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INFORMATION LETTER OF THE SUPREME ECONOMIC COURT OF UKRAINE

of March 28, 2013 No. 01-06/606/2013

(as amended on 21-07-2016)

Economic courts of Ukraine

About the Law of Ukraine "About recovery of solvency of the debtor or recognition by his bankrupt" (in edition of the Law of Ukraine of December 22, 2011 No. 4212-VI)

In connection with entry into force of the Law of Ukraine "About introduction of amendments to the Law of Ukraine "About recovery of solvency of the debtor or recognition by his bankrupt" of 22.12.2011 we consider No. 4212-VI which reworded as follows the Law of Ukraine "About recovery of solvency of the debtor or recognition by his bankrupt" (further - the Law) necessary to pay attention to such new provisions of the Law.

1. In the Law in comparison with its previous edition other determination is provided to number of the terms used in it, namely:

- the arbitration manager is the physical person which has not the license, but the certificate on the right to implementation of activities of the arbitration manager and is entered in the Unified register of arbitration managers (managers of property, managing directors of sanitation, liquidators) of Ukraine;

- bankruptcy - the inability of the debtor recognized by economic court to recover the solvency by means of procedures of sanitation and the voluntary settlement and to extinguish established according to the procedure, determined by the Law, monetary claims of creditors precisely through application of the liquidating procedure;

- debtor is the subject of business activity (the legal entity or the physical person - the entrepreneur), incapable to fulfill the monetary commitments after approach of fixed term of their accomplishment which are confirmed with the judgment which took legal effect and the resolution on opening of enforcement proceeding if another is not provided by the Law;

- party litigants about bankruptcy - competitive creditors (the representative of creditor committee) and the debtor (bankrupt).

The law enters new terms:

- secured creditors, that is creditors whose requirements are provided with pledge of property of the debtor (the property guarantor);

- official promulgation that means promulgation of data on case on bankruptcy.

2. The part two of article 2 of the Law provides that the Law has priority before other legal acts in regulation of the relations connected with bankruptcy of the subjects of business activity, except as specified, provided in the Law.

Therefore, in case when in trial of case it will be found out that the corresponding legal relationship are settled by regulations of certain legal acts in a different way, than the Law, the provisions of the law are subject to application.

Exceptions of this rule are established by the Law, in particular, concerning bankruptcy of banks, issuers of mortgage bonds.

3. The law (Article 3) are a little narrowed in comparison with the previous edition of the Law of power of state body concerning bankruptcy.

Activities of this body, in particular, are directed to the organization of system of preparation and issue of the certificate on the right to implementation of activities of the arbitration manager, control of activities of the arbitration managers appointed by economic court, preparation and approval of standard documents concerning carrying out insolvency proceedings.

At the same time the state body concerning bankruptcy has no right to interfere with insolvency proceeding. Its functions are directed to creation of necessary conditions for activities of arbitration managers and other participants of case on bankruptcy, and also conducting control of such procedure, especially - insolvency proceeding of the state companies and companies in which authorized capital the share of state-owned property exceeds fifty percent.

4. Article 4 of the Law contains general instructions concerning the organization of activities of arbitration managers according to whom the arbitration manager is subject of independent professional activity, the right to which implementation person who received the appropriate certificate and is entered in the Unified register of arbitration managers (managers of property, managing directors of sanitation, liquidators) of Ukraine has. Thus, the arbitration manager is not subject of business activity as it was provided by the previous edition of the Law.

5. Articles 5 and 6 of the Law enter the procedure of sanitation of the debtor before opening of proceeedings about bankruptcy.

On content of the relevant standards settlement of the relations between the debtor and creditors is performed without application of judicial processes, through the pre-judicial procedure of sanitation. At the same time the debtor independently develops the plan of sanitation as system of actions for own financial improvement, approves it with all secured creditors and receives the decision of general meeting of creditors on its approval. Further this plan of sanitation is subject to approval by economic court, however its accomplishment happens out of control of court.

Effective period of the procedure of sanitation before opening of proceeedings about bankruptcy cannot exceed twelve months from the date of approval of the corresponding plan of sanitation by economic court. During this procedure the moratorium on satisfaction of requirements of creditors and prohibition on initiation of proceedings about bankruptcy of the debtor is effective.

6. The part three of article 7 of the Law provides that general can be applied to the debtor, the special or simplified procedure for proceeedings about bankruptcy depending on category of the debtor, type of its activities and availability of property at it.

It is necessary to pay special attention on part the fourth this Article according to which the debtor concerning whom judicial processes of bankruptcy were applied is considered such which has the settled monetary commitments. The corresponding instruction concerns, in particular, suit abatement about bankruptcy based on Items 4-7 of part one of article 83 of the Law. 

7. According to article 8 of the Law are subject to appeal:

- in appeal procedure - the resolution on recognition of the debtor by the bankrupt and opening of the liquidating procedure; all resolutions of local economic court accepted on the case of bankruptcy except the cases provided by the Economic Procedure Code of Ukraine (further - HPK) and the Law. Resolutions on refusal in adoption of the statement for initiation of proceedings about bankruptcy and about return of the statement for initiation of proceedings about bankruptcy, and also the decisions concerning the procedure of pre-judicial sanitation also belong to number of appealed namely about: return of the statement for approval of the plan of pre-judicial sanitation; approval of the plan of pre-judicial sanitation; refusal in approval of the plan of pre-judicial sanitation;

- in cassation procedure - resolutions and resolutions of Economic Court of Appeal accepted by results of review of such judgments: resolutions on initiation of proceeedings on bankruptcy; resolutions on recognition invalid transactions (agreements) of the debtor; decisions by results of consideration of monetary claims of creditors (determination about approval of the register of requirements of creditors); resolutions on dismissal (elimination, termination of powers) of the arbitration manager; resolutions on transition to the following judicial process; resolutions on approval of the plan of sanitation; resolutions on suit abatement on bankruptcy; resolutions on recognition of the debtor by the bankrupt and opening of the liquidating procedure.

The provided list of judgments which are subject to appeal is exhaustive and therefore giving appeal or writs of appeal on other judgments made on the case of bankruptcy pulls for itself effects in the form of refusal in acceptance corresponding appeal or the writ of appeal.

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