No. 4 (2022): Business, Management and Law

CIVIL LAW, BUSINESS LAW, FAMILY LAW

1. Svetlana A. Karelina. The Signs of Group of Companies in the Legislation on Insolvency (Bankruptcy): Problems of Legal Regulation.

Abstract: Currently there is no legal definition of the concept of “bankruptcy of a group of companies” in the current Russian legislation on bankruptcy. Nevertheless, in considering bankruptcy cases the courts not only use this term or related concepts that denote the economic relatedness of several companies among themselves, but also highlight the features of such a group. This article focuses on the analysis of these features, namely: association of legal entities and (or) individual entrepreneurs; association that is not a legal entity; association on the basis of relations of influence and control; with application of a certain system of permissions, prohibitions and restrictions in case of recognition of association as a single consolidated subject of law; presence of common economic interest and coordinated purpose.

Keywords: group of persons; group of companies; group bankruptcy; group discipline; control; single economic interest; intragroup complexity; profit center; loss center

2. Vladimir S. Belykh. Institute of Insolvency (Bankruptcy): Disputable Questions of Theory and Practice.

Abstract: This article considers some problems that currently arise in law enforcement practice of courts considering bankruptcy cases. In particular, the author focuses on such issues as the need to attract the guarantor to participation in bankruptcy cases when the court considers the claims of creditors on obligations secured by the guarantee, as well as the possibility of including the claims of its member (shareholder), based on the loan agreement, in the register of creditors of a business company. Based on the analysis of court practice on bankruptcy cases and special literature the author formulates some conclusions and recommendations aimed at improving the legislation on insolvency (bankruptcy) and practice of its application.

Keywords: insolvency (bankruptcy); controversial issues; including in the register of creditors’ claims; involvement of the debtor’s guarantor in the case; limitations of requirements for inclusion in the register of creditors’ claims; inadmissibility of competition of requirements for inclusion in the register of creditors’ claims; cases of abuse of law

3. Viktor A. Zaporoshchenko. On Certain Issues of Pledged Property Disposition in Bankruptcy Cases.

Abstract: The article deals with some aspects of the pledged property disposition in bankruptcy proceedings. The author analyzes the individual powers of the pledge lender, the consequences of the sale of pledged property at auction in bankruptcy proceedings. Particular attention is paid to issues arising from the simultaneous provision of a share in the authorized capital of a debtor company and property belonging to such a company, including the recognition of transactions on the provision of the company’s property as collateral invalid, the issues of possible infringement of the rights of the buyer of a share in the authorized capital of a subsidiary in the framework of the bankruptcy procedure of the main company. According to the results of the analysis, the author presents his vision of resolving the specified problems. Conclusions are formulated taking into account the approaches developed by bankruptcy court practice.

Keywords: bankruptcy; pledge; the subject of pledge; termination of pledge; pledge of a share in the authorized capital; collateral lender; powers of the collateral creditor; consequences of the sale of pledged property in the framework of a bankruptcy case

4. Vladimir Yr. Kalugin. Correlation of Grounds for Challenging Transactions and Challenging Actions to Execute Transactions.

Abstract: Statistics show that currently one of the most frequently used methods of filling the bankruptcy estate is the application of creditors or a bankruptcy trustee to the court to invalidate the debtor’s transactions. Nevertheless, the use of this method of rights protection raises a number of questions – for example, whether it is necessary to qualify the act of execution of a transaction as a transaction and to recognize it as invalid in order to apply restitution. The described circumstances predetermined the theme and relevance of the present study. The article is devoted to the issues of bankruptcy challenge in bankruptcy cases, the correlation of the concepts of «transaction» and «actions on the execution of the transaction», different grounds for challenging transactions. Within the framework of this article, the author pays special attention to the possibility and necessity of invalidation on a par with transactions also actions on their execution.

Keywords: bankruptcy; bankruptcy estate; competitive dispute; transactions; contract; actions to execute transactions; grounds for challenging transactions

5. Maria A. Bazhina, Tatiana M. Zvezdina. Peculiarities of Determining the Debtor’s Controlling Persons in Bankruptcy Case of Homeowners Association.

Abstract: In their article, the authors, based on the analysis of legal norms and law enforcement practice of the courts, consider the specifics of recognition of persons who control the debtor – Homeowners Association in order to bring such persons to subsidiary liability in case of bankruptcy of the latter. Attracting subsidiary debtors is one of the few ways to obtain additional assets that make it possible to make up for a deficiency of Homeowners Association assets in bankruptcy proceedings.

Keywords: : bankruptcy; Homeowners Association; debtor’s controlling persons; apartment building; utility payments; debtor; liability.

6. Maria A. Slavich. Replacement of Developer: Risks for Investor.

Abstract: Currently, the legislation of the Russian Federation on bankruptcy provides that one of the ways to meet the requirements of construction participants in bankruptcy cases of developers can be the implementation of such a legal mechanism as the transfer of the obligations of a bankrupt developer to another developer. At the same time, the need to ensure a balance of the rights and obligations of all participants in the bankruptcy case equally applies to such a developer – acquirer, which justifies the need for a clear definition of the scope of obligations that the new developer agrees to fulfill. This article analyzes the provisions of the current legislation that carry financial risks for private investors in case they assume the rights and obligations of a bankrupt developer. Based on the results of the study, recommendations are given on what circumstances should be taken into account by investors when calculating the financial burden of completing the construction of an unfinished construction facility and fulfilling obligations to participants in shared construction. Proposals are formulated to improve the current legislation.

Keywords: bankruptcy; developer; transfer of rights and obligations to a new developer; the scope of obligations of the developer; the Fund for the Protection of the Rights of Citizens participating in shared construction; the object of unfinished construction; collateral lender.

7. Ludmila A. Kononova. Legal Nature of Self-regulatory Organization of Arbitration Managers.

Abstract: Now, the model of compulsory self-regulation is introduced in relation to the activities of court-appointed trustees. The complex nature of self-regulatory organization of arbitration managers as an institution of public relations, as well as the specifics of institutionalization in Russia have predetermined the presence of diametrically opposed points of view related to the issues of giving its authority, delegation of state functions. Self-regulatory organization, being in close relationship with arbitration administrators, carries out «admission» of these persons to the profession, regulates and controls their further activities, ensuring the level of professional training and competence, compliance with the legislation of the Russian Federation, rules of professional activity, protects the rights and legitimate interests of its members, provides information transparency, reducing the degree of state intervention in civil legal relations. Requirement of compulsory membership of court-appointed trustees in one of the self-regulatory organizations with the possibility of maintaining the alternative – to replace compulsory membership with voluntary membership – is still a debatable issue in the legal literature.

Key words: Insolvency (bankruptcy); arbitration manager; self-regulation; self-regulatory organization of arbitration managers