Legal status of the arbitration manager in bankruptcy proceedings. Arbitration Court of the Vologda Region Release of a temporary manager at his own request

At the moment, the position of an arbitration manager is in the process of formation, in this regard, the main task is to qualitatively increase the qualification level of arbitration managers, create the proper conditions for maintaining the independence of this category of specialists, as well as strengthening their legal responsibility. Therefore, the most pressing question arises of creating appropriate conditions for the implementation of the activities of arbitration managers, including their legal status.

In relation to bankruptcy, the manager is given the status of a subject of law, thus, this makes it possible for stakeholders to control the will of the manager. This reveals a general legal pattern: in order to control any phenomenon, it is necessary to create for it a legal status and a legal form of activity.

Each arbitration manager has the right to: convene a meeting or committee of creditors, apply to the arbitration court with statements and petitions provided for by bankruptcy legislation, involve other persons on a contractual basis with payment for their activities from the debtor’s funds, convene a meeting of creditors and a committee of creditors, and receive remuneration. The main principles of the arbitration manager’s activities are objectivity, independence and impartiality.

The arbitration manager's remuneration is established by the arbitration court, and the obligation to pay the established amount arises on the basis of a judicial act. The legal nature of remuneration is ambiguous; the legislation uses methods of regulation in relation to it that are not applicable to profit.

Any of the arbitration managers, with the exception of the presence of insurance policies, is obliged to contribute at least fifty thousand rubles to the fund of their organization. This fund is called compensation and is spent on compensation for losses in the event of incorrect activities of arbitration managers.

Appointment and role of the arbitration manager

Upon application by the debtor or creditor, the court requests the SRO of arbitration insolvency practitioners to nominate arbitration insolvency practitioners who meet the established requirements. If the application indicates a specific candidate for an arbitration manager, the court requests confirmation of the compliance of this arbitration manager with the established requirements. The SRO of arbitration managers, in response to a request, sends to the arbitration court a Submission for a candidacy (or candidacies of arbitration managers.

During the period of bankruptcy, the arbitration court, by its decision, appoints an arbitration manager to conduct bankruptcy procedures and exercise other powers established by Federal Law of the Russian Federation 127-FZ “On Insolvency (Bankruptcy)”. This specialist is the main person at all stages of the bankruptcy confirmation procedure and assumes a temporary obligation to manage the bankrupt company.

The insolvency practitioner is a key figure involved in the bankruptcy procedure. The role of the arbitration manager is to fulfill the duties assigned to him by law in the interests of the debtor and creditors, to make the situation progress, to defuse a conflict situation, while respecting the interests of all participants in the process, the debtor and his creditors.

How to replace an arbitration manager? Change of arbitration manager

A change of arbitration manager can be carried out at one's own request, in the event of his expulsion or withdrawal from the SRO, removal by the court upon the complaint of any person participating in the bankruptcy case, in case of failure or improper performance by the arbitration manager of his duties, administrative disqualification of the arbitration manager as an official , disapproval of the external management plan by the meeting of creditors, dismissal by the court if there is a petition from the meeting of creditors for non-fulfillment or improper performance by the arbitration manager of his duties (Articles 20.4, 20.5 of the Bankruptcy Law).

The replacement of an insolvency practitioner in an insolvency case is carried out by releasing or removing the insolvency practitioner from performing his duties.

Replacement of an arbitration manager: release from duties. Possible in the following cases:

• - at the request of the arbitration manager at his own request. The arbitration manager does not have to indicate the reasons for his release from duties. However, the arbitration court has the right to refuse to release the arbitration manager if these reasons are assessed as disrespectful;
• – at the request of the SRO of arbitration managers, in which he is a member, as a rule, in the case of the voluntary withdrawal of the arbitration manager by his own decision;
• – in other cases provided by law.

Replacement of the arbitration manager: removal from duties. Possibly by decision of the arbitration court in the following cases:

• replacement of the arbitration manager is possible if, after the appointment of the arbitration manager, circumstances are identified that impede the appointment of the arbitration manager, including his non-compliance with the formal requirements for the candidacy of the arbitration manager.
• a change of arbitration manager is possible by decision and corresponding petition of the creditors’ committee to the arbitration court (clause 3 of Article 17 of the Bankruptcy Law). It is necessary to prove the failure or improper performance by the arbitration manager of the duties assigned to him by federal laws or federal performance standards.
• replacement of the arbitration manager is possible by decision and corresponding petition of the general meeting of creditors to the arbitration court (clause 2 of Article 15 of the Bankruptcy Law). It is necessary to prove the failure or improper performance by the arbitration manager of the duties assigned to him by federal laws or federal performance standards.
• a change of arbitration manager may occur at the request of persons participating in the bankruptcy case; the arbitration court may remove the arbitration manager (clause 1 of Article 20.04 of the Bankruptcy Law). It is necessary to prove the failure or improper performance by the arbitration manager of the duties assigned to him by federal laws or federal performance standards.
• The replacement of an arbitration manager is possible at the request of the SRO of arbitration managers upon receipt of information about his disqualification for committing an administrative offense. This information is considered by the arbitration court and leads to the automatic removal of the latter from performing the duties of an arbitration manager (clause 3 of Article 20.04 of the Bankruptcy Law).
• at the request of the SRO of arbitration managers in the event of their expulsion from their members (clause 2 of Article 22 of the Bankruptcy Law).

