Бычкова К.М._Summery (Удовлетворение требований кредиторов в рамках процедуры несостоятельности в России и Франции сравнительно-правовой анализ), страница 5

The author proposes toconsider as an additional criterion the need of such claims for the purposes ofinsolvency proceedings and the continuation of the enterprise. Based on the analysis ofpreviously existing Russian legislation on bankruptcy, the draft of the current law onbankruptcy, the various projects on amendments to the law on bankruptcy, the Frenchexperience, Russian experience in law enforcement and legal doctrine, the author makesa conclusion on the practical applicability of such constraints and represents thewording of the necessary amendments to article 5 of the bankruptcy law.

Accordingly,the current claims are proposed to include claims that, first, arose for the purposes ofinsolvency proceedings, and second, are necessary for the ordinary course of businessof the debtor, which it continues during insolvency proceedings.Thus, it is proposed to define the current claims in two stages. In the first phase, atime criterion is used to distinguish claims on the basis of time of occurrence.According to the current legislation and under this criterion, liabilities and obligatorypayments arising after the date of acceptance of the application for recognition of thedebtor as bankrupt are considered current.Invalidation of transactions involving expenses of the second group could be anobstacle to interaction with the debtor of other creditors after the introduction ofbankruptcy proceedings because taking into account the possibility of applying of sucha measure to them, the number of persons willing to work with the bankrupt, would bereduced significantly.

The issue would be further exacerbated if the law establishedgeneral rules and the specific features of improper payments were to be determined bythe courts in the context of specific factual circumstances. In connection with this, it is20supposed to consider the deprivation of the privilege provided for the current claims inthe bankruptcy case and the application to them of the regime provided for theregistered claims as a consequence of non-compliance with the target criterion.Further, the author justifies the need for accurate determination of the number andamount of the following (current) claims for the purposes of the bankruptcyproceedings, including for purposes of determining the financial condition of the debtorand the possibility of recovery and appropriate allocation of the value of the property,which proves the feasibility of the statutory period to notify the arbitration manager andthe debtor on the claims for current payments.

Claims that have not been submittedwithin the specified period shall be satisfied after the completion of settlements withcreditors of the corresponding rank of claims for current payments until the repaymentof claims of creditors of subsequent ranks. The relevant proposals to change the law onbankruptcy are formulated.The legislation of both countries provides for the period of application ofregistered (previous) claims, but the Russian law provides for a softer consequence ofits omission, while under French law the creditor is considered to have lost the right toclaim under the insolvency procedure and does not participate in the distribution of thevalue of the debtor's assets, which seems unjustified in comparison with the creditor'somission.Chapter two "Order of repayment of registered (previous) claims" reveals alegal regime to address registered (previous) creditors and peculiarities inherent to thedifferent categories of claims.At the beginning of the first paragraph of the second chapter "Guarantee ofremuneration of employees in case of insolvency of the employer: Frenchexperience and Russian initiatives" the author presents an overview of the maincharacteristics of the legal regime for repayment of employees’ claims under Frenchlaw, defines the doctrinal concept of super-privileges of employees, and describes thelegal system of guaranteeing payments to employees and the mechanism for itsimplementation.21Then the author characterizes the main ways to ensure the interests of employeesin accordance with Russian law.

