Elimination of credit institutions Part 3
Thursday, May 13, 2010 23:18In case of failure of the liquidation commission to satisfy the requirements of the creditor or avoidance of the creditor has the right to review approval of the liquidation balance sheet entity to go to court with a claim to the liquidation commission. The court creditor’s claim may be satisfied by the remaining assets of the liquidated legal entity. Creditor’s claim, asserted after the expiration of the period established by the liquidation commission for their presentation, are met from the assets of the liquidated legal entity remaining after the satisfaction of creditors’ claims asserted in time.
Creditors’ claims are not satisfied because of the insufficiency of assets liquidated legal person shall be deemed extinguished. Extinguished the claims of creditors are also not recognized by the liquidation commission, if the creditor did not apply to court, as well as the requirement to satisfy the court decision which denied the creditor.
1.8. The bankruptcy of credit organizations
March 4, 1999 “Rossiyskaya Gazeta” officially published by the Federal Law “On Insolvency (Bankruptcy) of Credit Organizations” (hereinafter – the law on bankruptcy of credit institutions), and from that day went into effect, except those for which the Act establishes other terms ( Section 1, Art. 53).
Some provisions of Chapter VIII “Final provisions” were designed, that the law takes effect March 1, 1999. In view of settling into effect after that date, out of force the provisions under paragraphs 2-4 of Article. 53. Subject of the Law on bankruptcy of credit organizations are:
- Establishment of the procedure and modalities of implementation of measures to prevent the bankruptcy of credit organizations;
- setting features of the grounds and procedures for recognition of credit institutions into bankruptcy and eliminate them in the order of the bankruptcy proceedings.
Accordingly, the rules of the Act can be divided into two parts: the prevention of bankruptcy and liquidation of the credit institution bankrupt. The first part is carried out under the auspices of the Bank of Russia, and the second – the arbitral tribunal.
In accordance with the Federal Constitutional Law “On arbitration courts in Russia,” the order of proceedings in courts of arbitration in Russia is defined by the Constitution of Russia, called the Federal Constitutional Law. Arbitration Procedural Code and adopted in accordance with other federal laws. Arbitration Procedural Code (APC) found that the bankruptcy case are considered by the arbitral tribunal by the rules provided APC with the peculiarities established by the law of insolvency (bankruptcy). Federal Law “On Insolvency (Bankruptcy), entered into force on 1 March 1998 (bankruptcy law), in turn, found that in cases of bankruptcy of credit institutions shall apply to the extent not regulated by the law on bankruptcy of credit organizations. Thus, in view of the foregoing, and art. 34 of the bankruptcy of credit organizations, the proceedings carried out by the rules of the APC in the light of the specifications prescribed in the law on bankruptcy and the law on bankruptcy of credit organizations. Other federal laws can not be established judicial procedure in these cases. What are the features of bankruptcy law commented installed?
In contrast to the Law on Bankruptcy (Section 2), where the bankruptcy means to recognize the arbitration court declared the debtor voluntarily or inability to fully satisfy the claims of creditors on monetary obligations and (or) to fulfill the obligation to make compulsory payments, according to the Law on Bankruptcy of Credit Institutions can be recognized only by the arbitral tribunal (Section 1, Art. 2). For credit institution changed signs of insolvency (Section 2, Art. 2), time of insolvency is reduced from three to one a month. Month period is calculated after the date of execution of a monetary obligation and (or) the obligation to pay the mandatory fees.
In a case of bankruptcy of a credit institution shall apply only two procedures – monitoring and bankruptcy proceedings. Given the nature of such categories of debtors, as missing and liquidating the organization for which monitoring procedures are not introduced. Implementation of monitoring procedures and bankruptcy proceedings, shall, respectively, and the interim insolvency administrator. In addition to the requirements for candidacy arbitration manager under Art. 19 of the Law on Bankruptcy, Bank of Russia sets the level of qualification requirements for the arbitration administrator of a credit institution and issues a certificate manager in accordance with the approved Bank of Russia regulations
When considering a bankruptcy case on the merits after March 4, 1999 apply signs of bankruptcy, is introduced and implemented in bankruptcy in accordance with the provisions of the law on bankruptcy of credit organizations. In addition to the persons entitled to appeal to the arbitration court to declare the debtor bankrupt in accordance with Art. 6 of the Law on Bankruptcy (debtor, creditor, the prosecutor and other authorized entities), the arbitral tribunal may apply for recognition of the credit institution bankrupt Bank of Russia (Art. 35). This Act provides for situations where it is the right of the Bank of Russia, in particular, when the liquidation of a credit institution assets is insufficient to satisfy creditor claims (claim 1, Art. 51), as well as situations where recourse to the Court of Arbitration is binding Bank of Russia – namely, if within 45 days after the revocation of a license to conduct banking operations due to poor financial condition of the credit institution, failure to perform its obligations to depositors and creditors of the Bank of Russia did not get a definition of the arbitral tribunal on the acceptance of an application for recognition of the credit institution bankrupt, he shall apply to a tribunal with such a statement (Section 2, Art. 37).
The law on bankruptcy of credit institutions (Article 21 of the bankruptcy) provides the mechanism by which the creditors of the Bank of Russia, contributing to a timely response to the treatment of creditors with claims of withdrawal from credit organizations license to conduct banking operations. The law provides for the contents of the statement, accompanying documents, the deadline for response of the Bank of Russia, the creditor’s right to apply to the arbitral tribunal a statement of recognition of the credit institution bankrupt and the consequences of the failure of the Bank of Russia proper measures (Article 35). Thus, the debtor, the creditor, including citizens, investors, tax or other authorized agency may apply to the Bank of Russia, a statement of withdrawal from a credit organization license to conduct its banking operations upon the occurrence of signs of bankruptcy. The application shall be accompanied by documents certifying the existence of financial obligations and their size. Penalties, fines, penalties are not included in the amount of monetary obligations. If no reply, the Bank of Russia for two months, the applicant may apply to the arbitration court to declare bankruptcy.
Bank of Russia may participate in the bankruptcy case in two ways:
1. If the Bank of Russia appealed to the tribunal a statement of recognition of the credit institution bankrupt, he is a person involved in the case, with all the consequences, including the right to complain.
2. In other cases it may be a person involved in the arbitration process, and then his role is to give explanations on issues arising in the course of any proceedings against him may be claimed by a court regulations adopted by them in accordance with the law, an explanation on the application these acts.
