Procedures applied in bankruptcy cases. Procedures applicable to a debtor in a bankruptcy case

IN Russian Federation The bankruptcy procedure for enterprises is carried out in accordance with the law “On the insolvency (bankruptcy) of enterprises”, which came into force on March 1, 1993 in accordance with the resolution of the Supreme Council of the Russian Federation of November 19, 1992.

At the moment, along with the Law of the Russian Federation “On the Insolvency (Bankruptcy) of Enterprises,” a number of regulatory documents have been adopted, which develop criteria for insolvency and ways to overcome the crisis: Decree of the President of the Russian Federation of June 2, 1994 No. 1114 “On the sale of state-owned enterprises-debtors” , Decree of the Government of the Russian Federation of May 20, 1994 No. 498 “On some measures to implement legislation on the insolvency (bankruptcy) of enterprises.” Decree of the Government of the Russian Federation of April 25 No. 421 “On additional measures to implement the legislation of the Russian Federation on the insolvency (bankruptcy) of enterprises and organizations”, order of the Federal Administration for Insolvency (Bankruptcy) (Federal Administration) dated August 12, 1994 No. 31- r “On approval of the Methodological Regulations for Assessing the Financial Condition of Enterprises and Establishing an Unsatisfactory Balance Sheet Structure”, Federal Administration Order No. 56-r dated September 12, 1994, which approved the Temporary Methodological Recommendations for assessing the financial condition of enterprises with signs of insolvency, and the Federal Administration Order dated December 5, 1994 No. 98-r “On approval of the standard form of a financial recovery plan (business plan), the procedure for its approval and methodological recommendations for the development of financial recovery plans.”

Research and analysis of the fundamentals of the current legislation of the Russian Federation, regulations on the insolvency (bankruptcy) of enterprises allows us to conclude that it is sufficient to take into account and generalize in them the existing legal practice of Western European countries.

At the same time, it should be noted that there are some fundamental differences in the mechanism for implementing bankruptcy, which positively distinguish Russian legal aspects, in particular: organizational support through the Federal Department for Insolvency (Bankruptcy) under the State Committee for State Property Management, designed to implement anti-crisis public policy , a system of arbitration and bankruptcy trustees, independent expert and audit firms; clear time regulation of all judicial and extrajudicial bankruptcy procedures; establishing precise quantitative criteria for insolvency and the concept of unsatisfactory balance sheet structure; unambiguity in the order and priority of satisfying creditors' claims; conditions for providing state support, etc.

In accordance with the Law of the Russian Federation “On the Insolvency (Bankruptcy) of Enterprises,” the insolvency (bankruptcy) of an enterprise is understood as the inability to satisfy creditors’ demands for payment for goods (works, services), including the inability to ensure mandatory payments to the budget and extra-budgetary funds. At the same time, this Law applies to enterprises engaged in entrepreneurial activities, legal entities or those not forming legal entity entrepreneurs or citizens; and creditors are considered individuals and legal entities that have property claims against the debtor and are not holders of security rights. The basis for initiating insolvency (bankruptcy) proceedings of an enterprise is an application from the debtor or creditor (creditors), the prosecutor, as well as the Federal Administration and (or) the territorial agency of the Federal Administration (territorial agency). The federal administration (through territorial agencies at the location of the debtor enterprise) submits to the arbitration court an application for declaring this enterprise insolvent (bankrupt) independently, if the head of the federal state enterprise within deadline failed to comply with the order of the Federal Administration containing a mandatory order for the head of the enterprise to submit an application to the arbitration court to initiate proceedings on the insolvency (bankruptcy) of the enterprise (see Table 1.1).

The debtor's application to initiate insolvency (bankruptcy) proceedings of an enterprise is submitted on the basis of a decision of the owner of the debtor enterprise or the body authorized to manage the debtor's property, or the governing body of the enterprise, which has the right to make such a decision in accordance with the constituent documents.

An external sign of insolvency is the suspension of current payments (the enterprise does not ensure or is obviously unable to ensure the fulfillment of creditors' demands within three months from the date of the deadline for fulfilling these requirements). After the expiration of the specified three-month period, creditors of the debtor enterprise receive the right to apply to the arbitration court to declare it insolvent (bankrupt). To apply to the arbitration court with such a statement from the debtor himself given period does not matter, since the debtor may know in advance about his inability to satisfy the demands of creditors. To recognize an enterprise as insolvent (bankrupt) by an arbitration court, the following signs must be present: an excess of the debtor’s obligations over its property or an unsatisfactory balance sheet structure; the inability of the enterprise to satisfy the claims of creditors due to lack of funds. The presence of these signs is determined by the arbitration court during the consideration of the case.

Cases are considered by the arbitration court if the total claims against the debtor amount to at least 500 times the minimum wage established by law.

The Law defines an unsatisfactory balance sheet structure as such a state of the debtor’s property and obligations when the timely fulfillment of obligations to creditors cannot be ensured at the expense of the property due to the insufficient degree of liquidity of the debtor’s property. In this case, the total value of the property (residual book value) may be equal to or exceed the total amount of the debtor's obligations.

Insolvency (bankruptcy) is considered to occur only after recognition of the fact of insolvency by the arbitration court or after an official announcement of it by the debtor during its voluntary liquidation. The decision on the voluntary liquidation of the debtor enterprise and on its official declaration of insolvency (bankruptcy) is made by the head of the debtor enterprise together with the creditors and approved by the owner.

The following procedures can be applied to the debtor (diagram 1.1);

• 1) reorganization;
• 2) liquidation;
• 3) settlement agreement.

Reorganization or liquidation procedures are appointed by decision arbitration court.

Reorganization procedures are aimed at maintaining the activities and recovery of the debtor enterprise in order to prevent its liquidation and contribute to the continuation of its existence. They include external management of the debtor’s property and rehabilitation (financial recovery).