Identifying a certain insufficiency of protection ofemployees' rights, the author concludes that it is possible to introduce in Russia asystem of social insurance in case of loss of wages due to the insolvency (bankruptcy)of the employer.It is proposed to establish the term of the insurance payment not later than onemonth from the date of the insured event. To achieve this goal, the insured event mustbe understood as the existence of the debt to the insured person on wages as of the dateof adoption by the court of one of the following judicial acts in the bankruptcy case ofthe debtor: on the introduction of supervision, on the recognition of bankruptcy, if inaccordance with the legislation supervision procedure was not applied, on thetermination of bankruptcy proceedings due to the lack of funds sufficient to reimbursecourt costs (if the procedure applied in the bankruptcy case against the debtor was notintroduced).It is reasonable to establish the volume of insurance coverage in the amount dueby the debtor before the insured person for the last three calendar months preceding thedate of initiation of proceedings on the bankruptcy of the debtor, in the amount of notmore than thirty thousand rubles for each month for each person.It is proposed to establish a rule on the transition in the order of subrogation ofthe employee's claim to the Social Insurance Fund of the Russian Federation(hereinafter referred to as the Fund, FSS) within the amount paid to the employee withpreservation of the distribution priorities for claims of employees that will promote thesolution of three main tasks: return of the amounts paid by the third party (insurer), thatis financing of the insurance system, assignment of responsibility to the personresponsible for emergence of insolvency, and also restraint of the insurer, that isprevention of its unreasonable enrichment at the expense of Fund.The author substantiates necessity and efficiency of its introduction on the basisof the French and international law and practical possibility of creation of the similar22mechanism in Russia taking into account the existing similar institutions, in particular inthe sphere of insurance of bank deposits of physical persons.The author proposes a justification for excluding of the claims for payment ofseverance pay and (or) remuneration of persons working or having worked under anemployment contract from the list of claims receiving partial repayment from the cost ofthe collateral in accordance with article 138 of the bankruptcy law, subject to thecreation of the proposed social insurance system.

The purpose of these changes is toprovide enhanced protection to secured creditors, which is a prerequisite for reducingthe cost of commercial credit and, accordingly, the economic growth of a particularenterprise and the economy as a whole. The need for priority protection of socialcategories of creditors, which is often opposed to the need to support the market, in thiscase is ensured by the introduction of an additional guarantee of repayment ofemployees' claims, thereby allowing the implementation of a compromise solution inprioritizing secured claims.The second paragraph of the second chapter "Privilege of creditorsparticipating in the conciliation procedure: possibility of adoption into the Russianlaw" is devoted to the analysis of the institution of French law, providing a preferenceto creditors who assisted in restoring the financial position of the debtor at the prebankruptcy stages, and the possibility of its borrowing in Russian law.

The authoranalyzes the socio-economic reasons justifying the need to stimulate the interaction ofcreditors with the debtor at the pre-bankruptcy stages. The procedures used in thebankruptcy case, including rehabilitation procedures, as well as measures to preventbankruptcy have a common goal – the maximum repayment of creditors' claims.Restoration of the financial condition of the debtor ensures the implementation of thisgoal to the greatest extent, as it implies the possibility of full repayment of creditors'claims.

The greatest success of the debtor's recovery is achieved when it is applied atthe earliest stages of difficulties, including when the insolvency procedure has not yetbeen introduced against the debtor.23In this regard, it is proposed to create a mechanism of legal regulation, whichconsists in granting priority to creditors in the distribution of the value of the soldproperty of the debtor, who at the pre-bankruptcy stage actively participated in restoringthe financial position of the debtor (provided additional financing, supplied goods(works, services), etc.). Such preferential position of creditors shall consist inestablishment of a separate rank for repayment of these claims which in the conditionsof the Russian practice can be established between the second and third rank ofcreditors.The introduction of such a mechanism implies a detailed elaboration and reformof existing preventive mechanisms, including the need for approval by the court of theagreement concluded between the debtor and its creditors and(or) third parties in theframework of preventive measures, since such an agreement would mean a change inthe order of repayment of claims.

At the same time, mandatory restrictions should beintroduced related to the suppression of unfair behavior of counterparties, in particular,the prohibition of excessive subsidizing of the debtor in a situation where the creditor(especially professional credit institutions) becomes apparently aware of the inability ofthe debtor to restore the solvency.In the third paragraph of the second chapter "Repayment of otherregistered (previous) claims in Russia and in France" the author gives the analysis ofdistribution priorities of registered (previous) creditors and pays attention to the legalregime of collateral creditors, offering a brief overview of various types of regulation ofclaims secured by pledge in foreign legal systems, as well as a review of theoreticalviews of Russian scientists on the situation of collateral creditors.