Бычкова К.М._Summery (1139088), страница 3
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To achieve this goal, the thesissolves the following tasks: to analyze the distribution prioroties according to the French and Russian law,to reveal differences and similarities, and also the basic principles of construction; to characterize the main sources of French bankruptcy law and their role inthe regulation of issues related to the treatment of the debtor's property and thedistribution of its value between creditors, to form a theoretical basis for the analysis ofthe legal regulation of these issues; to identify problems arising in connection with the establishment ofdistribution priorities in Russia and formulate proposals to address these problems; to make the distinction between preceding and subsequent claims underFrench law and to describe the features of the relevant claims, to determine thecomposition of the subsequent claims and conditions of their preference right;10 to formulate de lege ferenda criteria for distinguishing privileged current andregistered creditors' claims in the Russian law, taking into account the influence of theseconcepts on the practice of repayment of claims; to identify signs of attribution of certain categories of claims to the privilegedand analyze the grounds for their establishment by the legislator; to study the characteristics of the mechanisms aimed at restoring thebankruptcy estate of the debtor in order to fully repay creditors' claims; to justify the possibility of borrowing in the Russian law institutionsdeveloped and applied in French law to ensure a balance between the interests of thedebtor and creditors and proved to be effective in practice; to formulate scientific conclusions on the research, theoretical proposals andpractical recommendations for the development of legislation in the field of law.The object of the thesis is the social relations arising between the participants ofinsolvency (bankruptcy) procedures and between these participants and third partiesduring the events aimed at the distribution of the cost of the debtor's property sold andthe establishment of the distribution priorities.The subject of the research is the Russian and French legal acts devoted to thelegal regulation of insolvency and, in particular, to the treatment of assets of the debtorand the distribution of their value between creditors, as well as court decisions,decisions of executive authorities and law enforcement agencies in Russia and France,the norms of advisory acts, legal doctrine in this area.Methodological basis of the thesis.
In the preparation, studying and processingof theoretical and practical materials of this thesis, general scientific methods (systemanalysis, comparison and description, formal logic techniques) and private scientificmethods (formal legal, comparative legal, historical and legal, teleological, structuraland functional methods) were used. The central place in the work was taken by thecomparative legal method, determined by the objectives of the study and allowing tomake a comprehensive analysis of the legislation of the two legal systems and toidentify their similarities and differences, effective institutions, etc.11Theoretical basis of research was based on the works of Russian scientistslawyers in the field of civil and business law: V.V.
Vitryansky, G.F. Shershenevich,E.A. Sukhanov, A.P. Sergeev, O.N. Sadikov, E.P. Gubin, P.G. Lakhno, I.E.Abowa,A.Y. Kabalkin, I.V. Ershova, G.D. Otnjukova, G.A. Gadzhiyev and other researchers.In this thesis, the scientific works of K.P. Pobedonostsev, A.F. Fedorov, V.A.Trainin, D.V. Turkevich, T.D. Alenicheva, S.P. Grishaev, V.S. Belykh, A.N. Borisov,A.V. Valuisky, A.H.
Holmsten, A.V. Ovchinnikova, E.G. Dorogkhina, N.L. Duvernoi,S.A. Karelina, A.F. Kleinman, E.A. Kalinichenko, S.A. Kuznetsova, A.Y. Kurbatov,G.Pape, S.E. Pirogova, V.F. Popondopulo, R.O. Zaitsev, V.V. Stepanov, M.V.Teliukina, V.N. Tkachev, A.V. Himichev, T.P. Shishmareva and other specialistsdevoted to the study of individual institutions and problems of legal regulation ofinsolvency, were used. Selected issues related to the topic of the present work arehighlighted in the dissertation research of T.V. Borisenkova, N.U. Kavelina, K.B.Koraev, E.
A. Kravchenko, T.K. Martyshkina, A.V. Ovchinnikova, O.A. Potashnik,O.A. Studentsova, A.V. Himichev, G. P. Tsarik, A.E. Cindyaikin, M.E. Erlich, andothers.In the framework of the present study the author analyzed scientific works offoreign scientists (experts on problems of insolvency in France), such as: J. Bonnard, R.Bonhomme, J. P.
