of December 30, 1998 No. 865
About approval of Rules about procedure for application of procedures of process of bankruptcy
In pursuance of Item 5 of article 1 of the Law of the Kyrgyz Republic "About bankruptcy (insolvency)" the Government of the Kyrgyz Republic decides:
1. Approve the enclosed Rules about procedure for application of procedures of process of bankruptcy.
2. Enact the Rules approved by this resolution since January 1, 1999.
3. Publish this resolution in mass media.
Approved by the Order of the Government of the Kyrgyz Republic of December 30, 1998 No. 865
1.1.1. These rules are developed according to the Law of the Kyrgyz Republic "About bankruptcy (insolvency)" (further - the Law) and determine the bases of recognition of the debtor by the bankrupt by court by administrative and economic cases (further - court), judicially or announcements of the debtor the bankrupt creditor meeting with the consent of the debtor, extrajudicially, and also regulate procedure and conditions of holding the procedures applied in the course of bankruptcy: special administration, sanitation, rehabilitation, the voluntary settlement, including measures of responsibility for bringing the debtor to bankruptcy, and other relations arising in case of inability of the debtor to meet in full requirements of creditors.
1.1.2. These rules are applied to debtors - legal entities, being the commercial organizations and based on the state, municipal and private patterns of ownership, including the foreign legal entities and legal entities with foreign participation created and registered according to the legislation in the territory of the Kyrgyz Republic.
1.1.3. The commercial organizations are the organizations pursuing generation of profit as main objective of the activities. The commercial organizations can be created in the form of complete and partnership in commendam, society with the limited or accessorial liability, joint-stock company of the opened or closed type, agricultural cooperative, the state and utility company.
1.1.4. These rules are applied also to debtors - physical persons: citizens of the Kyrgyz Republic, citizens of other states and stateless persons registered according to the legislation of the Kyrgyz Republic as individual entrepreneurs and performing business activity in the territory of the Kyrgyz Republic.
1.1.5. These rules are applied to debtors - legal entities, being non-profit organizations, created and registered according to the legislation in the territory of the Kyrgyz Republic, in the cases which are directly provided by the Law (consumer cooperative and public fund) or other regulatory legal acts of the Kyrgyz Republic regulating questions of creation and form of business of the specified non-profit organizations.
1.1.6. Non-profit organizations are the organizations which are not pursuing generation of profit as main objective of the activities and not sharing the got profit between participants. Non-profit organizations can be created in the form of the consumer cooperative, the public or religious organization (consolidation) financed by the owner of organization, charity and other public foundation and also in other forms, stipulated by the legislation the Kyrgyz Republic.
1.1.7. These rules are not applied to liquidation of solvent legal entities on the bases which are provided in Item 2 of Article 96 of the Civil code of the Kyrgyz Republic, with observance of requirements, the stipulated in Clause 16 Laws.
1.1.8. These rules are not applied to the public and other institutions, and also the state companies founded on the right of operational management, objects of natural monopolies.
1.1.9. The questions connected with bankruptcy (insolvency) of physical persons and legal entities are regulated by the Law and these rules, except for banks and other financial credit institutions if other is not established by the legislation of the Kyrgyz Republic.
1.1.10. Ceased to be valid according to the Order of the Government of the Kyrgyz Republic of 28.09.2015 No. 664
1.1.11. Ceased to be valid according to the Order of the Government of the Kyrgyz Republic of 28.09.2015 No. 664
1.1.12. Ceased to be valid according to the Order of the Government of the Kyrgyz Republic of 28.09.2015 No. 664
1.1.13. Decisions of the courts of foreign states on cases on bankruptcy (insolvency) are recognized in the territory of the Kyrgyz Republic according to international treaties of the Kyrgyz Republic.
1.1.14. In the absence of international treaties of the Kyrgyz Republic of decision of the courts of foreign states on cases on bankruptcy (insolvency) are recognized in the territory of the Kyrgyz Republic if they do not contradict the legislation of the Kyrgyz Republic.
