Бычкова К.М._Summery (1139088), страница 6
Текст из файла (страница 6)
The legal nature ofcollateral relations is studied, the problem of credit security is identified, justificationsfrom the point of view of economic goals and aspects of social justice are given,allowing to draw a conclusion about the possibility and expediency of changing theprovisions of the Russian bankruptcy law on the distribution priorities of securedclaims.24Taking into account the creation of the social insurance system described in thefirst paragraph of the second chapter, the author proposes to amend article 138 of thebankruptcy law and to exclude the claims for payment of severance pay and (or)remuneration of persons working or having worked under an employment contract fromthe list of claims receiving partial repayment from the cost of the collateral.In addition, in order of full repayment of creditors’ claims, the legislation of bothcountries provides not only the possibility of repayment at the expense of the value ofthe debtor's assets, but also with the help of special mechanisms that allow foreclosureon the property of third parties.
The author analyzes the institutions of bringing tosecondary liability of persones controlling the debtor and the extension of the procedureto third parties, examines the conditions of their application. When implementing thesemechanisms, the balance of interests of various parties to the legal relationship must beobserved, since the doctrine of removing the corporate veil, the instrument of which isthe listed mechanisms, may conflict with the fundamental principles of corporate law,which allows to separate the property of a legal entity from the property of its founders,and therefore should be used in exceptional cases in order to avoid a negative impact onthe stability of economic turnover.Paragraph 4 of the second chapter "Differences in the legal regime of othercreditors' claims" reveals the issues of repayment of creditors' claims, which for onereason or another are not included in any of the ranks established by the bankruptcylegislation.
Some civil law instruments allow a creditor to obtain repayment of its claimwithout participating in the insolvency proceedings, in particular with regard to themeans of withdrawing certain property from the debtor's insolvency estate. For practicalpurposes, the author conducts a comparative analysis of the terminology used by theFrench and Russian legislator in relation to the definition of the debtor's property, andthen gives a description of the main tools that allow to repay the claims in a preferentialmanner.When the title security is used, the debtor transfers ownership of the asset to thecreditor as security for the performance of its obligation under the principal obligation,25thus the asset is removed from the debtor's property.
In case of proper performance bythe debtor of its obligations, the creditor undertakes to return to the debtor theownership of the previously transferred asset. In case of violation by the debtor of itsobligations, the creditor remains the owner and can satisfy its claim against the debtorby retaining the asset or other disposal, including the sale to a third party, since suchasset is already part of the creditor's property, not to be included in the bankruptcyestate of the debtor.Thus, creditors whose claims are secured through the transfer of title are nowgranted out of turn, primarily before any other creditors.
However, such creditors mayreceive even more than the amount of the secured claim. At the same time, the essenceof this tool is to provide the principal obligation. A natural question arises as to why, inbankruptcy proceedings, such creditors are satisfied, first, primarily before othercreditors, and secondly, in the amount which is even more than a secured claim.In connection with the peculiarities of the legal regime of creditors' claimssecured by transfer of title and the need for their theoretical study in connection with therules of bankruptcy law, it is proposed to allocate them in a separate category in order tostudy their legal nature and consequences in the insolvency proceedings.
Currently, thelegal regime of such claims is not studied in the framework of the study of the legalregime of the creditor's claims in bankruptcy, moreover, the bankruptcy legislation doesnot provide for special provisions governing the fate of such claims.Nevertheless, such claims should be considered in substance, as well as otherclaims of the debtor's creditors, within the framework of a special legal regime providedfor by the bankruptcy law. Allocation of scientific category is due to the presence ofdistinctive characteristics of such claims.
Like other secured claims, the category inquestion relates to secured claims. It is assumed that, if the principal obligation isproperly performed, the asset of the security (title) will be returned to the debtor.Otherwise, the creditor may retain the asset. The peculiarity of this procedure lies in thefact that in order to settle the claim is not required to participate in the distribution of thebankruptcy estate of the debtor and to expect the payment of cash in its rank. In26addition, the surplus (the amount of excess of the value of the asset of the security overthe amount of the secured claim) is not refundable to the debtor or its other creditors.The result of allocating such a category is classification, systematization of suchclaims, study of their legal nature, treatment under the insolvency proceedings, and thepossibility of applying to them of the rules peculiar to insolvency, which in turn willallow to provide an adequate (fair and economically reasonable) legal regime ofensuring the balance of interests of creditors and the debtor.