Branlard, J. Vallansan, D. Vidal, D. Voinot, A. Jacquemont, P. LeCannu, P.-M. Le Corre, E. Le Corre-Broly, F.-X. Lucas, A. Lienhard, F. Pérochon, Ph.Pasteur, F. Reille, Ph. Roussel Galle, C. Saint-Alary-Houin and other researchers.Legal and regulatory framework of the study. The study is based on Russianand French legal acts on the distribution priorities.
The fundamental normative actsinclude the French Civil code, the French Commercial code, the law of 2005 on thepreservation of enterprises, the Civil code of the Russian Federation, the Russian law onbankruptcy, etc.The empirical basis of the study.
The study used the decisions of the executiveauthorities of the Russian Federation and France, adopted in pursuance of legal actsregulating the distribution of the value of the sale of property between the creditors of12the debtor. In addition, judicial acts of Russian and French courts were analyzed. Theauthor also uses materials from the media, Russian and French competent authoritiesand various organizations, in particular, the All-Russian Union of insurers and theAssociation for the management of the regime to ensure the claims of employees.Statistical and reference materials of arbitration courts of the Russian Federation and theMinistry of justice of France are analyzed as well.The scientific novelty of the study is that it presents conceptual proposals for thedevelopment of institutions to the repayment of creditors' claims, which have beentested in France and have shown their effectiveness and feasibility.
The thesis proposesa criterion for limiting the concept of current payments and ways of its practicalimplementation. In addition, the study identifies ways to prioritize the repayment ofcreditors' claims, mechanisms for establishing privileges for individual creditors, andsuggests effective ways to use privileges to achieve the objectives of a particularinsolvency procedure.The proposed changes allow to solve a number of problems of the Russianbankruptcy law, which are currently faced by the legislator. The thesis presents ananalysis of the possibility and practical applicability of some institutions developed andapplied in French law, with a view to possible use in the reform of Russian law.Provisions to be defended. The conducted dissertation research allowed toformulate the following main provisions, which are submitted for defense:1.For the purpose of limiting the concept of current payments in thebankruptcy law, it is proposed to use in addition to the temporary criterion also thetarget criterion, the analogue of which has been applied since 2006 in France.
Claimsarising after the date of acceptance of the application for recognition of the debtor asbankrupt, satisfying at the same time the target criterion, namely the claims arising forthe needs of the insolvency procedure, and the claims necessary for the needs of theordinary course of business of the debtor, which it continues to conduct during theinsolvency proceedings, should have an advantage in the bankruptcy procedure.132.The legal status of claims that do not meet the target criterion for anyreason is proposed to be equated with the legal status of registered claims, as tested inFrance.
It is sufficient to reduce the priority of such current claims to satisfaction withinthe framework of repayment of claims that arose before the introduction of bankruptcyprcedure, in accordance with the rules of distribution of the value of the debtor'sproperty legally established for them.3.It is advisable to set a time limit for notifying the arbitration manager andthe debtor of the creditor's claims for current payments within three months from thedate of occurrence of such a claim, which will ensure the completeness and accuracy ofdetermining the amount of the debtor's debt in order to prevent violations of thedistribution priorities order, establishment of the real degree of the possibility ofrestoring the debtor's solvency and accounting of the current debt to include it in thesale price of the debtor's enterprise.The consequence of failure to notify within the specified period will be therepayment of such a claim after the completion of settlements with creditors of thecorresponding rank of claims for current payments and before the claims of creditors ofsubsequent ranks.4.On the basis of the analysis of the French legislation in the field of socialinsurance, it is established that the protection of employees' rights can be ensured by aspecial mechanism for obtaining the employee's earnings in the shortest possible time,namely the social insurance system in case of loss of wages due to the insolvency(bankruptcy) of the employer.The system of insurance with the description of the main elements is proposed bythe author: the mechanism of insurance, volume of insurance coverage, terms ofpayment, the role of the insurer, the order of transition of claims to the insurer for theamount of payment, priority of their repayment.5.Subject to the creation of the proposed social insurance system, the claimsfor payment of severance payments and (or) remuneration of persons working or havingworked under an employment contract shall be excluded from the list of claims14receiving partial satisfaction from the value of the collateral in accordance with article138 of the bankruptcy law.6.The author proves the expediency, economic validity and practicalapplicability of the implementation in Russia of the rules on special privilege of theclaims of creditors who actively participated in the restoration of the financial positionof the debtor in the period immediately preceding the introduction of insolvencyproceedings against the debtor, in accordance with the court-approved agreementbetween the debtor and its creditors and (or) third parties in the framework ofpreventing measures.
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