of December 17, 2009 No. 91
About procedure for repayment of expenses on the case of bankruptcy
Due to the questions of procedure for repayment of expenses which arose in court practice on the case of bankruptcy 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. By consideration of the disputes connected with fee of persons involved by the arbitration manager for ensuring the activities and execution of the obligations assigned to it (further the involved persons) (the paragraph of the sixth of Item 1 of Article 20. 3, Items 2-4 of Article 20. 7, paragraph two of Item 2 of Article 70, paragraph one of Item 6 and paragraph one of Item 8 of Article 110, the paragraph third Item 2 of Article 129, paragraph one of Item 1 of Article 130, Item 3 of article 131 of the Federal Law of 26.10.2002 N 127-FZ "About insolvency (bankruptcy)" (further - the Bankrupcy law, the Law)), courts need to consider the following.
Involvement of the involved persons shall be performed by the arbitration manager based on the called provisions of the law about bankruptcy with observance concerning the services which are not mentioned in Item 2 of Article 20. 7, provisions of Items 3 and 4 of this article about limits of expenses on payment of their services.
The specified regulations on limits extend to services of any persons (belonging to the categories of both specialists, and service personnel), attracted by the arbitration manager to ensuring the activities and execution of the obligations assigned to it; they do not extend to compensation of persons which are in staff of the debtor.
At the same time courts need to consider that preserving established posts and filling of vacancies from their number in the procedure of bankruptcy proceedings are allowed only in that measure in what it is justified for the purposes of bankruptcy proceedings, first of all collection and realization of competitive weight, settlings with creditors.
Fee of the involved persons in procedures of observation and financial improvement is performed by the debtor upon the demand of the arbitration manager, and in procedures of external management and bankruptcy proceedings - the managing director at the expense of property of the debtor.
In case of non-execution of the obligation on fee of the involved persons collection of cost of services at the expense of property of the debtor is performed by the court considering case on bankruptcy according to the statement of the arbitration manager or the involved person which regarding consideration of this statement has the rights and performs duties of person participating in the case of bankruptcy.
Consideration of such statement is performed by the judge solely by rules of Article 60 of the Bankrupcy law.
The court informs the debtor, the arbitration manager, the representative of meeting (committee) of creditors on time and the place of judicial session (in case of its absence - all competitive creditors and authorized bodies), the representative of the owner of property of the debtor - the unitary enterprise or founders (participants) of the debtor, the involved person (including in case of the address with the statement of the arbitration manager) and the competitive creditor or authorized body which filed petition for recognition of the debtor by the bankrupt.
In case of satisfaction of the requirement about collection of cost of services of the involved person at the expense of property of the debtor the court takes out determination which can be appealed and based on which the writ of execution for benefit of the involved person is issued.
The specified requirements about fee of the involved persons declared in all-claim procedure are subject to leaving without consideration according to item 4 of part 1 of Article 148 of the Arbitral Procedure Code of the Russian Federation (further - the AIC of the Russian Federation).
2. Courts in case of application of Item 5 of Article 20.7 of the Bankrupcy law establishing the bases for recognition of attraction by the arbitration manager of the involved persons or the amount of payment of their services by unreasonable need to proceed from the following.
According to Item 5 of Article 20.7 of the Bankrupcy law the court can reduce the amount of levied fee of the involved person if it is proved that the amount of payment is unreasonable (it is obviously disproportionate to the expected result or considerably exceeds market value of similar services).
The court owing to Item 5 of article 20.7 of the Law can also reduce the amount of levied fee of the involved person or refuse completely collection of their payment if it is proved that involvement of this person was unreasonable in general or in part (as generally, proceeding from the need for services of such involved person, and in relation to the particular involved person) and also that the involved person knew or owed know about this circumstance (was unfair).
By consideration of question of the cost of services of the involved person the court also has the right to reduce the amount of levied fee in case of validity of their inadequate quality in relation to the paragraph to third Item 1 of Article 723 and Article 783 of the Civil code of the Russian Federation.
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