Resolutions of the plenum of the Russian Federation No. 63. What does the federal law say about current expenses in bankruptcy? Information about changes

In connection with issues arising in judicial practice related to the application of the provisions of the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law, the Law) on current payments on monetary obligations, and in order to ensure uniform approaches to their resolution, the Plenum of the Supreme Arbitration Court of the Russian Federation, guided by Article 13 of the Federal Constitutional Law "On Arbitration Courts in the Russian Federation", decides to give the following clarifications to the arbitration courts (hereinafter referred to as the courts).

1. In accordance with paragraph 1 of Article 5 of the Bankruptcy Law, monetary obligations relate to current payments if they arose after the date of acceptance of the application for declaring the debtor bankrupt, that is, the date of the ruling on this.

When applying this rule, courts must take into account that, by virtue of Article 2 of the Bankruptcy Law, a monetary obligation for the purposes of this Law is understood as the obligation of the debtor to pay the creditor a certain amount of money under a civil transaction and (or) other grounds provided for by the Civil Code of the Russian Federation (hereinafter - Civil Code of the Russian Federation), budget legislation of the Russian Federation (in connection with the provision of a budget loan to a legal entity, issuance of a state or municipal guarantee, etc.).

Thus, only an obligation that involves the use of money as a means of payment, a means of repaying a monetary debt, can be qualified as a current payment.

2. By virtue of the second paragraph of paragraph 1 of Article 5 of the Bankruptcy Law, the claims of creditors for payment for goods supplied, services rendered and work performed that arose after the initiation of bankruptcy proceedings are current.

Within the meaning of this norm, current are any demands for payment for goods, works and services supplied, performed and rendered after the initiation of bankruptcy proceedings, including in pursuance of contracts concluded before the date of acceptance of the application for declaring the debtor bankrupt.

In contractual obligations providing for the periodic payment by the debtor of fees for the use of property (lease agreements, leasing agreements (except for redemption)), ongoing provision of services (storage agreements, provision of utilities and communication services, agreements for maintaining a securities register, etc.) , as well as the supply through the connected network of electrical or thermal energy, gas, oil and petroleum products, water, and other goods (for the actually accepted quantity of goods in accordance with accounting data), current demands for payment are for those periods of time that have expired after the initiation of the case about bankruptcy.

3. When applying paragraph 1 of Article 5 of the Bankruptcy Law, courts should take into account that the obligation to return the amount of money provided under a loan agreement (Civil Code of the Russian Federation) or credit agreement (Civil Code of the Russian Federation) arises from the moment the funds are provided to the borrower. The obligation to pay a sum of money provided to the debtor as a commercial loan in the form of deferment or installment payment for goods, work and services (Civil Code of the Russian Federation) arises from the moment the creditor fulfills the corresponding obligation to transfer goods, perform work or provide services.

(see text in the previous edition)

Requirements for payment of interest for the use of borrowed (credit) funds arising from monetary obligations arising after the acceptance of the application for declaring the debtor bankrupt are current payments.

5. When deciding on the qualification of payments on bills of exchange as current payments, it is necessary to keep in mind that the obligation of the drawer to pay the amount of money certified by the bill of exchange (including the one issued at sight) arises from the moment the bill of exchange is issued.

The acceptor's obligation to pay the bill of exchange is considered to arise from the moment of acceptance. If the acceptance is undated, for the purposes of qualifying the acceptor's monetary obligation as a current payment, one should proceed from the date of issue of the bill until a different date of acceptance is proven.

If payment on a bill issued before the date of initiation of the bankruptcy case of the debtor-drawer is secured in full or in part of the bill amount by means of aval and the avalist paid the bill after the specified date, then the claim of the avalist against the debtor-drawer for whom he gave aval is not current payment and is subject to inclusion in the register of creditors' claims.

6. When deciding on the qualification of claims arising from surety agreements as current payments, courts should proceed from the fact that the obligation of the guarantor to answer to the creditor of another person for the latter’s fulfillment of his obligation (Civil Code of the Russian Federation) arises from the moment the surety agreement is concluded.

In this case, the courts should take into account that, by virtue of paragraph 2 of Article 64 of the Bankruptcy Law, in the supervision procedure, the debtor’s management bodies can carry out transactions related to the issuance of guarantees only with the consent of the temporary manager, expressed in writing. Thus, a guarantee agreement concluded in the monitoring procedure in violation of this norm may be declared invalid at the request of the temporary manager (paragraph two of paragraph 1 of Article 66 of the Law).

