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Who is an individual: responsibility, difference from legal entities


Interest in all kinds of loans and credits in Russia is growing year by year. And the loan amounts too. If in 2020, according to the United Credit Bureau, Russians took out an average loan of 106,000 rubles, then in 2020 – for 129,000 rubles. Loans and credits are used not only for apartments and expensive cars, but also for ordinary household appliances, gadgets, and clothes. The availability of credit and advertising lead to the fact that people, without thinking, often get into debt, for which they are not always able to make payments. Some borrowers turn to the bank again to get another loan to repay existing ones. In fact, every fifth Russian is unable to pay the bank, and 53% of debtors are forced to take money there again in order to repay the previous loan.

Basic financial illiteracy ultimately leads consumers into a dead end, and they are forced to declare themselves bankrupt. If such a situation arises, you need to know: how to properly declare yourself bankrupt, and what steps need to be taken to do this.

Who can become bankrupt: what is necessary to declare bankruptcy

Unfortunately, in order to pay off banks, people are forced to give away 25 to 50% of their income, which is not easy. Sometimes things reach the point of absurdity. They pay more than they earn. Borrowers who have five loans or even more often ask to declare bankruptcy.

Under what circumstances is bankruptcy recognized?

Debts appear for both subjective and objective reasons. There are objective factors that do not depend on the debtor, and subjective ones that he can somehow influence: finding a job if he unexpectedly lost it, etc. The fact that you are insolvent still needs to be proven, which is not always easy to do.

In what case can a person be declared bankrupt? This requires certain circumstances, thanks to which you can obtain bankruptcy status and get rid of debts. You can become bankrupt

  1. If the amount of debt on mortgages, consumer loans, and utilities exceeds 500,000 rubles;
  2. If payments are overdue for more than three months;
  3. If there is no permanent income and the person is insolvent.

If everything is clear with the first two points, then the third may raise the question: when is a person declared insolvent? Only if, when paying the monthly loan debt, he has an amount that is lower than the existing subsistence level in the region.

What to prepare for filing for personal bankruptcy

The judicial system is complex and requires formalities. This causes difficulties for those who apply for bankruptcy recognition.

The peculiarities of bankruptcy of individuals provide that the debtor will need not only to file a bankruptcy application, but also to carry out the following preparatory measures:

  1. Find a manager.

    This should be taken care of in advance by choosing a suitable SRO, which will need to be indicated in the application. You can choose a reliable financial manager based on official registers and databases. You must be sure that the financial manager will get down to business. We wrote here how to negotiate with the financial manager.

  2. Prepare to spend.
    This is one of the main issues - money for the procedure. The remuneration for the financial manager is 25,000, the state duty is 300 rubles, the cost of mandatory publications is at least 26,000 rubles. Also mail, additional certificates - usually about 5,000 rubles.

    If you go bankrupt on your own, the minimum legal costs without bidding and additional disputes will be about 60,000 rubles. Bankruptcy through a law firm costs from 80 to 100,000 rubles.

    According to the experience of our clients, it is cheaper to put the case under the responsibility of a lawyer than to try to fight the banks on your own. We've covered the costs in more detail here.

  3. Collect documents.

    It is important to prepare all the necessary papers related to bankruptcy - agreements, receipts, certificates of debts, income, family composition. The full list can be clarified during bankruptcy consultation or in this article.

    The more documentary evidence of your situation you collect for the court, the fewer delays there will be in the case, and you will quickly receive bankruptcy status.

  4. Notify all creditors of bankruptcy.
    It is important to do this in writing so that there is evidence: a receipt from the post office or a bank stamp confirming the receipt of documents from the courier.

Thus, bankruptcy is recognized in order to declare debts unenforceable and write them off. There are two main conditions - the inability to pay and the absence of fraudulent schemes. The judicial procedure is not limited by the amount of debt, but from 500 thousand it becomes mandatory. For her there are no restrictions on the amount of property, income and affairs with the bailiffs.

From September 1, 2020, free out-of-court bankruptcy will be introduced. The MFC applies for simplified write-off with a debt of up to 500 thousand, when the bailiffs have completed the enforcement proceedings due to the impossibility of collection. There should not be any property or income in excess of the minimum wage, otherwise creditors may transfer the case to Arbitration.

If debts are piling up and you have no idea what to do with them, seek professional bankruptcy support from qualified credit lawyers. We will help you legally write off your debts.

