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

of June 22, 2012 No. 35

About some procedural questions connected with hearing of cases about bankruptcy

Due to the procedural questions arising in court practice concerning hearing of cases about bankruptcy 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 from 28.04.1995 N 1-FKZ "About Arbitration Courts in the Russian Federation", decides to make to Arbitration Courts the following explanations.

Consideration of the application about recognition of the debtor by the bankrupt

1. Proceeding from paragraph one of Item 2 of Article 7 and Item 3 of article 40 of the Federal Law of 26.10.2002 N 127-FZ "About insolvency (bankruptcy)" (further - the Bankrupcy law, the Law), and also parts 1 of Article 180 of the Arbitral Procedure Code of the Russian Federation of 24.07.2002 N 95-FZ (further - the AIC of the Russian Federation) shall be attached to the statement of the creditor for recognition of the debtor by the bankrupt based on court resolution of Arbitration Court:

1) the copy of the decision of Arbitration Court on satisfaction of the claim certified by court with mark about its introduction in legal force or the copy of the decision certified by the creditor which is printed out from card-index of arbitration cases on the website of the Supreme Arbitration Court of the Russian Federation; in the absence of mark about entry of decision into legal force - the copy of the resolution of Arbitration Court of appeal or cassation instance which is also certified by court (or its substantive provisions) about leaving of the decision of Arbitration Court of the first instance without change or the copy of the resolution certified by the creditor which is printed out from card-index of arbitration cases on the website of the Supreme Arbitration Court of the Russian Federation or

2) the copy of the resolution of Arbitration Court of appeal or cassation instance certified by court (or its substantive provisions) about satisfaction of the claim or the copy of the resolution certified by the creditor which is printed out from card-index of arbitration cases on the website of the Supreme Arbitration Court of the Russian Federation.

2. If by consideration of justification of the statement of the competitive creditor <*> about recognition of the debtor by the bankrupt it is determined that the court resolution on which its statement is based is appealed in court of cassation instance or the Appeal Court recovers the passed term on its appeal, the Arbitration Court considering case on the bankruptcy having the right taking into account all facts of the case (including availability or lack of other statements for recognition of the debtor by the bankrupt, and also time which remained) to suspend before consideration of the corresponding claim production on consideration of the application of the competitive creditor in relation to Item of 1 part of 1 Article of 143 AIC of the Russian Federation.

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<*> Hereinafter for the purposes of this resolution as the competitive creditor or the creditor it is understood as well authorized body.

If after acceptance by court of the statement of the competitive creditor for initiation of proceedings about bankruptcy and before consideration of its justification the court determines that the court resolution confirming requirements of the applicant was cancelled (both before initiation of proceedings about bankruptcy, and after), the court refuses to this applicant introduction of observation by rules of Item 3 of Article 48 of the Bankrupcy law.

If such court resolution is cancelled after observation introduction, determination about introduction of observation regarding recognition of requirements of the applicant proved and their inclusion in the register of requirements of creditors (further - the register) can be reviewed on new circumstances (Item of 1 part 3 Articles of 311 AIC of the Russian Federation) during any insolvency proceeding. In case in case of cancellation of the court resolution confirming requirements of the applicant to it it was not at the same time refused the claim and case was sent for new trial, then in case of submission by the applicant of the petition for suspension of consideration of its claim and presentation of the requirement to them in the case of bankruptcy should consider that under such circumstances the term of closing of the register provided by the paragraph third Item 1 of Article 142 of the Bankrupcy law is estimated for the relevant requirement of the applicant from the date of suspension of claim production.

3. If after acceptance by court of the statement of the competitive creditor for initiation of proceedings about bankruptcy and before consideration of its justification the court determines that execution of the court ruling, the confirmatory requirement of the applicant, is suspended (Article 283 or 298 of the AIC of the Russian Federation), is delayed or spread (Article of 324 AIC of the Russian Federation), the Arbitration Court considering case on bankruptcy leaves this statement without consideration.

4. Determination about introduction of observation regarding introduction of observation can be appealed and reviewed only before the end of observation, that is before Date of Introduction of the following procedure. In case of receipt of the claim or statement for review of the specified determination in the considered part after the end of observation, and also in case of the end of observation during consideration such claims or statements the court stops on them production based on Item of 1 part of 1 Article of 150 AIC of the Russian Federation. Similar rules are applied in case of appeal of court resolutions about introduction of financial improvement, external management and bankruptcy proceedings.

Recognition of requirements of the applicant unreasonable is the basis for cancellation of determination about introduction of observation and suit abatement about bankruptcy (the paragraph the fifth Item 1 of Article 57 of the Bankrupcy law), except for case of availability of the established requirements of other creditors corresponding to provisions of article 6 of the Law - in that case the court refuses cancellation of determination about introduction of observation regarding observation introduction.

5. If at stage of adoption of the statement for recognition of the debtor by the bankrupt or considerations of its justification it becomes clear that it was signed by person who did not have the right to it the rule of Item 7 parts of 1 article of 148 AIC of the Russian Federation about leaving of the statement without consideration is subject to application (except for case when submission of the called statement was approved afterwards by the authorized person having the right to its giving).

In case of detection of this circumstance after introduction of observation during any insolvency proceeding the court stops production according to this statement owing to Item of 1 part of 1 Article of 150 AIC of the Russian Federation in the presence of the established requirements of other creditors corresponding to provisions of Article 6 of the Bankrupcy law, and in case of their absence - stops proceeedings about bankruptcy in general.

6. If the application for recognition of the debtor by the bankrupt is submitted by person who is the claimant's legal successor on case on which court resolution confirms the requirement of the applicant then to such application in sense of Item 3 of Article 40 of the Bankrupcy law determination of the court which adopted the specified court resolution about procedural legal succession (Article of 48 AIC of the Russian Federation) shall be enclosed; at the same time it is necessary to consider that according to part of 1 specified Article the legal succession is possible at any stage of arbitral procedure, including at enforcement proceeding stage (article 52 of the Federal Law of 02.10.2007 N 229-FZ "About enforcement proceeding").

Upon transition of the requirement of the applicant to other person after initiation of proceedings about bankruptcy, including at stage of consideration of justification of the statement for recognition of the debtor by the bankrupt, the court considering case on bankruptcy self-constructs replacement of the applicant with his legal successor, at the same time its preliminary replacement in case on which the court resolution confirming its requirement was taken out is not required.

To person which acquired requirements of the applicant (including as a result of debt repayment on obligatory payments by rules of Articles 71. 1, 85.1, 112.1 and 129.1 of the Bankrupcy law), the rights which are also connected with the status of the applicant and obligation in the case of bankruptcy, including stipulated in Article 59 Bankrupcy laws pass.

7. Proceeding from Item 8 and paragraph two of Item 9 of Article 42 of the Bankrupcy law in case of receipt in one court of several statements for recognition of the debtor by the bankrupt it is necessary to be guided by the following.

Consideration of questions of acceptance and justification of each statement for recognition of the debtor by the bankrupt shall happen in that sequence in which they arrived in court.

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