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The legislation of the Russian Federation establishes the possibility of recognizing the transactions of an organization declared bankrupt in the prescribed manner as invalid. These norms are designed primarily to protect the interests of creditors, as well as the direct owners of the enterprise. During the period of the insolvency procedure, the likelihood of concluding contracts by unscrupulous persons aimed at withdrawing the liquid assets of the enterprise increases significantly. Challenging transactions in bankruptcy can return lost assets to the bankruptcy estate and allow you to pay off creditors in full.

Dispute conditions

Naturally, not every transaction of a bankrupt enterprise can be defined as illegal. A special procedure for contesting contracts in bankruptcy includes moments at which the provisions of not only civil law, but also special rules on insolvency come into force.

The first necessary condition is the introduction of bankruptcy proceedings at the enterprise. This stage belongs to the prerogative of the court, which by its act recognizes the organization as insolvent and introduces the arbitration supervision procedure. From January 1, 2018, amendments to the insolvency law regarding the implementation of the principles of publicity and transparency in the process of initiating bankruptcy proceedings come into force.

The second point is the actual existence of an agreement concluded during the bankruptcy period. At certain points, agreements signed before the independent arbitration board may also be subject to judicial challenge. Such cases are typical for those transactions that were made with the aim of clearly worsening the financial condition of the company at a time when the bankruptcy procedure has not yet been officially introduced, but is already becoming inevitable.

The third reason is the direct filling of the transaction. Contracts containing both direct and hidden intentions to achieve the alienation of the company's property or the transfer of fixed and working capital in favor of other organizations are recognized as invalid.

These nuances are characteristic not only in relation to legal entities, but also when challenging transactions before the bankruptcy of an individual entrepreneur.

Trades subject to cancellation

Depending on the source of regulatory regulation, contracts challenged in court can be classified into the following types:

• general;
• special.

Agreements entered into in collusion may be invalidated.

The first block includes agreements regulated by civil law, namely Article 166 of the Civil Code of the Russian Federation:

• voidable transactions;
• worthless transactions.

Disputable are transactions that are knowingly made in violation of the requirements of the law. In particular, the following situations can be included in this category:

• the powers of the persons who have concluded the agreement have been exceeded;
• the other party to the transaction does not have special permission;
• if the counterparty is an individual with limited legal capacity;
• when the deal is signed as a result of threat, deceit and other criminal acts.

Agreements that are initially invalid by their nature, regardless of the presence of a court decision, are recognized as void. For example:

• committed formally, without the intention to entail legal consequences;
• concluded with the intent to disguise other illegal contracts;
• signed with a completely incompetent citizen.

A distinctive feature of the general types of transactions is that it is possible to challenge them both during the bankruptcy procedure and before it.

Special arise on the basis of bankruptcy law:

• suspicious transactions;
• containing intent about privileges;
• committed when the counterparty is aware of the insolvency of the organization or that the individual entrepreneur is a persistent non-payer.

Suspicious transactions in corporate practice are recognized as agreements that obviously cannot give rise to economic preferences for each of the participants. Moreover, there are moments when the purpose of the signed agreement is clearly unprofitable consequences. For example, unreasonable overestimation or decrease in the amount of the contract, transfer of a disproportionate amount of real estate pledged to third parties.

Not only one-time transactions, but contracts for long-term cooperation can be recognized as invalid.

Contracts that provide benefits for one of the parties that are incomparable to the current market situation are called transactions containing the intention of privileges. For example, the sale by an entrepreneur of real estate at an underestimated amount in order to consistently withdraw property from circulation on the eve of bankruptcy.

Finally, agreements under which one party signs a contract, knowing in advance about the economic disadvantage of the other, are recognized as transactions made with awareness of the insolvency of the organization.

Exceptions

There are contracts that, by their external properties, have signs of indisputable or void, but by virtue of the law cannot be considered invalid. These include:

• Agreements concluded as a result of the competition, as well as the performance of active actions in fulfillment of the obligations assumed under these agreements. Such transactions are recognized as illegal on the general grounds provided exclusively by the Civil Code of the Russian Federation. In particular, in case of violations committed during the auction.
• If the total price of the contract does not exceed one percent of the total value of the company's assets, and the operation itself was carried out on the basis of a long contractual practice that has developed between the participants. These include recurring payments for renting office space or equipment, maintaining bank accounts, providing utilities, acquiring minor property, or obtaining small loans to support the day-to-day operations of the business.
• If the value of the goods received by the debtor under the transaction is much higher than the amount due to be returned. The recognition of the transaction as invalid entails a decrease in the bankruptcy estate, the appearance of additional debt of the enterprise and, as a result, infringement of the interests of creditors. However, such a transaction may be declared invalid at the request of a bona fide purchaser on a general basis.