Currently, the study oftreatment of security of ownership is carried out in the framework of the specificresearches, although the main purpose of the use of the security methods is repaymentsof claims in those cases where the debtor does not have sufficient funds to repay thedebt, i.e. if there are signs of insolvency.Based on the analysis of the legal nature of the title security, the purposes of itsuse by the parties, as well as the purposes of the insolvency procedure, the balance ofinterests of the participants in the bankruptcy procedure, the author makes a conclusionabout the need to establish a general rule, according to which in case of excess of theactual value of the asset of title security over the size of the secured claim, such surplusis subject to transfer by the creditor to the bankruptcy estate of the debtor.
Such asurplus is not a security of the creditor's claim, and is used as one of the ways ofwithdrawal of assets from the bankruptcy estate of the debtor to the detriment of theother creditors. The return of the surplus to the bankruptcy estate of the debtor willallow, to the minimum extent, insurance of the interests of the remaining creditors ofthe debtor, who would be deprived of the opportunity to recover the asset of thesecurity.In conclusion, the author presents the summary and conclusions on the results ofthe study, indicates the prospects for further development of the studied issues.27The main provisions of the thesis are reflected in the following publicationsof the author with a total volume of 7.7 printed sheets (p.s.):1.
Bychkova K.M. Insurance in case of loss of earnings due to insolvency(bankruptcy) of the employer // Russian law journal. – 2018. – No. 3 (120). – P. 144156. – 1,1 p.s.2. Bychkova K.M. Invalidity of acts committed during the period of "suspicion"under the laws of France // Russian law journal. – 2016. – No.
4 (109). – P. 58-63. – 0,5p.s.3. Bychkova K.M. Priority of repayment of claims of "previous" creditors withinthe procedure of judicial liquidation in France // Law. Journal of Higher School ofEconomics. – 2015. – No. 3. – P. 145-156. – 1 p.s.Other publications:4. Bychkova K. Le classement des créanciers en droit russe de l’insolvabilité[Priority of repayment of creditors' claims in the bankruptcy law of Russia] // Gazettedu Palais, Ed. spécialisée Droit des entreprises en difficulté. – 2014.
– No. 278-280. – P.17-22. – 0,7 p.s.5. Bychkova K.M. On the limitation of the concept of current payments inbankruptcy / / Law and life. – 2017. – No. 1. – P. 33-43. – 0,5 p.s.6. Bychkova K.M. Priority of repayment of creditors' claims on currentpayments in Russia and subsequent claims in France in the framework of liquidationprocedures in bankruptcy // Law and business. Appendix to the journal "Business law".– 2016. – No. 4. – P.
39-43. – 0,5 p.s.7. Bychkova K.M. Legal status of the arbitration manager in insolvencyproceedings under the legislation of Russia // Legal regulation of insolvency in Russiaand France: collection of articles / group of authors of HSE and the University of Nice –Sofia Antipolis. – M.: Yustitsinform, 2016. – P. 125-139. – 0.6 p.s.8. Bychkova K.M. Features of observance and protection of labor rights ofworkers in case of bankruptcy of the employer in France // Comparative labor law. –2014.
– No. 12. – P. 14-25. – 0.3 p.s.289. Bychkova K.M. Concept of "PATRIMOINE" in proprietary law of France //Jurislinguistic. – 2013. – No. 2 (13). – P. 11-16. – 0.4 p.s.Printed abstracts:10. Bychkova K.M. The influence of public order on the formation of bankuptcylaw on the example of French legislation // Problems of formation of new Russian lawand new Russian statehood: on the way to the "pure gold of law": collection of articlesof the first All-Russian scientific conference. For the anniversary of Professor N.
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