7. In cases where a bank guarantee secured the fulfillment of an obligation that arose before the date of initiation of the bankruptcy case of the debtor-principal, and the guarantor paid the beneficiary the amount for which the guarantee was issued after this date, the courts should proceed from the fact that the guarantor’s claim to to the debtor-principal for reimbursement of the specified amount does not apply to current payments and is subject to inclusion in the register of creditors' claims.

8. Upon termination of an agreement, performance of which was provided by the creditor before the initiation of bankruptcy proceedings, including when such termination occurred at the initiative of the creditor in connection with a violation committed by the debtor, all claims of the creditor against the debtor expressed in money are qualified for the purposes of the Bankruptcy Law as requirements to be included in the register of creditors' claims.

In particular, if the creditor, before initiating bankruptcy proceedings, made an advance payment to the debtor under the agreement, then the creditor’s demand for its return in connection with the termination of this agreement does not apply to current payments, regardless of the date of its termination.

9. The debtor’s monetary obligation to return or reimburse the cost of unjust enrichment for the purpose of qualifying as a current payment is considered to arise from the moment of actual acquisition or saving of property by the debtor at the expense of the creditor (Civil Code of the Russian Federation).

10. The date of harm to the creditor for which the debtor is responsible in accordance with Article 1064 of the Civil Code of the Russian Federation is recognized as the date of occurrence of the obligation to compensate for harm for the purpose of qualifying it as a current payment, regardless of the time frame for calculating the amount of harm or entering into legal a court decision confirming the fact of causing harm and the liability of the debtor is valid.

11. When deciding whether to qualify as current payments claims for the application of liability measures for violation of obligations (compensation for losses caused by non-fulfillment or improper fulfillment of an obligation, collection of penalties, interest for the unlawful use of someone else’s money), courts must take into account the following.

Requirements for the application of penalties for violation of monetary obligations related to current payments follow the fate of these obligations.

Requirements for the application of penalties for violation of monetary obligations subject to inclusion in the register of creditors' claims are not current payments. Within the meaning of paragraph 3 of Article 137 of the Bankruptcy Law, these claims are taken into account separately in the register of creditors' claims and are subject to satisfaction after repayment of the principal amount of debt and interest due. These requirements, by virtue of paragraph 3 of Article 12 of the Law, are not taken into account for the purposes of determining the number of votes at the meeting of creditors.

12. Courts should keep in mind that the transfer of the right of claim to another person by assignment or on the basis of law (clause 1 of Article 382 of the Civil Code of the Russian Federation) does not change the status of this claim in terms of its qualification in accordance with Article 5 of the Bankruptcy Law (in particular , upon transfer to the guarantor who has fulfilled the obligation secured by the guarantee, the rights of the creditor under this obligation by virtue of paragraph 1 of Article 365 of the Civil Code of the Russian Federation; upon transfer to the insurer of the rights of the insured to compensate for damage (subrogation) in accordance with Article 965 of the Civil Code of the Russian Federation).

13. Since the establishment of a special favorable regime for current payments is determined primarily by the need to ensure financing of the costs of the bankruptcy procedure, a claim (registry claim) that arose before the initiation of bankruptcy proceedings and is subject to inclusion in the register of creditors’ claims cannot subsequently acquire the status of a current claim.

In connection with issues arising in judicial practice related to the application of the provisions of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law, the Law) on current payments on monetary obligations, and in order to ensure uniform approaches to their resolution, the Plenum of the Supreme Arbitration Court of the Russian Federation, guided by Article 13 of the Federal Constitutional Law “On Arbitration Courts in the Russian Federation,” decides to give the following clarifications to the arbitration courts (hereinafter referred to as the courts).

1. In accordance with paragraph 1 of Article 5 of the Bankruptcy Law, monetary obligations relate to current payments if they arose after the date of acceptance of the application for declaring the debtor bankrupt, that is, the date of the ruling on this.

When applying this rule, courts must take into account that, by virtue of Article 2 of the Bankruptcy Law, a monetary obligation for the purposes of this Law is understood as the obligation of the debtor to pay the creditor a certain amount of money under a civil transaction and (or) other grounds provided for by the Civil Code of the Russian Federation (hereinafter - Civil Code of the Russian Federation), budget legislation of the Russian Federation (in connection with the provision of a budget loan to a legal entity, issuance of a state or municipal guarantee, etc.).

Thus, only an obligation that involves the use of money as a means of payment, a means of repaying a monetary debt, can be qualified as a current payment.

2. By virtue of the second paragraph of paragraph 1 of Article 5 of the Bankruptcy Law, the claims of creditors for payment for goods supplied, services rendered and work performed that arose after the initiation of bankruptcy proceedings are current.

Within the meaning of this norm, current are any demands for payment for goods, works and services supplied, performed and rendered after the initiation of bankruptcy proceedings, including in pursuance of contracts concluded before the date of acceptance of the application for declaring the debtor bankrupt.