In these rules the following concepts are applied:
1.2.1. "Close relatives" are children, the spouse, parents, the grandfather and the grandma, brothers and sisters, including in the area of the spouse (person specified as legal heirs of the first, second and third priority (Article 1142-1144 of the Civil code of the Kyrgyz Republic));
1.2.2. "The regulated organization" means the organization whose activities are subject to supervision and licensing, the accumulation pension fund or investment fund, insurance company.
1.2.3. Ceased to be valid according to the Order of the Government of the Kyrgyz Republic of 28.09.2015 No. 664
1.2.4. "The protected face" is any legal entity or physical person which is client (investor) of the regulated organization, and for the purpose of protection of its rights and interests the legislation of the Kyrgyz Republic provides supervision and licensing of activities of the regulated organization. Treat the protected persons:
1) ceased to be valid according to the Order of the Government of the Kyrgyz Republic of 28.09.2015 No. 664
2) person insured in insurance company;
3) person having the right to pension from the accumulation pension fund;
4) investor (shareholder) of investment fund.
1.2.5. Other concepts used in these rules correspond to the concepts specified in the Law.
Process of bankruptcy concerning the debtor can be begun in case of its insolvency, that is inability of the debtor in full to meet requirements of the creditors for monetary commitments, including inability to provide obligatory payments in the budget and off-budget funds. Insolvency of the debtor shall be established fact.
The concept of the insolvent debtor is determined by the Civil code of the Kyrgyz Republic, the Law (in particular, Article 2 (concept "debtor"), Article 3 (bankruptcy (insolvency)), Article 9 (the insolvent debtor)) and these rules.
The fact of insolvency of the debtor is determined, recognized (appears):
1) court on administrative and economic cases judicially;
2) the debtor in judicial or extrajudicial procedure;
3) creditor meeting extrajudicially.
Factual determination of insolvency attracts the beginning of the procedure of special administration of the debtor if the decision on the beginning of the procedure of sanitation is not made, rehabilitations or the voluntary settlement is not signed or the court does not suspend proceeedings about bankruptcy by rules of article 27-26 of the Law.
2.5.1. By consideration of question whether the debtor is insolvent, it is necessary that the debt which it did not pay or refuses to pay, was at least the size determined in article 9-1 of the Law.
2.5.2. The size of debt does not matter in cases if:
1) the debtor voluntarily initiates process of bankruptcy by giving in court of the statement for recognition by the bankrupt;
2) the debtor voluntarily initiates process of bankruptcy by convocation of creditor meeting for the announcement of by the bankrupt extrajudicially;
3) the debtor agrees with the solution of creditor meeting on the announcement of the debtor by the bankrupt extrajudicially.
2.5.3. Ceased to be valid according to the Order of the Government of the Kyrgyz Republic of 28.09.2015 No. 664
2.5.4. Based on article 27-9 of the Law two or more creditor whose requirements about debt repayment separately have the size less than the minimum, established in the subitem 1 Item 1 of article 9-1 of the Law having the right to combine the requirements to the debtor and to file a lawsuit the joint statement on recognition of the debtor by the bankrupt.
2.6.1. According to the Law the creditor is understood as physical person or legal entity which has the right to demand from the debtor of execution of its obligation: transfer property, perform work, pay money, etc. Regulations about creditors are applied also to tax and other authorized bodies.
2.6.2. The Kyrgyz and foreign legal entities and physical persons, and also the Kyrgyz Republic on behalf of authorized bodies can be creditors according to obligations of the debtor.
The creditor's representative based on the power of attorney received from the creditor has the right to submit on behalf of the creditor the petition about recognition of the debtor by the bankrupt or has the right to speak on behalf of the creditor at creditor meeting.
Concerning any debtor it is enough to creditor (creditors) to prove that the debtor did not satisfy, either refused, or it is incapable to meet legal requirements of the creditor (creditors) on payment of debts and accomplishment of other obligations (for goods, services, etc.) in full in case of approach of payment due dates. Partial payment by the debtor of the debt is not the basis for refusal in recognition of the debtor by the bankrupt.
