 and 35, possible restrictions by federal law on the rights of possession, use and disposal of property, as well as freedom of entrepreneurial activity and freedom of contracts, based on general principles rights must meet the requirements of justice, be adequate, proportionate, commensurate and necessary for the protection of constitutionally significant values, including the rights and legitimate interests of others.

The founders (participants) of the debtor have no right to apply to the arbitration court with an application for declaring the debtor - a legal entity created by them insolvent (bankrupt), to personally represent their interests when applying bankruptcy procedures to the debtor, recognizing transactions made by the debtor (Article 103 of the Law), invalid can hardly be associated with the protection of the foundations of the constitutional order, morality, health, rights and legitimate interests of others, ensuring the defense of the country and the security of the state. Moreover, the deprivation of the founders (participants) of the debtor said rights does not meet the requirements of justice in any way, these restrictions are not adequate, not proportional, not proportionate, and their introduction is not justified by the protection of constitutionally significant values, including the rights and legitimate interests of others.

In essence, the right to apply to the arbitration court with an application for declaring the debtor insolvent (bankrupt), to personally represent one’s interests when bankruptcy procedures are applied to the debtor, to file claims for the recognition of transactions made by the debtor as invalid are ways to protect the civil rights of the founders (participants) debtor(Article 12 of the Civil Code of the Russian Federation). The list of ways to protect civil rights, enshrined in Art. 12 of the Civil Code of the Russian Federation, is not exhaustive and can be expanded through the methods provided for by other laws.

Taking into account the increased liability of the founders (participants) of the debtor for the obligations of the debtor provided for by law, in our opinion, it is necessary to give them the right to apply to the court to declare the debtor insolvent (bankrupt). Without waiting for the debtor's debt to increase, the founder (participant) of the debtor should be able to prevent his civil liability by initiating an application to the court to declare the debtor bankrupt, i.e. use one of the ways to protect the right - suppression of actions that violate the right or create threat of violation. The interest of the owner of a subjective right is expressed in stopping (stopping) the violation of his right for the future or eliminating the threat of its violation.

This issue is resolved differently in the Law. The debtor's founders (participants) shall exercise this right by adopting a decision on the debtor's application to the arbitration court, authorized in accordance with the debtor's constituent documents to make a decision on the debtor's liquidation. If such a decision is made, the head of the debtor is obliged to file an application with the debtor to the arbitration court no later than one month from the date of its adoption (Article 9 of the Law). Failure by the head of the debtor to submit an application entails subsidiary liability for the debtor's obligations that arose after the expiration of the one-month period provided by law for sending an application to the court (clause 2, article 10 of the Law). If, for example, the initiative of one of the founders (participants) of the debtor to apply to the arbitration court with the application of the debtor is not supported by other founders (participants) and the corresponding decision is not made, then the founder (participant) of the debtor loses the right to prevent or stop his property liability. A similar situation may arise when individual founders did not vote or voted against decisions that further brought the legal entity to bankruptcy.

Under such circumstances, isn't it easier to give directly to the founders (participants) of the debtor the right to apply to the court to declare the debtor bankrupt. On the one hand, if the right to apply to the court to declare a legal entity bankrupt is granted to any participant, then it will be used rather not to prevent the participant’s civil liability, but as a means of pressure from minority participants on the majority of participants when making decisions at general meetings. At the same time, Art. 9 of the Bankruptcy Law today allows the founders - owners of large blocks of shares, to dictate terms, prejudging decision-making, including going to court to declare the debtor bankrupt, ignoring the interests of minority participants. The adoption by the founders of a decision to apply to the court to declare a legal debtor bankrupt is not an obligation, but their right. Therefore, even if the debtor meets the signs of bankruptcy, the founders may not decide to go to court. In a situation where the majority of founders vote for such a decision, the interests of the minority of founders will not be taken into account. If such a right is enshrined in legislation, the interests of those and other founders will be balanced.

According to the legal position expressed by the Plenum of the Supreme Arbitration Court of the Russian Federation in the decision of December 15, 2004 No. 29 when considering the application of Art. 9 of the Law, when the satisfaction of the claims of one or more creditors leads to the impossibility of fulfilling the debtor's monetary obligations in full to other creditors, the application of the head of the debtor is accepted by the arbitration court for consideration, regardless of the decision of the body authorized in accordance with the constituent documents of the debtor to make a decision on liquidation debtor, or a decision of a body authorized by the owner of the property of the debtor - a unitary enterprise (clause 5).

One of the ways to protect violated rights in accordance with Art. 12 of the Civil Code of the Russian Federation is the recognition by the court of a voidable transaction as invalid and the application of the consequences of its invalidity. Article 103 of the Law provides additional grounds in relation to the Civil Code of the Russian Federation for invalidating transactions made by the debtor both before the adoption by the arbitration court of the application for declaring the debtor bankrupt, and after the adoption of decisions on the introduction of bankruptcy procedures. The grounds for declaring them invalid are: the grounds provided for by federal law (clause 1); if, as a result of the execution of a transaction made with an interested person, losses were or could be caused to creditors or a debtor (clause 2); if a transaction concluded and completed with individual creditors or another person after the arbitration court has accepted the application for declaring the debtor bankrupt and (or) within six months preceding the filing of the application for declaring the debtor bankrupt, entails preferential satisfaction of the claims of some creditors over other creditors ( item 3); if a transaction made within six months preceding the filing of an application for declaring the debtor bankrupt and related to the payment (allocation) of a share (share) in the debtor's property to the founder (participant) of the debtor in connection with his withdrawal from the founders (participants) of the debtor, and its execution violate the rights and legitimate interests of creditors (clause 4); if a transaction made after the adoption of an application for declaring the debtor bankrupt and related to the payment (allotment) of a share (share) in the debtor's property to the founder (participant) of the debtor in connection with his withdrawal from the founders (participants) of the debtor (in this case, it is void). In all these cases, the right to apply to the court for the recognition of a voidable and void transaction as invalid by the Bankruptcy Law is endowed with an arbitration manager.

The founder (participant) of the debtor under the Bankruptcy Law is deprived of such a method of protecting civil rights. At the same time, according to paragraph 2 of Art. 166 of the Civil Code of the Russian Federation, the requirement to recognize a voidable transaction as invalid may be presented by the persons specified in the Civil Code of the Russian Federation.

The requirement to apply the consequences of the invalidity of a void transaction may be presented by any interested person (paragraph 2, clause 2).