External property management is a procedure aimed at continuing the activities of the debtor enterprise and carried out on the basis of the transfer of functions for managing the debtor enterprise to an arbitration manager. A petition for a reorganization procedure may be submitted by the debtor, the owner of the debtor enterprise or the creditor to the arbitration court before it makes a decision on the case. The duration of external management of the debtor's property should not exceed 18 months.

Scheme 1.1 Types of procedures applied to the debtor

Official declaration of debtor Insolvency Arbitration court decision

on voluntary liquidation (bankruptcy) of an enterprise

Reorganization procedures Liquidation procedures Settlement agreement

External Forced Voluntary Deferment Discount Addition Return

Rehabilitation management liquidation liquidation and (or) excess arrears

(recovery) of property by decision under control of installments of debts according to the amounts of the debtor to the arbitration creditors of payments to the court payments to creditors

Continuation of Bankruptcy Extrajudicial activities proceedings debtor liquidation procedures

Arbitration Meeting (committee) Director Competition for participation of the managing creditors of the enterprise

Competition Meeting (committee)

manager of creditors

Competition manager

From the owner's funds From the Federal Budget From creditors' funds From other persons' funds

and extra-budgetary funds

On a non-refundable basis Financial recovery plan On a repayable basis

(business plan) enterprises (state loan)

Issuing new shares Increasing bank loans Converting short-term Liquidation of unprofitable Merging insolvent or bonds and providing debt subsidies into long-term production and creating a new enterprise with another

Investment project Assessment of the financial viability of the reorganization and the effectiveness of the project

The basis for appointing external management of the debtor’s property is the presence of a real opportunity to restore the solvency of the debtor enterprise in order to continue its activities by selling part of its property and implementing other organizational and economic measures.

Rehabilitation (rehabilitation of a debtor enterprise) is a procedure in which the debtor enterprise is provided with financial assistance by the owner of the enterprise, creditors or other persons. The circle of persons who have the right to submit a petition to the arbitration courts for the reorganization of enterprises is the same as under the procedure for external property management.

The basis for reorganization is the existence of a real opportunity to restore the solvency of the debtor enterprise to continue its activities by providing assistance to this enterprise by the owner or other persons.

Liquidation procedures include forced liquidation of a debtor enterprise by decision of an arbitration court or its voluntary (extrajudicial) liquidation under the control of creditors. Liquidation of an enterprise due to its insolvency is carried out in bankruptcy proceedings by a specially appointed person (bankruptcy manager).

Settlement agreement is a procedure for reaching an agreement between the debtor and creditors regarding the deferment and (or) installment plan of payments due to creditors or a discount on debts.

A distinctive feature of the procedures specified in the law “On the insolvency (bankruptcy) of enterprises” is that the implementation of reorganization procedures does not lead to the termination of the enterprise’s activities, but, on the contrary, contributes to its continuation, and the liquidation of the enterprise due to its insolvency (bankruptcy) is carried out in bankruptcy proceedings by a specially appointed person (bankruptcy manager).

A distinctive feature of the settlement agreement provided for by law is due to the fact that when considering insolvency (bankruptcy) cases, arbitration courts do not consider the controversial legal relationship of the parties, but establish the fact of insolvency (bankruptcy) of a particular enterprise. Therefore, the approval of a settlement agreement by the arbitration court is not a consideration of the case on its merits.

If there is a petition for reorganization procedures and the grounds for their implementation, the arbitration court issues a ruling to suspend the insolvency (bankruptcy) proceedings of the enterprise and conduct external management of the debtor’s property or reorganization.

Naturally, the Law does not provide for a mechanism for financial analysis and thus there is no clear framework for choosing one or another anti-crisis strategy. This problem is partially resolved in Decree of the President of the Russian Federation of December 22, 1993 No. 2264 “On measures to implement legislative acts on the insolvency (bankruptcy) of enterprises,” on the basis of which the Federal Administration has the right to submit to the arbitration court an opinion on the plan for external management of the enterprise’s property - the debtor and apply for its revision on the basis of his analysis of the enterprise’s activities.

The share of non-current assets was 36.10%, while the share of intangible assets was 4.39%. The share of fixed assets was 24.39%. The share of other non-current assets amounted to 7.31% of the total assets of the enterprise.

The share of current assets in 2012 amounted to 62.9%, while a significant share of current assets was ensured by the high share of inventories, which amounted to 40.64% of the total assets of the enterprise. The share of VAT on acquired valuables in the assets of the enterprise was 3.02%. The share of accounts receivable in the assets of the enterprise amounted to 7.37%. Share Money amounted to 10.50%. The share of short-term financial investments increased compared to 2011 and amounted to 1.37%.

The share of non-current assets was 37.10%, while the share of intangible assets was 5.02%. The share of fixed assets was 25.57%. The share of other non-current assets amounted to 6.51% of the total assets of the enterprise.

The share of current assets in 2013 amounted to 62.96%, while a significant share of these assets was ensured by the high share of inventories, which amounted to 39.85% of the total assets of the enterprise.

The share of VAT on acquired valuables in the assets of the enterprise was 3.02%. The share of receivables in the organization's assets was 5.4%. The share of cash was 12.42%. The share of short-term financial investments has increased compared to previous years, but still remains at a low level and amounts to 2.27%.

The share of non-current assets was 37.04%, while the share of intangible assets was 5.83%. The share of fixed assets was 25.7%. The share of other non-current assets amounted to 5.51% of the total assets of the enterprise.

The ratio of balance sheet asset items and the dynamics of their changes are clearly shown in Fig. 1.

Figure 1 - Structure of balance sheet asset items

At the next stage, we will analyze the absolute indicators of the financial stability of the company in question.

We present the calculation results in the form of table 2.2 and formulate conclusions about the financial stability of Vector LLC for the analyzed period.

Table 2.2 - Calculation and analysis of the financial stability of the enterprise, rub.