The ruling of the arbitration court on the removal of the arbitration manager may be appealed. However, it is subject to immediate execution and the fact of appeal does not suspend the determination to remove the arbitration manager.

Self-regulatory organization of professional arbitration managers.

The organization that unites arbitration managers, introduces and maintains standards for their activities, and provides the arbitration court with a list of temporary managers is called “Self-regulatory organization of professional arbitration managers.” Here are examples of such companies: Non-profit partnership “Ural Self-Regulatory Organization of Arbitration Managers”, Non-profit partnership “Self-Regulatory Organization of Arbitration Managers “Alliance” and many others. By law, insolvency practitioners have membership in an SRO.

A unique professional community, which unites leading experts in the field of jurisprudence, economics and management, effectively engaged in anti-crisis management, is not an independent organizational and legal form of a legal entity, but must be clothed in one of the well-known organizational and legal forms that meet certain characteristics. This must be a non-profit organization, which, firstly, is based on membership, secondly, created by citizens, and thirdly, the purpose of its activity is to regulate and ensure the activities of its members.

Information about arbitration managers

Information about arbitration managers is contained in the consolidated state register of arbitration managers on the website of the Federal Service for State Registration, Cadastre and Cartography (Rosreestr).

Arbitration manager salary

The amount of remuneration of the arbitration manager, regardless of the form of bankruptcy, the arbitration manager receives a remuneration, the amount of which is determined by the arbitration court. It depends on the size of the enterprise; as a rule, it is quite large, but it extremely rarely reaches a very high level due to the poor situation of the enterprises. In this case, funds to pay for his labor are generated either as a result of auctions for the sale of the debtor’s property. If there is no money left to pay off the obligations to the creditors to pay remuneration to the arbitration manager, then there is the possibility of the arbitration manager receiving additional remuneration at the expense of the creditors’ funds.

The Federal Law “On Bankruptcy” ruled that the arbitration manager has the right to remuneration and full reimbursement of expenses for the performance of duties in the case. The remuneration is paid by the debtor (unless otherwise provided by law) and consists of principal and interest (charges). The arbitration court has the right to increase the amount of remuneration.

• The fixed amount for a temporary manager is 30 (thirty) thousand rubles per month, for an administrative manager - 15 thousand rubles per month, for an external manager - 45 thousand rubles per month, for a bankruptcy manager - 30 thousand rubles.
• Interest is paid upon completion of the case within 10 calendar days, and their amount depends on the book value of the debtor’s assets (from 4%), as well as on the type of arbitration manager (temporary, bankruptcy, external, administrative). For example, the book value of the assets of OJSC Mint was 65,490 thousand rubles. 4% of the specified amount – 2619 thousand rubles.

Problems of the arbitration manager

Problems arising in the course of the activities of arbitration managers remain among the most “painful” in the Russian system of insolvency legislation. Arbitration courts are faced with numerous facts of incompetent and sometimes dishonest conduct of the debtor’s affairs by arbitration managers. Practice shows that the problems raised after the introduction of self-regulatory organizations of arbitration managers into the competitive process became even more aggravated. I would like to use specific examples to look at several legal problems that arbitration managers have to face.

One of the problems is the fee. To acquire the status of an Arbitration Manager, a citizen of the Russian Federation registered as an individual entrepreneur must, in addition to the requirements specified in Article 23 of the Federal Law “On Insolvency (Bankruptcy”), insure civil liability in the amount of 3 million rubles. and make a contribution to the compensation fund of the self-regulatory organization of arbitration managers in the amount of 50 thousand rubles. Another problem is the requirement of a manager-entrepreneur, according to which the current Russian legislation requires the arbitration manager to be registered as an individual entrepreneur. But the functions of an arbitration manager do not fall under the definition of entrepreneurial activity. Current Russian legislation requires the arbitration manager to be registered as an individual entrepreneur. However, the functions of the arbitration manager do not fall under the definition of entrepreneurial activity, since the arbitration manager performs public legal functions. Also, according to the new law, either an organization of managers or a state body for bankruptcy cases can nominate a manager. And the criteria for the candidate are not clear, and innovations will not only not strengthen the independence of the manager, but, on the contrary, will increase his dependence on creditors and officials. Control over arbitration managers was also introduced by the court, but this control consists of considering complaints about the actions (inaction) of arbitration managers; the main control is concentrated in self-regulatory organizations.

