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

of December 23, 2010 No. 63

About some questions connected using Chapter III.1 of the Federal Law "About Insolvency (Bankruptcy)"

Due to the questions arising in court practice connected using Chapter III. 1 Federal Law of 26.10.2002 No. 127-FZ "About insolvency (bankruptcy)" (further - the Bankrupcy law), and for the purpose of the correct and uniform application of relevant provisions of this Law Plenum of the Supreme Arbitration Court of the Russian Federation by Arbitration Courts, 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. Owing to Item 3 of Article 61.1 of the Bankrupcy law (in edition of the Federal Law of 28.04.2009 No. 73-FZ *) under transactions which can be disputed by rules of Chapter III. 1 this Law, are understood including the actions directed to obligation fulfillment and the obligations arising according to the civil, labor, family law, the legislation on taxes and fees, the customs legislation of the Russian Federation, the procedural legislation of the Russian Federation and other industries of the legislation of the Russian Federation and also the actions made in pursuance of court resolutions or legal acts of other public authorities.

With respect thereto by rules of Chapter III. 1 Bankrupcy law can be disputed, in particular:

1) the actions which are execution of civil obligations (including cash or cashless payment the debtor of money debt to the creditor, transfer by the debtor of other property to property of the creditor), or other actions directed to discharge (the statement for offsetting, the agreement on innovation, provision of compensation, etc.);

2) banking activities, including write-off of money by bank from customer account of bank on account of debt repayment of the client before bank or other persons (as without acceptance, and based on the order of the client);

3) salary payment, including awards;

4) marriage agreement, agreement on the Section of common property of spouses;

5) tax payment, charges and customs payments as the payer, and by cash write-off from the account of the payer at the request of the relevant state body;

6) actions for execution of the court ruling, including determinations about approval of the voluntary settlement;

7) transfer to the claimant in enforcement proceeding of the money obtained from realization of property of the debtor.

If competitive creditors or authorized bodies believe that their rights and legitimate interests are violated by the voluntary settlement approved by court on another matter in claim process, in particular if such agreement has the signs specified in Articles 61.2 or 61.3 of the Bankrupcy law, then on this basis they, and also the arbitration manager has the right to appeal determination about approval of such voluntary settlement, at the same time in case of the omission them term on its appeal the court has the right to recover it taking into account when person who made the complaint learned or owed learn about violation of its rights and legitimate interests. The copy of such claim goes her applicant to the representative of meeting (committee) of creditors (in case of its availability) who is also informed by court on its consideration. All competitive creditors and authorized bodies which requirements are declared in the case of bankruptcy and also the arbitration manager have the right to take part in consideration of the specified claim, including to produce the new evidence and to declare new arguments. Repeated appeal by the called persons on the same bases of the same determination about approval of the voluntary settlement is not allowed.

2. To the transactions made not by the debtor, but other persons at the expense of the debtor which owing to Item 1 of Article 61.1 of the Bankrupcy law can be acknowledged invalid by rules of Chapter III. 1 this Law (including based on Articles 61.2 or 61. 3), can belong, in particular:

1) the statement for offsetting made by the debtor's creditor;

2) write-off by bank in procedure for money without acceptance from the account of the client debtor on account of debt repayment of the client before bank or before other persons, including based on the writ of execution provided by the claimant to bank;

3) transfer to the claimant in enforcement proceeding of the money obtained from realization of property of the debtor or charged off account of the debtor;

4) leaving for the claimant in enforcement proceeding of property of the debtor or the pawnbroker of subject of pledge.

3. Owing to Item 2 of Article 61.1 of the Bankrupcy law made before the periods of suspiciousness provided by Articles 61.2 or 61.3 of the Bankrupcy law, the transaction under condition (both suspensive, and resolutive) it can be recognized invalid by rules of Chapter III. 1 Bankrupcy law if the condition came during these periods.

At the same time Item 2 of Article 61.1 of the Bankrupcy law does not interfere with recognition of Chapter III, invalid by rules. 1 Bankrupcy law of the transaction under condition made within the periods of suspiciousness provided by Articles 61.2 or 61.3 of the Bankrupcy law, at least the corresponding condition also did not come.

4. Courts should mean that the bases of invalidity of transactions provided by Articles 61.2 and 61.3 of the Bankrupcy law attract voidability, but not negligibility of the corresponding transactions.

With respect thereto owing to Article 166 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation) such transactions on the specified bases can be acknowledged invalid only according to the procedure, determined by Chapter III. 1 Bankrupcy law.

Availability at the transaction on which the creditor bases the requirement, the bases for recognition its invalid according to Articles 61.2 or 61.3 of the Bankrupcy law cannot be used as objection in case of establishment of this requirement in the case of bankruptcy, and grants only the right to submission of the corresponding statement for the contest of the transaction according to the procedure determined by this Chapter.

At the same time availability in the Bankrupcy law of the special bases of contest of the transactions provided by Articles 61.2 and 61. 3, in itself does not interfere with court to qualify the transaction when which making abuse of the right as insignificant (articles 10 and 168 Civil Codes of the Russian Federation), including by consideration of the requirement based on such transaction is allowed.

5. Item 2 of Article 61.2 of the Bankrupcy law provides possibility of recognition of the invalid transaction made by the debtor for the purpose of damnification to property rights of creditors (the suspicious transaction).

Owing to this regulation invalid on this basis it is necessary for recognition of the transaction that person disputing the transaction proved availability of set of all following circumstances:

a) the transaction was made with the purpose to do harm to property rights of creditors;

b) as a result of transaction harm was done to property rights of creditors;

c) other party of the transaction knew or shall know about the specified debtor's purpose by the time of transaction (taking into account Item 7 of this resolution).

In case of absence of proof at least of one of these circumstances the court refuses recognition of the transaction invalid on this basis.

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