of May 13, 2013 No. 01-06/796/2013
Economic courts of Ukraine
About some questions of reorganization of banks and hearings of cases in disputes which arise in accomplishment of economic agreements
Due to the origin in court practice of questions concerning transition of the rights and obligations of banks which are reorganized to the Supreme Economic Court of Ukraine banks legal successors considers necessary to draw the attention of economic courts to it.
1. Features of the termination of bank as legal entity according to part four of Article 104 of the Civil code of Ukraine (further - the Civil Code of Ukraine) are established by the Law of Ukraine "About banks and banking activity" (further - the Law). As owing to requirements of article 6 of the Law banks in Ukraine are created in the form of public joint stock company or cooperative bank, regulations of the Section XVI of the Law of Ukraine "About joint-stock companies" which settle questions of the termination of joint-stock company are subject to obligatory taking into account.
Article 26 of the Law determines that the bank can be reorganized according to the decision of owners of bank. Such reorganization owing to part two of article 27 of the Law is performed according to the legislation of Ukraine on economic societies on condition of provision of preliminary permission of the National Bank of Ukraine to reorganization of bank and approval of the plan of reorganization of bank by the National Bank of Ukraine. The procedure for provision by the National Bank of Ukraine of permission to reorganization of bank is determined by the decision of its owners by the Regulations on features of reorganization of bank according to the decision of its owners approved by the resolution of Board of the National Bank of Ukraine of 27.06.2008 No. 189 (further - the Provision).
In case of reorganization of bank by transformation legislation regulations concerning the termination of the legal entity (part three of article 26 of the Law) are not applied to such legal relationship.
2. The amount of the rights and obligations which pass from banks which are reorganized to banks legal successors depends on the chosen form of reorganization of the legal entity from among specified in part two of article 26 of the Law which provides that reorganization of bank can be performed, in particular, by merge, accession, separation and allocation.
Along with the general determinations of merge, accession, separation and allocation of subjects of managing enshrined in article 59 of the Economic code of Ukraine (further - HK of Ukraine) and Articles 83 - 87 Laws of Ukraine "About joint-stock companies", to economic courts it is necessary to consider stated in paragraphs four, the sixth, eighth and ninth Provision Item 1.2.
3. Economic courts shall consider that owing to requirements of article 81 of the Law of Ukraine "About joint-stock companies" reorganization of joint-stock company is performed based on the agreement on merge (accession) or the plan of separation (allocation, transformation) which conditions are developed by the supervisory board of each joint-stock company. Reorganization can be begun only after approval of the plan of reorganization by the National Bank of Ukraine which, except other necessary measures, shall provide representation of the relevant documents to the National Bank of Ukraine necessary for review of the charter of new bank or for review changes in the charter of the existing bank (article 28 of the Law).
On contents of Article 107 of Civil Code of Ukraine and article 59 HK of Ukraine, and also Provision Item 5.3 regulations, in case of carrying out reorganization by merge/accession the bank draws up the transfer statement, and in case of carrying out reorganization by separation / выделенияраспределительный balance.
According to instructions of Item 5.4 of the Provision the transfer act / the distribution balance is made after carrying out inventory count of assets of bank which is reorganized, and elimination of the revealed discrepancies that is confirmed by the relevant act which is drawn up according to requirements of the legislation of Ukraine, and the termination of term for presentation by creditors of requirements (satisfaction or variation of requirements of creditors).
The transfer act / distribution balance is constituted for the date determined in respect of reorganization. To the transfer act / to distribution balance are applied deciphering of assets, obligations and the capital which are transferred to bank legal successor, by accounts. The transfer act / distribution balance are signed by the chairman and members of the commission for carrying out reorganization. Signatures of the chairman and members of the commission for carrying out reorganization shall be notarially certified (Provision Item 5.5).
Reliability of the transfer act / distribution balance shall be confirmed by the auditor (the paragraph third Provision Item 5.6).
Item 5.8 of the Provision provides that after approval of the transfer act / distribution balance members of bank which is reorganized, held the constituent (general) assembly of bank legal successor. The charter of bank legal successor shall contain regulations on successorship concerning the rights and obligations of bank which is reorganized which are determined in the transfer act / distribution balance. According to article 16 of the Law and the subitem "p" of Item 3.1 of the Provision the charter of bank legal successor is subject to approval from the National Bank of Ukraine.
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