In contractual obligations providing for the periodic payment by the debtor of fees for the use of property (rental, leasing agreements), ongoing provision of services (storage agreements, provision of utilities and communication services, agreements for maintaining a securities register, etc.), as well as supply through connected network with electrical or thermal energy, gas, oil and petroleum products, water, other goods (for the actually accepted quantity of goods in accordance with accounting data), current demands for payment for those periods of time that have expired after the initiation of bankruptcy proceedings.

3. When applying paragraph 1 of Article 5 of the Bankruptcy Law, courts should take into account that the obligation to return the amount of money provided under a loan agreement (Article 810 of the Civil Code of the Russian Federation) or a loan agreement (Article 819 of the Civil Code of the Russian Federation) arises from the moment the funds are provided to the borrower. The obligation to pay a sum of money provided to the debtor as a commercial loan in the form of deferment or installment payment for goods, work and services (Article 823 of the Civil Code of the Russian Federation) arises from the moment the creditor fulfills the corresponding obligation to transfer goods, perform work or provide services.

4. When deciding whether to qualify as current payments claims for the payment of interest for the use of funds provided to the debtor under a loan agreement, credit agreement or as a commercial loan, the courts must keep in mind that the specified interest, along with the repayable loan amount ( credit), on which they are accrued, form the amount of debt under the corresponding monetary obligation of the debtor, the composition and amount of which, if this obligation arose before the adoption of the application for declaring the debtor bankrupt, are determined according to the rules of paragraph 1 of Article 4 of the Bankruptcy Law. In this case, demands for payment of such interest are not current payments.

Within the meaning of this provision of the Law, interest payable on the amount of the loan (credit), respectively, on the date of filing an application to the court to declare the debtor bankrupt or on the date of introduction of the corresponding bankruptcy procedure, is added to the amount of the loan (credit). A requirement for payment of the resulting sum of money, the amount of which does not subsequently change, must be included in the register of creditors' claims.

If a claim for a monetary obligation that arose before the initiation of bankruptcy proceedings is filed by a creditor during the supervision procedure, then its amount (including interest) is determined as of the date of introduction of supervision, including by virtue of paragraph 3 of Article 63 of the Bankruptcy Law and in cases where the deadline for fulfilling the obligation should have occurred after the introduction of supervision.

Requirements for payment of interest for the use of borrowed (credit) funds arising from monetary obligations arising after the acceptance of the application for declaring the debtor bankrupt are current payments.

5. When deciding on the qualification of payments on bills of exchange as current payments, it is necessary to keep in mind that the obligation of the drawer to pay the amount of money certified by the bill of exchange (including the one issued at sight) arises from the moment the bill of exchange is issued.

The acceptor's obligation to pay the bill of exchange is considered to arise from the moment of acceptance. If the acceptance is undated, for the purposes of qualifying the acceptor's monetary obligation as a current payment, one should proceed from the date of issue of the bill until a different date of acceptance is proven.

If payment on a bill issued before the date of initiation of the bankruptcy case of the debtor-drawer is secured in full or in part of the bill amount by means of aval and the avalist paid the bill after the specified date, then the claim of the avalist against the debtor-drawer for whom he gave aval is not current payment and is subject to inclusion in the register of creditors' claims.

6. When deciding on the qualification of claims arising from surety agreements as current payments, courts should proceed from the fact that the obligation of the guarantor to answer to the creditor of another person for the latter’s fulfillment of his obligation (Article 361 of the Civil Code of the Russian Federation) arises from the moment the surety agreement is concluded.

In this case, the courts should take into account that, by virtue of paragraph 2 of Article 64 of the Bankruptcy Law, in the supervision procedure, the debtor’s management bodies can carry out transactions related to the issuance of guarantees only with the consent of the temporary manager, expressed in writing. Thus, a guarantee agreement concluded in the monitoring procedure in violation of this norm may be declared invalid at the request of the temporary manager (paragraph two of paragraph 1 of Article 66 of the Law).

7. In cases where a bank guarantee secured the fulfillment of an obligation that arose before the date of initiation of the bankruptcy case of the debtor-principal, and the guarantor paid the beneficiary the amount for which the guarantee was issued after this date, the courts should proceed from the fact that the guarantor’s claim to to the debtor-principal for reimbursement of the specified amount does not apply to current payments and is subject to inclusion in the register of creditors' claims.

8. Upon termination of an agreement, performance of which was provided by the creditor before the initiation of bankruptcy proceedings, including when such termination occurred at the initiative of the creditor in connection with a violation committed by the debtor, all claims of the creditor against the debtor expressed in money are qualified for the purposes of the Bankruptcy Law as requirements to be included in the register of creditors' claims.