Making a claim

The contestation process is strictly regulated and cannot be carried out in a chaotic manner. The invalidity of the contract has the right to establish only the court on the basis of the relevant application.

Transactions with a limitation period of not more than three years may be challenged by the court

The creditors themselves have the necessary powers to file a claim with the court, as well as an independent manager who needs to obtain the consent of the creditors. The application is submitted to arbitration at the location of the debtor. The very procedure for filing an application does not have any special specifics and is completely identical to a regular civil lawsuit. The burden of proof is on the applicant, so all available evidence should be prepared and attached to the claim. If the application is signed by the interim manager, then the decision of the creditors on their consent is also attached. Before sending the documents directly to the court, it is necessary to take into account legal costs in the form of a state fee, as well as send copies of the application and all attached materials to interested parties.

Cases of this category are considered not only in the light of arbitration and civil law, but also taking into account the provisions of the Plenum of the Supreme Arbitration Court No. 63 of 12/23/2010. Based on the results of the consideration of the case, the court makes a decision that can be appealed. The complaint is sent to the Court of Appeal. Judicial practice in challenging the debtor's transactions in bankruptcy shows that in most cases the participants do not agree with the court decisions of the first instance.

Deadlines

Contestation of transactions on bankruptcy grounds is possible subject to the deadlines. The law defines a limitation period of three years from the moment when the manager learned about the existence of such a transaction, but not more than 10 years from the moment it was concluded.
Challenge results

The cancellation of transactions in bankruptcy, accepted by the court, entails the onset of legal consequences for the enterprise - the debtor. These are:

• the agreement loses all legal value and legal significance;
• return of property to the bankruptcy estate;
• the counterparty gets the opportunity to apply to the debtor with the right to claim.

You can find out how the contestation of transactions takes place from the video:

Attention! Due to recent changes in legislation, the legal information in this article may be out of date!

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Challenging the debtor's transactions in bankruptcy is a common occurrence in recent times. Very often, individuals, anticipating future financial problems and possible bankruptcy, transfer their property to relatives or other persons.

When declaring an individual bankrupt, the court examines in detail all the transactions that were made by the debtor three years before. That is, transactions that were made three years before the filing of an application for declaring a citizen bankrupt can be invalidated solely by a court decision.

Contrary to the fact that the debtor's transactions in bankruptcy are often challenged, not all attempts are approved by the court.

Most potential debtors refuse to pass precisely because they think that an apartment donated to a relative 2 or 3 years ago can be sold on account of a debt. In fact, it is very difficult to challenge a transaction in court. Especially if it was made more than a year ago.

Who can dispute a deal?

The transaction can be challenged by the creditor or financial manager. Lenders can initiate contestation of transactions with real estate and other property, even if you are not yet. Moreover, creditors themselves can file an application for declaring you bankrupt and attach an application to challenge any transaction to it.

If he was appointed by a bank (the bank initiated the bankruptcy of an individual), then most likely he will very carefully and thoroughly study the history of all your transactions made over the previous three years.

The financial manager, whose work is paid by you, and not by the bank, is unlikely to be tempted to challenge (cancel) your contracts. You can say who pays, he has the cards in his hands. However, this statement should not be taken as true.

Cancellation of transactions made before October 1, 2015

According to the amendments to the legislation, those transactions that were made before October 1, 2015, provided that the citizen at that time was not an individual entrepreneur, cannot be challenged. That is, you should not worry about transactions made before October 1, 2015. They cannot be challenged by law. But do not forget about the condition that the citizen should not be an individual entrepreneur (at that time).

But other rules regulated by law may be applied to such transactions. The statute of limitations for these transactions is as follows:

• Three years for those transactions that were made before 09/01/2010.
• Ten years for transactions made after the first of September, but no more than three years from the date of identification by the financial manager or creditor.

In any case, the financial manager is obliged to prove to the court that the transaction was made with the sole purpose of harming the bank or other organization.

For example, such transactions include the following:

• Gift, the sale of property to a close person or relative at a deliberately low cost in the presence of delinquency on loans or others.
• Transactions made after the decision of the court (if the citizen was declared bankrupt).

This applies only to transactions made before September 1, 2015. Further, transactions made after September 1 will be considered.

Transactions after 09/01/2015

Under similar conditions, those transactions that were made before September 1, but the citizen at that time was an individual entrepreneur, are also considered.