These data indicate that during all three reporting periods there was a lack of own working capital. In 2011, the lack of own working capital amounted to 780,000 rubles. In 2012 it amounted to 542,400 rubles. In 2013, 70,480 rubles.

The lack of own and long-term borrowed working capital amounted to 440,000 rubles. in 2011. In 2012, the shortfall amounted to only 2,400 rubles. In 2013, the situation changed dramatically and the company experienced an excess of its own and long-term borrowed funds, which amounted to 499,520 rubles.

The surplus of the total value of sources of reserve formation in 2011 amounted to 950,000 rubles. In 2012, 975,000 rubles. and in 2013 it amounted to 1,070,000 rubles.

Based on the above, the financial condition of the company Vector LLC is unstable because Inventories and costs are provided to a greater extent by borrowed funds.

The financial stability of the enterprise is characterized by the following relative indicators:

) The autonomy coefficient shows the share of sources of own funds in the total balance sheet. Its value > 0.5 means that all liabilities can be covered by its own funds.

Ka = SC / VB, (1)

) The debt-to-equity ratio shows how much borrowed money is available per 1 ruble. own. The maximum value of this coefficient should be equal to one. It shows the company’s ability to involve borrowed funds in its turnover, i.e. characterizes the financial independence of the enterprise. Standard >1.

Kz/s = ZS / SK, (2)

ZS = chipboard + KSP, (3)

) Inventory and cost coverage ratio:

Kob.z.z = Amount of sources of own funds / Inventories and costs (4)

The optimal variant of the coefficient = 1. If the actual coefficient is > 1, then the surplus of own funds, if< 1, то недостаток.

) The coefficient of maneuverability of own working capital, which is determined by the ratio:

Kman = Own working capital/ Amount of sources of own funds (5)

It shows what part of the enterprise’s own funds is in mobile form, allowing relatively free maneuvering of these funds. High agility ratios positively characterize the financial condition. The standard is 0.3 - 0.6.

Where, SK - equity capital;

VB - the total value of the enterprise’s sources of funds;

ZS - borrowed funds;

DSP - long-term liabilities;

KSP - short-term liabilities.

As part of the research, it is necessary to calculate the presented indicators for the enterprise under study, and, having identified the patterns of their changes, determine possible threats and consequences, as well as the strengths and advantages of the organization. This analysis and its results are shown in the following table.

financial bankruptcy recovery creditor

Table 2.3 - Analysis of the dynamics of financial stability indicators

In 2011 and 2012 the autonomy coefficient was 0.6 and 0.7, respectively. In 2013, the autonomy coefficient increased and amounted to 0.8, i.e. the autonomy coefficient is within the normal range - this means that all obligations can be covered from the enterprise’s own funds. In 2013, the ratio shows that the share of equity capital in total assets was at least 80%.

The ratio of equity and borrowed funds in 2011 was 0.7. In 2012, the coefficient decreased and it amounted to 0.5. In 2013, the decline continued and the coefficient was 0.3. This means that for 1 rub. own funds in 2011 accounted for 0.7 rubles. borrowed money. In 2012, for 1 ruble of own funds there were 0.5 rubles. borrowed funds, and in 2013, per 1 ruble of own funds accounted for only 0.3 rubles. borrowed funds i.e. the enterprise is financially independent (from credit and other organizations), but still resorts to loans.

The supply and cost ratio increased steadily throughout the reporting period. In 2011, its value was 1.4. In 2012, the coefficient was 1.6. In 2013, it was 1.9 - this means that the company has a surplus of its own funds.

The agility coefficient is within normal limits - this positively characterizes the financial condition of the enterprise. That is, in Vector LLC, a fairly large part of its own capital is in mobile form and the enterprise can freely maneuver capital.

Financial recovery is the process of developing and implementing a set of measures aimed at improving the financial and economic condition of an enterprise. After analyzing and determining the reasons for the unsatisfactory financial condition of the enterprise, measures for financial recovery are developed.

During the assessment of the financial condition of Vector LLC, negative trends were identified that required an immediate response from management in order to avoid a serious risk to the existence of the business. Next, a preliminary plan for stabilizing the financial condition of the organization is revealed.

So, in order to develop measures to strengthen the financial condition, we need to determine the reasons for the destabilization of the financial condition of the organization. To do this, you should create a problem tree (Figure 2.2):

Figure 2.2 - Problem tree of Vector LLC

Vector LLC has established economic ties, its key counterparties are known and occupy a stable position in the market. However, this situation leads to the fact that the service organization may become dependent on the serviced one; in fear of losing a key partner, it will be forced to accept less favorable working conditions (installment payment, reduced cost of services, etc.). These circumstances lead to a slowdown in turnover and the need to attract additional third-party sources of financing.

For the financial recovery of an enterprise, there are certain stages and internal principles presented in Table 2.4.

Table 2.4 - Stages and internal mechanisms of financial recovery

For the situation in which Vector LLC is located, the most appropriate is to intensify advertising activities; in addition to non-addressed advertising, it is recommended to conduct targeted advertising - notifying potential customers about the company and its activities and offering to conclude an agreement. Active sales are especially important in case of complications in the financial situation, when there is a risk of losing existing customers, and the chance of new ones is steadily decreasing. An important recommendation for overcoming the crisis may be a change in the type of activity, the development of new industries, and a shift in emphasis to previously secondary activities.

The results of the analysis allow us to select financial recovery measures aimed at restructuring the organization’s payables (receivables), including overdue ones. The list of these measures includes the following procedures:

1. Receiving installment payments. Deferments and installment plans for payments are provided to an enterprise by changing the deadline for paying overdue debts. As a rule, deferment refers to the postponement of payment to a later date.

Installment means “stretching” the payment, splitting it into several smaller ones, carried out over a certain period.

2. Settlement of mutual claims. This offset provides for the repayment of mutual obligations of enterprises. Offsetting can be carried out with the involvement of third parties (along the chain of debts). The amount of repaid obligations is determined by agreement of the parties and is considered as the income of the enterprise, for example, as its revenue from the sale of products, if obligations to pay for products are included in the offset.