In particular, if the creditor, before initiating bankruptcy proceedings, made an advance payment to the debtor under the agreement, then the creditor’s demand for its return in connection with the termination of this agreement does not apply to current payments, regardless of the date of its termination.

9. The debtor’s monetary obligation to return or reimburse the cost of unjust enrichment for the purpose of qualifying as a current payment is considered to arise from the moment of actual acquisition or saving of property by the debtor at the expense of the creditor (Article 1102 of the Civil Code of the Russian Federation).

10. The date of harm to the creditor for which the debtor is responsible in accordance with Article 1064 of the Civil Code of the Russian Federation is recognized as the date of occurrence of the obligation to compensate for harm for the purpose of qualifying it as a current payment, regardless of the time frame for calculating the amount of harm or entering into legal a court decision confirming the fact of causing harm and the liability of the debtor is valid.

11. When deciding whether to qualify as current payments claims for the application of liability measures for violation of obligations (compensation for losses caused by non-fulfillment or improper fulfillment of an obligation, collection of penalties, interest for the unlawful use of someone else’s money), courts must take into account the following.

Requirements for the application of penalties for violation of monetary obligations related to current payments follow the fate of these obligations.

Requirements for the application of penalties for violation of monetary obligations subject to inclusion in the register of creditors' claims are not current payments. Within the meaning of paragraph 3 of Article 137 of the Bankruptcy Law, these claims are taken into account separately in the register of creditors' claims and are subject to satisfaction after repayment of the principal amount of debt and interest due. These requirements, by virtue of paragraph 3 of Article 12 of the Law, are not taken into account for the purposes of determining the number of votes at the meeting of creditors.

12. Courts should keep in mind that the transfer of the right of claim to another person by assignment or on the basis of law (clause 1 of Article 382 of the Civil Code of the Russian Federation) does not change the status of this claim in terms of its qualification in accordance with Article 5 of the Bankruptcy Law (in particular , upon transfer to the guarantor who has fulfilled the obligation secured by the guarantee, the rights of the creditor under this obligation by virtue of paragraph 1 of Article 365 of the Civil Code of the Russian Federation; upon transfer to the insurer of the rights of the insured to compensate for damage (subrogation) in accordance with Article 965 of the Civil Code of the Russian Federation).

13. Since, by virtue of Article 414 of the Civil Code of the Russian Federation, novation is the basis for the termination of a pre-existing obligation, in the event of termination of an obligation by novation, in order to qualify in accordance with Article 5 of the Bankruptcy Law a new monetary obligation for the purposes of this Law, the date of occurrence of the original obligation should be taken.

14. If the method of execution of a judicial act on compelling the transfer of the defendant’s property to the plaintiff by virtue of an obligation between them (for example, by virtue of Article 398 of the Civil Code of the Russian Federation) was changed to the collection of a sum of money, then for the purpose of qualifying the corresponding claim as a current payment, one should proceed from the date occurrence of an obligation to transfer property.

15. For the purpose of qualifying as current payments claims based on a court-approved settlement agreement providing for the timing, procedure and methods of fulfilling a previously incurred obligation (for example, deferment or installment plan for its execution), the date of occurrence of this obligation should be accepted.

16. The obligation to reimburse legal expenses (expenses for the services of a representative, state duty, etc.) incurred by the person in whose favor the judicial act was adopted, for the purpose of qualifying as a current payment is considered to arise from the moment the judicial act enters into legal force on the collection of these expenses.

PLENAUM OF THE HIGH ARBITRATION COURT OF THE RUSSIAN FEDERATION

RESOLUTION

ABOUT MAKING CHANGES

IN THE DECISIONS OF THE PLENARY OF THE HIGH ARBITRATION COURT

OF THE RUSSIAN FEDERATION ON ISSUES RELATED

WITH CURRENT PAYMENTS

In connection with issues arising in judicial practice related to current payments, the Plenum of the Supreme Arbitration Court of the Russian Federation, guided by Article 13 of the Federal Constitutional Law of April 28, 1995 N 1-FKZ "On Arbitration Courts in the Russian Federation", decides:

1. Clauses 10 and 15 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2006 N 25 “On some issues related to the qualification and establishment of requirements for mandatory payments, as well as sanctions for public offenses in a bankruptcy case,” shall be declared invalid.”

2. Introduce the following into the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 N 60 “On some issues related to the adoption of the Federal Law dated December 30, 2008 N 296-FZ “On Amendments to the Federal Law “On Insolvency (Bankruptcy)” changes:

1) add clause 40.1 with the following content:

"40.1. The first priority of current obligations (paragraph two of paragraph 2 of Article 134 of the Bankruptcy Law) in any bankruptcy procedure includes, in particular, payment for the services of a credit institution for performing transactions with funds in the account.

