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

of July 23, 2009 No. 63

About the current payments according to monetary commitments in the case of bankruptcy

Due to the questions arising in court practice connected using provisions of the Federal Law of 26.10.2002 N 127-FZ "About insolvency (bankruptcy)" (further - the Bankrupcy law, the Law) about the current payments according to monetary commitments, 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 give to Arbitration Courts (further - courts) the following explanations.

1. According to Item 1 of Article 5 of the Bankrupcy law monetary commitments belong to the current payments if they arose after acceptance date of the statement for recognition of the debtor by the bankrupt, that is date of removal of determination about it.

Courts in case of application of this regulation need to consider that owing to Article 2 of the Bankrupcy law the monetary commitment for the purposes of this Law is understood as obligation of the debtor to pay to the creditor certain sum of money according to the civil transaction and (or) other basis provided by the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation), the budget legislation of the Russian Federation (in connection with provision of budget credit to the legal entity, issue of the state or municipal guarantee, etc.).

Thus, as the current payment only that obligation which assumes use of money as instrument of payment, means of repayment of money debt can be qualified.

2. Owing to paragraph two of Item 1 of Article 5 of the Bankrupcy law the proceeedings which arose after excitement about bankruptcy of the requirement of creditors about payment of the delivered goods, the rendered services and the performed works are current.

In sense of this regulation any requirements about payment of the goods, works and services delivered, executed and rendered after initiation of proceedings about bankruptcy including in pursuance of the agreements signed before acceptance date of the statement for recognition of the debtor by the bankrupt are current.

In the contractual commitments providing periodic introduction by the debtor of payment for use of property (lease agreements, leasing (except for redemption)), the lasting rendering services (agreements of storage, rendering utilities and communication services, agreements on maintaining the register of securities, etc.), and also supply through the attached network with electrical or heat energy, gas, oil and oil products, water, other goods (for actually accepted goods quantity according to data of accounting), current are requirements about payment for those periods of time which expired after initiation of proceedings about bankruptcy.

3. In case of application of Item 1 of Article 5 of the Bankrupcy law courts should consider that the obligation to return the sum of money provided according to the loan agreement (article 810 Civil Code of the Russian Federation) or the credit agreement (article 819 Civil Code of the Russian Federation) arises from the moment of provision of money to the borrower. The obligation to pay the sum of money provided to the debtor as commercial credit in the form of delay or payment by installments of payment of goods, works and services (article 823 Civil Code of the Russian Federation) arises from the moment of execution by the creditor of the corresponding obligation on transfer of goods, performance of works or rendering services.

4. Paragraph one of ceased to be valid according to the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 06.12.2013 No. 88

 Paragraph two of ceased to be valid according to the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 06.12.2013 No. 88

The paragraph third ceased to be valid according to the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 06.12.2013 No. 88

The requirements about interest payment for use of borrowed (credit) funds following from the monetary commitments which arose after adoption of the statement for recognition of the debtor by the bankrupt are the current payments.

5. In case of the solution of question of qualification of payments on bills of exchange as flowing to courts it must be kept in mind that the obligation of the drawer to pay sum of money, certified by the bill of exchange (including the issued term at sight), arises from the moment of issue of the bill of exchange.

The obligation of the acceptor to meet the draft is considered arisen from the moment of making of the acceptance. If the acceptance is not dated, for the purposes of qualification of monetary commitment of the acceptor as the current payment it is necessary to proceed from date of issue of the bill of exchange, other date of making of the acceptance is not proved yet.

If the payment on the bill of exchange issued before date of initiation of proceedings about bankruptcy of the debtor drawer is provided completely or regarding the bill amount by means of the aval and the guarantor met bill after the specified date, then the requirement of the guarantor against the debtor drawer for whom it gave the aval, is not the current payment and is subject to inclusion in the register of requirements of creditors.

6. In case of the solution of question of qualification as the current payments of the requirements following from guarantee agreements, courts should recognize that the obligation of the guarantor to answer to the creditor of other person for execution by the last its obligations (article 361 Civil Code of the Russian Federation) arises from the moment of the conclusion of the guarantee agreement.

At the same time courts should consider that owing to Item 2 of Article 64 of the Bankrupcy law in the procedure of observation governing bodies of the debtor can make the transactions connected with issue of guarantees it is exclusive with the consent of the interim manager expressed in writing. Thus, the guarantee agreement signed in the procedure of observation with violation of this regulation can be nullified in the claim of the interim manager (paragraph two of Item 1 of article 66 of the Law).

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