3. Novation of debt into a loan. The debt of an insolvent enterprise, including overdue debt, to other enterprises can be reissued as a loan.

Transfer of short-term liabilities into long-term ones. The transfer of short-term obligations into long-term ones is carried out by adjusting the relevant business contracts, postponing the payment terms for them for a period of more than a year. The corresponding amounts of the debtor's obligations are transferred from the category of short-term to long-term. This improves short-term liquidity indicators.

Repayment of debt by transferring the debtor's property to the creditor. Depending on the composition of the assets allocated to repay the debt and the form of transactions, the procedure under consideration has the following main varieties:

exchange of debt for shares;

repayment of debt with debt securities;

sale of debt obligations;

debt repayment secured by property;

repayment of debt through alienation of the debtor's property.

6. Debt write-off. The procedure consists of writing off the existing debt of an enterprise under obligations to a counterparty without payment or the use of other types of property. Partial debt forgiveness increases the market value of the debtor's debt obligations, which provides a win for creditors.

Vector LLC is experiencing a slowdown in inventory turnover. The company is able to get out of the crisis situation due to certain measures that management plans to take. In particular, to optimize the structure of working capital and accelerate the turnover process, it is assumed:

Reduce inventory levels to the minimum required level. The organization's analysts calculated that the value of the inventory is 275,000 rubles. is normal to ensure the smooth operation of business services. The rest is reserves for a rainy day, in case of a significant disruption in supplies, etc. Taking into account the planned efforts on the part of the marketing service, it is planned to attract stable suppliers with a proven business reputation.

Reducing the amount of inventory is achieved by releasing accumulated inventory items into production. In the event that reserves that have partially lost their properties are identified, a decision will be made to sell them as recyclable materials. In this way the organization will achieve optimal size inventory and will free up part of the warehouse space for subsequent rental.

Reduce finished product inventories. The line “finished products” reflects projects completed but not delivered to the customer. The sales department expects to actively interact with customers so that finished projects are accepted by the customer in the shortest possible time. Analysts calculated the minimum necessary supplies finished products at the level of 300,000 rubles. This amount corresponds to the volume of work completed but not accepted by the customer, or work the delivery of which is delayed due to the inability to repay the debt.

The amount of VAT refundable is planned to be reduced through the commissioning of unfinished construction for which it falls.

It is planned to reduce accounts receivable by strengthening work with debtors, switching to partial prepayment, and ensuring forced collection of debt. The amount of accounts receivable at the end of the next period is planned at RUB 105,000. This value is a kind of incentive for stable and strategically important buyers, to whom the marketing department provides a benefit in the form of installment payment for a short period (1-2 months).

It is expected that revenue will increase due to an increase in the volume of work and a slight increase in product prices. Market analysis showed that, with equal prices for products and services, Vector LLC provides more high quality and more short time fulfillment of the order. The marketing service assumes that customers are able to pay a certain amount extra for these amenities.

The second direction of work to overcome a difficult situation is to increase production profitability. This is expected to be achieved through:

Research for cheaper raw materials. Market analysis shows a glut of raw materials in the market; in addition, new capacities for the production of raw materials for the construction industry are being prepared for launch. This will inevitably lead to an excess of supply over demand, and, as a result, to a fall in price. Thus, the organization has the opportunity to obtain better raw materials at a lower price without loss in product quality.

An aggressive advertising policy, including direct sales, which will attract new customers and, consequently, increase the volume of product sales. Taking into account rising prices and lower costs, this measure will increase the amount of net profit.

In addition to direct measures to influence profitability and liquidity indicators, other, no less important, recovery measures are expected to be taken. In particular:

Optimize the volume of own and borrowed funds in the structure of the enterprise. Taking into account the highly profitable activities, Vector LLC considers it advisable to maximize the share of equity capital in the capital structure; the amount of borrowed funds at the end of the next period is expected to be 170,000 rubles, which is 3.6% of the balance sheet currency. This amount of borrowed capital will allow the organization to be completely independent of the cost of borrowed capital, and therefore have little exposure to the risk of bankruptcy even if market conditions worsen.

In general, it can be noted that the financial condition of the organization in 2014 will become more stable, because the enterprise will actually stop using borrowed funds to finance its core activities.

Thus, by applying the measures proposed in the proposed work, a limited liability company will be able to overcome a number of negative aspects and stabilize its financial condition.

CONCLUSION

Insolvency is the inability of the subject entrepreneurial activity fulfill, after the established deadline, the payment of monetary obligations to creditors, as well as fulfill obligations to pay taxes and fees no other way than through the restoration of solvency. There are three degrees of insolvency: current, critical, supercritical.

Debtor is a business entity unable to fulfill its monetary obligations to creditors within three months after the due date for their payment.

Bankruptcy is the inability of a debtor recognized by an economic court to restore its solvency and satisfy the claims of creditors recognized by the court in no other way than through the application of a liquidation procedure.

Causes of insolvency:

Objective:

natural disasters;

political disasters;

imperfection of financial, credit, tax systems;

economic and political crises;

high level of competition.

Subjective:

incompetent management;

low level of marketing research;

stock speculation;

achieving a given goal (deliberate and fictitious bankruptcy).

A bankruptcy case is considered by the Economic Court at the place of registration of the debtor on the basis of an application from creditors or the debtor himself. Bankruptcy proceedings are initiated only if the undisputed aggregate claims of creditors exceed 300 minimum amounts wages and were not satisfied within 3 months after the due date for their repayment.

Extrajudicial procedures aimed at preventing the debtor’s bankruptcy include:

providing financial assistance in an amount sufficient to repay the debtor’s obligations and restore solvency;

implementation of pre-trial rehabilitation.