With this in mind, firstly, the founders (participants) of the debtor, an application for the application of the consequences of a void transaction made after the acceptance of an application for declaring the debtor bankrupt and related to the payment (partition) of a share (share) in the property of the debtor to the founder (participant) of the debtor in connection with his withdrawal from the founders (participants) of the debtor, on the basis of paragraph. 2 Article. 166 of the Civil Code of the Russian Federation has the right to present in any case, despite the fact that paragraph 6 of Art. 103 of the Law, only an external manager is vested with such a right.

Secondly, the requirement to recognize the voidable transaction as invalid in accordance with paragraph 2 of Art. 166 of the Civil Code of the Russian Federation can be presented by persons specified only in this Code. Meanwhile, not all voidable transactions are provided for by the Civil Code of the Russian Federation. In this regard, the question arises: how, in this case, to determine the persons who can make claims for the recognition of such transactions as invalid?

Paragraph 2 of Art. 166 of the Civil Code of the Russian Federation, taking into account the basic principles of civil law, ensures the operation of constitutional principles in the field of property and non-property relations, namely: the inviolability of property, the inadmissibility of arbitrary interference by anyone in private affairs, ensuring the restoration of violated rights, their judicial protection. These constitutional principles have the highest degree of normative generalization, predetermine the content of constitutional human rights and sectoral rights of citizens, are universal in nature and, therefore, have a regulatory impact on all spheres of social relations.

Interpretation of the norms of federal laws should be carried out taking into account the hierarchical structure legal regulations, suggesting that the interpretation of the rules of a lower level should be carried out in accordance with the rules of a higher level. If it is impossible to use the analogy of the law (clause 1, article 6 of the Civil Code of the Russian Federation), the rights and obligations of the parties are determined on the basis of the general principles and meaning of civil law (the analogy of law) and the requirements of good faith, reasonableness and justice (clause 2 of article 6 of the Civil Code of the Russian Federation) .

The Constitutional Court of the Russian Federation considered the case on the constitutionality of paragraph 1 of Art. 84 of the Federal Law of December 26, 1995 "On Joint Stock Companies" (as amended on May 24, 1999), according to which a transaction in which there was an interest, made in violation of the requirements for the transaction, provided for in Art. 83 of this Federal Law, may be declared invalid, namely, on the possibility of recognizing a transaction in which there is an interest, invalid at the claim of a shareholder (including a minority) of a joint-stock company that entered into this transaction. The Civil Code of the Russian Federation does not provide for transactions in which there is an interest (disputable transactions), and Art. 84 of the Federal Law "On Joint Stock Companies" also does not define persons who can challenge them. The court concluded that the norm contained in paragraph 1 of Art. 84 of the Federal Law "On Joint Stock Companies", in conjunction with paragraph 2 of Art. 166 of the Civil Code of the Russian Federation and, taking into account the constitutional principles and basic principles of civil law, should be interpreted as implying the right of shareholders (including minority) joint-stock companies that have entered into a transaction in which there is an interest, to apply to the court with a claim to recognize this transaction as invalid. This norm in its constitutional and legal interpretation is aimed at implementing the constitutional requirement, according to which the exercise of the rights and freedoms of a person and a citizen should not violate the rights and freedoms of other persons (part 3 of article 17 of the Constitution of the Russian Federation) and contradict the Constitution of the Russian Federation.

In support of its findings, the court held that the federal law « About Joint Stock Companies», according to paragraph 1 of Art. 1, in accordance with the Civil Code of the Russian Federation determines not only the procedure for the creation and legal status of joint-stock companies, the rights and obligations of their shareholders, but also ensures the protection of the rights and interests of shareholders, and, consequently, the rules contained in Art. 81–84 of the named Federal Law are aimed at preventing a conflict of interest between the governing bodies of a joint-stock company, which, by virtue of clause 3 of Art. 53 of the Civil Code of the Russian Federation must act in the interests of the legal entity they represent in good faith and reasonably, and by shareholders, including minority shareholders, who are unable to protect their legitimate interests at the stage of concluding an interested party transaction. Including the norm of paragraph 1 of Art. 84 of the Federal Law "On Joint Stock Companies", the legislator pursued the goal of introducing such a procedure for protecting minority shareholders, which would allow at this stage to minimize possible damage to their legitimate interests, without limiting their right to demand that the relevant transaction be declared invalid. We believe that this conclusion can be extended to the procedure for applying the Bankruptcy Law, which should, when applying bankruptcy procedures to a debtor, equally protect the rights of not only the debtor, creditors, but also the founders (participants) of the debtor, creating a balance of their interests. Moreover, when bankruptcy procedures are applied to the debtor, the legal status of the founders (participants) of the debtor remains unchanged.

In accordance with paragraph 2 of Art. 1 of the Civil Code of the Russian Federation citizens ( individuals) and legal entities acquire and exercise their civil rights of their own free will and in their own interest. Representation may be based on a power of attorney (agreement) and in this case it is voluntary, it may arise on the basis of a law or an administrative act - it is mandatory and does not depend on the will of the person represented, it may appear from the situation in which the representative acts.

The Bankruptcy Law uses the terms "founder (participant) of the debtor", "representative of the founders (participants) of the debtor", "manager of the debtor", "management bodies of the debtor". However, the Law does not provide definitions of "the founder (participant) of the debtor" and "the debtor's management body".

According to par. 16 art. 2 of the Law, the representative of the founders (participants) of the debtor is the chairman of the board of directors (supervisory board) or other similar collective management body of the debtor, or a person elected by the board of directors (supervisory board) or other similar collegial management body of the debtor, or a person elected by the founders (participants) debtor to represent their legitimate interests in bankruptcy proceedings.

An analysis of this provision of the Law allows us to draw the following conclusions: the chairman of the board of directors (supervisory board) or other similar collegial management body of the debtor, by virtue of his status, i.e. automatically without election procedures, is a representative of the founders (participants) of the debtor. At the same time, according to paragraph 3 of Art. 53 of the Civil Code of the Russian Federation, a person who, by virtue of law or the constituent documents of a legal entity, acts on its behalf, must act in the interests of the legal entity it represents. Thus, the chairman of the board of directors (supervisory board) of a legal entity, by virtue of the Civil Code of the Russian Federation, represents the interests of the debtor, and not the founders (participants) of the debtor. Does this mean that the interests of a legal entity always coincide with the interests of its founders (participants)? Since a legal entity exercises civil rights by its own will and in its own interest (clause 2, article 1 of the Civil Code of the Russian Federation), and its activities - independently and under its own responsibility, and its founders (participants) and the legal entity itself are not responsible for each other's obligations ( 3 article 56 of the Civil Code of the Russian Federation), then, consequently, their interests do not always coincide.