The second stage of current obligations (paragraph three of paragraph 2 of Article 134 of the Bankruptcy Law) includes, in particular, the wages of employees (regardless of the period for which procedure it was accrued and whether the person continues to remain an employee at the time of payment). In the case of deduction of funds from the current salary of an employee on the basis of a writ of execution in accordance with Part 3 of Article 98 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings” (for example, on the payment of alimony), the payment of the withheld amounts to the claimant is carried out in the current mode second stage requirements; when money is withheld in this manner from wages included in the register, payment to the claimant is accordingly made in the mode of register requirements of the second stage.

Taking into account the obligation of the insolvency administrator to act in good faith and reasonably in the interests of the debtor, creditors and society, the court has the right to recognize as legal the administrator’s deviation from the order of priority provided for in paragraph 2 of Article 134 of the Bankruptcy Law, if this is necessary based on the purposes of the relevant bankruptcy procedure, including to prevent death or damage to the debtor’s property or preventing the dismissal of the debtor’s employees on their initiative.”;

2) add clause 40.2 with the following content:

“40.2. To ensure the fulfillment of the debtor’s (including a citizen’s) obligation to return deposits transferred by bidders for the sale of the debtor’s property, an external or bankruptcy trustee, by analogy with paragraph 3 of Article 138 of the Bankruptcy Law, opens a separate bank account for the debtor.

The agreement of such a bank account of the debtor indicates that the funds in this account are intended to pay off claims for the return of deposits, as well as to transfer the amount of the deposit to the main account of the debtor in the event that the person who deposited it enters into a purchase and sale agreement for the debtor’s property or there are other grounds for leaving the deposit with the debtor.

The bidder's demands for the return of the deposit from the specified separate account are satisfied only within the limits of the deposit amount paid by him; the rest of his demands (for payment of the second amount of the deposit and for compensation for losses - paragraph 2 of Article 381 of the Civil Code of the Russian Federation) are satisfied in the general manner in the fourth stage of current claims.";

3) add clause 41.1 with the following content:

"41.1. The amounts of personal income tax withheld by the debtor when paying current wages as a tax agent (Russian Federation) or trade union dues (clause 3 of Article 28 of the Federal Law of January 12, 1996 N 10-FZ "On Trade Unions, Their Rights and guarantees of activity" and the Russian Federation) are paid by him in the second stage of current payments. The requirement for the debtor to pay such amounts withheld by him before the initiation of bankruptcy proceedings relates to the register requirements of the second stage and is presented in the bankruptcy case by the authorized body or, accordingly, the trade union organization.

Claims of employees that arose before the initiation of bankruptcy proceedings are included in the register of creditors' claims in full, without deduction of amounts of personal income tax or trade union dues subject to withholding. If, during the bankruptcy procedure, settlements are made for such claims, the amounts of this tax or such contributions withheld by the debtor are paid in the regime of register claims of the second priority.

The amounts of insurance contributions calculated in connection with the calculation of current wages to the Pension Fund of the Russian Federation for compulsory pension insurance, to the Social Insurance Fund of the Russian Federation for compulsory social insurance in case of temporary disability and in connection with maternity, to the Federal Compulsory Medical Insurance Fund for compulsory medical insurance (hereinafter also referred to as insurance premiums) are paid in the fourth stage of current payments. The requirement for the debtor to pay the amounts of insurance premiums accrued before the initiation of the bankruptcy case relates to the third-priority registry requirements and is presented in the bankruptcy case by the authorized body."

3. Make the following changes to the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 N 63 “On current payments for monetary obligations in a bankruptcy case”:

1) in paragraph three of clause 2, replace the word “leasing” with the words “leasing (except for redemption)”;

2) paragraph 13 shall be stated in a new wording:

“13. Since the establishment of a special favorable regime for current payments is determined primarily by the need to ensure financing of the costs of the bankruptcy procedure, a claim (registry claim) that arose before the initiation of bankruptcy proceedings and is subject to inclusion in the register of creditors’ claims cannot subsequently acquire the status of a current claim.

In this regard, in particular, since by virtue of Article 414 of the Civil Code of the Russian Federation, novation is the basis for the termination of a pre-existing obligation, in the event of termination of an obligation by novation, in order to qualify in accordance with Article 5 of the Bankruptcy Law a new monetary obligation for the purposes of this Law, the date of occurrence should be taken initial commitment.

In addition, if, after the institution of bankruptcy proceedings, the debtor enters into an agreement with a third party to transfer to this person a debt for an obligation that arose before the institution of bankruptcy proceedings, and under this agreement the debtor undertakes to pay such person money, then such a demand for payment of money will also be not current, but registered.