The following court procedures may be taken against a debtor or bankrupt:

Disposal of the debtor's property - a system of measures for supervision and control over the management and disposal of the debtor's property in order to ensure the safety and effective disposal of the debtor's property assets and analyze its financial situation;

A settlement agreement is an agreement between the debtor and creditors to defer or installment payments or terminate obligations by agreement of the parties. A settlement agreement cannot be signed regarding: payment of severance pay to dismissed employees; expenses related to the conduct of bankruptcy proceedings and the work of the liquidation commission;

Rehabilitation is a system of measures carried out during the conduct of a bankruptcy case in order to prevent the debtor from being declared bankrupt and its liquidation, aimed at improving the financial and economic situation of the debtor, as well as satisfying in full or partially the undisputed claims of creditors through lending, restructuring of the enterprise, debts and capital and/or changes in the organizational, legal and production structure of the debtor. At the same time, four groups of measures are distinguished: financial and economic, production and technical, social and organizational and legal.

Liquidation of a bankrupt is the termination of the activities of a business entity declared bankrupt by the court in order to implement measures to satisfy the claims of creditors recognized by the court.

LIST OF SOURCES USED

1. Arutyunov, Yu.A. Anti-crisis management: A textbook for students / Yu.A. Arutyunov. - M.: UNITY-DANA, 2013. - 416 p.

Baldin, K.V. Anti-crisis management: macro and micro level: Tutorial/ K.V. Baldin. - M.: Dashkov and K, 2013. - 268 p.

Belyaev, A.A. Anti-crisis management: Textbook for university students / A.A. Belyaev, E.M. Korotkov. - M.: UNITY-DANA, 2013. - 319 p.

Blinov, A.O. Crisis management. Theory and practice: Textbook for university students / V.Ya. Zakharov, A.O. Blinov, D.V. Havin; Ed. V.Ya. Zakharova. - M.: UNITY-DANA, 2013. - 319 p.

Zakharov, V.M. Anti-crisis management: Terminological dictionary / V.M. Zakharov, Yu.I. Yurov. - St. Oskol: TNT, 2013. - 492 p.

Zgonnik, L.V. Anti-crisis management: Textbook / L.V. Zgonnik. - M.: Dashkov and K, 2013. - 208 p.

Zub, A.T. Anti-crisis management of an organization: Textbook / A.T. Zub, E.M. Panina. - M.: ID FORUM, SIC INFRA-M, 2013. - 256 p.

Ivasenko, A.G. Anti-crisis management: Textbook / A.G. Ivasenko, Ya.I. Nikonova, M.V. Karkavin. - M.: KnoRus, 2013. - 504 p.

Kruglova, N.Yu. Anti-crisis management: Textbook / N.Yu. Kruglova. - M.: KnoRus, 2013. - 400 p.

Murychev, A.V. Anti-crisis management of credit organizations: Textbook / A.M. Tavasiev, A.V. Murychev; Ed. A.M. Tavasiev. - M.: UNITY-DANA, 2012. - 543 p.

Orekhov, V.I. Anti-crisis management: Textbook / V.I. Orekhov, K.V. Baldin, T.R. Orekhova. , rev. - M.: NIC INFRA-M, 2013. - 268c.

Raspopov, V.M. Preventive crisis management: Textbook / V.M. Raspopov, V.V. Raspopov. - M.: Master, SIC INFRA-M, 2012. - 432 p.

Shepelenko, G.I. Anti-crisis management of production and personnel: Textbook / G.I. Shepelenko. - Rn/D: Phoenix, ICC MarT, 2010. - 256 p.

When considering a bankruptcy case, the arbitration court introduces a monitoring procedure in relation to the debtor enterprise.

The point of establishing this additional procedure is that at the time the arbitration court accepts the bankruptcy petition of the debtor, it is not yet clear whether he is actually insolvent (that is, whether he is able to satisfy the claims of creditors for monetary obligations and (or) fulfill his obligation to payment of mandatory payments in full). Therefore, the introduction of supervision and limitation of the powers of its manager will make it possible to determine the state of the debtor’s solvency, preserve his property, and in addition, it is a reasonable compromise between respecting the interests of the debtor enterprise and creditors.

Supervision is one of the bankruptcy procedures applied to the debtor from the moment the arbitration court accepts an application to declare the debtor bankrupt. A court hearing to verify the validity of the application for declaring the debtor bankrupt is held no less than fifteen days and no more than thirty days from the date of the decision to accept the application for declaring the debtor bankrupt. (Article 42 paragraph 6)

Until the moment determined in accordance with the Bankruptcy Law (the adoption by the arbitration court of a decision to declare the debtor bankrupt and the opening of bankruptcy proceedings, or the introduction of external administration, or the approval of a settlement agreement, or the refusal to declare the debtor bankrupt), in order to ensure the safety of the debtor’s property and conduct analysis of financial condition. This procedure is introduced by the arbitration court for 3 months from the moment it accepts the bankruptcy petition.

It should be noted that the court does not order observation in all cases. It is not introduced in relation to a legal entity being liquidated, an absent debtor, organizations that carried out illegal activities to raise funds, as well as citizens who are not individual entrepreneurs.

The rule on the appointment of a temporary manager deserves special attention. The arbitration court, in its ruling on the introduction of supervision, indicates the appointment of a temporary manager (observer).

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 (Article 49, paragraph 3).

When a temporary manager is introduced, the head and administration of the debtor continue to exercise their powers with restrictions on transactions related to the transfer of real estate for rent, collateral, the disposal of property whose book value is more than 10% of the value of the debtor's assets, and the receipt and issuance of loans and borrowings. The arbitration court has the right to remove the debtor's manager from office and assign the duties of the manager to a temporary manager.

A temporary manager is appointed by the arbitration court upon the introduction of supervision in order to ensure the safety of the debtor’s property and prepare a decision in relation to it and acts until one of the following decisions: until the introduction of external management; before the debtor is declared bankrupt, bankruptcy proceedings are opened and a bankruptcy trustee is appointed; before the refusal to declare the debtor bankrupt; until the settlement agreement is approved. He can apply to the arbitration court with demands to invalidate transactions, to take additional measures to ensure the safety of the debtor’s property, and to remove the debtor’s manager from office.