Within the framework of this issue, we will consider materials from judicial practice.

According to information from the Arbitration Court of the Chelyabinsk Region, in 2010 the number of appeals and applications regarding the inaction of arbitration managers increased.

For comparison, in 2009, only 3 complaints were recorded against the actions of arbitration managers, and in 2010, 27 complaints were received.

This is due to increased control by the authorized body - the Federal Tax Service of Russia. For ten months of 2007, of all complaints received, 96% were initiated by the authorized body.

According to Art. 223 of the Arbitration Procedure Code of the Russian Federation, bankruptcy cases are considered by an arbitration court according to the rules provided for by the Arbitration Procedure Code of the Russian Federation, with the features established by federal laws governing issues of insolvency (bankruptcy).

Clause 3 art. 17 and paragraph 3 of Art. 60 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)” establishes the possibility of appealing to the arbitration court the actions of the arbitration manager.

The law in paragraph 1 of Art. 22 gives the right to the SRO to apply to the arbitration court with a petition to remove from participation in the bankruptcy case its members whose actions have been established as violations of bankruptcy legislation, or in cases where circumstances arise that prevent the person from being approved as a temporary, administrative, external or bankruptcy trustee, if such circumstances arose after the approval of the arbitration manager.

Replacement of the arbitration manager

One of the ways to replace an arbitration manager within the framework of an enterprise insolvency (bankruptcy) case is to voluntarily resign his powers and appoint a new manager by the court. A number of rules for such replacement are established by Articles 24, 45, 60 in the chapter “General Provisions” of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”. The rules governing this issue are also contained in the chapters of the Law “Financial recovery”, “External management”, “Competition proceedings” (Articles 83, 97, 144), but the chapter “Monitoring” ignores it.

The regulation of the replacement of an arbitration manager in the Bankruptcy Law has certain gaps, which creates problems not only for the monitoring procedure, but also for other bankruptcy procedures. These problems and possible ways to resolve them will be discussed in this article.

Studying Art. Art. 83, 97, 144 of the Law shows that for financial recovery, external management and bankruptcy proceedings the same rules are provided for the release of an arbitration manager in the event of his voluntary resignation, which boil down to the following. The arbitration manager submits an application to the court to relieve him of his duties. With its ruling, the court may satisfy the manager’s application. Such a determination is subject to immediate execution and may be appealed. An insolvency administrator released from his duties is obliged to ensure the transfer of the debtor’s accounting and other documentation, seals and stamps, material and other valuables within three days to the newly approved external administrator. Regarding the appointment of a new manager, Art. Art. 83, 97, 144 of the Bankruptcy Law contain a reference to Art. 45 “Procedure for approval of an arbitration manager.”

Now let’s move on to the questions that arise due to the absence of rules for replacing a temporary manager in the “Observation” chapter. Let's consider the very possibility of the voluntary resignation of the interim manager. The basis for doubt is the fact that in the chapter “Observation”, unlike the chapters “Financial recovery”, “External management”, “Competition proceedings”, not a word is said about this.

According to Art. 24 “Rights and Obligations of an Arbitration Manager”, an arbitration manager approved by the arbitration court has the right to submit to the arbitration court an application for early termination of the performance of his duties. This article is located in the “General Provisions” chapter and, therefore, as being of a general nature, should be applied in all bankruptcy procedures. It follows from this that, in principle, the Law establishes the possibility of resignation of a temporary manager at his own request. If such a possibility exists, then in what order should the release be carried out? The absence of any guidance on this issue in the chapter “Observation” creates the need to apply general rules.

Article 60 of the Law establishes general rules for the consideration of any applications and petitions of insolvency practitioners. Therefore, the consideration of the arbitration manager’s application for voluntary resignation is subject to regulation by this article, taking into account the special provisions of individual chapters of the Law, as well as the rules of the Arbitration Procedure Code of the Russian Federation establishing the rules for conducting a court hearing (Articles 154, 155, etc.):

a) consideration of the application of the arbitration manager is carried out by the judge alone;

b) the issue must be considered no later than one month from the date of receipt of the manager’s application;

c) minutes are kept at the court hearing;

d) based on the results of consideration of the application of the arbitration manager, a ruling is made.

It is worth dwelling in more detail on the problems caused by the fact that the voluntary resignation of a temporary manager is regulated only by the norms of the general provisions of the Law, in contrast to the resignation of other arbitration managers.

1) In Art. 60 of the Law does not say about the moment of execution of the court ruling. But according to Art. Art. 83, 97, 144, the ruling on the release of the administrative, external, or bankruptcy trustee, respectively, is subject to immediate execution.