V.P. Gribanov believed that interest is a need that has taken the form of a conscious impulse and manifests itself in life in the form of desires, intentions, aspirations, and, ultimately, in those relationships that persons enter into in the course of their activities.

Often the actions of a director or other body of a legal entity are considered as a special type of representation, which should be accepted. In particular, G. F. Shershenevich pointed out: “Having property legal capacity, a legal entity, as a fictitious one, not having the ability to independently enter into relations with third parties, make transactions, clothe them in a form, obviously needs special representatives whose actions could would be considered the actions of a legal entity. Through these bodies, a legal entity acquires rights and assumes obligations. Representatives, whose activities make up for the incapacity of legal entities, perform their task either within the limits of the law (public legal entity), or within the limits of the authority given to them (private legal entity), which, however, cannot go beyond the boundaries of the purpose for which there is a legal entity. Within these limits, a legal entity is responsible for the actions of its bodies.

On the contrary, according to D. V. Pyatkov, “the authority of the body to make a specific transaction is part of the legal personality of an economic public organization. If it is possible to call bodies representatives, then not in the sense of Chapter 10 of the Civil Code of the Russian Federation. It is more expedient to enshrine the rule in the law: the bodies act on behalf of the organization (and not on behalf of), thereby emphasizing the direct and independent nature of the organization's participation in legal relations.

If we take into account that the signs of representation contained in Art. 182 of the Civil Code of the Russian Federation are: a transaction is made by one person (representative) on behalf of another person (represented); the creation, change and termination of rights under the transaction occur with the represented; the grounds for the emergence of powers of a representative are a power of attorney, a law, an act of an authorized representative government agency or a local self-government body, then the status of the sole executive body (director) of a legal entity differs from a representative only on the basis of the emergence of their powers. As a rule, the sole executive body of a legal entity is elected and acts without a power of attorney.

The concept given by the Law to the representative of the founders (participants) of the debtor contains at least three options for nominating such a representative: the chairman of the collegial management body of the debtor - by status; a person elected by the collegial management body of the debtor; a person elected by the founders (participants) of the debtor to represent their legitimate interests. However, these options are indicated not by a simple enumeration, but as mutually exclusive, i.e., it is unlikely that a representative of the founders (participants) of the debtor will be simultaneously elected by the collegial management body of the debtor and, for example, by the meeting of founders (participants) of the debtor. It follows from the meaning of this provision of the Law that a representative can be only from one entity - either a collegial body or a meeting of founders (participants) of the debtor. At the same time, the Law does not contain direct restrictions on this account. V. V. Vitryansky has a different opinion on this issue: “If the founders (participants) of the debtor organization or its governing bodies have not resolved the issue of electing their representative, the chairman of the board of directors (supervisory board) or other similar collegiate management body of the organization is recognized as such. debtor."

In this regard, the Law has not clearly resolved the issue of representatives of the founders (participants) of the debtor from different entities (bodies) with different interests. We believe that the arbitration court should give preference to the representative elected at the meeting of founders (participants) of the debtor, if several representatives with different interests appear in court.

Why did the legislator focus on the figure of the representative of the founders (participants) of the debtor, and not on the founders (participants) themselves? It is hardly possible to agree that a representative, especially one at all, will more fully represent their legitimate interests during bankruptcy proceedings than the founders (participants) of the debtor themselves, directly involved in them. Performing actions or protecting the rights of a person by involving a representative is his right, not an obligation. Moreover, the founders (participants) of the debtor, as independent subjects of law, may have completely different interests. Representing the interests of several founders (participants) of the debtor by one representative is undoubtedly a prerequisite for committing various kinds of abuse, for example, lobbying the interests of the most influential founder.

Part 2, paragraph 2, Art. 3 of the Civil Code of the Russian Federation states: the norms of civil law contained in other laws must comply with this Code. With this in mind, we propose in par. 16 art. 2 of the Law to distinguish between the concepts of "representative of the founders (participants) of the debtor" and "representative of the debtor" with the definition of their specific powers. This conclusion is based precisely on the discrepancy between the interests of the debtor - a legal entity and its founders (participants). At the same time, under representative of the founders (participants) debtor should be understood as the person elected by the founders (participants) of the debtor. Each founder (participant) of the debtor has the right to personally represent his interests in the implementation of bankruptcy procedures and participate in the arbitration court. The law, having established the representation of the interests of the founders (participants) of the debtor in bankruptcy proceedings through a representative, limited their rights to represent interests in person. Civil rights in accordance with the Constitution of the Russian Federation can be limited only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state (paragraph 2 of article 1 Civil Code of the Russian Federation).

The chairman of the board of directors (supervisory board) or other similar collective management body of the debtor, or a person elected by the board of directors (supervisory board) or other similar collegial management body of the debtor, to be a representative of the founders (participants) of the debtor, as set out in para. 16 art. 2 of the Law, is not entitled by virtue of paragraph 3 of Art. 53 of the Civil Code of the Russian Federation, according to which a person acting by virtue of the law or constituent documents of a legal entity on its behalf must act in the interests of the legal entity it represents. Thus, the chairman of the board of directors (supervisory board) of a legal entity, by virtue of the Civil Code of the Russian Federation, represents the interests of the debtor, and not its founders (participants).

In Art. 2 of the Law should give the concept debtor's representative: chairman of the board of directors (supervisory board) or other similar collective management body of the debtor or a person elected by the board of directors (supervisory board) or other similar collegial management body of the debtor.

The law was silent on the procedure for electing a representative by the founders (participants) of the debtor, and most importantly, on the procedure for formalizing the powers of the representative. What document confirming his rights must be submitted by a representative to participate, for example, in a meeting of creditors or in court?

Quite rightly, the relationship of the founders (participants) of a legal entity to the legal entities they created was determined by N. S. Suvorov, based on the principles of Roman law: “... the property of a universitatis is not the property of individual members in proportionate parts (pro rata) as co-owners, but special face."

As you know, paragraph 2 of Art. 48 of the Civil Code of the Russian Federation contains a classification of legal entities, which is based on the ratio of the rights of the founders (participants) and the legal entity itself, which allows us to traditionally put forward three models of legal entities.