Responsibilities of the temporary manager:

Take measures to ensure the safety of the debtor’s property;

Conduct an analysis of the debtor's financial condition;

Identify the debtor's creditors;

Maintain a register of creditors' claims, except for cases provided for by this Federal Law;

Notify creditors of the introduction of surveillance;

Convene and hold the first meeting of creditors (Article 67).

The Law defines the status of the arbitration manager. An individual registered as an individual entrepreneur, who has special knowledge and is not an interested party in relation to the debtor and creditors (Article 19, paragraph 1) can be appointed as a temporary manager by the arbitration court.

If it is impossible to determine a candidate for a temporary manager, that is, in the absence of candidates proposed by creditors and proposals from among persons registered as insolvency practitioners, when accepting an application to declare a debtor bankrupt, the arbitration court applies to the state body for bankruptcy and financial recovery, who, within a week from the receipt of the request, proposes a candidate for a temporary manager. If there are no other candidates, the arbitration court may appoint a temporary manager from among the employees of the state body upon the latter’s proposal, but no later than, as stated above, ten days from the date of acceptance of the said application (Article 42, paragraph 3). It should be noted that the debtor himself does not have the right to nominate a temporary manager.

A temporary manager may be removed by an arbitration court from performing the duties of a temporary manager:

In connection with the satisfaction by the arbitration court of a complaint of a person participating in a bankruptcy case about the failure or improper performance by the temporary manager of the duties assigned to him, provided that such failure or improper performance of duties violated the rights or legitimate interests of the applicant of the complaint, and also resulted or could lead to entails losses for the debtor or his creditors;

If circumstances are identified that prevented the person from being approved as a temporary manager, including if such circumstances arose after the person was approved as a temporary manager (Article 65, paragraph 3).

Creditors may present their claims to the debtor within a month from the date of receipt of the temporary manager's notification that the arbitration court has accepted the application to declare the debtor bankrupt. These demands are sent to the arbitration court and to the debtor. Establishing the amount of creditors' claims is necessary for voting in the first meeting of creditors and having the right to attend it.

The creditors' claims are sent to the temporary manager with the attachment of documents that make it possible to determine these requirements as established. The amount of monetary obligations under the claims of creditors is considered established if it is confirmed by the entered into legal force by a court decision or documents indicating the debtor’s recognition of these claims and in other cases provided for by the Law. For example, the Law establishes that creditors have the right to present their claims at any time during external management. These requirements are sent to the external manager. In addition, creditors send to the external manager the claims established in accordance with the Bankruptcy Law, accompanied by documents that make it possible to determine these claims as established.

The external manager reviews the relevant claims within two weeks and enters them into the register of creditors' claims. Within a month from the date of receipt of the specified request, the creditor is notified of the results of its consideration.

If the creditor disagrees with the external manager, he applies to the arbitration court within one month from the date of receipt of the notification from the external manager. If there are no objections within the above period, the creditors' claims are considered established in the amount, composition and priority of satisfaction, as determined by the external manager.

The arbitration court in the cases specified in the Law, in particular if the manager fails to take measures to ensure the safety of property, has the right to remove the head of the debtor. In these cases, the performance of the duties of the debtor's manager is assigned to a temporary manager. The arbitration court issues a ruling on the removal of the debtor's manager from office, which can be appealed, including by the debtor's manager.

From the moment supervision is introduced, arrests and other restrictions on the debtor regarding the disposal of property belonging to him can be imposed exclusively during the bankruptcy process (Article 81, paragraph 1). The law contains the rights and obligations of the temporary manager (Articles 66 - 67). Thus, Article 66 contains provisions defining the rights and obligations of insolvency practitioners. In particular, according to paragraph 1 of paragraph 1 of Article 66, the temporary manager has the right to submit to the arbitration court on his own behalf demands for invalidation of transactions, as well as for the application of the consequences of invalidity of void transactions concluded or executed by the debtor in violation of the requirements established by the Bankruptcy Law. The question arises: is such a claim independent or is it being considered in a bankruptcy case? It seems that such claims should not be considered in a bankruptcy case.

The duties of the temporary manager to analyze the financial condition of the debtor, establish the amount of creditors' claims and convene the first meeting are disclosed in detail (Article 67).

An important role in the implementation of bankruptcy procedures is assigned by the Law to the meeting of creditors, formed in order to protect the interests of all creditors.

The arbitration court, based on the decision of the meeting of creditors, makes a decision to declare the debtor bankrupt and open bankruptcy proceedings, or makes a ruling on the introduction of external administration, or approves a settlement agreement. At the same time, the arbitration court has the right to make a different decision in cases established by law. In particular, if there are sufficient grounds to believe that the decision of the creditors’ meeting to apply to the arbitration court to declare the debtor bankrupt and open bankruptcy proceedings was made to the detriment of the majority of creditors and a real possibility of restoring the debtor’s solvency has been established, the arbitration court has the right to introduce external administration.

It should be especially noted that the arbitration court, before making a decision to declare the debtor bankrupt and to open bankruptcy proceedings, or to issue a ruling on the introduction of external administration, or to approve a settlement agreement, is obliged to check the competence of the first meeting of creditors.

In the event that the meeting of creditors did not make a decision to introduce external management or a decision to conclude a settlement agreement, or the temporary manager did not submit any of the the above decisions If there are signs of bankruptcy, the arbitration court decides to declare the debtor bankrupt and open bankruptcy proceedings.

At the same time, in the cases provided for in the Bankruptcy Law, in particular, if after the first meeting of creditors circumstances have arisen that provide sufficient grounds to believe that the debtor’s solvency can be restored, the arbitration court has the right to make a ruling on the introduction of external management. The ruling of the arbitration court on the introduction of external management is subject to immediate execution and can be appealed.