Thus, the contract may be declared invalid if the following factors are combined simultaneously:

• The transaction involved a close relative who knew that the operation could harm the credit institution.
• The debtor was already insolvent at that time. That is, he met all the signs of insolvency. For example, already at that time there was a delay in the loan, alimony, taxes. Or at the time of the transaction, the property could not cover the obligations to the banking organization.
• As a result of the transaction, creditors were knowingly harmed. That is, the operation had an underestimated value or did not have it at all (gift).
• If the property was not included in the list of property that is inviolable under the law. For example, the only housing, but only if there is a minor child. Or the property necessary for professional activities (a car for a taxi driver or driver).

For information on what transactions a citizen can challenge in bankruptcy, see the video:

Deals of the debtor with the only housing

By law, transactions cannot be canceled unless they cause harm to creditors. And even more so if the debtor has the only housing left. Therefore, such transactions cannot be challenged.

For a better understanding, below are examples of such transactions:

• An individual who owed money to the bank sold a car to a close relative before 01.09.2015. And loan arrears started even earlier. Since the transaction was completed before September 1, 2015, it is almost impossible to challenge it in any way.
• The person who owed money to the credit organization previously owned 2 apartments. But the face gave one of them to his father two years ago. At the same time, loans were regularly paid, and in the end they were repaid. Then the person took out a new loan, but failed to cope with the obligations and filed for bankruptcy.

In this case, the bank cannot count on recognizing the transaction as invalid, since it was completed even before the citizen took out a loan.

Challenging transactions in bankruptcy is a practice that is used very often. But not so often transactions are really recognized as invalid, since for this the bank (or other organization) needs to provide irrefutable evidence of its correctness. If you can accurately determine whether your transactions can be canceled, then it is better to seek the advice of a financial manager or lawyer.

Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation N 59 (hereinafter referred to as Resolution N 59) amends the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation regarding challenging transactions in bankruptcy - Resolution of December 23, 2010 N 63 "On Certain Issues Related to the Application of Chapter III.1 of the Federal Law" On insolvency (bankruptcy)" (hereinafter - Resolution N 63).

For the most part, Decree N 59 supplements Decree N 63 with new clarifications, without changing or canceling those legal positions that are described in the earlier of these Decrees.

Please note that the amendments and additions introduced by the Resolution in question represent the third package of amendments to Resolution No. 63 over the past two years. Thus, Decree N 63 becomes, in a sense, a defining collection of judicial explanations on various issues related to contesting transactions in bankruptcy.

1. Burden of proof that there are grounds for the invalidity of a transaction

A number of clarifications contained in Decree N 59 affect various cases of distribution of the burden of proof when resolving issues of invalidating transactions on special grounds provided for in bankruptcy law.

1.1. Ability to rebut statutory presumptions of intent to harm creditors

Key clarification: The insolvent debtor's counterparty can prove that the suspicious transaction was not intended to harm creditors.

In particular, in the document under consideration, the Plenum of the Supreme Arbitration Court of the Russian Federation recalled that the presumptions of invalidity of the transaction, established in paragraph 2 of Art. 61.2 of the Federal Law of October 26, 2002 N 127-FZ "On Insolvency (Bankruptcy)" (hereinafter referred to as the Bankruptcy Law), are rebuttable. The counterparty of the insolvent debtor in a suspicious transaction may prove otherwise.

We are talking about rules that establish certain circumstances, the presence of which indicates that a transaction, ceteris paribus, can be declared invalid as involving unequal provision, that is, committed with the aim of withdrawing assets and causing harm to the debtor's creditors (clause 2 of article 61.2 bankruptcy law).

As explained by the Plenum of the Supreme Arbitration Court of the Russian Federation, in the presence of such circumstances, the counterparty of the insolvent debtor can prove that the suspicious transaction was not intended to harm creditors or withdraw assets. For example, a party to a transaction can prove that the debtor has lost the ability to manage and use the property transferred under the transaction (paragraph 5, clause 2, article 61.2 of the Bankruptcy Law).

It should be noted that the conclusion that the counterparty of an insolvent debtor can refute the presumptions established in the Bankruptcy Law has already been met in judicial practice (see, for example, Rulings of the Supreme Arbitration Court of the Russian Federation dated April 24, 2013 N VAC-4435/13 in case N A41-43558 / 2011 , dated 28.02.2013 N VAS-1379/13 in case N A33-15793 / 2010, Resolution of the FAS of the East Siberian District of 07.30.2013 in case N A74-1464 / 2011, FAS of the Moscow District of 31.07.2013 in case N A40 -65227/10-124-335).

It was also explained that the presence of signs of bankruptcy at the time of the suspicious transaction does not in itself indicate that the debtor has signs of insolvency and insufficiency of property for the purpose of recognizing such a transaction as invalid, as committed to the detriment of creditors (paragraph 2 of Article 61.2 bankruptcy law).

