of December 8, 2003 No. 46
About insolvency (bankruptcy)
According to the Civil code of the Republic of Tajikistan this Law establishes the bases and procedure for recognition by court of the individual entrepreneur bankrupts, or announcements the last about the bankruptcy, the bases of recognition by court of the legal entity by the bankrupt, or announcements it about the bankruptcy, and also procedure for liquidation of it legal eggs or acceptances by it together with creditors of the decision on the announcement of the bankruptcy and about voluntary liquidation.
This Law extends on legal entities (except for the state companies provided in Article 127 of the Civil code of the Republic of Tajikistan) including foreign legal entities in the established law procedure legal order, and also to individual entrepreneurs.
If the international treaties recognized by the Republic of Tajikistan establish other rules differing from provided by this Law, the rules provided by the international treaties recognized by the Republic of Tajikistan are applied.
Provisions of this Law are applied to the relations of participation of foreign persons as creditors regulated by this Law if other is not provided by the international treaties recognized by the Republic of Tajikistan
The legislation of the Republic of Tajikistan on bankruptcy is based on the Constitution of the Republic of Tajikistan, consists of this Law, other regulatory legal acts recognized by the Republic of Tajikistan.
In this Law the following basic concepts are used:
insolvency (bankruptcy) - the inability of the debtor recognized as court or announced by the debtor in full to meet requirements of creditors for monetary commitments and (or) the contractor, obligations on payment of obligatory payments (daleebankrotstvo);
the debtor - the individual entrepreneur, or the legal entity incapable to meet requirements of creditors for monetary commitments and (or) to fulfill duties on payment of obligatory payments during the term established by this Law;
liabilities - obligations of the debtor about payment to the creditor of certain sum of money under the civil agreement and on other bases provided by the Civil code of the Republic of Tajikistan;
obligatory payments - the taxes, charges and other compulsory contributions in the budget of appropriate level arriving according to the procedure and on the terms of determined by the legislation of the Republic of Tajikistan;
the debtor's head - sole executive body of the legal entity, and also the other persons performing according to the legislation activities on behalf of the legal entity without power of attorney;
competitive creditors are creditors according to monetary commitments, except for citizens before whom the debtor bears responsibility for damnification of their life and to health, and also founders (participants) of the debtor - the legal entity according to the obligations following from such participation;
pre-judicial sanitation - the measures for recovery of solvency of the debtor taken by the owner of property of the debtor - the legal entity, founders (participants) of the debtor - the legal entity, and other persons for the purpose of the prevention of bankruptcy;
observation - the insolvency proceeding applied to the debtor from the moment of adoption by court of the statement for recognition of the debtor by the bankrupt till the moment determined according to this Law for the purpose of ensuring safety of property of the debtor and carrying out financial analysis of the debtor;
external management (judicial sanitation) - the insolvency proceeding applied to the debtor for the purpose of recovery of its solvency with delegation of power on property management of the debtor to the external managing director;
bankruptcy proceedings - the insolvency proceeding applied to the debtor declared bankrupt, for the purpose of in proportion satisfied requirements of creditors;
the managing director (the interim manager the receiver) person designated by court for carrying out;
insolvency proceedings and implementation of other powers established by this Law;
the moratorium - suspension of actions of the debtor for execution of monetary commitments and payment of obligatory payments;
the employee representative of the debtor - the person authorized by workers of the debtor and representing their interests when carrying out insolvency proceedings;
- the absent debtor - the debtor, the location of its standing body, and also founders and which officials cannot be identified and without which the legal entity could not perform the activities within the last six months;
- the interim manager - the physical person designated by court for holding procedure of observation;
- the external managing director - the physical person designated by court for holding procedure of external management;
- the receiver - the physical person designated by court for holding procedure of bankruptcy proceedings.
Legal entities, individual entrepreneurs, and also foreign legal entities, are considered incapable to meet requirements of creditors for monetary commitments, and also to provide obligatory payments in the budget at the expense of the property belonging to them if the corresponding obligations are not fulfilled by them within three months from the moment of their introduction in force and if the total amount of obligations exceeds the cost of the property belonging to them.
The structure and the size of monetary commitments and obligatory payments are determined at the time of giving in court of the statement for recognition of the debtor by the bankrupt.
For determination of availability of signs of bankruptcy of the debtor the size of monetary commitments, including the size of debt for the transferred goods, the performed works and the rendered services, loan amounts taking into account the percent which are subject to payment by the debtor, except for obligations to citizens before which the debtor bears responsibility for damnification of their life and to health, obligations on payment of award, and also obligations to founders, members of the debtor - the legal entities following from such participation is taken into account.
The size of monetary commitments according to requirements of creditors is considered established if it is confirmed with the judgment or documents testimonial of recognition by the debtor of these requirements, and also in other cases provided by this Law.
The debtor has the right to take a legal action with the statement in bankruptcy anticipation availability of the circumstances obviously testimonial of the fact that he will not be able to fulfill liabilities and (or) obligations on payment of obligatory payments at the scheduled time.
The statement can be filed a lawsuit by the debtor in the presence of property of the debtor sufficient for covering of court costs if other is not provided by this Law.
Based on the statement of the interested person the court according to the legislation of the Republic of Tajikistan determines the absent debtor.
The head of the debtor or the individual entrepreneur shall take a legal action with the statement of the debtor in the following cases:
- if the satisfaction of requirements of one creditor or several creditors becomes the reason of impossibility of full implementation of monetary commitments the debtor before other creditors;
- if the body of the debtor authorized according to constituent documents of the debtor to liquidate it, the decision on the address of the debtor with the petition is made;
- if the body authorized by the owner of property of the debtor state the unitary enterprise makes the decision on appeal to the court according to the statement of the debtor;
- in other cases provided by this Law.
In the cases provided by part one of this Article, the statement of the debtor is brought into court irrespective of availability of the cases established by part two of article 7 of this Law.
If in case of liquidation of the legal entity the impossibility of fulfillment of requirements of creditors in full is established, the debtor's head, liquidation commission (liquidator) shall take a legal action according to the statement of the debtor.
In the cases provided by this Article, the statement of the debtor shall be brought into court not later than one month before emergence of the corresponding need.
Not presentation by the debtor of the petition in cases, the stipulated in Article 8 these Laws, attracts subsidiary responsibility, the head of the debtor, members of liquidation commission (liquidator) according to obligations of the debtor to the creditors who arose after the expiration provided by this Law.
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