From the moment any of the above decisions are made by the arbitration court, the monitoring procedure is terminated. The interim manager continues to perform his duties until an external or bankruptcy trustee is appointed.

When considering a bankruptcy case of a debtor - a legal entity, the following procedures are applied: supervision, financial recovery, external management, bankruptcy proceedings, settlement agreement.

Monitoring, financial recovery, external management, settlement agreement are rehabilitation procedures, they lead to the restoration of the solvency of the enterprise, to relief from debts. They are designed to help the debtor get out of a difficult financial situation and maintain production. Bankruptcy proceedings are applied to an existing enterprise only in cases where the financial condition of the debtor is so hopeless that there is no real opportunity to restore solvency or the rehabilitation procedure prescribed by the arbitration court has not achieved its goal. Any of the procedures is carried out by an arbitration manager - a person specially trained in the field of anti-crisis management of enterprises. When carrying out supervision, he is a temporary manager, during financial recovery - an administrative manager, and during external management - an external manager. They are appointed and controlled by the arbitration court.

2.2.1 Observation procedure

The second stage of bankruptcy proceedings is preparing the case for trial. The judge alone makes an appropriate ruling on the preparation of the case. When preparing a bankruptcy case, the judge must take the following actions: hold a court hearing to verify the validity of the applicant’s claims against the debtor; consider applications, complaints and petitions of persons participating in the bankruptcy case; establish the validity of the creditors' claims in the manner prescribed by Art. 71 of the Bankruptcy Law. Based on the results of considering the validity of the applicant’s claims against the debtor, the arbitration court makes one of the following determinations:

On recognizing the applicant’s claims as justified and introducing a monitoring procedure. This definition issued if the debtor has external signs of bankruptcy, the determination to impose supervision must contain an indication of the person approved as a temporary manager.

On the refusal to introduce an observation procedure and on leaving the application without consideration. Issued if the arbitration court found the claim of the person who filed the application to declare the debtor bankrupt unfounded or established that the debtor lacks external signs bankruptcy, provided that there is an application from another creditor.

On the refusal to introduce a monitoring procedure and on the termination of bankruptcy proceedings. Issued if, on the date of the meeting of the arbitration court to consider the application for declaring the debtor bankrupt, the claim of the person who filed such an application is satisfied, or the claim of such a creditor is recognized as unfounded, or it is established that the debtor does not have external signs of bankruptcy. In a bankruptcy case, the appointment of a trial is made by a ruling on the introduction of supervision.

According to Article 2 of the Federal Law “On Insolvency (Bankruptcy)”, supervision is a bankruptcy procedure applied to the debtor in order to ensure the safety of his property, conduct an analysis of the debtor’s financial condition, compile a register of creditors’ claims and hold the first meeting of creditors.

This procedure makes it possible to balance the legitimate interests of participants in a bankruptcy case, in particular to prevent abuse of rights, both on the part of the debtor and on the part of creditors. When introducing supervision, the arbitration court appoints a temporary manager who is vested with control and administrative powers aimed at ensuring the safety of the debtor's property and protecting the legitimate interests of persons participating in the bankruptcy case.

The manager’s activities occur in two main directions: firstly, it is control over the actions of the debtor’s management (including ensuring the safety of its property); secondly, studying the financial condition of the debtor in order to determine the possibility and feasibility of carrying out reorganization or liquidation procedures. During the monitoring process, the financial condition of the debtor is analyzed, the value of his property is determined, an inventory is carried out, and creditors are identified. At the observation stage, the temporary manager holds the first meeting of creditors, to whom he reports the results of the financial analysis and proposals for future fate debtor.

The procedural and legal completion of the monitoring procedure is determined by the legislator, Art. 75 of the bankruptcy law “end of observation”, by making a determination or decision by the arbitration court based on the results of observation. The court accepts one of the following documents:

The decision to declare the debtor bankrupt and open bankruptcy proceedings;

Determination on the introduction of external management;

Determination on the introduction of financial recovery;

Ruling on approval of the settlement agreement and termination of bankruptcy proceedings.

Thus, the monitoring procedure is designed to ensure the interests of both creditors and the debtor by preventing possible conflicts. From the moment one of the above-mentioned judicial acts is adopted, the observation period is considered completed.

Types of procedures applied to the debtor:

A) reorganization procedures - procedures aimed at maintaining the activities and recovery of the debtor enterprise in order to prevent its liquidation:

Rehabilitation (rehabilitation of a debtor enterprise) is a reorganization procedure when the owner of the debtor enterprise, the creditor (creditors) or other persons provide financial assistance to the debtor enterprise;

External management of the debtor's property is a reorganization procedure aimed at continuing the activities of the debtor enterprise and appointed by the arbitration court at the request of the debtor, the owner of the debtor enterprise or the creditor (creditors) and carried out on the basis of the transfer of the function of managing the debtor enterprise to the arbitration manager;

b) liquidation procedures - procedures aimed at terminating the activities of the debtor enterprise:

Forced liquidation of a debtor enterprise is a procedure for liquidating an insolvent enterprise, carried out by decision of an arbitration court;

Voluntary liquidation of a debtor enterprise is an extrajudicial procedure for the liquidation of an insolvent enterprise, carried out by agreement between its owner and creditors under the control of creditors;

V) settlement agreement- the procedure for reaching an agreement between the debtor and creditors regarding deferment and (or) installment payments due to creditors or discounts on debts.

The determination of procedures for overcoming bankruptcy and measures aimed at increasing the stability of the financial condition of the enterprise is carried out based on the results of an analysis of the financial condition.

To reorganization procedures include external management and rehabilitation.

Sanitation(recovery of the debtor enterprise) - reorganization procedure 1, when the owner of the debtor enterprise, creditor (creditors) or other persons provide financial assistance to the debtor enterprise.