1.2. Correlation between a transaction done to the detriment of creditors and a transaction with preference

Key clarification: the arbitral tribunal can independently re-qualify an incorrectly chosen special basis for declaring the transaction invalid.

Decree N 63 was supplemented with a new clarification (clause 9.1) on the ratio of two special grounds for declaring a transaction invalid under bankruptcy law:

Making a transaction with the aim of causing harm to creditors (clause 2, article 61.2 of the Bankruptcy Law);

Making a transaction with preference (Article 61.3 of the Bankruptcy Law).

A characteristic feature of the first of these types of special grounds for recognizing a transaction as invalid is an extensive subject of proof, which includes, among other things, some subjective points - the intention to cause harm, bad faith of the counterparty, etc. In this regard, it is not always possible for an arbitration manager or other interested person to prove that a suspicious transaction was made to the detriment of creditors.

In addition, on this basis, transactions made over a relatively long period of time - the so-called "term of suspicion" - can be recognized as invalid. It is three years (clause 2, article 61.2 of the Bankruptcy Law). In turn, transactions with preference can be challenged only if they were made within six months before the adoption of the application for bankruptcy or after the adoption of such an application (clause 3, article 61.3 of the Bankruptcy Law).

In fact, the Plenum of the Supreme Arbitration Court of the Russian Federation indicated that preference transactions are a special type of transactions aimed at causing harm to creditors (clause 9.1 of Resolution No. 63 in a new edition). When invalidating a transaction with preference, the subject of proof is a limited number of circumstances compared to a transaction made to the detriment of creditors (clause 2, article 61.2 of the Bankruptcy Law).

If the transaction was made within six months before the application for declaring the debtor bankrupt or later, then the said transaction should be disputed as made with preference (Article 61.3 of the Bankruptcy Law);

If the transaction was made within three years to six months before the application for bankruptcy was accepted, then the said transaction should be challenged as being done to the detriment of creditors (clause 2, article 61.2 of the Bankruptcy Law).

An important clarification in Decree No. 59 concerns the possibility of an arbitration court to independently re-qualify an incorrectly chosen basis for declaring a transaction invalid. The Plenum of the Supreme Arbitration Court of the Russian Federation explained that the court must independently determine the nature of the disputed legal relationship that arose between the parties, as well as the rules of law to be applied (give a legal qualification), and recognize the transaction as invalid in accordance with the relevant rule of law (part 1 of article 133 and article 168 APC RF).

It should be noted that this is not the first example of such an explanation, instructing the courts to behave actively in the process, with a departure from the beginnings of dispositive legal proceedings towards the principle of establishing objective truth (see, for example, paragraph 3 of the Decree of the Plenum of the Supreme Court of the Russian Federation N 10, Plenum The Supreme Arbitration Court of the Russian Federation N 22 of April 29, 2010 "On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other real rights", Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of April 23, 2013 N 13239/12 in case N A55-16103 /2010).

Also, Decree N 59 gave a list of circumstances indicating that the disputed transaction was made with preference in violation of the provisions of Art. 61.3 of the Bankruptcy Law and this was known to the creditor in this transaction. These instructions are included in paragraph 12 of Resolution No. 63. Among them, we can mention the debtor's repeated appeal to the creditor with a request to postpone the date of payment due to the impossibility of paying it, etc.

However, for example, posting on the website of the Supreme Arbitration Court of the Russian Federation in the file of arbitration cases information about the initiation of bankruptcy proceedings by the debtor does not in itself mean that all creditors become aware of this. Also, in the absence of other evidence of the creditor's knowledge of the insolvency of the debtor who made the payment with preference, the following circumstances cannot testify:

Payment in the course of enforcement proceedings;

Payment made for the debtor by a third party, etc.

Similar conclusions have already been met in judicial practice (see, for example, the Decree of the Federal Antimonopoly Service of the Moscow District of 09/06/2012 in case N A40-10559 / 12-73-56). In this case, in particular, it is noted that the mere filing of a claim against the debtor and the availability of relevant information in the public domain is not unconditional evidence that the debtor has signs of insolvency provided for by bankruptcy legislation.

1.3. Making a suspicious transaction with a credit institution

Key clarification: a credit institution should know that it is making a deal with an insolvent person if it has received documents from him that indicate his difficult financial situation.

The Plenum of the Supreme Arbitration Court of the Russian Federation clarified that the mere fact that the debtor’s counterparty in the disputed transaction is a credit institution does not yet indicate that it should have known about the signs of insolvency or insufficiency of the debtor’s property (clause 2 of article 61.2 or clause 3 article 61.3 of the Bankruptcy Law).

