of July 23, 2009 No. 59
About some questions of practice of application of the Federal Law "About Enforcement Proceeding" in case of initiation of proceedings on bankruptcy
Due to the questions arising in court practice and for the purpose of ensuring uniform approaches to their permission the Plenum of the Supreme Arbitration Court of the Russian Federation based on article 13 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation" decides to give to Arbitration Courts (further courts) the following explanations.
1. According to the paragraph the second Item 1 of article 63 of the Federal law "About Insolvency (Bankruptcy)" (further - the Bankrupcy law) from the date of removal of determination by court about introduction of observation of the requirement of creditors for monetary commitments and about payment of obligatory payments, except for the current payments, can be shown to the debtor only with observance of the procedure for presentation of requirements to the debtor established by the Bankrupcy law. The requirements supported by the executive documents also belong to the specified requirements.
By consideration of the corresponding disputes, in particular disputes on recognition not subject to execution of executive and other documents, about recognition invalid the transactions of the debtor attracting preferential satisfaction of requirements of one creditors before others about involvement of the head of the debtor or arbitration manager to responsibility for causing losses, courts it is necessary to recognize that in sense of the given regulation the satisfaction with the debtor of requirements of certain creditors, including at the initiative of the debtor, contradicts provisions of the Bankrupcy law.
In case of application of paragraph two of Item 1 of Article 63 of the Bankrupcy law courts also should mean that creditors, and also the authorized bodies representing in the case of the bankruptcy of the requirement of the Russian Federation, subjects of the Russian Federation or municipalities according to the monetary commitments having no right according to the procedure established by part 1 of article 8 of the Federal law "About Enforcement Proceeding" (further - the Law on enforcement proceeding), to direct the executive documents on money recovery issued by courts and other bodies it is direct in bank or other credit institution (further - bank) in which accounts of the debtor are opened.
2. Ceased to be valid according to the Resolution of the Supreme Arbitration Court of the Russian Federation of 06.06.2014 No. 36
3. Owing to the paragraph of the fourth Item 1 of Article 63 of the Bankrupcy law, Item 5 of part 1 of Article 40 and part 1 of article 96 of the Law on enforcement proceeding from the date of removal of determination by court about introduction of observation execution of executive documents on property penalties, except for the executive documents listed in the specified regulations stops.
As requirements for the disputes concerning protection of ownership or accessory of property including on reclamation of property from others adverse possession (article 301 Civil Code of the Russian Federation), about the termination of the violations of the right which are not connected with deprivation of ownership (article 304 Civil Code of the Russian Federation) about release of property from arrest (exception of the inventory), and also the requirement about suppression of the actions violating exclusive right on results of intellectual activities and means of individualization equated to them or creating threat of its violation (the subitem 2 of Item 1 of article 1252 Civil Code of the Russian Federation) about withdrawal and destruction of counterfeit material carriers in which they are expressed, or the equipment, other devices and materials mainly used or exclusive rights intended for making of violation on them (items 4 and the 5th article 1252 Civil Code of the Russian Federation), about withdrawal or confiscation of tools and objects of administrative offense, etc. do not treat property penalties in sense of the paragraph of the fourth Item 1 of Article 63 of the Bankrupcy law, the enforcement proceeding according to the specified requirements does not stop.
Within not suspended enforcement proceeding imposing of arrests and making by the judicial police officer-contractor of other executive actions provided by the Law on enforcement proceeding, application by court of law or Arbitration Court of the measures aimed at providing execution of the court ruling is allowed.
The explanations containing in this Item are applied also to the purposes of establishment of types of executive documents on which execution from Date of Introduction of the procedure of financial improvement or external management stops (the paragraph the fifth Item 1 of Article 81 and paragraph two of Item 2 of Article 95 of the Bankrupcy law, Item 5 of part 1 of Article 40 and part 1 of article 96 of the Law on enforcement proceeding), and also execution from decision date about recognition of the debtor by the bankrupt stops and the enforcement proceeding (the paragraph of the sixth of Item 1 of Article 126 of the Bankrupcy law, Item 7 of part 1 of Article 47 and part 4 of article 96 of the Law on enforcement proceeding) terminates.
4. According to the paragraph to the fourth Item 1 of Article 63 of the Bankrupcy law and part 1 of article 96 of the Law on enforcement proceeding execution of executive documents according to which enforcement proceeding is initiated for date of removal of determination about observation introduction stops.
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