On behalf of the Russian Federation
of November 16, 2021 No. 49-P
On the case of check of constitutionality of Article 42 of the Arbitral Procedure Code of the Russian Federation and article 34 of the Federal law "About Insolvency (Bankruptcy)" in connection with the claim of the citizen N. E. Akimov
Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, judges K. V. Aranovsky, G. A. Gadzhiyev, L. M. Zharkova, S. M. Kazantsev, S. D. Knyazev, A. N. Kokotov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, V. G. Yaroslavtsev,
being guided by Article 125 (the part Item "and" 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Article part one 21, Articles 36, 47.1, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",
considered in meeting without carrying out hearing case on check of constitutionality of Article of 42 AIC of the Russian Federation and article 34 of the Federal law "About Insolvency (Bankruptcy)".
Reason for consideration of the case was the claim of the citizen N. E. Akimov. The basis to consideration of the case was the found uncertainty in question of whether there correspond the Constitutions of the Russian Federation disputed by the applicant of legislative provision.
Having heard the message of the judge-speaker L. O. Krasavchikova, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation
1. According to article 34 of the Federal Law of October 26, 2002 No. 127-FZ "About insolvency (bankruptcy)" persons participating in the case of bankruptcy are the debtor, the arbitration manager, competitive creditors, authorized bodies, federal executive bodies, executive bodies of subjects of the Russian Federation and local government bodies in the location of the debtor in the cases provided by this Federal Law and person which provided providing for carrying out financial improvement. This Article gives to specified persons the right during any procedure applied in the case of bankruptcy to appeal to Arbitration Court with the petition for purpose of examination for the purpose of identification of signs of deliberate or dummy bankruptcy and to make the legal proceedings provided by this Federal Law in arbitral procedure on the case of bankruptcy and others necessary for realization of the granted action rights (and expenses on conducting examination are refunded at the expense of person who addressed with the petition for its appointment), and equally in the right to bring into Arbitration Court the documents provided by this Federal Law electronically, to fill in document forms, posted on the official site of Arbitration Court on the Internet, according to the procedure, established within its powers by the Supreme Court of the Russian Federation.
Owing to Article of 42 AIC of the Russian Federation persons who were not participating in case about whose rights and about obligations the Arbitration Court adopted court resolution had the right to appeal this court resolution, and also to dispute it according to the procedure of supervision by the rules established by this Code; such persons have the rights and perform duties of persons participating in case.
1.1. The ruling of arbitration court of the Orenburg region of January 12, 2016 within case on bankruptcy of Stigl limited liability company (further - Society) are recognized as reasonable and 93 rub are included in the register of requirements of creditors of the debtor of the requirement of the Federal Tax Service in the amount of 13 078 043,.
Is later the determination of the same Arbitration Court of July 31, 2019 left without change of appeal and cassation instances by courts (resolutions of the Eighteenth Arbitration Appeal Court of November 27, 2019 and Arbitration Court of Ural federal district of February 27, 2020, determination of the judge of the Supreme Court of the Russian Federation of June 16, 2020), within the same case on bankruptcy the citizen N. E. Akimov is brought to subsidiary responsibility according to obligations of Society solidary with other persons controlling the debtor, and production on consideration of requirements of the receiver regarding establishment of the extent of such responsibility is suspended before the end of settlings with creditors and forming of competitive weight. Relying on the produced evidence, courts were specified that under the direction of N.E. Akimov Society made number of transactions which single purpose was receipt of unreasonable tax benefit for lack of the actual economic activity, conclusion of money on the legal entities used in the scheme on cashing in and it entailed causing to the debtor of property harm.
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