The absence of such an indication in the chapter “Observation” leads to the need to apply the general rule of arbitration procedural legislation. This rule is established by Art. 187 of the Arbitration Procedure Code of the Russian Federation “Execution of a determination”, a determination made by an arbitration court is executed immediately, unless otherwise established by the Arbitration Procedure Code of the Russian Federation or the arbitration court. From this we can conclude that the court has the opportunity to postpone the execution of the ruling on release from the duties of a temporary manager. This is absolutely illogical, since the meaning of releasing a manager from performing duties is to actually exclude the manager’s ability to exercise the rights and obligations assigned to him by the Law. It seems that in this matter in the monitoring procedure the regulation should be the same as in other bankruptcy procedures.

2) V. Art. Art. 83, 97, 144 of the Law establishes that a determination to relieve an administrative, external, or bankruptcy trustee from performing duties may be appealed. Such an instruction obliges the application of Part 3 of Art. 223 of the Arbitration Procedure Code of the Russian Federation, which establishes that the determinations made by the arbitration court when considering cases of insolvency (bankruptcy) and the appeal of which is provided for by the Arbitration Procedure Code of the Russian Federation and other federal laws governing issues of insolvency (bankruptcy), separately from the judicial act that ends the consideration of the case on Essentially, they can be appealed to the arbitration court of appeal within ten days from the date of their issuance.

Thus, there is the possibility of an appeal against the determination of exemption from the duties of an administrative, external, bankruptcy trustee with a special, ten-day appeal period, and then an appeal in cassation.

The absence in the chapter “Monitoring” of an indication of the possibility of appealing the determination of release from the duties of a temporary manager leads to the need to apply the general rule of paragraph. 4 paragraphs 1 art. 60 of the Law, which provides that a ruling made at the request of an arbitration manager may be appealed in the manner and within the time limits established by the Law.

The procedure for reviewing rulings made in a bankruptcy case is regulated in general terms by Art. 61 of the Law. This article allows only two options for appealing determinations. For determinations related to establishing the size of creditors' claims, appeals are carried out in accordance with the Arbitration Procedure Code of the Russian Federation (clause 2 of Article 61 of the Law), that is, under Art. 223 Arbitration Procedure Code of the Russian Federation. For other rulings of the arbitration court that were adopted in the framework of a bankruptcy case, but are not provided for by the Arbitration Procedure Code of the Russian Federation and in respect of which it is not established that they are subject to appeal, appeal is carried out only through the appeal procedure no later than fourteen days from the date of adoption of the ruling (clause 3 Article 61 of the Law).

But the fact that the Bankruptcy Law in paragraph 1 of Art. 60 refers to other norms of this Law and at the same time does not introduce such norms, creating some uncertainty in the issue under consideration.

It seems that in relation to the determination of the release of the temporary manager from performing duties in connection with voluntary resignation, Part 3 of Art. 223 of the Arbitration Procedure Code of the Russian Federation, despite the instructions of Art. 60 of the Law on appeal in the manner prescribed by the Law itself. This conclusion is justified by the following circumstance. Only the establishment in the Law of the procedure and deadlines for appealing a determination made under Art. 60 of the Bankruptcy Law can be recognized as establishing features in the Law that would preclude the application of the rules of Part 3 of Art. 223 of the Arbitration Procedure Code of the Russian Federation, - see, in accordance with clause 1 of Art. 32 of the Bankruptcy Law, bankruptcy cases are considered by the arbitration court according to the rules provided for by the Arbitration Procedure Code of the Russian Federation, with the features established by the Law. Thus, since the features of appealing a ruling made under Art. 60, the Law has not established whether the APC of the Russian Federation is subject to application.

The existing uncertainty would be removed by including in the chapter “Observation” a rule similar to that contained in the chapters that regulate other bankruptcy procedures, which would establish the possibility of appealing the determination, which would automatically entail the application of Art. 223 Arbitration Procedure Code of the Russian Federation.

3) The absence in this chapter of an indication of the obligation of the released temporary manager to ensure the transfer of documentation, seals, and valuables to the newly approved manager can lead to corresponding abuses and serious adverse consequences for the bankruptcy procedure of the enterprise as a whole. Therefore, the chapter “Observation”, in my opinion, needs to be supplemented with a norm similar to those contained in Articles 83, 97, 144 of the Law

It seems that the Bankruptcy Law does not sufficiently regulate the voluntary resignation of a manager in other bankruptcy procedures.

a) In Art. 60 of the Bankruptcy Law does not say anything about the persons who must be notified of the meeting to consider applications and petitions of the arbitration manager. There is no other article of a general nature that would determine which Persons must be visited at a court hearing in a bankruptcy case.