If the buyout lease agreement was concluded and financing was provided by the lessor to the lessee before the initiation of bankruptcy proceedings against the lessee, then the lessor’s claims against the lessee, based on the balance of counter-obligations, relate to register claims.”

4. Supplement paragraph two of paragraph 7 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 17, 2009 N 91 “On the procedure for paying off expenses in a bankruptcy case” with the following sentences:

“A person who finances the costs of a bankruptcy case with his own funds is not bound by the order of satisfaction of current claims (clause 2 of Article 134 of the Bankruptcy Law). He has the right to directly pay the required amount to the current creditor; he has previously transferred money to the debtor’s main account ( Article 133 of the Bankruptcy Law) and their subsequent transfer to the current creditor by the debtor is not required. The demand of such a person for reimbursement of the amounts paid by him at the expense of the debtor belongs to the same queue of current payments to which the current obligation of the debtor, fulfilled by him, should be taken into account when satisfying it; the explanations given in paragraph 3 of this resolution. Information on such payment of expenses is also included in the reports of the arbitration manager (paragraph 6 of this resolution).

5. Make the following changes to paragraph 32 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 30, 2011 N 51 “On the consideration of bankruptcy cases of individual entrepreneurs”:

1) the first paragraph after the words “in the case when” is supplemented with the words “the bankruptcy trustee was not approved and”;

2) paragraphs two, four and five are declared invalid;

3) in paragraph three, replace the words “If the bankruptcy trustee was not approved, then after” with the word “After”.

6. 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 this resolution, may be revised on the basis of paragraph 5 of part 3 of Article 311 of the Arbitration Procedure Code of the Russian Federation, if there are no other obstacles to this. .

The explanations given in paragraph 1, subparagraphs 2 and 3 of paragraph 2 and paragraph 5 of this resolution are applied in bankruptcy procedures introduced after the posting of this resolution on the website of the Supreme Arbitration Court of the Russian Federation.

The explanations given in subparagraph 2 of paragraph 2 and paragraph 5 of this resolution also apply in bankruptcy procedures introduced before the posting of this resolution on the website of the Supreme Arbitration Court of the Russian Federation, if the procedure for the sale of property is approved after such posting.

Chairman

Supreme Arbitration Court

Russian Federation

A.A.IVANOV

And about. Secretary of the Plenum

Supreme Arbitration Court

Russian Federation

6) actions to execute a judicial act, including a ruling on approval of a settlement agreement;

7) transfer to the claimant in enforcement proceedings of funds received from the sale of the debtor’s property.

If bankruptcy creditors or authorized bodies believe that their rights and legitimate interests are violated by a settlement agreement approved by the court in another case in the lawsuit, in particular if such an agreement has the features specified in or 61.3 of the Bankruptcy Law, then on this basis they, and The arbitration manager also has the right to appeal the ruling on approval of such a settlement agreement, and if they miss the deadline for appealing it, the court has the right to reinstate it, taking into account when the person filing the complaint learned or should have learned about the violation of his rights and legitimate interests. A copy of such a complaint is sent by the applicant to the representative of the meeting (committee) of creditors (if there is one), who is also notified by the court of its consideration. All bankruptcy creditors and authorized bodies whose claims are stated in the bankruptcy case, as well as the arbitration manager, have the right to take part in the consideration of the said complaint, including presenting new evidence and stating new arguments. A repeated appeal by the named persons on the same grounds of the same ruling on approval of the settlement agreement is not allowed.

2. To transactions made not by the debtor, but by other persons at the expense of the debtor, which, by virtue of paragraph 1 of Article 61.1 of the Bankruptcy Law, can be declared invalid according to the rules of Chapter III.1 of this Law (including on the basis of Articles 61.2 or 61.3), may in particular include:

1) a statement of offset made by the debtor’s creditor;

2) the bank writes off funds without acceptance from the account of the client-debtor to repay the client’s debt to the bank or to other persons, including on the basis of a writ of execution submitted by the collector to the bank;

3) transfer to the claimant in enforcement proceedings of funds received from the sale of the debtor’s property or written off from the debtor’s account;

4) retention by the claimant in enforcement proceedings of the debtor’s property or by the pledgee of the subject of the pledge.

At the same time, the presence in the Bankruptcy Law of special grounds for challenging transactions provided for or 61.3 does not in itself prevent the court from qualifying a transaction in which an abuse of right was committed as void (Article 10 and the Civil Code of the Russian Federation), including when considering a claim based on such a transaction.

