Бычкова К.М._Summery (Удовлетворение требований кредиторов в рамках процедуры несостоятельности в России и Франции сравнительно-правовой анализ), страница 4

Such claims shall be satisfied until the third-priority creditors'claims are satisfied.7.For the purpose of scientific systematization and classification of varioustypes of claims, the author substantiates the need to allocate to a separate category (as itis implemented in the French doctrine) the claims of creditors secured by means of atitle security, on the basis of the characteristic features that determine their fundamentaldifferences from the rest of the claims.

The peculiarity is that despite the similarity ofthe legal nature (secured claims), such creditor, unlike the others, does not participate inthe distribution of the debtor's assets according to the established order, and the surplus(the amount of excess of the value of the collateral over the amount of the securedclaim) is not subject to return to the debtor or other creditors11.8.Taking into account the presence in the Russian legislation of the normsallowing to use the legal mechanisms mediating title security, it is reasonable both fromthe social and economic, and from the legal perspective to introduce a general ruleaccording to which in case of excess of the actual cost of the subject of title securityover the size of the secured claim such surplus is subject to transfer by the creditor tobankruptcy estate of the debtor.11In turn, collateral claims are not included in this category, since their legal regime is regulated bythe bankruptcy law, and creditors are subject to the rules and requirements of the introducedinsolvency procedure.15The determination of the real value of the collateral is achieved either by sale atauction or by independent evaluation (in case of leaving of the collateral to the creditorowner).9.The rights granted to the secured creditor through the transfer of ownershipof the security should be limited by extending to it the legal regime of collateral claimsin the debtor's bankruptcy procedure, which will restore the balance of interests of theparties to the legal relations established by the bankruptcy law.

All creditors' claims,including claims secured by transfer of title, will be subject to the provisions of thebankruptcy law.The theoretical significance. Analysis of the legal norms on the procedure ofrepayment of creditors’ claims with the use of comparative legal method is of highinterest because it allows to choose the optimal approach for determining the scope ofclaims for priority repayment and the appropriate legal regime ensuring the balance ofinterests of different groups of individuals experiencing the consequences of insolvencyproceedings against the debtor. As a result of the research carried out by the author, theconclusions concerning the main features of the legal regime of creditors' claims underthe legislation of Russia and France, privileges, as well as ways of extraordinaryrepayment of claims, are made.Practical significance of the work and testing of the results of the dissertationresearch.

Based on the findings of the dissertation research, the author formulatedproposals for amendments and additions to the Russian insolvency law, whichdetermine the practical significance of the work.In particular, the author proposed to amend the legal definition of currentpayments contained in article 5 of the bankruptcy law (see § 1.2 of Chapter 1 of thethesis), to create a system of compulsory social insurance in case of loss of earningsdue to insolvency (bankruptcy) of the employer (see § 2.1 of Chapter 2 of thethesis), to fix in the bankruptcy law the privilege for claims of creditors whoparticipated in the restoration of the financial position of the debtor at the prebankruptcy stages (see § 2.2 of Chapter 2 of the thesis), as well as to make changes16regarding the order of distribution of the value of the pledged property (see § 2.3of Chapter 2 of the thesis).Proposals for the reform of legislation and other conclusions and results of thedissertation research can be used both by practicing lawyers and in the scientific field:the results can be taken into account by the relevant committees and groups involved inthedevelopmentofreformsandchangesinthebankruptcylegislation,recommendations for the application of certain provisions of regulations, lawenforcement and judicial bodies, arbitration managers and lawyers representing theinterests of both debtors and creditors.

In addition, the findings and comparativeanalysis can be used for further research on this topic and related issues, since theinformation contained in the study on bankruptcy law in France characterizes thecurrent state of the legal framework of French bankruptcy law.In addition, the main provisions and conclusions of the study can be used inteaching of a number of disciplines – "Civil law", "Business law", "Bankruptcy law","Labor law". The reliability of the study is confirmed by the use of scientific methodsaccepted and widely known in the field of jurisprudence.

The results of the researchwere discussed and reported by the author at scientific conferences.The structure and volume of work are determined by the purpose andmethodology of the study. The thesis consists of introduction, two chapters, consistingof six paragraphs, conclusions and a list of references.The main content of the work:The introduction substantiates the relevance of the research topic, determinesthe degree of development of the topic, identifies the goals, objectives, as well as theobject, subject and methods of research, describes the theoretical, legal and empiricalbase of the research, characterizes the scientific novelty of the work.