In the absence of special norms of the Law, the norms of the Arbitration Procedure Code of the Russian Federation (Part 1, Article 223) must be applied. The persons participating in the case are notified of any court hearing (Part 1, Article 153). Therefore, it is necessary to notify the persons about the meeting on the issue of the release of the arbitration manager participating in the bankruptcy case. This conclusion is indirectly confirmed by the following. The Law mentions judicial notice in only six articles - Art. Art. 42, 48, 69, 88, 158, 165 Analysis of these articles shows that the indication of the need for judicial notification is associated, as a rule, with situations when the list of persons subject to notification includes not only those who, according to Art. 34 of the Law are persons participating in a bankruptcy case. Consequently, the Law is silent about which persons must be notified of the meeting, precisely when only the persons participating in the case must be notified (Article 34).

b) It is impossible not to note the gaps in the regulation of the procedure for appointing a new arbitration manager. Articles 83, 97, 144 of the Law on this issue provide only a reference to Art. 45, establishing the general procedure for approving an arbitration manager. The chapter “Observation” does not contain such a reference, but the question of whether Art. 45 of the Law for the approval of a temporary manager should not arise, because this article is of a general nature and, accordingly, is applied in supervision. To eliminate possible questions, it is advisable to supplement the “Observation” chapter with a link to the specified article.

However, the very application of Art. 45 does not solve all the problems, since this article, like other articles of the Law, does not determine whether it is possible, temporarily, until the appointment of a new arbitration manager, to perform the duties released by the manager; there is no mention of the timing of the appointment of a new manager.

If you try to answer the questions posed, the first thing you should pay attention to is the absence in the Law of the figure of a “temporary arbitration manager” like “temporary executive bodies”, which are provided for in Art. 69 Federal Law “On Joint Stock Companies”. From this we can conclude that there is no legal possibility of appointing an interim arbitration manager. This conclusion is confirmed by a number of articles of the Law. So, the content of Art. 24 “Rights and obligations of the arbitration manager” and Art. 34 “Persons participating in a bankruptcy case” allows us to conclude that only an insolvency administrator legally approved by the court can conduct bankruptcy procedures. For example, according to paragraph 3 of Art. 2 the arbitration manager, approved by the arbitration court, has the right to convene a meeting of creditors, a committee of creditors, etc. In addition, in accordance with paragraph 9 of Art. 20 of the Law, only arbitration managers approved by the arbitration court are procedural successors of previous arbitration managers. And an arbitration manager can only be approved in accordance with Art. 45 of the Law.

Only in an exhaustive list of cases does the Law directly speak about the temporary performance of duties by an arbitration manager, namely in Art. Art. 75, 83, 123. And all these situations are associated with the transition from one bankruptcy procedure to another. For example, according to paragraph 3 of Art. 123 in the event that the arbitration court has decided to declare the debtor bankrupt and to open bankruptcy proceedings and has appointed another person as the bankruptcy trustee, or if it is impossible to approve the bankruptcy trustee simultaneously with the adoption of such a decision, the external manager performs the duties of the bankruptcy trustee until the date of approval of the bankruptcy trustee.

But in relation to cases of release of insolvency practitioners from performing their duties, the Law does not provide for the possibility of temporarily assigning the performance of duties to the released insolvency administrator or to any other person. Consequently, we can conclude that the release of the arbitration manager involves simultaneously replacing him with a new manager.

This conclusion is also confirmed by the following.

Firstly, in accordance with Art. Art. 83, 97, 144 of the Law, the ruling on the release of the arbitration manager is subject to immediate execution. It would be strange, given the existence of such a requirement, to recognize as based on law the possibility for an arbitration manager, relieved of his duties, to continue working at the debtor enterprise as an arbitration manager. In the financial recovery procedure, this would also contradict paragraph 2 of Art. 83 of the Law, according to which the administrative manager acts from the date of his approval by the arbitration court until the termination of financial recovery or until his removal or release by the arbitration court.

Secondly, in accordance with the requirements of Articles 83, 97, 144 of the Law, the released arbitration manager is obliged to ensure the transfer of the debtor’s accounting and other documentation, seals and stamps, material and other valuables within three days to the newly approved external manager.

If, when an arbitration manager is released, a new one is not appointed, the question arises, to whom should the released manager transfer the documentation?

The following conclusion seems logical: at the meeting it is necessary to consider two issues simultaneously: the release of the arbitration manager and the appointment of a new one. In this case, it should be assumed that after accepting the application of the arbitration manager for early termination of the performance of his duties, the court should send a request to the self-regulatory organization of arbitration managers to provide a list of candidate managers. Then you need to schedule a meeting to consider the release of the current one and the appointment of a new arbitration manager. When determining the date of the hearing, the court must take into account that, in accordance with paragraph 3 of Art. 45 of the Law, a self-regulatory organization is given a five-day period to respond to the court’s request. It will also take a reasonable time for the debtor and the representative of the meeting of creditors to receive the list of this organization and for both the debtor and the representative of the meeting of creditors to exercise their right to challenge one of the candidates indicated in the list.

