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

of July 23, 2009 No. 60

About some questions connected with adoption of the Federal Law of 30.12.2008 No. 296-FZ "About introduction of amendments to the Federal law "About Insolvency (Bankruptcy)"

Due to the adoption of the Federal Law of 30.12.2008 No. 296-FZ "About introduction of amendments to the Federal law "About Insolvency (Bankruptcy)" and for the purpose of the correct and uniform application by Arbitration Courts of the changes made by this law in the Federal Law of 26.10.2002 No. 127-FZ "About insolvency (bankruptcy)" (further - the Bankrupcy law, the Law) 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 give to Arbitration Courts (further - courts) the following explanations.

1. The Federal Law of 30.12.2008 No. 296-FZ "About introduction of amendments to the Federal law "About Insolvency (Bankruptcy)" (further - the Law No. 296-FZ) changes concept of the current payments and legal regime of the obligations which arose before initiation of proceedings about bankruptcy which completion date shall come after observation introduction.

Proceeding from provisions of the paragraph of the fifth Item 1 of Article 4, of Item 1 of Article 5 and Item 3 of Article 63 of the Bankrupcy law in edition of the Law No. 296-FZ * (further - new edition of the Law) only the monetary commitments and obligatory payments which arose after initiation of proceedings about bankruptcy are current. With respect thereto the monetary commitments and obligatory payments which arose before initiation of proceedings about bankruptcy irrespective of the term of their execution are not current in any procedure.

If the monetary commitment or obligatory payment arose before initiation of proceedings about bankruptcy, but the term of their execution shall come after observation introduction, then such requirements for the legal regime are similar to requirements according to which completion date stepped on Date of Introduction of observation therefore provisions of new edition of the Law on the requirements which are subject to inclusion in the register extend to them.

The specified requirements are subject to presentation only in the case of the bankruptcy according to the procedure determined by articles 71 and 100 of the Law, and in case of presentation of the recovery suit of the corresponding debt in the general procedure provided by the procedural legislation, the court leaves the action for declaration without consideration based on part 4 of Article 148 of the Arbitral Procedure Code of the Russian Federation (further - the AIC of the Russian Federation).

2. In the new edition of the Law Item 1 of Article 5 is added with the second paragraph from which follows that if agreements were signed before date of initiation of proceeedings about bankruptcy, and delivery of goods, performance of works or rendering services happened after this date, then the requirement of creditors about their payment irrespective of change of the procedure applied in the case of bankruptcy are current.

3. New edition of the Law granted to creditors on the current payments the right to participate in arbitral procedure on the case of bankruptcy by appeal of the actions or failure to act of the arbitration manager violating their rights and legitimate interests (item 4 of Article 5 and the paragraph the fourth Item 2 and Item 3 of Article 35).

These claims are subject to consideration according to the procedure, the stipulated in Clause 60 Laws.

The specified right of the current creditors does not cancel the general rule according to which creditors on the current payments are not persons participating in the case of bankruptcy, and their requirements are subject to presentation in court in the general procedure provided by the procedural legislation outside case on bankruptcy (Items 2 and 3 of article 5 of the Law).

With respect thereto by consideration in the case of bankruptcy of the claim of the current creditor, including in bankruptcy proceedings, the court has no right to estimate in essence justification of its requirement, including by the size, and also to issue writ of execution on collection of the amount of current debt from the debtor.

In case of origin in bankruptcy proceedings of disagreements between the creditor on the current payments and arbitration managers on priority of satisfaction of requirements of this creditor, and in case of insufficiency of means for settling with creditors of one queue as well about proportionality of this satisfaction the court in case of recognition of the claim of the creditor reasonable determines based on Item 3 of article 134 of the Law priority and the size of satisfaction of requirements taking into account rules of Item 2 of article 134 of the Law. The specified question owing to item 4 of article 5 of the Law can be considered by court and in other procedures applied in the case of bankruptcy in relation to provisions of Items 2 and 3 of article 134 of the Law.

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