2.9.1. The creditor who took a legal action with the statement for recognition of the debtor by the bankrupt shall prove that its requirement is reasonable.
2.9.2. The requirement is reasonable if the creditor has legal requirement on receipt of payment according to the legislation of the Kyrgyz Republic or the agreement. Availability, the size and justification of requirements of the creditor shall be supported by the documents.
2.9.3. If the requirement of the creditor in general acknowledged reasonable, but is available dispute between the creditor and the debtor on the size of the requirement and the debtor proved that the size of the requirement shall be less, then in this case the debtor can be declared bankrupt if it does not provide the proof of payment to the creditor of the amount which is subject in his opinion, payment, or suggested the creditor to pay such amount, and the creditor refused to accept payment.
2.10.1. In these rules any reference to "debt" or "requirement" includes any legal requirement of the creditor. For carrying out process of bankruptcy the specified requirements are considered expressed in cash.
2.10.2. The creditor has the right to impose requirement following from conditions of any civil agreement: loan agreement (credit), purchase and sale agreement (delivery) of goods, works or services, etc. Requirement can be imposed also concerning losses which arose because of violation by the debtor of conditions of the civil agreement: for example, the debtor did not deliver goods, did not perform work or did not render service or the delivered goods, the performed works, the rendered services are inadequate quality.
2.10.3. The creditor has the right to impose requirement following from obligations owing to damnification: the harm done to the personality or property to the citizen (property of the legal entity) including requirements of workers about indemnification for causing mutilation, about compensation of unpaid pensions or other payments which are due to them.
2.10.4. The creditor has the right to impose requirement following from obligations owing to unjust enrichment (Chapter 52 of the Civil code of the Kyrgyz Republic).
2.10.5. The creditor has the right to impose requirement following from public obligation of the debtor: obligations on payment of tax and other obligatory payments in the budget and off-budget funds, for example, shortages on the income tax.
2.11.1. The non-payment fact the debtor in full of the legal requirement of the creditor who is subject to payment is the circumstance testimonial of insolvency of the debtor. In this case it is enough to creditor to prove availability of the legal requirement and that there were circumstances under which the debt shall be paid.
2.11.2. One of proofs of non-payment (insolvency) of the debtor is giving by the creditor to the debtor of the written requirement about debt repayment with indication of payment due dates and the non-payment is long during the specified term. Written requirement can be imposed according to the form specified in appendix No. 1 to these rules or in other form which contains all essential conditions containing in this form.
The written requirement can be directed in the place of residence (location) of the debtor which is specified in any correspondence or the business document prepared by the debtor or on the registered legal address of the debtor if he is known to the creditor.
In the absence of the above-named addresses the requirement can be sent to any address, the famous creditor.
The debtor shall inform the creditor of change of the address. Otherwise the debtor has no right to refer to the fact that its address changed and he did not receive the written requirement of the creditor.
The creditor has the right not to send the written requirement to the debtor if the address of the debtor is not known.
If the requirement moves in the form specified in appendix No. 1, the non-payment the creditor of the legal requirement in full before the expiration of the 21-day term specified in this written requirement will be good cause for immediate recognition of the debtor by the bankrupt.
For the proof of refusal in payment (insolvency) of the debtor it is enough to creditor to prove existence of debt and that in case of approach of circumstances when the debt be paid, the debtor in writing refused to pay debt fully or partially.
2.13.1. According to requirements of the subitem 3 of Item 1 of article 9 of the Law the creditor has the right to produce conclusive proofs of the fact that the debtor has no money for satisfaction of requirements of the creditor in full (inability to pay). For example, the reference or other document of bank on lack of money on the settlement account of the debtor. However submission of such proofs is not the creditor's obligation.
2.13.2. The fact of inability to pay can be proved and indirectly in the presence of one of the conditions specified in subitems 1, of 2, of 4, of the 5th Item 1 of article 9 of the Law.
2.13.3. According to subitems 1, 2 Items 1 of article 9 of the Law, in cases if the debtor does not pay or refuse to pay the debts, it is considered that he is not capable to pay.
