Full text of Art. 223 of the Arbitration Procedure Code of the Russian Federation with comments. New current edition with additions for 2020. Legal advice on Article 223 of the Arbitration Procedure Code of the Russian Federation.
1. Cases of insolvency (bankruptcy) are considered by the arbitration court according to the rules provided for by this Code, with the features established by federal laws governing issues of insolvency (bankruptcy). 2. Cases of insolvency (bankruptcy) are considered by a single judge, unless otherwise provided by Article 17 of this Code. Arbitration assessors cannot be involved in the consideration of such cases. 3. Rulings that are made by an arbitration court when considering insolvency (bankruptcy) cases and the appeal of which is provided for by this Code and other federal laws governing insolvency (bankruptcy) issues, separately from the judicial act that ends the consideration of the case on the merits, can be appealed to arbitration court of appeal within ten days from the date of their issuance.
Commentary on Article 223 of the Arbitration Procedure Code of the Russian Federation
1. The arbitration court considers bankruptcy cases of legal entities and citizens, including those registered as individual entrepreneurs (Clause 1, Article 32 of the Federal Law “On Insolvency (Bankruptcy)”).
2. The decision of the arbitration court to declare the debtor bankrupt and to open bankruptcy proceedings is made in cases where signs of bankruptcy of the debtor are established, that is, when, in the absence of grounds for introducing external management: - the citizen did not satisfy the claims of creditors for monetary obligations and (or) did not fulfill the obligation to payment of mandatory payments within three months from the date when the obligations (obligations) should have been fulfilled, and the amount of his obligations exceeds the value of the property owned by him; - a legal entity did not satisfy the claims of creditors for monetary obligations and (or) did not fulfill the obligation to pay mandatory payments within three months from the date when the obligations (obligations) should have been fulfilled - in the absence of grounds for leaving the application for declaring the debtor bankrupt without consideration, introduction of financial recovery, external management, approval of a settlement agreement or termination of bankruptcy proceedings (Article 3, paragraph 1 of Article 53 of the Federal Law “On Insolvency (Bankruptcy)”).
3. In practice, the question arises: is a court decision that has entered into legal force sufficient to classify the amount of monetary obligations under the claims of creditors as established, or is it also necessary to have a writ of execution? In accordance with paragraph 3 of Art. 4 of the Federal Law “On Insolvency (Bankruptcy)”, the amount of monetary obligations or obligatory payments is considered established if it is determined by the court in the manner prescribed by the Federal Law “On Insolvency (Bankruptcy)”. The Federal Law “On Insolvency (Bankruptcy)” does not provide for the mandatory submission of a writ of execution. However, the arbitration manager has the right to request a writ of execution from the creditor to verify the deductions made and the timeliness of its presentation for execution.
________________ See: Issues of application of the Federal Law “On Insolvency (Bankruptcy)” in judicial practice: Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 6, 1999 N 43 // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 1999. N 10.
4. The decision of the arbitration court on declaring a debtor-legal entity bankrupt and on opening bankruptcy proceedings must contain instructions: - on declaring the debtor bankrupt; - on the opening of bankruptcy proceedings.
5. The decision of the arbitration court to declare a debtor-individual entrepreneur bankrupt must contain an indication that the registration of the debtor as an individual entrepreneur has become invalid.
6. In cases where there are no signs of bankruptcy or in other circumstances provided for by the Federal Law “On Insolvency (Bankruptcy)”, the arbitration court makes a decision to refuse to declare the debtor bankrupt (Article 55 of the Federal Law “On Insolvency (Bankruptcy)”).
7. After the arbitration court makes a decision to refuse to declare the debtor bankrupt, all restrictions resulting from the acceptance of the application to declare the debtor bankrupt and (or) the introduction of supervision are terminated (Article 56 of the Federal Law “On Insolvency (Bankruptcy)”).
8. According to Art. 46 of the Federal Law “On Insolvency (Bankruptcy)”, after the introduction of supervision, the arbitration court, at the request of the applicant or at the request of another person participating in the bankruptcy case, has the right to take measures to ensure the claims of creditors and the interests of the debtor in accordance with the Arbitration Procedure Code, which are valid until the date of issuance arbitration court ruling on the introduction of surveillance, refusal to accept an application, return of an application without consideration or termination of bankruptcy proceedings. The said definition may indicate that measures to ensure the claims of creditors and the interests of the debtor, taken on the basis of Art. 46 of the Federal Law “On Insolvency (Bankruptcy)” are repealed.
9. In the decision to declare the debtor insolvent (bankrupt) and to open bankruptcy proceedings against him (clause 1 of Article 124 of the Federal Law “On Insolvency (Bankruptcy)”), as well as in the determination to extend the period of bankruptcy proceedings (clause .2 and 3 of Article 124 of the Federal Law “On Insolvency (Bankruptcy)”), the arbitration court may indicate a period for bankruptcy proceedings, the duration of which is determined based on the circumstances of the case and taking into account the above-mentioned requirements of the law.