If at the date of the meeting it is not possible to consider both issues, the meeting, I believe, should be postponed. Indirect confirmation of this conclusion can also be found in the Law. In accordance with paragraph 3 of Art. 49, if, when making a ruling on the introduction of supervision, it is impossible to determine the candidacy of a temporary manager, the arbitration court issues a ruling to postpone the consideration of the issue of approving a temporary manager for a period of no more than fifteen days from the date of the ruling on the introduction of supervision. This article of the Law regulates the introduction of surveillance. The reasonableness of the cited rule is beyond doubt: it is clear that in the absence of a person responsible for the introduced procedure, the procedure cannot be introduced for the simple reason that there is no one to manage it.

A similar logic, I believe, applies when deciding on replacing a manager. As already noted. The law excludes the possibility of continuing the work of an arbitration manager relieved of his duties. Consequently, if at the time the relevant determination is made there is no candidate for appointment, there is no person who would begin management of the debtor’s enterprise. It seems that this situation is similar to the one described. That is why, in the absence of a candidate for the position of a new arbitration manager, the meeting to consider the issue of releasing the current manager should be postponed.

The stated conclusion is based solely on an analysis of the norms of the current Bankruptcy Law and only means that it is unlawful to appoint a “temporary arbitration manager” in the event of release from the duties of the manager due to his voluntary resignation.

In my opinion, depending on the specific circumstances of the case, it could be considered reasonable to temporarily assign the duties of an arbitration manager to a manager released by a court ruling (as opposed to the case with the removal of an arbitration manager). However, this requires making appropriate changes to the Law.

The absence in the Law of an article establishing the procedure for exemption from duties and the appointment of a new temporary manager, as well as articles of a general nature that comprehensively regulate the procedure for replacing an arbitration manager in all bankruptcy procedures, should be recognized as an omission of the legislator. It seems that this gap needs to be filled as soon as possible in order to avoid difficulties in practice.

If the arbitration manager leaves the self-regulatory organization of arbitration managers, this organization is obliged to send to the arbitration court a petition for the release of the arbitration manager from performing the duties assigned to him in the bankruptcy case within fourteen working days from the date of the decision on termination by the permanent collegial management body of the self-regulatory organization membership of an arbitration manager in a self-regulatory organization in connection with his withdrawal from this organization. The arbitration court, at the request of a self-regulatory organization, relieves the arbitration manager from performing the duties assigned to him in a bankruptcy case. If the petition of the self-regulatory organization has not been received by the arbitration court within twenty days from the date of the decision by the permanent collegial management body of the self-regulatory organization to terminate the membership of the arbitration insolvency practitioner in the self-regulatory organization, the persons participating in the case have the right to declare that the arbitration insolvency practitioner is released from execution duties assigned to him in the bankruptcy case and on the basis of such a petition, the arbitration court relieves the arbitration manager from performing the duties assigned to him in the bankruptcy case.

2. If a self-regulatory organization of arbitration insolvency practitioners identifies facts of non-compliance of the arbitration insolvency practitioner with the terms of membership established by the self-regulatory organization of which he is a member, including the requirements established by the self-regulatory organization for the competence, integrity and independence of the insolvency administrator, the identification of circumstances that impede the approval of the arbitration insolvency practitioner in the case of bankruptcy, including those arising after such approval, identification of facts of non-fulfillment or improper performance by the arbitration manager of the duties assigned to him in bankruptcy cases, the permanent collegial management body of the self-regulatory organization of arbitration managers makes a decision to apply to the arbitration court with a petition for the release of the arbitration manager from fulfillment of the duties assigned to him in the bankruptcy case. The self-regulatory organization of insolvency practitioners sends to the arbitration court a petition to relieve the insolvency administrator from performing his duties in a bankruptcy case within fourteen working days from the date of such a decision.

The arbitration manager may be either removed or released from performing the duties assigned to him on the basis of a ruling of the arbitration court, which is subject to immediate execution. The difference between debarment and release is that debarment is a sanction for failure to perform or improper performance by the arbitration manager of his duties. The release of the arbitration manager is not related to the failure or improper performance by the arbitration manager of his duties.

According to Art. 20.5, paragraph 4 of Art. 65, paragraph 5, art. 83, art. 97, Art. 144 Federal Law “On Insolvency (Bankruptcy)” definition of release the arbitration manager may be rendered by the arbitration court during all bankruptcy procedures on the basis of:

Applications of the arbitration manager for his release from performing the duties of the arbitration manager;

Petitions from the self-regulatory organization of insolvency practitioners (hereinafter referred to as SRO), of which he is a member. Such a petition must be sent by the SRO to the arbitration court in the event of the arbitration manager leaving the SRO within fourteen working days from the date the permanent collegial management body of the SRO makes a decision to terminate the membership of the arbitration manager in the SRO in connection with his withdrawal from this organization. If the SRO's petition is not received by the arbitration court within twenty days from the date of the decision taken by the permanent collegial management body of the SRO to terminate the membership of the arbitration manager in the SRO, the persons participating in the case have the right to declare the release of the arbitration manager and on the basis of such a petition the arbitration court releases the arbitration manager.