2.13.4. The debtor who did not pay the debts or refuses to pay them, can prove the solvency (capability to pay debts). In this case, only admissible proof of solvency is the actual payment by the debtor of the debts in full. If the debtor claims that he is solvent (it is capable to pay requirements of the creditor), and, nevertheless, does not pay the debts, then it is considered that he did not produce sufficient evidences of the solvency, and such debtor shall be acknowledged (is declared) the bankrupt.
2.13.5. If when considering the case in court the debtor tells bankruptcy to court that it is solvent, the court shall demand from the debtor of the proof of its capability to pay debts with observance of the requirements provided in article 27-26 of the Law.
2.14.1. Concerning regular debtors (the organizations which are not regulated) the creditor shall not prove that the condition of balance of the debtor is unsatisfactory. Except as specified, when the creditor proves that the debtor is insolvent because condition of its balance unsatisfactory, any attempts of the debtor to prove that the condition of balance of the debtor is satisfactory, have no relation to case.
2.14.2. Ceased to be valid according to the Order of the Government of the Kyrgyz Republic of 28.09.2015 No. 664
2.14.3. Besides, any supervision body of the debtor - the regulated organization has the right to use as the proof of insolvency of the debtor of the data that the real asset cost of the debtor is less, than cost of its liabilities (obligations), and as a result of it quality of balance of the debtor is unsatisfactory.
2.14.4. If the supervision body intends to prove that quality of balance of the debtor - the regulated organization is unsatisfactory, the supervision body has the right to produce the evidence that the debtor when implementing the activities did not follow obligatory rules and procedures (standard rates) approved by supervision body legally therefore the condition of balance of the debtor is unsatisfactory.
In this case the supervision body does not need to produce the evidence that the debtor violated the obligations on debt repayment. It is enough to supervision body to produce the evidence that if in case of approach of payment due dates of the debtor ask to pay immediately the debts, the debtor will have no enough means for their payment.
The debtor is also recognized insolvent if:
- the application for recognition of the debtor by the bankrupt was submitted to court, the statement is taken cognizance by court and proceedings on the case of bankruptcy are initiated;
- when considering the case it is determined that the requirement is reasonable and the debt is subject to payment;
- the debtor did not pay the debts (the applicant and other creditors) in full according to requirements of article 27-26 of the Law.
2.16.1. If the debtor voluntarily declares on creditor meeting extrajudicially that he is insolvent, creditors have the right to solve whether they adopt this statement and whether they will declare the debtor from its consent by bankrupt extrajudicially.
2.16.2. If the debtor voluntarily submits the petition about recognition by his bankrupt, the following conditions shall be satisfied:
1) the court shall study the statement and other case papers for prevention of false or deliberate bankruptcy which the debtor for the purpose of false representation of creditors and receipt of delay or payment by installments of payments or discount from debts can use (by means of introduction of the moratorium on requirements of creditors);
2) the debtor is recognized insolvent if he will prove to court the inability to pay debts to creditors in full. The non-payment or debt repudiation are the insufficient bases for recognition its insolvent;
The debtor shall prove 3) that he has no sufficient money for payment of debts in full in the terms allotted to it by creditors.
2.16.3. If the debtor produces to court the evidence that:
- creditors require immediate payment and do not give it time for sale of its assets (if it has them),
- it has no money for payment of these debts,
- creditors threaten to begin against it judicial actions, these proofs are enough for factual determination of insolvency of the debtor and recognition by his bankrupt.
Regulations of this Chapter are constituted on the basis by Article 9-2, 18, of 19, 21 and 83 Laws and are applied to any legal entity or physical person which is the debtor. Regulations of this Chapter establish obligatory rules which the debtor shall undertake for avoidance or reduction of losses of his creditors.
3.2.1. The debtor is forbidden to meet requirements of one or more creditors if it brings:
- to impossibility of performance in full its monetary commitments and/or other obligations before other creditors, including the budget and off-budget funds,
- to its insolvency,
- to preferable satisfaction of requirements of one creditor to the detriment of other creditors (Item 1 of article 9-2 of the Law).