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Who cannot be declared bankrupt

But, having decided to file a claim for bankruptcy, you need to keep in mind: not every individual can become bankrupt. A citizen cannot become bankrupt:

  • whose income exceeds 50,000 rubles per month;
  • whose property is valued at at least 200,000 rubles.

If a person does not have his own home or job, but has loan obligations, then he has good conditions for declaring him bankrupt. But you cannot declare yourself bankrupt without paying the loan and keeping your property. Basically all liquid property will be included in the bankruptcy estate. The debtor only has:

  • the only housing (if it is not collateral);
  • the land plot on which the housing is located;
  • his things;
  • Food;
  • animals on the farm;
  • equipment used for work;
  • state awards and prizes, if any.

Conditions for bankruptcy

The decision on bankruptcy is made exclusively by the arbitration court.
A citizen has the right to initiate a procedure if certain conditions are met:

  1. Has Russian citizenship.
  2. Unable to pay debts due to work injury or lack of permanent work.
  3. Does not hide the presence of property or income.
  4. Admits his bankruptcy.
  5. Submits a request for debt restructuring for the first time in the last 5 years.
  6. He has no outstanding convictions for economic crimes, and has not been brought to administrative or criminal liability.

The arbitration may make a positive verdict if the following types of insolvency are identified:

  1. The amount of debt without the possibility of repayment is 500,000 rubles and more.
  2. Delay in payments - more than 3 months without the possibility of returning funds before the date of filing the statement of claim in court.
  3. Inability to repay debt through renegotiation or restructuring.
  4. Declaration of bankruptcy 1 month (at least) before the occurrence of the fact that led to insolvency.

A person has the right to initiate the procedure for official bankruptcy of himself with a debt of less than 500,000 rubles, if the price of his own property is lower than the indicated figure.

The main condition for filing bankruptcy for individuals. persons - documentary evidence of the inability to pay debts. At the same time, attempts were made to get a job and pay off debts on their own, but the financial situation only worsened. After payments, the amount left in hand is below the subsistence level.

How often can you declare yourself bankrupt?

You can declare yourself bankrupt once every five years. If an individual is declared bankrupt, then during this period he cannot enter into a loan agreement without mentioning bankruptcy. But even after five years, it will be extremely difficult to get a loan from any bank, since bankruptcy will be indicated in the credit history.

Reasons for refusal to recognize bankruptcy

A claim for recognition of bankruptcy may be considered unfounded if:

  • there is no evidence of insolvency or the person does not meet the criteria for insolvency;
  • the person has assumed impossible loan obligations in advance;
  • the debtor is unable to pay all the costs associated with declaring bankruptcy.

How to return an erroneous payment

Every bank cares about the safety of its customers’ funds. In their work, bankers use special control systems, so almost all transactions with a bank account or card are confirmed by the client’s electronic signature. And, if in most cases it is possible to protect a card from fraudsters, then it is less common to protect funds from the cardholders themselves, because erroneous payments are made quite often today. What should the client do in this case?

We invite you to read: GPH agreement with a doctor

First of all, we advise you not to panic and act quickly, because payments are sent by the bank in so-called “bundles” - not individually, but in batches in a time period of 15 minutes to half an hour. That is why it is very important for the sender to act quickly; there is a possibility that the money will not yet be credited to the transfer recipient’s account.

There are several options to solve the problem:

  • contact a bank branch;
  • contact the bank's hotline, explain the circumstances and ask to cancel the transfer. In this case, the operator will ask you some questions to clarify your identity, for example, a code word, passport data or something else.

In both cases, the sender needs to write a special application in one of the bank branches, indicating there:

  1. personal information, passport details, as well as details of the card from which the erroneous payment was made;
  2. time of operation;
  3. method of making a transfer, for example: using a bank cash desk, terminal or via Internet banking;
  4. size and currency of transfer;
  5. reason for the return of the transaction: an error in the details, an incorrectly specified amount, for example, when repaying a loan to a card, the transaction was carried out without the knowledge of the owner of the plastic card, etc.

In this case, the bank will definitely require the sender to provide documents proving the error, for example, a check, account statement, receipt. If the money has not been credited to the sender's account, the bank will return it within 5 business days.

It is worth noting that if the action was carried out through a bank cash desk, it will be a little easier to return the funds: often, transfers there are sent at the end of the day or even the next day. You will only need to ask the bank employee to cancel the transaction. If the money transfer was carried out in another way, the funds can be credited to the recipient’s account much faster.

How to declare yourself bankrupt

If circumstances develop in such a way that a person is forced to declare bankruptcy, then you need to carefully prepare for the procedure. First of all, collect documents.