The first model includes business companies and business partnerships, as well as production and consumer cooperatives in other words, corporations. When these legal entities are created, the founders (participants) lose their ownership of the transferred property, instead acquiring liability rights - the right to claim: to participate in the management of the legal entity, receive dividends, etc. The property transferred by the founders (participants) to the legal entity becomes its property.

The second model of legal entities includes state and municipal unitary enterprises, as well as institutions financed by the owner, when the owner is the Russian Federation, a constituent entity of the Russian Federation or municipality. The founder, creating a legal entity, remains the owner of the transferred property, he also acquires ownership rights to other property acquired later by this legal entity. Thus, both the founder (ownership right) and the legal entity itself, to which it belongs by right, have real rights to such property. economic management or operational management.

The third model of legal entities includes public and religious organizations (associations), charitable and other foundations, associations of legal entities, as well as other non-profit organizations, the creation of which is provided for by the Federal Law "On non-profit organizations". The founders (participants) have no property rights in relation to the named legal entities.

Since the Law does not allow state-owned enterprises, institutions, political parties and religious organizations to be declared insolvent (bankrupt), this work does not consider a state-owned enterprise (commercial organization) and these types of non-profit legal entities.

The importance of the importance of the types of rights belonging to the founders (participants) in relation to the legal entities created by them lies in the legal consequences (rights, duties, responsibilities) arising from their liquidation, as well as, accordingly, when bankruptcy procedures are applied to them. So, in these cases, the founders (participants) who have the rights of obligations in relation to the legal entity acquire the rights to the part of the property remaining after satisfaction of the creditors' claims, corresponding to their share; the founder of a legal entity, to whose property he has the right of ownership or other property rights, acquires the right to all property remaining after settlements with creditors; founders (participants) who do not acquire any property rights to the property of the established legal entities, respectively, do not have any rights to their remaining property.

Within the framework of this work, the founders (participants) who have obligations and property rights are of interest: property, economic management in relation to the legal entities created by them.

Traditionally, in civil law, a right was called a right that provides the possibility of direct influence of the rightful person on a thing, and a right of obligation is a right that provides the opportunity to demand a certain action from another person or other persons.

The problem of dividing subjective civil rights into real and obligatory right up to the present time causes controversy in the legal literature. In one of the last research work On the law of obligations, O. Lomidze put forward an assumption that it is impossible to single out a single feature that would make it possible to clearly distinguish property rights from rights of obligations. The founder of the construction of mixed rights K. D. Kavelin calls them " legal relations of a mixed nature”, in which “one and the same real thing, being in the possession of one person, becomes at the same time for many people the subject of diverse use and use ...” Representatives of this concept M. I. Braginsky, L. G. Efimova in As an example, they point to the rights that make up the content of the relationship of trust management of property, hiring and collateral. In defense of the concept of “mixed rights”, an argument is put forward “about the penetration of legal obligations into property relations”, the so-called right to right. As an example of the existence of “rights to rights”, “complex objects of property rights” are cited, which include securities, enterprise and property of legal entities. A. A. Ivanov concludes that "obligatory rights may be part of complex things (property complexes), say, enterprises."

The law regulates the legal status not so much of the founders (participants) of the debtor as of the bodies of the legal entity when applying bankruptcy procedures. The governing bodies of a legal entity, in turn, are always formed and represented by the founders (participants) of the legal entity, with the exception of the sole executive body.

According to paragraph 1, 2 of Art. 53 of the Civil Code of the Russian Federation, a legal entity may acquire civil rights and assume civil obligations through: 1) its participants, but only in cases provided for by law; 2) its bodies acting in accordance with the law, other legal acts and constituent documents.

Since cases of acquisition by a legal entity of civil rights and obligations through its participants are strictly limited by direct instructions in the law, they constitute an insignificant amount. Such cases include, in particular, management in a "company of one person" - a business company with one shareholder (participant). The Civil Code of the Russian Federation also granted the right to general partners in general partnerships and limited partnerships to act on behalf of a legal entity. In other corporations, participants, not differing in this sense from all other persons, have the right to act on behalf of the partnership (company) only if they have a power of attorney. These cases cannot be confused with those when the members of the corporation are elected by the bodies of the legal entity (director, chairman).

Participants (general partners) in a full partnership, in accordance with the agreement concluded between them, are engaged in entrepreneurial activity on behalf of the partnership. Moreover, each participant has the right to act on behalf of the partnership, if the constituent agreement does not establish that all its participants conduct business jointly or the conduct of business is entrusted to individual participants (clause 1 of article 69 and clause 1 of article 72 of the Civil Code of the Russian Federation). General partners in a limited partnership (limited partnership) manage the activities of a limited partnership in the manner established for participants in a general partnership (clauses 1, 2, article 82, clause 1, article 84 of the Civil Code of the Russian Federation).

These provisions must be taken into account by the court, for example, when an absent debtor, established in the form of a general partnership or a limited partnership, is declared bankrupt. In addition to the requirements of Art. 227 of the Law of 2002 (Article 77 of the Law of 1998) on the actual termination by a legal entity of its activities, the impossibility of establishing the location of the head of the debtor, the facts of the absence of the debtor's participants and the impossibility of establishing their location must be taken into account. According to paragraph 10 of the Review of the practice of resolving disputes related to the liquidation of legal entities (commercial organizations), published by the Presidium of the Supreme Arbitration Court of the Russian Federation, the issue of liquidating a legal entity in accordance with Art. 180 of the 2002 Law should be decided in the presence of verified data on the actual termination of activities by the legal entity and the absence of information about the location of its body and founders.

Indeed, a legal entity acquires most of the civil rights and obligations through its bodies. The procedure for appointing and (or) electing the bodies of a legal entity is determined by law and constituent documents (clause 1, article 53 of the Civil Code of the Russian Federation). In this regard, the current Russian legislation follows the traditions of Russian pre-revolutionary law. "Recognizing the existence of a legal entity, the legislation at the same time defines the body through which it must exercise its civil activity."

Legal entities acquire and exercise their civil rights by their own will and in their own interest (clause 2, article 1 of the Civil Code of the Russian Federation). The body of a legal entity is traditionally understood as its component, which, according to its powers, forms and expresses its will, directs its activities. An organ is a part of a legal entity that forms and expresses its will outside. S. N. Bratus, regarding the essence of the body of a legal entity, indicated: “... the body is those living people who develop the will of public education as a whole. An organ is that part of the whole in which the activity of the whole is manifested.