An interested person disputing the said transaction must provide concrete evidence confirming the counterparty's (credit institution's) awareness of the debtor's difficult economic situation when concluding and executing the disputed transaction (clause 12.2 of Resolution No. 63 in a new edition).

In particular, the interested person may provide information confirming that the credit institution, when concluding a transaction with the debtor, received from the latter documents on its financial position, from which it clearly follows that the debtor meets the signs of insolvency or has insufficient property.

This clarification can be illustrated by the circumstances and conclusions given in the Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated August 31, 2012 in case N A39-5033 / 2010. In this case, the bank was found to be aware of its client's insolvency because it had the following information:

On the suspension by the tax authority of operations on the debtor's bank accounts;

On the issuance of collection orders by the tax authority;

On foreclosure on funds held in the bank account of the debtor;

The fact that the debtor (client) has made a delay in paying the debt under the loan agreement;

The fact that the value of the property transferred as compensation is several times higher than the amount of the terminated obligation of the borrower, and this indicates that the disputed transaction caused damage to the property rights of creditors.

At the same time, it should be noted that this judicial act changed the judicial acts adopted by the lower courts, and this fact testifies to the unsettled judicial practice on this issue.

Judicial practice also indicates that the bank is not responsible for the unreliability of the balance sheet information provided by the debtor (see, for example, the Resolution of the Eleventh Arbitration Court of Appeal dated August 31, 2011 in case N A55-17869 / 2009).

As noted by the Plenum of the Supreme Arbitration Court of the Russian Federation, similar considerations should be followed in relation to the tax authorities that receive the financial statements of the debtor.

1.4. Transaction in the ordinary course of business

Key clarification: The Plenum of the Supreme Arbitration Court of the Russian Federation clarified which transactions by default should be attributed to those made in the ordinary course of business, and which, in the absence of evidence to the contrary, cannot be considered as such for the purposes of bankruptcy law.

The Plenum of the Supreme Arbitration Court of the Russian Federation indicated that the burden of proving that the transaction was completed in the course of ordinary business activities rests with the other party to the transaction - the debtor's counterparty (clause 14 of Resolution No. 63 in a new edition).

Such a legal position is based on judicial practice on this issue, according to which the burden of proving this fact lies with the debtor's counterparty as the person most interested in this (see, for example, the Resolution of the Seventeenth Arbitration Court of Appeal dated May 24, 2011 N 17AP-125 / 2011- Civil Code in case N A71-7912/2010).

At the same time, in the case considered in this judicial act, the burden of proving that the transaction price exceeded 1 percent of the value of the debtor's assets was also placed on the debtor's counterparty. However, on this issue, in Decree No. 59, the Plenum of the Supreme Arbitration Court of the Russian Federation took a different position. He pointed out that such an obligation should lie with the person challenging the transaction (clause 14 of Resolution No. 63 in a new edition). This conclusion has previously been encountered in judicial practice (see, for example, the Resolutions of the FAS of the Moscow District of July 1, 2013 in case N A41-16922 / 11, of June 26, 2013 in case N A41-16922 / 11). This indicates that the judicial practice on this issue, which existed before the adoption of Resolution No. 59, was not uniform.

Decree N 59 provides guidance on which transactions can be classified as those made in the course of ordinary business activities in order to challenge transactions in bankruptcy. By default (unless otherwise follows from the circumstances of the case), various payments for continuing obligations can be attributed to them, for example:

Repayment of the next part of the loan in accordance with the schedule;

Payment of monthly rent;

Payment of wages;

Payment of utility services;

Payments for cellular communication and Internet services;

Paying taxes, etc.

In addition, clarifications were given about circumstances that may indicate the opposite: that the transaction definitely does not relate to those made in the course of ordinary business activities (paragraph 14 of Resolution No. 63 in a new edition). So, the following are not transactions made in the course of ordinary business activities (unless the circumstances of the case imply otherwise):

Significant delay in payment;

Providing compensation;

Early repayment of the loan not justified by reasonable economic reasons.

1.5. Providing an evidence base for challenging transactions in bankruptcy

Key clarification: the arbitration manager must, with the necessary prudence and care, assess the prospects for contesting a particular transaction on the initiative of the creditor who applied to him.

Among other things, the Plenum of the Supreme Arbitration Court of the Russian Federation pointed to the obligation of interested parties to collect sufficient evidence before applying to an arbitration manager with the initiative to challenge the relevant transaction of an insolvent debtor. The creditor taking such an initiative must justify the existence of a set of circumstances constituting the grounds for invalidity provided for by law, in relation to the transaction indicated by him (paragraph 4, clause 31 of Resolution No. 63 in a new edition).