What documents are needed to declare bankruptcy?

  1. An application that must contain information about the SRO (self-regulatory organization) for selecting a manager.
  2. Documents confirming the accumulated debt.
  3. List of bankrupt loans and debtors.
  4. Inventory of the property of a potential bankrupt.
  5. Personal documents: photocopies of passport, certificate of marriage or divorce, birth of children.
  6. Documents from government agencies: TIN, confirmation or absence of individual entrepreneur status.
  7. Documents on financial status - income for the last three months;
  8. Medical certificates about illness, disability, etc.

Collecting documents is not a simple procedure and, if possible, it is better to seek the help of specialists.

Where to go

After all the documents have been collected, you need to apply to the arbitration court. The judge must find out whether the person filing the documents really cannot pay the bills. It will be revealed whether the citizen has made financial transactions, or whether he has made expensive gifts to relatives or friends.

It must be remembered that all attempts to mislead the judge are strictly punishable by law. If the bankruptcy is fictitious, the person faces criminal liability of up to 6 years in prison. This is done to prevent people from trying to avoid legitimate payments.

What Happens After a Bankruptcy Case Begins?

After the case has begun, the debtor’s property is immediately seized and a financial manager is appointed. Without a manager, all financial transactions will be considered invalid.

How much money will be required for the bankruptcy procedure of an individual?

To begin the bankruptcy process, you will need to pay

  • State duty;
  • financial manager services;
  • expenses of the financial manager.

The state fee is 300 rubles and is paid immediately upon filing the statement of claim. To pay for the services of a financial manager, you need (by law) 25,000 rubles. Funds must be deposited during the application process and are paid to the manager after the process is completed.

As for expenses, they may vary. But the financial manager must:

  • publish information in the Kommersant newspaper and on the Unified Federal Resource for Information on Bankruptcy;
  • involve independent experts to evaluate the property;
  • sell property.

In addition, funds may be required for postage and other expenses.

But for practitioners, the services of a manager can cost significantly more. As a rule, the court deducts fines for minor violations from the manager’s fee, which can reach up to 50,000 rubles. Therefore, to hire a competent manager, you need an average of 100,000 rubles.

BASIC

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Regardless of the method for determining the tax base for income tax, do not include erroneously received amounts in the taxable income of the organization (Article 248 of the Tax Code of the Russian Federation). They do not relate to either sales income or non-sales income (Articles 249, 250 of the Tax Code of the Russian Federation). These amounts are not recognized as the economic benefit of the organization (Article 41 of the Tax Code of the Russian Federation).

If the bank has written off erroneously received funds from the organization’s account, then there is no need to reflect them in expenses either. This is due to the fact that the indicated amounts do not meet the expense criteria specified in paragraph 1 of Article 252 of the Tax Code of the Russian Federation.

An example of reflection in accounting and taxation of funds erroneously credited and subsequently debited from the organization’s current account

On January 19, when checking a bank statement, an accountant at Alfa LLC discovered that 118,000 rubles had been credited to the organization’s current account at JSCB Nadezhny. (including VAT – 18,000 rubles). The money came from Torgovaya LLC. Since there were no contractual relations between Alpha and Hermes, the accountant took into account 118,000 rubles. as erroneously received funds.

The Alpha accountant did not calculate VAT payable to the budget on the specified amount. The organization's accountant wrote a corresponding statement to the servicing bank.

The bank account agreement concluded between Alfa and JSCB Nadezhny contains a condition for the direct debiting of amounts that were mistakenly credited to Alfa’s current account. After the bank reviewed the application, the erroneously credited funds were debited from Alpha’s current account on January 21 and returned to Hermes’ current account.

"Alpha" pays income tax monthly.

Alpha's accountant made the following entries in the accounting.

Debit 51 Credit 76-2– 118,000 rub. – funds mistakenly credited to the organization’s current account are taken into account.

Debit 76-2 Credit 51– 118,000 rub. – funds previously mistakenly credited to the organization’s current account are written off.

When calculating income tax for January, the accountant did not take into account the amounts erroneously received and subsequently written off from the current account (RUB 118,000).

Situation: is it necessary to charge VAT on amounts received into the organization’s current account by mistake?

No no need.

Funds received into the organization's current account by mistake are not associated with settlements for payment for goods sold (work performed, services rendered). Therefore, do not charge VAT on them. This conclusion follows from the provisions of Article 162 of the Tax Code of the Russian Federation. It is confirmed by the Russian Ministry of Finance in a letter dated August 2, 2010.