The understanding of the body as an integral part of a legal entity, taking into account the current legislation, is erroneous, since at present it is possible to establish a legal entity by one participant, which may be another legal entity.

The bodies of legal entities are defined by the Civil Code of the Russian Federation and certain federal laws. So, in a full partnership, all the participants conduct business together (Article 72 of the Civil Code of the Russian Federation); in a limited partnership, management (conducting business) is carried out only by general partners (Article 84 of the Civil Code of the Russian Federation); in limited or additional liability companies, a supreme body is created - a general meeting of participants, as well as an executive body subordinate to it - a sole or collegiate one (Article 91 and clause 3 of Article 95 of the Civil Code of the Russian Federation); in a joint-stock company, the supreme body is also the general meeting of participants (shareholders), and the executive, depending on the number of shareholders, is either collegiate (board) or sole (director), if the company has more than 50 members, another body is approved - the supervisory board (Article 103 of the Civil Code of the Russian Federation); in a production cooperative, there is a general meeting of members - the highest body, the board and (or) the chairman - the executive body (Article 110 of the Civil Code of the Russian Federation). Unlike corporate legal entities, unitary enterprises have a single sole body - the head (Article 113 of the Civil Code of the Russian Federation).

It should be borne in mind that the Civil Code of the Russian Federation and federal laws provide for the possibility of transferring management functions by a legal entity under an agreement to a commercial organization or an individual entrepreneur.

So, according to paragraph 3 of Art. 69 of the JSC Law, the rights and obligations of the sole executive body of the company (director, CEO), members of the collegial executive body of the company (board, directorate), managing organization or a manager for managing the current activities of the company are determined by this Law, other legal acts of the Russian Federation and the agreement concluded by each of them with the company. The type and measures of liability applicable to these bodies depend on the legal nature of the contract concluded between them and the company. However, the JSC Law does not directly define the nature of such contracts.

Relationship between society and manager commercial organization or manager - individual entrepreneur are regulated by a civil law contract: a contract, on the provision of services for a fee, on trust management of property, etc. For a long time, the legal nature of the contract concluded by the company with the sole executive body and (or) members of the collegial executive body of the company (management board, directorates). Moreover, the provision of Part 3 of Art. 69 of the JSC Law, which establishes that the relationship between the company and the sole executive body of the company and (or) members of the collegial executive body of the company is subject to the labor legislation of the Russian Federation to the extent that it does not contradict the provisions on the JSC, “does not allow to unambiguously determine the industry affiliation of this agreement , i.e., it is not clear whether it refers to labor law or civil law. This problem has been discussed by many authors as referring such contracts to both labor law and civil law, to mixed contracts, to indirect contracts (of a labor and civil law nature), depending on the actual nature of the relationship. Finally, Art. 59, 75, 81 Labor Code The Russian Federation defined the nature of the relations developing in this case as labor relations.

According to the general rule, enshrined in paragraph 3 of Art. 53 of the Civil Code of the Russian Federation, a person who, by virtue of law or the constituent documents of a legal entity, acts on its behalf, must act in the interests of the legal entity it represents in good faith and reasonably. Based on this, the body of a legal entity is not entitled to act on its own behalf. D. I. Meyer noted that in order to carry out the civil activities of a legal entity, a body of a legal entity is created, the actions of which are considered the actions of the legal entity itself. Therefore, it is difficult to agree with G.V. Tsepov, who argues that “using the concept of “a body of a legal entity”, one must be aware that any of its composition is formed from independent subjects of law, as a result of which their actions should differ depending on whether they act on their own behalf, or on behalf and in the interests of the legal entity they represent. If the body of a legal entity, representing it, acts in its own interests or in the interests of third parties, including the founders (participants) of the legal entity, then we can talk about a violation of the principle of good faith.

The consequence of the actions of the bodies of a legal entity in violation of the principles of reasonableness and good faith, for example, in the interests of its founders (participants), is the onset of liability in the form of compensation for losses caused by them to the legal entity. However, paragraph 3 of Art. 53 of the Civil Code of the Russian Federation, the right to apply with such a requirement is granted only to the founders (participants) of the legal entity themselves.

An analysis of the articles of the Law indicates that the founders (participants) of the debtor: 1) do not qualify as bankruptcy creditors for obligations arising from such participation (Article 2); 2) are not considered as persons participating in the bankruptcy case (Article 34).

According to par. 8 art. 2 of the Law, bankruptcy creditors - creditors for monetary obligations, with the exception of authorized bodies, citizens to whom the debtor is liable for causing harm to life and health, moral damage, have obligations to pay remuneration under copyright agreements, as well as founders (participants) of the debtor - legal persons for the obligations arising from such participation. In this case, we are talking about the rights of claim of the founders (participants) arising from such participation, but if the founder (participant) has provided the debtor with a loan, he becomes a bankruptcy creditor.

So, the claims of the participants of the legal entity arising from such participation are excluded from the category of monetary obligations. Article 134 of the Law does not name the requirements of participants in a legal entity as part of the order of repayment of obligations.

The founder (participant) of a legal entity may be a bankruptcy creditor (and, therefore, participate in the process) if his claims to the legal entity are not related to participation in it. In practice, in a number of cases, the founders conclude with a legal entity, for example, a loan agreement, which gives reason to talk about ordinary contractual relations not related to participation in a legal entity. As a rule, it is very difficult to recognize such a deal as sham.

The owner of the property of the debtor - a unitary enterprise, is not referred by the Law to either bankruptcy creditors for monetary obligations, or to creditors having the right to claim against the debtor for monetary obligations.

One should agree with A.P. Vershinin that the legal status of bankruptcy and other creditors differs in the form of participation in the arbitration process and bankruptcy procedures. He also notes that the name “bankruptcy creditors” is conditional, since the claims of the other two queues of creditors are also satisfied at the expense of the bankruptcy estate. The special indication of the law on bankruptcy creditors is due to their procedural function in initiating insolvency proceedings and conducting bankruptcy procedures.

The legal status of competitive and non-competitive creditors differs significantly. Competitive creditors are active, while non-competitive creditors are passive creditors, since only bankruptcy creditors have the right to act in the bankruptcy process (apply to the arbitration court to declare the debtor bankrupt (i.e., initiate the bankruptcy process; vote at meetings of creditors, etc.). Non-competitive creditors are deprived of the above powers and only have the opportunity to declare invalid certain transactions of the debtor and the opportunity to receive satisfaction of their claims (full or partial) in accordance with the priority (this possibility does not exist for all bankruptcy creditors).