In this regard, the arbitration manager is assigned an additional obligation to evaluate the proposal received by him from the creditor to challenge the transaction. With a due degree of care and discretion, he (the insolvency practitioner) must establish how convincing the creditor’s arguments and evidence presented by him are, and also assess the real possibility of actually restoring the violated rights of the debtor and his creditors if the court satisfies the relevant application.

When appealing against the actions of an arbitration manager who refused the creditor's demand to challenge the debtor's transaction, the court should not consider the issue of invalidity of the disputed transaction.

2.1. Return of property from the second (subsequent) purchaser

Key clarification: a vindication claim against a subsequent acquirer of property transferred by a debtor under an invalid transaction can be attached to a claim for the recognition of such a transaction as invalid in a bankruptcy case if it is within the jurisdiction of the same court that hears the bankruptcy case.

Earlier, the Plenum of the Supreme Arbitration Court of the Russian Federation gave clarifications on how to return to the bankruptcy estate property transferred under an invalid transaction, but then alienated in favor of a third party. Clause 16 of Decree No. 63 stated that in this situation, the property should be reclaimed from its second acquirer under a vindication requirement (Articles 301-302 of the Civil Code of the Russian Federation) outside the framework of a bankruptcy case.

These clarifications have been supplemented with some important clarifications. Thus, a vindication claim filed against the second acquirer may be attached to the claim for the recognition of such a transaction as invalid in the framework of a bankruptcy case, if it is within the jurisdiction of the same court that considered the bankruptcy case and recognized the transaction for the transfer of property by the debtor as invalid (paragraph 16 Decree N 63 in the new edition).

This issue was encountered in judicial practice and was resolved in a similar way (see, for example, the Resolution of the Eighth Arbitration Court of Appeal dated March 18, 2013 in case N A46-6748 / 2012). In this case, the court, in support of its conclusion, among other things, indicated that "the purpose of separating a claim into a separate proceeding is, first of all, the effective separate consideration of claims, and not the existence of procedural obstacles to their consideration."

The Plenum of the Supreme Arbitration Court of the Russian Federation also noted that in order to fill the bankruptcy estate, it does not matter which claim to satisfy: for vindication of property illegally transferred by the debtor or for reimbursement of its value. At the same time, the simultaneous satisfaction of these requirements is unacceptable. If one of them is already executed, then the second cannot be executed. This clarification concerns both the stage of consideration of these requirements in court and the stage of enforcement proceedings.

Key clarification: The Plenum of the Supreme Arbitration Court of the Russian Federation clarified from what point interest should be charged for the use of other people's funds.

Recognition by the court as invalid of suspicious transactions and transactions with preference (Articles 61.2 - 61.3 of the Bankruptcy Law) requires the return of funds received from them to the bankruptcy estate. In addition, these amounts should also accrue interest for the use of other people's funds (Article 395 of the Civil Code of the Russian Federation). The Plenum of the Supreme Arbitration Court of the Russian Federation clarified the procedure for their calculation (clause 29.1 of Resolution No. 63 in a new edition).

In Decree N 59, two criteria were identified for determining the period from which interest for the use of other people's funds begins to be calculated: firstly, from the moment the court ruling on the recognition of the transaction as invalid comes into force, and secondly, from the moment when the creditor found out or should have learned that the transaction has appropriate grounds for invalidity under bankruptcy law. The second criterion applies if it is proved that the creditor knew or should have known that the transaction has grounds for invalidity in accordance with Art. Art. 61.2 or 61.3 of the Bankruptcy Law.

Judicial practice notes that in case of unjust enrichment of the counterparty of an insolvent debtor due to the receipt of execution under an invalid transaction, the moment when the calculation of interest for the use of other people's funds begins to be calculated will be the moment the provision is received from the debtor, if his counterparty cannot provide reasonable evidence that the enrichment was thorough ( see, for example, Resolution of the Federal Antimonopoly Service of the Far Eastern District dated 09.09.2011 N F03-3985/2011 in case N A59-1113/2009).

In another case, the arbitration court pointed out that such a moment should in any case be determined by the date of receipt of execution under an invalid transaction, and not by the moment such a transaction is declared invalid, since one of the conditions for its recognition as invalid under bankruptcy law is precisely the knowledge of the debtor’s counterparty about causing execution of this transaction of harm to other creditors (Resolution of the Federal Antimonopoly Service of the Urals District dated November 26, 2012 N F09-10110/12 in case N A76-6972/2012). Similar conclusions are also given in the Resolution of the Seventeenth Arbitration Court of Appeal dated May 22, 2013 N 17AP-2370/2013-GK in case N A50-15363/2012.