In paragraph 3 of Art. 107 of the Federal Law “On Insolvency (Bankruptcy)” establishes another basis for the release of an arbitration manager. In accordance with this norm, when considering an external management plan, a meeting of creditors may decide to reject the external management plan and release the external manager. If we consider this rule from a formal point of view, it turns out that the basis for the removal of the arbitration manager is not the ruling of the arbitration court, but the decision of the meeting of creditors. I think this interpretation is incorrect. The basis for termination of the powers of the arbitration manager can only be a ruling of the arbitration court. The above norm establishes the basis for making such a determination.

Regarding the removal of the arbitration manager, the arbitration court may make an appropriate determination on the following grounds:

1. At the request of a person participating in the case, in connection with non-fulfillment or improper fulfillment of the duties assigned to the arbitration manager in accordance with the Federal Law “On Insolvency (Bankruptcy)” or federal standards (Clause 1, Article 20.4 of the Federal Law “On Insolvency (Bankruptcy)”). Based on this norm, persons who are not parties to the insolvency case cannot demand the removal of the insolvency practitioner.

The chapters governing insolvency proceedings indicate that such a requirement can be satisfied if two conditions are met simultaneously. Firstly, failure to perform or improper performance of duties must violate the rights or legitimate interests of the applicant of the complaint. Secondly, it entails or may entail losses for the debtor or his creditors (these conditions follow from paragraph 3 of Article 65, paragraph 5 of Art. 83, Article 98, Article 145 of the Federal Law “On Insolvency (Bankruptcy)”.

2. At the request of the meeting of creditors. The decision to file a petition for removal is made by a majority vote of the total number of votes of creditors who have the right to vote at the meeting according to the register (Clause 2 of Article 15 of the Federal Law “On Insolvency (Bankruptcy)”). The committee of creditors may submit a recommendation for removal to the meeting of creditors (clause 3 of Article 17 of the Federal Law “On Insolvency (Bankruptcy)”). From the contents of paragraph 5 of Art. 83, Art. 98, art. 145 of the Federal Law “On Insolvency (Bankruptcy)” it follows that such a petition can be filed in the event of failure or improper performance by the arbitration manager of the duties assigned to him (during external administration, also in the event of failure to implement the measures provided for in the external administration plan to restore solvency).

During bankruptcy proceedings, a petition for removal may be submitted by the creditors’ committee, since the resolution of this issue is not within the exclusive competence of the creditors’ meeting (Article 145 of the Federal Law “On Insolvency (Bankruptcy)”).

If the arbitration court's ruling on the removal of the arbitration manager from performing these duties for non-fulfillment or improper performance is cancelled, the arbitration manager shall not be reinstated by the arbitration court to perform these duties.

3. In case of exclusion of the arbitration manager from the SRO(Clause 2 of Article 20.4 of the Federal Law “On Insolvency (Bankruptcy)”). The basis for exclusion from the SRO may be a violation by the arbitration manager of the terms of membership in the SRO, violation by the arbitration manager of the requirements of the Federal Law “On Insolvency (Bankruptcy)”, other federal laws, other regulatory legal acts of the Russian Federation, federal standards, standards and rules of professional activity.

The removal of the arbitration manager from the performance of his duties is carried out by the arbitration court on the basis of an application from the SRO. In case of cancellation or invalidation of the decision to exclude the arbitration manager from the SRO, which served as the basis for the dismissal of the approved arbitration manager by the arbitration court, he cannot be reinstated by the arbitration court to fulfill the duties of the arbitration manager (paragraph 2, clause 2, article 20.4 of the Federal Law “On Insolvency”) (bankruptcy)").

In paragraph 3 of Information Letter No. 88 dated December 30, 2004 “On some issues related to the approval and removal of arbitration managers,” the Presidium of the Supreme Arbitration Court of the Russian Federation recommended that arbitration courts be guided by the fact that if there is a case in the arbitration court related to a challenge by the arbitration manager of the SRO decision to exclude him from the membership of the SRO, the court may suspend the proceedings initiated at the request of the organization until the consideration of the case at the request of the arbitration manager in accordance with clause 1, part 1 of Art. 143 of the Arbitration Procedural Code of the Russian Federation.

4. In case application to the arbitration manager of punishment in the form of disqualification for committing an administrative offense (Clause 3, Article 20.4 of the Federal Law “On Insolvency (Bankruptcy)”. The petition for the removal of the arbitration manager on this basis is sent to the SRO arbitration court within three working days from the date of receipt of the notice of disqualification of the arbitration manager.