Creditors are persons who, in relation to the debtor, have the right to claim for monetary obligations (paragraph 7, article 2 of the Law). In this regard, the founders (participants) of the debtor for the obligations arising from such participation are creditors in relation to it. M. V. Telyukina notes: “The essential difference between the legal status of participants (founders) of a legal entity and the position of non-competitive creditors - citizens to whom the debtor is liable for causing harm to life and health, is that the requirements of the participants arising from such participation are satisfied after all other requirements have been met. They do not belong to the requirements of any queue, which means that they are satisfied not in proportion, but in the order of receipt by the arbitration manager from the remaining property after all other requirements are satisfied.

Since this type of creditors - founders (participants) of the debtor under monetary obligations is excluded from the list of bankruptcy creditors by the Law, they do not have the right to apply to the court for declaring the debtor bankrupt (Article 7); to participate in the meeting of creditors with the right to vote (clause 1, article 12); to represent their interests by the committee of creditors (clause 1, article 17). Only bankruptcy creditors have such rights.

The representative of the founders (participants) of the debtor is entitled to participate in the meeting of creditors without the right to vote. The arbitration manager is obliged to duly notify them of the meeting of creditors (Article 13), and subsequently provide access to copies of the minutes of the meeting of creditors and other documents (Article 12). However, the absence of a representative of the founders (participants) of the debtor does not affect the quorum of the meeting of creditors, and the obligation of the arbitration manager to notify the upcoming meeting of creditors is not fixed in the Law.

Finally, the legislator has positively resolved the issue of appealing the decisions of the meeting of creditors by persons participating not only in the bankruptcy case, but also in the arbitration process in the bankruptcy case, and hence the founders (participants) of the debtor (paragraph 4 of article 15), although in judicial and arbitration practice such an appeal was widespread before.

In contrast to the 1998 Bankruptcy Law, in the 2002 Law the list of persons participating in a bankruptcy case is exhaustive, while the list of persons participating in bankruptcy proceedings, on the contrary, is open. So, among the persons participating in the arbitration process, along with a representative of the debtor's employees, a representative of the owner of the debtor's property - a unitary enterprise, a representative of the meeting of creditors (or a representative of the committee of creditors), other persons in cases provided for by the Arbitration Procedure Code of the Russian Federation and the Law, the Law includes and a representative of the founders (participants) of the debtor.

The rights of persons participating in a bankruptcy case are much broader and also include the rights of persons participating in bankruptcy proceedings. Meanwhile, the Law does not indicate the grounds for the above classification of persons. According to E. V. Slepchenko, “persons participating in a bankruptcy case include those participants in the arbitration process in a bankruptcy case who, to one degree or another and for various reasons, are directly interested in the outcome of the case ... In order to protect certain categories of persons whose interests are affected by the consideration of a bankruptcy case, the Bankruptcy Law provided for the possibility of their participation in the arbitration process. These are representatives of… the founders (participants) of the debtor.”

In cases where, in accordance with par. 3 p. 5 art. 231 of the Law, three candidates for an arbitration manager are submitted for approval to the court, and the head of the debtor is removed from office in accordance with the Federal Law of 1998, the right to challenge one of the candidates for an arbitration manager is exercised by a representative of the founders (participants) of the debtor or a representative of the owner of the property of the debtor - a unitary enterprise.

Having considered the rights of the founders (participants) of the debtor, let us dwell on the issues of civil liability of these persons in the bankruptcy case.

Measures of civil liability can be both property and non-property. E. A. Sukhanov points out that the measures of civil liability provided for by the Civil Code of the Russian Federation can also include a refusal to protect rights in case of abuse of them (Article 10 of the Civil Code of the Russian Federation), restriction of a citizen’s legal capacity (clause 1 of Article 30 of the Civil Code of the Russian Federation ), etc. As noted by A. B. Ageev, in this case, the basis for the application of these measures is not a violation of contractual obligations or the emergence of obligations from causing harm, but a direct indication of the law, in this case, the Bankruptcy Law. A good example of this is the provision of paragraph 1 of Art. 65 of the Civil Code of the Russian Federation, according to which the recognition by the court of a legal entity as bankrupt entails its liquidation. In this case, one should agree with the proposal of A. B. Ageev, who considers bankruptcy as a form of legal liability, and the liquidation of an insolvent debtor as a measure of civil liability.

At the same time, bankruptcy legal relations themselves contain rules providing for civil, administrative and criminal liability.

As you know, the concepts of "insolvency" and "bankruptcy" in modern Russian law are used as synonyms, at the same time, the legislator, speaking of liability in insolvency relations, uses the term "bankruptcy" exclusively. In the legal literature, it is widely believed that bankruptcy should be considered insolvency associated with such guilty behavior of the debtor that causes or aims to cause harm to creditors.

Thus, the definition of bankruptcy given by G. F. Shershenevich, which was understood as the careless or deliberate infliction of damage to creditors by an insolvent debtor by reducing or hiding property, became widespread. Thus, bankruptcy is the criminal side of that civil relationship, which is called insolvency. It does not seem to be a necessary and constant companion of the latter, but only an accidental complication. Bankruptcy constitutes a criminal act committed by an insolvent debtor, and therefore it presupposes insolvency. However, one should not seek causation between criminal acts and insolvency, only simultaneous existence is necessary. The absence of insolvency excludes the possibility of bankruptcy.

In Art. 131 of the Bankruptcy Charter of 1800 it was stated: “... in order to distinguish an immaculate bankruptcy from others, to call a person who has now fallen into a state of bankruptcy fallen, which title means in him an unfortunate, and not a dishonorable person; call a careless and malicious person bankrupt. Following this, A. Trainin wrote: “Bankruptcy is a peculiar tort: ​​it consists of two elements, of which one (insolvency) is the concept of civil law, the other (bankruptcy) is the concept of criminal law. This complexity of the composition of bankruptcy overly obscures its legal nature.

In pre-revolutionary bankruptcy law, the responsibility for determining the nature of insolvency lay with the bankruptcy proceedings. The issue of the presence of signs of bankruptcy (criminal acts) of the debtor was first decided by the bankruptcy administration (moreover, when all civil proceedings were completed), then - general meeting creditors. Finally, this issue was considered by a civil court, whose decisions were fundamental for initiating criminal prosecution.

