Бычкова К.М._Summery (Удовлетворение требований кредиторов в рамках процедуры несостоятельности в России и Франции сравнительно-правовой анализ)

National Research UniversityHigher School of EconomicsBychkova Ksenia MikhailovnaREPAYMENT OF CREDITORS’ CLAIMS WITHIN INSOLVENCYPROCEEDINGS IN RUSSIA AND FRANCE:COMPARATIVE LEGAL ANALYSISPhD Dissertation Summaryfor the purpose of obtainingPhilosophy Doctor in Law HSEAcademic supervisor:Popov Andrey VladimirovichPhD in law, associate professorMoscow – 20182The relevance of the research topic.In the process of carrying out the commercial activities of an organization, at onetime or another, financial or other difficulties occur, which may lead the company to acomplete termination of activity. Despite all the efforts made to restore stability, certainfactors (economic, political, legal and other) may render the organization insolvent.

Incase of impossibility of further continuation of activity, the debtor enters the procedureof insolvency (bankruptcy). In such a situation, the public authorities take control overthe future of this organization. It is obvious that in order to avoid abuse of the rights, thelegislator should strictly regulate the actions of state bodies and other interested personswithin the established procedure.

This procedure is the bankruptcy procedure.Bankruptcy law is often associated with public interference into the activity of theorganization that has been rendered insolvent for some reason. Within the bankruptcyprocedure, public authorities contribute to the debtor to restore its solvency, that oftenmeans a restriction of the legal capacity of the debtor. At the same time, manybankruptcy institutions that seem unfair to one of the parties appear to be effective bothfor the debtor and for creditors. In addition, the society as a whole benefits from theirapplication in a long term.

Such institutions can be introduced by the legislator both forthe purpose of mandatory regulation of some important processes, as well as under theinfluence of requirements and interests of the society. In this case, the society isunderstood not only as debtors and creditors, but also other members of the society whoare not directly involved in the bankruptcy procedure of a particular debtor.Each stage of bankruptcy pursues certain goals.

The tasks may range fromassisting the debtor in restoring solvency as the most favourable outcome for theorganization, to properly allocating the value of the debtor's property sold in the eventof an unsatisfactory outcome of the task at the first stage. There is a growing trend in agrowing number of countries to increase the role of rehabilitation in insolvencyproceedings.One of the objectives of the insolvency procedure is to prevent the forcedliquidation of the debtor in connection with insolvency and thus to preserve the3organization as an active subject of the economic turnover. This goal is achievedthrough rehabilitation procedures that allow to restore the solvency of the debtor at theearly stages of bankruptcy proceedings.

The policy of "conservation of the enterprise",pursued by the French government in conducting activities under the insolvencyproceedings, is implemented in the legislation of France and has ensured the availabilityof institutions that allow to reduce the number of insolvency proceedings ending byliquidation of the debtor.At the stage of the liquidation, the preservation of the debtor is not the task anymore. In case, the debtor cannot pay its debts and restore its solvency, the organizationis subject to compulsory liquidation, its assets are sold and the proceeds are transferredto creditors in the repayment of existing debts.

The main objectives pursued by the stateat the stage of liquidation in the bankruptcy procedure are the sale of the property of theliquidated debtor and the fair distribution of its value between creditors, whichdetermines the need for legislative consolidation of the distribution priorities. In thiscase, the law protects not only the debtor, but also its creditors. Moreover, the level ofdevelopment of the legal framework depends on the possibility of economic cooperationbetween contractors. Considering at the stage of conclusion of a contract the level ofrisks associated with the insolvency of the debtor, the creditor may vary and choosecertain ways to ensure the performance of obligations, as depending on this choice itschances of obtaining debt from a bankrupt may be increased according to the law of acertain jurisdiction.The choice of comparative analysis of the Russian and French legislation as thesubject of the study is due to the fact that, unlike Russia, where at the present stage thefirst bankruptcy law was adopted a little more than 20 years ago, the history of Frenchinsolvency law has already several centuries.

However, some researchers argue thatdespite long history of French civil law, the French civil law and in particular the Civilcode "provide much more flexibility than the system of precedents in the common4law"1. The positive experience of France in the field of legal regulation of insolvencycould serve as one of the sources of improvement of the Russian legislation in the fieldof insolvency of organizations.The history of legal regulation of insolvency in Russia begins in Ancient Russia.Some provisions on bankruptcy were contained in the Russian Truth, the Pskov JudicialCharter, the Code of Law of Ivan III2. Then, from 1740 to 1917, there comes the stageof codification and intensive development of bankruptcy law. At that time, the legalsources are statutes about bankruptcy of 1740, 1753, 1763, 1768, 1800, the Charter ofthe trading insolvency of 1832, which was in force until the revolution of 1917.

In theSoviet period, rules on bankruptcy were in force until the end of the NEP period3. Inconnection with the establishment of a monopoly of state ownership, the need toregulate the insolvency of enterprises simply disappeared. As a result, the developmentof bankruptcy law in Russia was suspended for more than 60 years.

In the modernRussian legislation, the first law regulating the institution of bankruptcy was adopted in1992, then the new law was approved in 1998, and finally, at present, the insolvency oforganizations is regulated by the Federal law No. 127-FZ "On insolvency (bankruptcy)"of 2002 (hereinafter – the bankruptcy law).

In connection with the development andintroduction of many amendments to the law, it seems appropriate and relevant to studysome insolvency institutions within the framework of a comparative legal approach.This analysis helps to identify the strengths and weaknesses of different ways ofregulating relevant institutions and effective methods of resolving problematic issues inthis area. Comparative legal analysis allows to explore the positive experience of thelegislation of other countries and, if necessary, practical applicability to borroweffective regulatory instruments in this area.1Guillot, D.

Napoleon’s code and modern time // Vestnik grajdanskogo prava. – 2015. – No. 1. – T.15. – P. 156.2Sviridenko, O.M. Russian laws on bankruptcy: history of development. – Irkutsk: Publishing ofIrkutsk university, 1929. – P. 3-13.3Kleinman, A.F. On the bankruptcy of private persons according to soviet laws on procedure. –Irkutsk: Publishing of Irkutsk university, 1929. – P.

3-4.5In France, the main source of law that has governed insolvency proceedings fortwo centuries is the Commercial code of 1807 (hereinafter referred to as the FrenchCommercial code), which has been amended in accordance with the historicaldevelopment of the law. Initially, one third of the code was devoted to insolvency.

Themost significant amendments were made by special laws in 1889, 1967, 1985, 1994. In2005, the law on the preservation of enterprises No. 2005-845 was adopted, and in2014, order No. 2014-326 on the reform in the field of prevention of difficulties ofenterprises and insolvency procedures was adopted. During this time, the legislator hasdefined the requirements of the society and the principal objectives of the insolvencyprocedure, as well as has developed many practices to achieve them. At the same time,not only the legal doctrine influenced the changes in legislation and judicial practice,but also the legislation forced to look at the seemingly well-established theoreticalfoundations of bankruptcy and business law from a different angle.According to the statistics of the Supreme Arbitration Court of the RussianFederation, the number of bankruptcy cases considered by arbitration courts (for whichthe proceedings were completed) was 74 in 19934, in 20135 the number of completedinsolvency proceedings was 23,721, in 20166 – 31,788.