External management of the debtor's property - a reorganization procedure aimed at continuing the activities of the debtor enterprise and appointed by the arbitration court at the request of the debtor, the owner of the debtor enterprise or the creditor (creditors) and carried out on the basis of the transfer of the function of managing the debtor enterprise to the arbitration manager;

2. When considering the introduction of external management, attention should be paid to a number of its Features:

It differs significantly from trust management both in its goals and organization, and in the responsibility of the manager. If the trustee, who did not show due care for the interests of the beneficiary or the founder of the management when managing the property, compensates the latter for lost profits or losses, then the arbitration manager does not bear such responsibility. In the event that the arbitration manager fails to achieve the goal of external management (to restore the solvency of the debtor enterprise), he reports to the arbitration court about the impossibility of achieving the goal. The court may decide to continue external management or declare the enterprise bankrupt;

With external management, continuity in management will be preserved to a greater extent, since the arbitration manager only, if necessary, removes the head of the debtor enterprise from performing the duties of managing the enterprise and assumes all his functions. In this case, the management system operating at the enterprise adapts to external control;

External management has the features of collegiality - creditors take an active part in it. The meeting of creditors may form a committee of creditors vested with certain functions. The latter has the right to demand that the arbitration manager provide relevant information and explanations;

The external management plan, the draft of which is developed by the arbitration manager, is approved by the meeting of creditors. If the plan in question does not receive approval (by a majority of 2/3 of the amount of creditors’ claims), the arbitration court may issue a ruling to cancel external management or appoint a new arbitration manager.

Basic rules for reorganization are:

The composition of the reorganization participants is determined on the basis of a competition. The owner of the debtor enterprise, creditors, and members of the labor collective of this enterprise have the priority right to participate in the reorganization. In cases where candidates for participation in the reorganization are the owner of the debtor enterprise and (or) members of the labor collective of this enterprise, they independently participate in the reorganization. A competition is declared without fail if the owner of the debtor enterprise and members of the workforce have not exercised their pre-emptive right;

The agreement between the resolution participants must contain an obligation to ensure satisfaction of the claims of all creditors within the timeframe agreed upon with them, indicate the expected duration of the resolution, the distribution of responsibility between them to creditors agreed upon with the resolution participants, the liability of one or more resolution participants in the event of their refusal to participate in the resolution after it beginning, as well as other conditions that the reorganization participants deem necessary to provide. For the fulfillment of accepted obligations, the participants in the reorganization are jointly and severally liable;

During the process of reorganization, the owner of the debtor enterprise, any of the creditors or members of the labor collective of the debtor enterprise may apply to the arbitration court with a statement about the ineffective implementation of the reorganization or the actions of the participants in the reorganization leading to infringement of the interests of the owner of the debtor enterprise, or creditors, or members labor collective of the debtor enterprise. The arbitration court considers such applications and makes an appropriate decision, up to the decision to terminate the reorganization.

To liquidation procedures include forced liquidation and voluntary liquidation.

Forced liquidation of a debtor enterprise - a procedure for liquidating an insolvent enterprise, carried out by decision of an arbitration court.

Voluntary liquidation of the debtor enterprise - an out-of-court procedure for the liquidation of an insolvent enterprise, carried out by agreement between its owner and creditors under the control of creditors.

The arbitration court, having declared the debtor insolvent (bankrupt), makes a decision on forced liquidation and on the opening of bankruptcy proceedings in order to proportionately satisfy the claims of creditors and declare the debtor free from debt, as well as to protect the parties from unlawful actions in relation to each other.

The decision is notified to:

labor collective of the debtor enterprise;

relevant local authorities;

local financial authorities;

banks and other credit institutions servicing the debtor.

The decision is published in the Bulletin of the Supreme Arbitration Court of the Russian Federation.

The main stages of the procedure for the forced liquidation of a debtor enterprise."

The arbitration court makes a decision on the forced liquidation of the debtor and the opening of bankruptcy proceedings;

The arbitration court appoints a bankruptcy trustee;

The bankruptcy trustee manages the debtor's property, convenes a meeting of creditors and carries out the liquidation of the enterprise. The report on the activities of the bankruptcy trustee is approved by the arbitration court;

An enterprise is considered liquidated from the moment it is removed from the state register on the basis of a decision of an arbitration court to complete bankruptcy proceedings.

From the moment the debtor is declared insolvent (bankrupt) and the decision is made to open bankruptcy proceedings:

It is prohibited to transfer or otherwise alienate the debtor's property (except for cases where permission to alienate is given by a meeting of creditors), or to repay his obligations. At the same time, payments to creditors-mortgagors, as well as extraordinary payments, are not suspended;

The deadlines for the fulfillment of all debt obligations of the debtor are considered to have occurred;

The accrual of penalties and interest on all types of debt of the debtor enterprise ceases.

To the results of out-of-court procedures for resolving the issue of insolvency relate:

An agreement between the debtor and all or part of the creditors on deferment and (or) installment payments due to creditors or a discount on debts for the continuation of the activities of the debtor enterprise;

Voluntary liquidation of the debtor enterprise under the control of creditors and the official declaration by the debtor of its insolvency (bankruptcy);

Sale of state-owned enterprises-debtors, their assets and state-owned shares (shares, shares) in the capital of these enterprises.

Voluntary liquidation is carried out in the following order:

The decision is made by the head of the debtor enterprise together with the creditors, it is approved by the owner;

The owner and (or) creditors appoint a bankruptcy trustee;

The bankruptcy trustee manages the debtor’s property and convenes meetings of creditors, at which he reports on the progress of the liquidation of the enterprise;

An enterprise is considered liquidated from the moment it is removed from the state register on the basis of a submission. Debtor enterprises are sold at a commercial or investment competition without limiting the number of participants.

The object of sale of the debtor enterprise is a single property complex of the enterprise, which includes fixed assets, other long-term investments (including intangible assets), working capital and financial assets, liabilities, its property rights, rights to industrial and intellectual property, land and other objects. Social infrastructure facilities and special-purpose property are not subject to sale.