This provision of bankruptcy law in terms of resolving the issue of the property of insolvency has been criticized by scientists. So, N. A. Tur was of the following opinion: “... discussion in the bankruptcy proceedings of the issue of the debtor’s guilt in bankruptcy, on the one hand, unnecessarily complicates the bankruptcy proceedings, and on the other, without any reason, hampers the prosecution of the debtor in criminal proceedings.” These provisions are still relevant today, since the arbitration court establishes the guilt of the head, founder (participant) of the debtor and other persons, which is the basis for bringing them to subsidiary liability for the obligations of the debtor (Article 10 of the Law).

Analyzing the pre-revolutionary Russian bankruptcy law, E. V. Smirnova identifies four essential signs of bankruptcy. First, since bankruptcy was an act committed by an insolvent debtor, the presence of insolvency was a mandatory feature. Secondly, bankruptcy was considered a crime even when the act was based on the negligence of the debtor. In this case, it was a regular (simple) bankruptcy. If the criminal acts were committed with the intent to harm creditors, bankruptcy was malicious and punished much more severely than unintentional bankruptcy. Thirdly, bankruptcy as a crime existed only if harm was done to creditors. Fourthly, the harm caused to creditors was the reduction or concealment of valuables belonging to the property of the debtor. Undoubtedly, the totality of the above signs established by the court is the basis for bringing the perpetrators, including the founders (participants) of the debtor, to civil liability - subsidiary.

During the NEP period, the problems of insolvency were also discussed in Soviet law. A.F. Kleiman wrote that “insolvency itself is not regarded as bankruptcy, that is, a socially dangerous action that entails the application of social protection measures, but if in the process of liquidation such moments are revealed in the activities of the insolvent, which indicate a breach of trust or deceit on the part of the debtor in order to obtain property benefits, then the court will have to initiate criminal prosecution against the perpetrator under Art. 169 of the Criminal Code of the RSFSR.

Objecting to P. Barenboim, who pointed out the correctness of the Russian legislator's use of the terms "insolvency" and "bankruptcy" as equivalent, V. N. Tkachev notes: debtors, but about the fundamental difference between these concepts. This difference, being legally fixed, should entail different legal consequences for the insolvent and bankrupt, a different attitude towards them. AT market conditions questions are important business reputation, therefore, it will be very important for the debtor to be called insolvent, and not bankrupt. Indeed, in a number of cases, the debtor, who was in the process of bankruptcy proceedings, will continue to operate. In such a situation, the qualification of the debtor's position as insolvency or bankruptcy will be of fundamental importance not only for the debtor himself, but also for his counterparties. According to V. N. Tkachev, if we follow the logic of the law, for which "insolvency" and "bankruptcy" are synonymous, it turns out that "bankruptcy" is both the state of affairs of the debtor and his actions. M. V. Telyukina, A. G. Lorkipanidze, E. A. Vasiliev wrote about the non-identity of these concepts.

Speaking about the liability of the founders (participants) of the debtor, I would like to once again emphasize the need to legally distinguish between the terms "insolvency" and "bankruptcy". The latter term should be used when bringing to property liability the founders (participants) of the debtor, the head of the debtor and other persons in the event that they cause damage to both the debtor and creditors.

N. A. Morozov at the end of the 19th century. wrote: “Everyone knows that we have formed a whole class of people who have made it a profitable trade for themselves to organize bankruptcies and carry them out safely in the interests of the debtor, who often suffers from the exploitation of these people no less than creditors.”

In the first place, it is the managers and founders (participants) who are of interest as persons who have access to the debtor's assets before the commencement of insolvency proceedings and therefore can affect the debtor's solvency. Legislatively fixed responsibility of the head and founders (participants) of the debtor is one of the ways to protect the interests of the debtor.

Managers are accountable because they are responsible for running the business of the company. The literature highlights the following aspects of the responsibility of company managers: 1) fraudulent transactions (fraudulent trading); 2) incorrect conclusion of transactions; 3) failure to perform the actions prescribed by law that must be taken if the company has become insolvent or has lost a large part of the capital; 4) negligent management; 5) violation of corporate law. When determining the consequences of negligent management in some countries (including the UK, the USA), the business judgment rule is used. This rule shields managers from liability for decisions they make voluntarily, even if those decisions are subsequently found to be erroneous and result in insolvency.

As for the founders (participants) of the debtor, their liability comes only if they also perform the functions of managing the company: firstly, when they have the opportunity to exert a decisive influence on the decisions made by the company (shadow directors) - in this case, they usually have mind large participants (more often legal entities); secondly, when it comes to participants in small (family) companies, where participants and managers are usually combined in one person. It is difficult to imagine a situation where the responsibility for the obligations of the company would be borne by the small shareholders of a large joint-stock company, which would put an end to massive investment in large companies.

Despite the fact that, as a general rule, enshrined in paragraph 3 of Art. 56 of the Civil Code of the Russian Federation, the founder (participant) of a legal entity or the owner of its property is not liable for the obligations of the legal entity, and the legal entity is not liable for the obligations of the founder (participant) or owner, the Civil Code of the Russian Federation, the Bankruptcy Law and other federal laws contain a number of rules on civil -legal liability of the founders (participants) of the debtor. In particular, Art. 10 of the Bankruptcy Law "Responsibility of the citizen-debtor and the debtor's management bodies" contains grounds for bringing guilty persons to subsidiary liability and the obligation to compensate for losses. I would like to immediately draw attention to the unfortunate title of this article of the Law, which indicates the responsibility of only the debtor's management bodies, while the article itself provides for two groups of grounds for bringing the founders (participants) and the owner of the debtor's property - a unitary enterprise - to liability.

1. In case of violation by the founder (participant) of the debtor, the owner of the property of the debtor - a unitary enterprise, of the provisions of the Law, they are obliged to compensate for the losses caused as a result of such a violation (clause 1, article 10).

2. In the event of bankruptcy of the debtor through the fault of the founders (participants) of the debtor, the owner of the property of the debtor - a unitary enterprise or other persons who have the right to give instructions binding on the debtor or have the opportunity to otherwise determine its actions, the founders (participants) of the debtor or other persons in case of insufficiency of the debtor's property, subsidiary liability for his obligations may be imposed (clause 4, article 10 of the Law). A similar provision is contained in Part 2, Clause 3, Art. 56 of the Civil Code of the Russian Federation.

