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RESOLUTION OF THE PLENUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of April 30, 2009 No. 32

About some questions connected with contest of transactions on the bases provided by the Federal Law "About insolvency (bankruptcy)

(as amended on 30-07-2013)

Due to the questions arising in court practice connected with contest of transactions on the bases provided by the Federal Law "About Insolvency (Bankruptcy)" and for the purpose of ensuring uniform approaches to their permission the Plenum of the Supreme Arbitration Court of the Russian Federation, being guided by article 13 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation", decides to make to Arbitration Courts the following explanations.

General questions

1. In provided by the Federal Law "About Insolvency (Bankruptcy)" * (1) cases the arbitration manager has the right to make on its own behalf claims for recognition of transactions of the debtor invalid and application of effects of their invalidity, and also claims for application of effects of invalidity of insignificant transactions * (2) (Item paragraph two 1) Articles 66, the paragraph of the seventh of item 4 of Article 83, the paragraph the fifth Item 1 of Article 99, paragraph two of Item 7 of Article 103, paragraph two of item 4 of article 129 of the Law).

As recognition of the invalid transaction of the debtor influences the rights and the debtor's obligations, and application of effects of its invalidity directly assigns to it obligations, in such cases the debtor shall be the defendant or one of defendants in the claim of the arbitration manager.

In case of presentation to arbitration managers on its own behalf the claim connected with invalidity of the transaction without specifying of the debtor as one of defendants Arbitration Court according to the petition of the parties or with the consent of the claimant based on paragraph one of part 2 of Article 46 of the Arbitral Procedure Code of the Russian Federation * (3) recruits the debtor in case in quality of other defendant.

At the same time it is also necessary to consider provisions of the paragraph of the fourth Item 1 of Article 94 and Item 1 of Article 129 of the Bankrupcy law according to which from Date of Introduction of external management (opening of bankruptcy proceedings) of power of governing bodies of the debtor the external (competitive) managing director performs. Owing to these provisions the external (competitive) managing director in case of presentation on its own behalf of the claim connected with invalidity of the transaction of the debtor participates in the proceedings initiated in such claim and for the benefit of the debtor (item 4 of article 20.3 of the Law). In case of presentation to external (competitive) managing directors on its own behalf of the claim connected with invalidity of the transaction of the debtor, the judgment about satisfaction of this claim without involvement of the debtor as one of defendants is not subject to cancellation as accepted concerning the rights and obligations of person who was not participating in case (part item 4 4 Articles 270, part item 4 4 Articles of 288 AIC of the Russian Federation).

2. According to the paragraph of Item 3 of Article 129 of the Bankrupcy law the receiver has the right to make the sixth the claims connected with invalidity of transactions of the debtor including for the bases, the stipulated in Article 103 Laws.

Thus, as provisions of Article 103 of the Bankrupcy law are subject to application and during bankruptcy proceedings, have the right to contest of transactions of the debtor on the bases provided by Items 3 and 4 of the specified article of the Law during bankruptcy proceedings both the receiver, and creditors.

3. According to paragraphs to the third and fourth part of 1 Article of 52 AIC of the Russian Federation the prosecutor has the right to take a legal action with the claims connected with invalidity of transactions of the debtor on the general bases of invalidity of transactions provided by the civil legislation.

In view of the fact that the Bankrupcy law does not call either the prosecutor, or the debtor among persons having the right to appeal to the court with the claims connected with invalidity of transactions of the debtor on the special bases provided by the Law, the prosecutor cannot appeal to Arbitration Court with such claims including in cases when the debtor or the creditor belong to the categories of persons named in paragraphs three and the fourth part of 1 Article of 52 AIC of the Russian Federation.

4. As the arbitration manager in case of presentation on its own behalf of the claims connected with invalidity of transactions of the debtor acts for the benefit of including the debtor (item 4 of article 20.3 of the Law) and performs the powers conferred to it within the corresponding procedures applied in the case of bankruptcy for goal achievement of the corresponding procedures, the court costs connected with hearing of cases in the specified claims owing to Item 1 of Article 20.7 of the Bankrupcy law are performed at the expense of the debtor.

The court costs incurred by the arbitration manager from own means are subject to compensation to him in subsequent at the expense of means of the debtor.

In case of satisfaction with court of the claim of the arbitration manager connected with invalidity of the transaction, the incurred court costs are collected from defendants (except for the debtor) for benefit of the debtor, and in case of refusal in such claim - from the debtor for benefit of defendants (except the debtor).

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