The provisionssubmitted for protection are formulated, the theoretical and practical significance isrevealed, the data on approbation of research results are given.The first chapter "Order of repayment of the current (subsequent) claims"consists of two paragraphs and reveals the legal regime of repayment of the current17(subsequent) claims, their concept and distinctive features in accordance with thelegislation of Russia and France. In the first chapter, the author also indicates the placeand importance of liquidation procedures in insolvency (bankruptcy) in the system offorced debt collection, the reasons for the allocation of creditors among other personsinvolved in the bankruptcy case, identifies the types of claims and the criteria for theirclassification, determines the content of the institute of repayment of creditors’ claimsin insolvency in the author's concept and describes the prerequisites for the allocation ofcertain types of claims for their consideration in the text of the thesis.In the first paragraph of the first chapter "Distinctive features of the currentclaims (in Russia) and subsequent claims (in France)" the author analyzes the natureand scope of this category of claims on the basis of existing regulations and judicialpractice.

The author reveals the homogeneity of the current claims under Russian lawand the so-called subsequent claims under French law, which makes it possible toconduct a comparative legal analysis. The primary criterion for assigning claims to thiscategory is the time criterion, namely the date of occurrence of the claim.Further, the author presents the internal and external order of repayment of thecurrent (subsequent) claims and reveals the position of such creditors in the distributionof the value of the debtor's assets in relation to other creditors and to each other.The second paragraph of the first chapter "Conditions for the recognition ofthe current (subsequent) claims as privileged" is devoted to the detailed analysis ofcriteria (conditions) of the assignment of claims to the privileged rank.

The thesisexamines the conditions provided by the French legislation for granting priority tosubsequent claims (legality of occurrence, time interval of occurrence and specialpurpose), as well as the grounds and reasons for their establishment.It is revealed that the concept of current payments established by the Russianbankruptcy law is limited to the temporary criterion, which is a prerequisite forproblems associated with the implementation of unreasonable costs in the bankruptcycase.18The author concludes that it is reasonable to limit the concept of current paymentsin Russian law, since at the moment the existing mechanisms to overcome the negativeconsequences in connection with the implementation of current payments that do notmeet the objectives of the insolvency procedure are not enough to restore the rights andprotect the interests of the debtor, creditors and other persons.The author makes a conclusion about the appropriateness of limiting the conceptof current payments in the Russian law, as currently existing mechanisms to overcomethe negative effects in connection with the current payments that are not consistent withthe objectives of the insolvency proceedings are insufficient to restore the rights andprotection of interests of debtor, creditors and other entities.

Moreover, thesemechanisms seem relatively complex to implement. The author reveals difficulties incontestation of the transactions made by the debtor on the grounds provided for inchapter III1 of the bankruptcy law (for example, as a transaction with preference,suspicious transaction), as well as in bringing the arbitration manager to responsibility.In addition to the problems encountered in the practical implementation of thesemethods, these mechanisms involve a long period of implementation, which is noteffective for either interested creditors or the debtor.The author notes that for the purpose of protecting the interests of creditors andlimiting the scope of subsequent claims, the French legislator introduced a specialcriterion according to which privileged claims include only those claims that arose forthe needs of the procedure, or for the needs of the temporary continuation of the debtor'sactivities permitted in accordance with article L.

641-10 of the French Commercialcode, either in exchange for a counter-provision to the debtor made during suchtemporary continuation of the debtor's activities (claims arising in connection with theexecution of current or newly concluded contracts) or in pursuance of the currentcontract determined by the liquidator.The current wording of the definition of current payments in the Russianbankruptcy law seems to be too broad, allowing the debtor to spend money inbankruptcy proceedings to the detriment of creditors whose claims are included in the19register of claims. The methods of preventing the negative consequences of currentpayments that do not meet the objectives of the bankruptcy procedure, namely therecognition of transactions invalid on general or special grounds, the involvement of thearbitration manager to responsibility, provided by the legislation, are not sufficientlyeffective.In order to solve this problem, the author considers it appropriate to limit theconcept of current payments in the Russian bankruptcy law.