If the value of the property of the debtor - a legal entity, in respect of which the decision on liquidation was made, is insufficient to satisfy the claims of creditors, and if these circumstances are discovered after the decision to liquidate the legal entity and before the creation of a liquidation commission (appointment of a liquidator), the application for declaring the debtor bankrupt must be filed with the arbitration court by the owner of the property of the debtor - a unitary enterprise, the founder (participant) of the debtor (clause 3 of article 224 of the Law). In case of violation of this requirement of the Law, the owner of the property of the debtor - a unitary enterprise, the founders (participants) of the debtor shall bear subsidiary liability for unsatisfied claims of creditors for monetary obligations and for the payment of obligatory payments of the debtor (paragraph 2 of Article 226 of the Law).

It should be noted that the Law abandoned the concepts of “deliberate bankruptcy” and “fictitious bankruptcy”, although it uses their definitions, previously given in the 1998 Law.

What is the scope of subsidiary liability of the founders (participants) of the debtor for the intentional bankruptcy of the debtor? Are the debtors liable for all their obligations? The founders (participants) of the debtor may be brought to subsidiary liability in the event of only the established insufficiency of the debtor's property to satisfy all claims. If the debtor's property is sufficient, despite the fault of these persons, liability will not arise in any case. Bringing these persons to responsibility is possible only at the stage of liquidation of the debtor during the formation of the bankruptcy estate. The amount of subsidiary liability of the said persons is determined as the difference between the sum of claims of all creditors included in the register of creditors' claims and in cash proceeds from the sale of the debtor's property or the replacement of the assets of the debtor's organization (clause 2, article 129 of the Law). If the property of the subjects of subsidiary liability is insufficient to compensate for the difference between the claims against the debtor and the value of his property, it is possible to initiate an application to the court to declare them insolvent.

The subject of liability for fictitious bankruptcy Art. 10 of the Law, the debtor himself is named, the founders (participants) of the debtor are not referred to them. However, the head of the debtor in certain Art. 9 of the Law, in cases where the obligation arises to apply to the court with the debtor's application, including when the debtor's body decides to apply to the arbitration court with the debtor's application. A situation may arise when the debtor's body makes such a decision when the debtor has no signs of bankruptcy. M. V. Telyukina is absolutely right, noting that if the said decision is made in the absence of signs of bankruptcy, then this does not oblige the head to go to court; the court may refuse to accept such an application. The relevant decision of the supreme body of a legal entity may be challenged as inconsistent with the Law. However, on the basis of an unlawful decision of the debtor's body, the head may file an application of the debtor with the court. In this case, the debtor is liable to creditors for losses caused by the initiation of bankruptcy proceedings or unjustified recognition of creditors' claims (clause 3, article 10 of the Law), and the founders (participants) of the debtor unlawfully go unpunished. And for the debtor comes full responsibility, i.e., not only real damage, but also lost profits are subject to compensation.

Interesting situations arise when a liquidated debtor goes bankrupt. If the value of the property of the debtor - a legal entity, in respect of which the decision on liquidation was made, is insufficient to satisfy the claims of creditors, and if these circumstances are discovered after the decision to liquidate the legal entity and before the creation of a liquidation commission (appointment of a liquidator), the application for declaring the debtor bankrupt must be filed with the arbitration court by the owner of the property of the debtor - a unitary enterprise, the founder (participant) of the debtor (clause 3 of article 224 of the Law). In case of violation of this requirement of the Law, the owner of the property of the debtor - a unitary enterprise, the founders (participants) of the debtor shall bear subsidiary liability for unsatisfied claims of creditors for monetary obligations and for the payment of obligatory payments of the debtor (paragraph 2 of Article 226 of the Law). Thus, paragraph 2 of Art. 226 of the Law defines the amount of subsidiary liability as “for unsatisfied claims of creditors”, i.e. for all claims for monetary obligations and for the payment of obligatory payments by the debtor. M. V. Telyukina, the scope of subsidiary liability in this case is defined as claims for monetary obligations and obligatory payments that are not satisfied in the process of liquidation. At the same time, paragraph 2 of Art. 10 of the Law, the amount of subsidiary liability for failure to file a debtor's application is established in the amount of the debtor's obligations that arose after the expiration of a month from the date the circumstance arose - if the value of the debtor's property is found to be insufficient to satisfy creditors' claims.

There are a number of precedents in the United States where shareholders have been held liable for gross interference in the affairs of the debtor and mixing the debtor's assets with their own. The main factors influencing the occurrence of shareholder liability are: general managers, consolidated financial statements, mixing of assets, financial dependence on the shareholder, non-compliance corporate rules, shareholder interference in the management of the company, participation in transactions with excess of authority, etc.

It should be borne in mind that subsidiary liability can be assigned to the above persons only in the event of bankruptcy of a legal entity, i.e. when there is a decision arbitration court on declaring him bankrupt, suggesting his insolvency to satisfy the claims of creditors. So, when reorganizing a debtor - a legal entity, claims must be submitted to the successor of the reorganized legal entity in accordance with Art. 58 of the Civil Code of the Russian Federation. And only in case of non-satisfaction of the requirements of the creditor, it is possible to raise the issue of bringing the owner of the property of the reorganized legal entity to subsidiary liability.

Thus, if an amicable agreement is concluded at one of the stages of bankruptcy preceding bankruptcy proceedings, then it is impossible to bring the perpetrators to subsidiary liability even if there are grounds. In addition, paragraph 5 of Art. 129 of the Law requirements for third parties who, in accordance with the Bankruptcy Law, bear subsidiary liability for the obligations of the debtor in connection with bringing it to bankruptcy, are presented exclusively to the bankruptcy trustee. At the same time, the Law does not provide for any liability to the bankruptcy trustee if he fails to fulfill this obligation. In this regard, we propose to amend the Law, giving creditors the right to make independent claims for the recovery from the founders (participants) of the debtor, whose guilt has been proven, caused by bringing the debtor to insolvency (bankruptcy) losses.

Claims of bankruptcy trustees to bring these persons to responsibility are considered by the courts according to the jurisdiction established by the procedural legislation. The presentation of such a claim may serve as a basis for postponing consideration of the issue of completing bankruptcy proceedings (Articles 147, 149 of the Law). In cases where these persons have not been held subsidiary liable in this manner, the relevant claims may be brought against them by each creditor or authorized body (Clause 3, Article 56 of the Civil Code of the Russian Federation).

End of introductory segment.

* * *

The following excerpt from the book Protection of the rights of founders (participants) of a debtor in an insolvency (bankruptcy) case (N. A. Emelkina, 2006) provided by our book partner -