3.2.2. This prohibition does not extend to the creditor who is one of persons mentioned in Item 8 of article 21 of the Law (the creditors and owners of property provided with pledge who have the right to preferable satisfaction in case of approach of the circumstances provided by the agreement of the parties).
3.2.3. The provisions concerning this prohibition are in more detail described in Chapter 6 of these rules.
If the debtor knows that he is insolvent according to Items 1 and 2 of article 9 of the Law, has no right to make the actions specified in article 18 of the Law.
The provisions concerning wrongful acts are in more detail described in Chapter 6 of these rules.
3.4.1. In case of approach of one of the events provided in Item 1 of article 21 of the Law, the debtor has no right:
- dispose of any part of the property or money, including provision of property as a deposit, its transfer to lease or any other form of the order;
- voluntarily (without the consent of persons specified in Item 3 of article 21 of the Law) to fulfill obligations or to undertake additional obligations, including debt repayment, either loan of money, or prolongation of the credit to any other person (Item 1 of article 21 of the Law).
3.4.2. Item 3.4.1 provisions. these rules are in more detail described in Chapter 6 of these rules.
The debtor shall initiate process of bankruptcy concerning himself in judicial or extrajudicial procedure in anticipation of bankruptcy from the moment of emergence of one of the following circumstances:
If the satisfaction of requirements of one or several creditors leads 1) to impossibility of performance in full of monetary commitments and (or) obligations before other creditors, including the budget and off-budget funds, or it results in its insolvency, or this satisfaction is preferable satisfaction of requirements of one creditor to the detriment of other creditors (Item 1 of article 9-2 of the Law);
2) if the debtor is not able or will not be able to fulfill monetary commitments and (or) obligations on payment of obligatory payments in the budget and off-budget funds in full, except as specified, when the agreement of the debtor and corresponding creditor establishes debt payment deferral;
3) if the body authorized according to constituent documents of the debtor for decision making about liquidation of the debtor, or the body authorized by the owner of property of the debtor of the state company make the decision on liquidation as the bankrupt;
4) if when carrying out liquidation of the solvent legal entity the impossibility of satisfaction of requirements of creditors in full is established (article 16 of the Law);
5) in other cases provided by Sections 3.7. - 3.14. these rules.
3.6.1. The debtor shall initiate process of bankruptcy concerning himself in judicial or extrajudicial procedure in anticipation of bankruptcy no later than one month from the moment of emergence of one of the circumstances specified in Section 3.5. these rules.
3.6.2. Process of bankruptcy is considered the debtor initiated extrajudicially from the moment of publication for the first time of the message on convocation of the first creditor meeting (properly called creditor meeting shall be held according to requirements of article 29 of the Law).
3.6.3. Process of bankruptcy is considered the bankrupt initiated judicially from the moment of filing of application about recognition of the debtor in court in accordance with the established procedure.
The debtor who shall take measures for avoidance of losses according to Section 3.8. this Chapter, during the period before excitement or the beginning of process of bankruptcy shall observe requirements of Articles 18, 21 and 83 Laws and Sections 3.3. and 3.4. this Chapter.
3.7.1. Provisions of this Section are applied to heads of the unsuccessful debtor who do not fulfill the obligations on effective and provident management of economic activity of the unsuccessful debtor (Item 3 of article 83 of the Law).
3.7.2. The debtor is recognized unsuccessful the following cases: if it is or it is considered insolvent according to article 9 of the Law, or in case of approach of one of the events specified in Item 1 of article 21 of the Law or if the debtor performs activities with losses, or it is expected that the debtor will perform activities with losses if the situation (Item 1 of article 83 of the Law) does not change.
3.7.3. The following persons are considered as heads of the unsuccessful debtor:
1) persons specified in article 9-2 of the Law;
2) persons designated in accordance with the established procedure for management of the legal entity (the director, the manager, the managing director, etc., including deputies and persons, the acting as the head);
3) the participants holding the shares (or share) allowing them to control the legal entity by means of orders, obligatory to execution, by person specified in the subitem of 1 this Item.