Key clarification: The Plenum of the Supreme Arbitration Court of the Russian Federation clarified some rules for the return of property by the counterparty of an insolvent debtor in a transaction that has not yet been declared invalid (Article 61.7 of the Bankruptcy Law).

Decree N 59 recalls that Russian bankruptcy law allows the return of everything received in a transaction with a debtor declared bankrupt, even before the moment when this transaction is declared invalid (Article 61.7 of the Bankruptcy Law). In this situation, the court may refuse to recognize the disputed transaction as invalid.

The interest of the counterparty of an insolvent debtor in returning everything received under a dubious transaction to the bankruptcy estate lies in the fact that in this situation he will not be liable in the form of lowering the priority of the claim and will be able to present his property claims against the debtor in a general manner. For more information on downgrading the priority of established requirements, see section 3 of this review >>>

In this regard, the Plenum of the Supreme Arbitration Court of the Russian Federation recalled the obligation of arbitration managers to offer the debtor's counterparties in disputed transactions, which are supposed to be contested as invalid, to return everything received under these transactions (paragraph 3, clause 29.2 of Resolution N 63 in a new edition). They must make the said offer prior to filing an application to contest the transaction.

In this situation, counterparties should take into account that such an offer by the arbitration manager to return the property received from the debtor is a kind of "last warning". After submitting an application to the court to challenge the disputed transaction, the counterparties will no longer be able to use the preferential procedure for the return of property, and at the end of the trial regarding the validity of the transaction, their claims will in any case go to the end of the payment queue, even if subsequently these counterparties voluntarily return everything received under the transaction.

3. Downgrading the established requirement

Key clarification: Downgrading a set requirement is a special measure of responsibility.

Decree N 59 explains that lowering the priority of the established requirement (clause 2, article 61.6 of the Bankruptcy Law) is, by its legal nature, a special type of liability. Several practical implications follow from this theoretical statement.

Lowering the priority of the established claim cannot be applied in the absence of unlawful behavior or fault of the creditor in the commission of the disputed transaction (paragraph 6, clause 27 of Resolution No. 63, as amended). As an example, Decree N 59 cites a situation in which the creditor received a non-cash payment (early or on time). In this case, the creditor should not be liable in the form of lowering the order of satisfaction of claims (clause 2, article 61.6 of the Bankruptcy Law), since he behaved as a passive party to legal relations and did not contribute to the payment in any way. If it is established otherwise, then this measure of responsibility must be applied to the creditor.

The general rules on the procedure for satisfying claims against a debtor in bankruptcy conditions apply to the claims of this creditor (clause 3, article 61.6 of the Bankruptcy Law).

4. Challenging transactions in case of bankruptcy on general grounds of invalidity,

provided for in the Civil Code of the Russian Federation

Key clarification: The Plenum of the Supreme Arbitration Court of the Russian Federation clarified how property should be returned to the bankruptcy estate under an invalid transaction that provided for counter-performance, depending on what performance was provided and received under this transaction by the debtor and his counterparty.

Decree N 59 explains that when a transaction is declared invalid within the framework of bankruptcy procedures on the general grounds for invalidity provided for in the Civil Code of the Russian Federation, the counterparty's claims against the debtor should be determined as current if the provision under such a transaction was made after the initiation of bankruptcy proceedings (para. 3 p. 29.5 of Decree N 63 in the new edition). Otherwise, the claim of the debtor's counterparty shall be subject to inclusion in the register of creditors' claims.

It should be noted important clarifications regarding the restitution of what was received under a transaction with an insolvent counterparty. Decree N 59 distinguishes between three situations, the return of property in which is considered in the table.

5. Features of contesting certain transactions of a credit institution declared bankrupt

Key clarification: when challenging the transactions of an insolvent credit institution with its client, the good faith of the client and his knowledge of the insolvency of the bank should be taken into account.

Resolution No. 59 provided some new clarifications regarding contesting transactions between a credit institution declared insolvent and a client bound by contractual relations with this credit institution (clauses 35.1 - 35.3 of Resolution No. 63 in a new edition).

Thus, paragraph 35.1 of Decree No. 63 in the new edition states that when debiting funds from a client’s account with this credit organization to pay off his debt to the credit organization, the obligations as a client to the credit organization are restored as invalid in a bankruptcy case of a credit organization, and the credit institution to the client (his funds on the account are restored). The client's claim against the credit institution is subject to inclusion in the register of creditors' claims in accordance with the rules of Art. 61.6 of the Bankruptcy Law.

Another explanation given in Decree N 59 concerns the transfer by a credit institution of the client's funds to the account of the same or another person in another credit institution (both on the basis of the client's order and without it). The Plenum of the Supreme Arbitration Court of the Russian Federation explained that when challenging such transactions, the good faith of the client should be taken into account - knowledge of the insolvency or insufficiency of the property of a credit institution.