The cancellation of a judicial act on the disqualification of an arbitration manager is not a basis for reinstatement by the arbitration court to perform the duties assigned to him in a bankruptcy case.

5. If circumstances are identified that prevent the person from being approved by the arbitration manager, including if such circumstances arose after the person was approved by the arbitration manager (clause 3 of Article 65, clause 5 of Article 83, Article 98, Article 145 of the Federal Law “On Insolvency (Bankruptcy)”). Within the meaning of the law, on this basis, the arbitration manager may be removed at the initiative of the arbitration court.

For example, on this basis, an arbitration manager should be removed if, after his approval, it turns out that he has a fake diploma of higher professional education. Also, the arbitration manager will be removed from performing the duties of an arbitration manager if, after approval, he is convicted of an intentional crime.

Circumstance an obstacle to the approval of a person by the arbitration manager and that arises after approval is the failure of the arbitration manager to submit to the court a document on additional insurance of his liability in the event of damages to the persons participating in the case. According to Art. 24.1 of the Federal Law “On Insolvency (Bankruptcy)”, such insurance is necessary if the book value of the debtor’s assets exceeds one hundred million rubles. The manager must insure his liability and submit the relevant documents to the court within 10 days from the date of his approval by the court.

In paragraph 12 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 8, 2003 No. 4 “On some issues related to the implementation of the Federal Law “On Insolvency (Bankruptcy)” it is indicated that removal on this basis can be initiated as participants in a bankruptcy case, and participants in the arbitration process in a bankruptcy case. On this basis, the arbitration manager can also be removed at the initiative of the court.

In the current Federal Law “On Insolvency (Bankruptcy)” there is no general rule granting the arbitration court the right, on its own initiative, to remove the arbitration manager in the event of failure or improper performance of the duties of the arbitration manager, in the absence of a requirement for removal (complaint) either from a participant in the case or from the meeting creditors.

The special rules of law governing insolvency procedures (clause 3 of article 65, clause 5 of article 83, article 98, article 145 of the Federal Law “On Insolvency (Bankruptcy)”) establish that the arbitration manager may be removed by the arbitration court from fulfillment of their duties in connection with the court's satisfaction of the complaint of a person participating in the bankruptcy case. The question arises: can the court, without a requirement for removal in the complaint, remove the arbitration manager in the presence of the conditions established by law? According to V.V. The Vitryansky court, on its own initiative, cannot remove the arbitration manager. It seems that in this case we are dealing with a legislative miscalculation that requires adjustment. One of the functions of the court in an insolvency case is the control function. The court must have the ability to promptly respond to violations of the law by the insolvency practitioner. And this opportunity should not be associated only with the initiative of the participants in the case.

In paragraph 2 of Art. 21FZ “On Insolvency (Bankruptcy)” of 1998 there was such a norm.

Bankruptcy and liquidation in the light of judicial practice (interview with V.V. Vitryansky, Deputy Chairman of the Supreme Arbitration Court of the Russian Federation) // Law. 2007. No. 7.

Related information.

In the _____________________ arbitration court Applicant: ____________________________ (full name of the arbitration manager) address: ________________________________ _______________________________________, telephone: ___________, fax: __________, email. mail: ____________________________ Representative of the applicant: ______________ (data taking into account Article 59 of the Arbitration Procedure Code of the Russian Federation) address: ________________________________, telephone: ___________, fax: __________, email. mail: ____________________________ Case N ________________________________ Debtor: ______________________________ (name or full name) address: ________________________________ _______________________________________, telephone: ___________, fax: __________, email. mail: ____________________________ Creditor: _____________________________ (name or full name) address: _______________________________, telephone: ___________, fax: __________, email. mail: ____________________________

APPLICATION for exemption from fulfillment of assigned duties in a bankruptcy case

The applicant is an arbitration manager in the bankruptcy case __________________, which is confirmed by _____________________________.

The applicant was appointed arbitration manager in this case from "___"________ ___.

However, the Applicant can no longer perform the duties assigned to him for the following reasons: ___________________________, as confirmed by _____________________.

In accordance with paragraph. 8 clause 1 art. 20.3 of the Federal Law “On Insolvency (Bankruptcy)”, the arbitration manager in a bankruptcy case has the right to submit to the arbitration court an application for exemption from the performance of duties assigned to him in a bankruptcy case.

In connection with the above and on the basis of paragraph 1 of Art. 20.3 of the Federal Law "On Insolvency (Bankruptcy)"

ASK:

Release the Applicant from performing the duties of an arbitration manager assigned to him in the bankruptcy case _________________________.

Applicant (Representative) "__"_________ ___ _________________________/_____________/ (signature)