Changing the view of the debtor's only home
According to Part 1 of Article 446 of the Code of Civil Procedure of the Russian Federation, the only residential premises suitable for permanent residence cannot be foreclosed on. But in November 2020, the Supreme Court of Russia made a significant decision that caused a strong reaction from the legal community.
The plot of the case : the debtor took out a large loan to purchase a 5-room apartment, but was in no hurry to return the money to his creditor. Then the lender sued him. The apartment was valued at over 20 million rubles. To avoid foreclosure, the borrower made attempts to remove the apartment from his property. But the property was still arrested, and the alienation transactions were declared invalid. Then the debtor registered in this apartment and filed for his own bankruptcy, during which he based his defense position on the principle of property immunity of the only residence.
The court of first instance accepted this position, and the courts of appeal and cassation approved the court's decision. The apartment was excluded from the debtor's bankruptcy estate. But the Supreme Court overturned the rulings of the lower courts , remanding the case for a new trial.
This definition may form a new practice in determining the level of luxury of a single dwelling. When reconsidering the case, the court will determine approaches to assessing the only housing as luxury. And pay attention to the place of registration of the debtor.
The place of registration of the debtor is recorded information about the citizen’s place of residence. If the debtor’s place of registration does not coincide with the address of his “only home,” then the courts must check where the citizen actually lives.
The formation of such a position of the Supreme Court is a natural process. Back in 2012, the Constitutional Court indicated that it was necessary to create a tool to determine cases where the size and quality of housing exceed the needs of the debtor and his family. The creation of such a rule will allow maintaining a balance between the interests of debtors and creditors.
The institution of bankruptcy of individuals was introduced in 2015. Every year, courts consider more and more applications to declare citizens insolvent. This suggests that this resource has shown its effectiveness and has taken root in Russia.
Commentary to Art. 223 Arbitration Procedural Code of the Russian Federation
1. In accordance with Part 2 of Art. 3 of the Arbitration Procedure Code of the Russian Federation, the procedure for legal proceedings in arbitration courts is determined by the Constitution of the Russian Federation, the Federal Law “On the Judicial System of the Russian Federation” and the Federal Law “On Arbitration Courts in the Russian Federation”, the Arbitration Procedure Code of the Russian Federation and other federal laws adopted in accordance with them. Consequently, deviation from the norms provided for in the listed laws, including the norms of the Arbitration Procedure Code of the Russian Federation, is possible if this is permitted by the specified laws.
In accordance with Part 1 of Art. 223 of the Code, it is possible to provide for such derogations. At the same time, it is regulated that the specifics can be established only by federal laws, and only by laws regulating issues of insolvency (bankruptcy).
2. Currently in effect:
— Federal Law “On the Peculiarities of Insolvency (Bankruptcy) of Natural Monopolies in the Fuel and Energy Complex” dated June 24, 1999 N 122-FZ; valid until January 1, 2005; ——————————— NW RF. 1999. N 26. Art. 3179.
— Federal Law “On the Insolvency (Bankruptcy) of Credit Institutions” dated February 25, 1999 N 40-FZ. ——————————— Ibid. N 9. Art. 1097; 2000. N 2. Art. 127; 2001. N 26. Art. 2590; 2001. N 33 (part 1). Art. 3419; 2002. N 12. Art. 1093.
3. The APC retains the general rule on the collegial composition of judges for considering bankruptcy cases. At the same time, the legislator has provided the opportunity to provide in the law regulating bankruptcy issues for the sole consideration of these cases or individual issues arising during the consideration of a bankruptcy case. This is implemented in the new Bankruptcy Law.
When applying the previous Law, difficulties arose with the creation of a collegial composition to consider the validity of the claims of creditors who entered the process after the initiation of proceedings in the case, especially in cases where a large number of creditors are involved in the case. Practice has taken the path of individual consideration of these issues, when it is not possible to create a collegial composition.
The new Bankruptcy Law establishes cases of a number of rulings being made by a single judge. Thus, rulings on the introduction of supervision, on preparing a bankruptcy case for trial, based on the results of consideration of applications and petitions of the arbitration manager, including disagreements that arose between him and the creditors, and in cases provided for by the Bankruptcy Law, between him and the debtor , on consideration of complaints from creditors about violations of their rights and legitimate interests.
The new Law increases the period for consideration of bankruptcy cases from three to seven months, since, based on all the actions that must be performed by the persons participating in the case and by the arbitration court, before considering the case on the merits, a three-month period turned out to be clearly insufficient.
4. The APC stipulates that bankruptcy cases are considered only by professional judges; the participation of arbitration assessors is not allowed. This norm is established in Part 3 of Art. 17 of the Arbitration Procedure Code of the Russian Federation and emphasized in Part 2 of Art. 223 of the Code.