In this regard, the application to challenge a transaction must, in particular, indicate information about the person filing such an application and the debtor (clause 2 of part 2 of Article 125 of the Arbitration Procedure Code of the Russian Federation), information about other (besides the debtor) parties to the transaction - creditors or other persons in respect of whom the disputed transaction was made (clause 3 of part 2 of Article 125 of the Arbitration Procedure Code of the Russian Federation).

In addition, if the acquirer of property under the relevant transaction, within a reasonable time after learning or should have known that the transaction has grounds for invalidity in accordance with 61.3 of the Bankruptcy Law, informed the debtor that he was ready to voluntarily return it property (its value) to the debtor in the event of bankruptcy proceedings being introduced against the debtor in accordance with Article 61.7 of the Bankruptcy Law, then upon subsequent such return, taking into account the rules of this paragraph, the interest specified in the previous paragraph of this resolution is accrued no earlier than the date of publication of information about the introduction of the first bankruptcy procedures.

Information about changes:

32. An application to challenge a transaction on the basis of Articles 61.2 or 61.3 of the Bankruptcy Law may be filed within the one-year limitation period (clause 2 of Article 181 of the Civil Code of the Russian Federation).

The creditor's claim and the application to challenge the transaction under the rules of Chapter III.1 of the Bankruptcy Law on which it is based, in accordance with parts 2 and 2.1 of Article 130 of the Arbitration Procedure Code of the Russian Federation, due to the interconnectedness of the subjects of disputes and the presence of a common composition of persons, can be combined into one proceeding for joint consideration at provided that this does not lead to excessive delay in considering the creditor's claim.

When challenging transactions in the bankruptcy of an individual entrepreneur on the basis of Article 61.3 of the Bankruptcy Law, the courts should take into account that the satisfaction of a separate claim not related to the debtor’s business activities can be considered as a preference, regardless of whether this claim was stated in the bankruptcy case.

35. When considering cases of bankruptcy of debtors - credit organizations, courts must keep in mind the following.

By virtue of paragraph one of paragraph 1 of Article 28 of the Federal Law of February 25, 1999 N 40-FZ “On the Insolvency (Bankruptcy) of Credit Institutions” (hereinafter referred to as the Law on Bankruptcy of Banks), a transaction completed by a credit institution before the date of appointment of its provisional administration may be recognized invalid at the request of the head of the temporary administration in the manner and on the grounds provided for in Chapter III.1 of the Bankruptcy Law, taking into account the specifics established by the Bank Bankruptcy Law.

According to paragraph two of paragraph 1 of Article 28 of the Law on Bankruptcy of Banks, the periods during which transactions were made that may be declared invalid, or obligations of the debtor arose, specified in paragraph 61.3 and paragraph 4 of Article 61.6 of the Bankruptcy Law, are calculated starting from the date of appointment by the Central Bank Russian Federation provisional administration.

Since the provisional administration is appointed before the initiation of a bankruptcy case of a credit organization, the statement of claim of the head of the provisional administration to challenge the bank transaction on the grounds provided for in Chapter III.1 of the Bankruptcy Law is filed (up to and including declaring the credit organization bankrupt) according to the general rules of jurisdiction and jurisdiction and is subject to consideration by the court that accepted it and after declaring the debtor bankrupt (clause 2 of Article 28

After a credit organization is declared bankrupt, an application to challenge the transaction on the grounds provided for in Chapter III.1 of the Bankruptcy Law is presented to the bankruptcy trustee as part of the bankruptcy case (subclause 3 of clause 1 of Article 50.10 of the Bankruptcy Law).

According to paragraph two of paragraph 2 of Article 50.10 of the Law on Bankruptcy of Banks, an application to challenge a transaction according to the rules of Chapter III.1 of the Bankruptcy Law in the framework of a bankruptcy case of a credit organization is paid with a state fee in the amount provided for by federal law for payment of applications for the issuance of a writ of execution for forced execution arbitration court decisions.

Information about changes:

By Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 59, this resolution was supplemented with clause 35.1

35.1. When challenging in a bankruptcy case of a credit organization such a transaction as a credit organization writing off funds from a client’s account with this credit organization to pay off the client’s debt to the credit organization (both on the basis of the client’s order and without it), the following must be taken into account.

Recognition of this transaction as invalid means that the obligations of both the client to the credit institution and the credit institution to the client have not ceased and are restored (his funds in the account are restored); in this case, the client’s claim to the credit institution is subject to inclusion in the register of creditors’ claims, taking into account the rules of Article 61.6 of the Bankruptcy Law.

Information about changes:

By Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 59, this resolution was supplemented with clause 35.2

35.2. When challenging in a bankruptcy case of a credit organization such a transaction as the transfer by a credit organization of funds from a client’s account in this credit organization to the account of the same or another person in another credit organization (both on the basis of the client’s order and without it), it is necessary to take into account following.