3.7.4. The head of the unsuccessful debtor shall manage the debtor so that the debtor timely paid the debts to creditors or if payment of debts becomes exigeant or impossible, to avoid increase in losses of the debtor.
3.7.5. For violation of the obligations listed in Item 3.7.4. these rules, heads of the unsuccessful debtor (including participants) bear the civil responsibility before creditors and members of the debtor.
3.7.6. In case of adoption of the decision by court concerning heads of the unsuccessful debtor about indemnification to the debtor's creditors by court the question of disqualification of these persons for term and according to the procedure, established by the legislation of the Kyrgyz Republic also shall be considered.
3.7.7. Heads of the unsuccessful debtor, as it is established in Item 2 of article 83 of the Law, can be disqualified for a period of one year up to five years in case of primary violation and for a period of up to ten years - in case of further violation. The term of disqualification is determined depending on degree of fault and the caused losses to creditors.
3.7.8. The court can postpone consideration of question of disqualification for a period of up to 3 months. If during this term to creditors damages are not paid, then disqualification can be established for the maximum term determined in Item 5 of article 83 of the Law. If to creditors damages are paid, then the term of disqualification is determined depending on degree of fault of the participant for the caused losses to creditors.
3.7.9. Heads of the unsuccessful debtor bear joint liability according to obligations of the debtor to creditors in case of losses at the debtor because of non-execution of the obligations or execution of the instructions contradicting the current legislation, orders, requests or recommendations of members of the debtor by it.
3.7.10. To any person, including shareholders and board members, irrespective of the size of share of shareholding of society, it is forbidden to interpose in the matter of society (debtor) by making direct instructions, orders or other sort of instructions in the form of request or recommendations to board members, except as:
- by participation in general shareholder meetings with voting power;
- decision making or implementation of the actions permitted by constituent documents of society according to the legislation.
3.8.1. Each head (participant) of the unsuccessful debtor shall:
1) to have the complete information about activities of the debtor, including financial in order that the nobility whether the debtor acts it is profitable or not and whether creditors can suffer losses;
2) to take reasonable actions to avoid further losses of the debtor and risk of bankruptcy.
3.8.2. The head can be made responsible for the fact that he did not find out the facts which he could find, having shown reasonable degree of foresight (obligation according to the prevention of bankruptcy), or for the fact that it could not avoid losses which could be avoided, having shown reasonable degree of foresight.
3.8.3. If Item 3.8.2 is applied to the unsuccessful debtor and his heads (participants). these rules, it is necessary to take into account that main objective of these rules is not to give the chance to the debtor to continue production, when there is no real chance of success, and also not to give to heads (participants) of the debtor of opportunity to avoid responsibility to creditors, referring to the fact that they did not know true situation of the debtor if such heads could learn about real situation, having shown reasonable degree of foresight (obligation according to the prevention of bankruptcy), and could take measures for decrease or avoidance of losses for creditors.
3.9.1. Members of the debtor shall collect information (data) concerning activities of the debtor only if they (owing to features of participation) within the competence can issue orders, orders and/or to instruct, obligatory for execution by heads (directors, managers, chiefs, etc., including their deputies) and if participants issue such orders, orders and/or instruct (even irregularly), then they can be considered persons who are taking part in the debtor's management.
3.9.2. The debtor's heads (directors, managers, chiefs, etc., including their deputies) shall possess information (data) concerning activities of the debtor depending on their position and degree of responsibility which was conferred on them according to their job responsibilities. For example:
- the director working for complete rate bears the heavy responsibilities, than the director working part-time;
- the finance director bears the heavy responsibilities concerning financial questions, than the technical director;
- the managing director shall bear the heavy responsibilities, than other directors;
- members of the supervisory body shall ask questions to executive bodies and auditing committee if they are available, and has the right to rely on information which they obtain from these bodies, except cases when it is obvious that provided information is doubtful. In this case they shall make additional investigation.
3.9.3. If the head (participant) knew about the facts which could cause loss to creditors, the reference that owing to the position he shall not know about the facts which could cause loss to creditors cannot excuse for him.
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