5. Issues of appealing determinations are specified in Art. 61 of the Bankruptcy Law.
Determinations made based on the results of consideration of applications, complaints and petitions of persons participating in the case, establishing the validity of creditors' claims, are appealed in the manner established by the Arbitration Procedure Code of the Russian Federation. Other rulings of the arbitration court, which were adopted in the framework of a bankruptcy case, but are not provided for by the Arbitration Procedure Code of the Russian Federation and in respect of which it is not established that they are subject to appeal, may be appealed through the appellate procedure no later than fourteen days from the date of their adoption. Based on the results of consideration of the complaint, the appellate court, no later than 14 days later, makes a decision, which is final.
1. Cases of insolvency (bankruptcy) are considered by the arbitration court according to the rules provided for by this Code, with the features established by federal laws governing issues of insolvency (bankruptcy).
2. Cases of insolvency (bankruptcy) are considered by a single judge, unless otherwise provided by Article 17 of this Code. Arbitration assessors cannot be involved in the consideration of such cases.
3. Rulings that are made by an arbitration court when considering insolvency (bankruptcy) cases and the appeal of which is provided for by this Code and other federal laws governing insolvency (bankruptcy) issues, separately from the judicial act that ends the consideration of the case on the merits, can be appealed to arbitration court of appeal within ten days from the date of their issuance.
Appeals against rulings made by an arbitration court when considering insolvency (bankruptcy) cases are considered by an appellate arbitration court by a collegial composition of judges.
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Arbitration Court of the Perm Territory
The application is signed by the plaintiff or his representative.
The powers of the representative must be expressly provided for in the representative’s power of attorney (clause 1 of Article 37 of the Bankruptcy Law). The application may be sent by mail or submitted to the arbitration court, including by placing it in the mailbox located on the ground floor of the arbitration court.
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An application can also be submitted to the arbitration court by filling out a form posted on the official website of the arbitration court on the Internet. The applicant is obliged to send to other persons participating in the case copies of the application and the documents attached to it, which they do not have, by registered mail with acknowledgment of delivery.
The debtor's application must indicate (in relation to Article 125 of the Arbitration Procedural Code of the Russian Federation; paragraph 2 of Article 37 of the Bankruptcy Law) the name of the arbitration court to which the application is being submitted; the name of the defendant (debtor), his location or place of residence, the date and place of his birth, his place of work or the date and place of his state registration as an individual entrepreneur, telephone numbers, faxes, email addresses; the circumstances on which the claims are based and evidence supporting these circumstances; the amount of creditors' claims for monetary obligations, including the deadline for fulfillment of which occurred on the date of filing the debtor's application with the arbitration court, in an amount that is not disputed by the debtor, indicating the reasons for the debt; the amount of debt for compensation for harm caused to the life or health of citizens, payment of compensation in excess of compensation for harm, remuneration of the debtor’s employees and payment of severance pay to them, the amount of remuneration for the authors of the results of intellectual activity; the amount of debt on mandatory payments; justification for the impossibility of fully satisfying the claims of creditors or a significant complication of economic activity when foreclosure on the debtor’s property or other actions that were the basis for filing an application in accordance with this Federal Law; information about statements of claim against the debtor accepted for proceedings by courts of general jurisdiction, arbitration courts, arbitration courts, about writs of execution, as well as about other documents presented to write off funds from the debtor’s accounts without acceptance; information about the debtor’s property, including cash, and accounts receivable; numbers of the debtor's accounts in banks and other credit organizations, addresses of banks and other credit organizations; name and address of the self-regulatory organization from among whose members the financial manager must be approved; if the debtor uses state secrets in its activities, the statement indicates the state secret of the debtor's manager.
the application of the debtor-citizen also indicates information about the debtor’s obligations not related to business activities; list of attached documents.
Article 223 of the Arbitration Procedure Code of the Russian Federation. Procedure for considering insolvency (bankruptcy) cases
1.
To the federal laws provided for in Part.
1 of the commented article, the following Laws apply: dated February 25, 1999 N 40-FZ
“On the insolvency (bankruptcy) of credit institutions”
, dated June 24, 1999 N 122-FZ
“On the peculiarities of insolvency (bankruptcy) of natural monopolies in the fuel and energy complex”
, dated October 26, 2002
N 127-FZ “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law).
——————————— No longer in force on July 1, 2009, but applies to proceedings initiated before that date.
It should be noted that the text of the latest Law has undergone changes and additions 23 times over seven years, not all of them were of a cosmetic nature. Federal laws of December 30, 2008 N 296-FZ, of December 30, 2008 N 306-FZ, of April 28, 2009 N 73-FZ, of July 19, 2009 N 195-FZ introduced significant and significant changes and additions, which required a radical revision of law enforcement practice.