A requirement to challenge such a transaction may be presented to the client; when challenging it on the basis of paragraph 3 of Article 61.3 of the Bankruptcy Law, the client’s bad faith (his knowledge of the signs of insolvency or insufficiency of the property of the debtor credit organization) matters.

Article 61.3, the bankruptcy trustee of a credit organization is obliged to prove that the relevant transactions go beyond the scope of such activities.

Such evidence may, in particular, taking into account all the circumstances of the case, information that:

a) at the time of the contested transaction, the regulator imposed a ban on the credit institution from carrying out the relevant banking operations;

b) or at the time of the contested transaction, the credit institution had a file of unpaid customer payment documents due to the lack of funds in the correspondent account;

c) or the disputed payment was made by the credit institution, bypassing other pending orders from clients who at that time could not access their funds, including transferring them to other credit institutions;

d) or the client, due to affiliation with employees of the credit institution, had information about the affairs of the credit institution that was not available to others and at the time of making the disputed payment knew about the likely adoption in the near future by the Bank of Russia of a decision to revoke (cancel) the credit institution’s license to carry out banking operations;

e) or the client transferred funds from the deposit ahead of schedule before its expiration with the loss of a significant amount of interest in the absence of reasonable economic reasons;

f) or with a disputed payment, the client fulfilled the guarantee agreement concluded shortly before the payment to secure the debt of another person to the credit institution that arose significantly earlier.

In addition, when challenging the payments specified in paragraphs 35.1 and 35.2 of this resolution, one should also take into account how common they were for the client.

A payment made to the account (deposit) of an individual covered by deposit insurance for an amount not exceeding the maximum amount of compensation under such insurance cannot be invalidated on the basis of Article 61.3 of the Bankruptcy Law, if after such payment there is no funds left.

Advertisement Code of the Russian Federation when revising judicial acts that have entered into legal force due to newly discovered circumstances."

Statements of claim by insolvency practitioners to challenge transactions on the general grounds provided for by civil law, accepted by the courts for proceedings in a general action procedure outside the framework of a bankruptcy case before posting this resolution on the website of the Supreme Arbitration Court of the Russian Federation, which, in accordance with the explanations given in this resolution, are subject to presentation within the framework of a bankruptcy case, and after that are subject to consideration by the courts in the same cases. Consideration of such applications in a general claim procedure is not a basis for canceling decisions made on them or leaving them without consideration by higher courts.

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13. Since the establishment of a special favorable regime for current payments is determined primarily by the need to ensure financing of the costs of the bankruptcy procedure, a claim (registry claim) that arose before the initiation of bankruptcy proceedings and is subject to inclusion in the register of creditors’ claims cannot subsequently acquire the status of a current claim.

In this regard, in particular, since by virtue of Article 414 of the Civil Code of the Russian Federation, novation is the basis for the termination of a pre-existing obligation, in the event of termination of an obligation by novation, in order to qualify in accordance with Article 5 of the Bankruptcy Law a new monetary obligation for the purposes of this Law, the date of occurrence should be taken initial commitment.

In addition, if, after the institution of bankruptcy proceedings, the debtor enters into an agreement with a third party to transfer to this person a debt for an obligation that arose before the institution of bankruptcy proceedings, and under this agreement the debtor undertakes to pay such person money, then such a demand for payment of money will also be not current, but registered.

If the buyout lease agreement was concluded and financing was provided by the lessor to the lessee before the initiation of the lessee's bankruptcy case, then the lessor's claims against the lessee, based on the balance of counter-obligations, relate to register claims.

14. If the method of execution of a judicial act on compelling the transfer of the defendant’s property to the plaintiff by virtue of an obligation between them (for example, by virtue of Article 398 of the Civil Code of the Russian Federation) was changed to the collection of a sum of money, then for the purpose of qualifying the corresponding claim as a current payment, one should proceed from the date occurrence of an obligation to transfer property.

15. For the purpose of qualifying as current payments claims based on a court-approved settlement agreement providing for the timing, procedure and methods of fulfilling a previously incurred obligation (for example, deferment or installment plan for its execution), the date of occurrence of this obligation should be accepted.

16. The obligation to reimburse legal expenses (expenses for the services of a representative, state duty, etc.) incurred by the person in whose favor the judicial act was adopted, for the purpose of qualifying as a current payment is considered to arise from the moment the judicial act enters into legal force on the collection of these expenses.

Chairman

Supreme Arbitration Court

Russian Federation

A.A.IVANOV

Secretary of the Plenum,

judge of the Supreme Arbitration Court

Russian Federation