This conclusion has been met in judicial practice before (see, for example, the Decree of the Federal Antimonopoly Service of the Moscow District dated October 24, 2012 in case N A40-12989 / 12-73-80, dated September 6, 2012 in case N A40-10559 / 12-73 -56, dated 06/06/2012 in case N A40-119763 / 10-73-565B).

When challenging transactions of clients with a credit institution in which they have an account, one should distinguish between transactions made in the course of ordinary business activities, which, as a general rule, cannot be recognized as invalid on special grounds provided for in bankruptcy legislation. Signs that allow you to distinguish such transactions are given in paragraph 35.3 of Resolution N 63 in a new edition.

6. Reservation on the possibility of revising, due to new circumstances, judicial acts that have entered into force

In the Resolution under consideration, the Plenum of the Supreme Arbitration Court of the Russian Federation indicated that judicial acts of arbitration courts that have entered into legal force, adopted on the basis of a rule of law in an interpretation that diverges from the interpretation contained in the Resolution under consideration, can be revised on the basis of paragraph 5 of part 3 of Art. 311 of the APC of the Russian Federation, if there are no other obstacles for this.

By virtue of paragraph 11 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 30, 2011 N 52 "On the application of the provisions of the Arbitration Procedure Code of the Russian Federation when reviewing judicial acts on new or newly discovered circumstances," this indicates that this legal position of the Presidium of the Supreme Arbitration Court of the Russian Federation is retroactive.

In this regard, the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation under consideration is the basis for the revision of judicial acts on new circumstances.

However, the legal position set out in paragraph 9 of Resolution No. 59 applies only when considering applications submitted to the court after the publication of this Resolution (paragraph 17).

Bankruptcy of legal entities is a fairly common phenomenon. An equally common phenomenon is the contestation of transactions in the bankruptcy of legal entities. persons.

Let's start with the fact that bankruptcy is a kind of opportunity provided by the state to the debtor to get rid of debts with the least losses. This is expressed in the fact that the claims of creditors are satisfied to the extent that the property of the debtor allows.

For example, if a legal entity has a debt of 1 million rubles, and the company's balance sheet has property of 500 thousand rubles, then the debt will be repaid in the amount of the value of the property. The remaining debts will be "forgiven".

Naturally, some business owners, understanding the situation well, attempt to alienate part of the property. There is also a countermeasure for such a measure: challenging transactions in the event of bankruptcy of legal entities.

Which deal can be cancelled?

It is difficult to say unequivocally that a specific transaction will be considered invalid by the court. It all depends on the circumstances of the particular case. And the issue itself is resolved in the framework of the trial. But we can note those points that give a greater likelihood of challenging.

When making transactions, the party of which is a potential bankrupt, it is alarming:

• their suspiciousness, when, for example, a transaction is executed to the detriment of the company, from an economic point of view;
• transactions aimed at satisfying the claims of a certain creditor;
• transactions, from which it is seen that one had an idea of ​​the insolvency of the other party.

That is, any illogicality of the transaction, or, conversely, logic, given the initiation of bankruptcy proceedings, may suggest that the transaction can be canceled.

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Cancellation procedure

The person who has the right to initiate consideration of the issue of the invalidity of the transaction is the arbitration manager. And here we need to talk about one nuance. The fact is that, under certain conditions, both the legal entity itself and its creditors have the right to declare bankruptcy. And the one who submits an application to the court is endowed with the right to propose a candidate for an arbitration manager.

Therefore, in order for the debtor to best protect himself from the possibility of contesting the transaction, it is advisable for him to independently initiate the bankruptcy process and ask for the appointment of "his" manager, who will not show initiative in challenging transactions.

However, creditors, having gathered together, may decide that this or that transaction must be challenged. This decision is transferred to the manager, who has no choice but to prepare an application to the court.

An application for contesting transactions is submitted to the same court that considers the main issue - bankruptcy.

The following papers are attached to the application:

• a document certifying that the contract was concluded;
• the decision taken by the creditors on the need to challenge;
• documents proving that there are grounds to invalidate the contract.

The timing of the challenge depends on the grounds. In some cases, it is possible to challenge a transaction that was executed 3 years before bankruptcy, and in some cases, which was executed 6 months after the decision on financial insolvency was made.

As for the consequences of the issue that is covered in this article, everything is simple here: the property is returned to the debtor and is immediately included in the bankruptcy estate. And the counterparty in the transaction, in fact, becomes another creditor.

In law. In cases of transactions in bankruptcy, you are entitled to reimbursement of financial expenses and legal costs, as well as compensation for non-pecuniary damage, recovering them in court.