What problems may arise after declaring bankruptcy?

Bankruptcy is not such an easy process, and after declaring a person bankrupt, he may face certain problems.

What not to do when going bankrupt

There are a number of other restrictions that are imposed on a bankrupt:

  • restrictions on traveling abroad until the bankruptcy case is completed;
  • deprivation of the right to start a business;
  • deprivation of the right to find employment as a manager for three years.

Pros and cons of bankruptcy

The advantages of bankruptcy are obvious: a person gets the opportunity to get rid of debts forever and move on with life. He gets the opportunity to:

  • reducing loan payments;
  • cancellation of fines;
  • protection from collectors.

In addition, all other financial-related court decisions will be suspended.

But it's not that simple. Unfortunately, people are often poorly informed about the bankruptcy procedure and do not have the funds to handle it. Despite one big advantage of getting rid of an unbearable burden, there are disadvantages that make the procedure possible not for everyone and not in all cases. These include:

  • the high cost of the procedure itself;
  • arrest of accounts and confiscation of property in favor of creditors.

But there is one positive point here too. The bankruptcy procedure will not affect the debtor’s relatives in any way and will not affect their credit histories.

Individuals in civil law

In accordance with the civil code of the Republic of Kazakhstan, individuals include citizens of the Republic of Kazakhstan, as well as foreign citizens and stateless persons.

Since legal regulation presupposes the presence of certain qualities in subjects of a particular branch of law, in the theory of law such a category as legal personality has been developed.

Legal personality includes such categories as legal capacity and legal capacity.

Legal capacity is the legally recognized ability of a person to have civil rights and bear responsibilities. Legal capacity is an abstract and inalienable category; it arises at the moment of birth and ceases with the death of an individual. The most significant rights of citizens include:

the opportunity to own property, including foreign currency, both within the Republic of Kazakhstan and abroad;

inherit and bequeath property;

move freely throughout the territory of the republic and choose a place of residence;

freely leave the republic and return to its territory;

engage in any activity not prohibited by legislative acts;

create legal entities independently or with other citizens and legal entities;

make any transactions not prohibited by law and participate in obligations;

have intellectual property rights to inventions, works of science, literature and art, and other results of intellectual activity;

demand compensation for material and moral damage; have other property and personal rights.

Although legal capacity is recognized equally for all participants in civil legal relations, the ability of a citizen to have rights is not equal to the actual possession of them, which means that the volume of subjective rights of an individual citizen is not equal to the volume of the rights of another individual, only the volume of opportunities to have certain rights is equal. As a general rule, no one can be limited in legal capacity and legal capacity except in cases and in the manner prescribed by law. It is impossible for a citizen to completely or partially renounce his legal capacity and legal capacity.

Existing restrictions, usually restrictions on freedom of movement and deprivation of the right to engage in a certain type of activity, are temporary and serve as a sanction for committing a criminal or administrative offense.

In contrast to legal capacity, the legal capacity of a citizen through his actions to acquire and exercise civil rights, to create civil responsibilities for himself and to fulfill them arises in full with the onset of adulthood, that is, upon reaching the age of eighteen. In addition to reaching the age limit, full legal capacity can arise in two cases: if legislative acts allow marriage before the age of eighteen (a citizen under eighteen years of age acquires full legal capacity upon marriage), and upon emancipation. Emancipation is carried out by decision of the guardianship and trusteeship authority or the court, if one or both parents do not agree with this, and gives the individual all the rights and opportunities of an adult. The main condition for emancipation is reaching the age of 16 and working under an employment contract or engaging in entrepreneurial activity with parental consent.

Adult citizens may also be limited in their legal capacity due to alcohol or drug abuse. Guardianship is established over such citizens. Trustees give consent to carry out those transactions that their wards do not have the right to carry out independently.

A citizen who, due to mental illness or dementia, cannot understand the meaning of his actions or control them, may be declared incompetent by the court in connection with which guardianship is established over him. All transactions on behalf of an incapacitated citizen are carried out by his guardian.

Guardians and trustees, who can only be adult capable citizens, are obliged to take care of the maintenance of their wards, provide them with care and treatment, and protect their rights and interests. All transactions are made by the guardian in the interests of the ward. The law prohibits transactions between a guardian, trustee, their spouses and close relatives and a ward. Guardianship and trusteeship of adult citizens is terminated in cases where a court makes a decision recognizing the ward as capable or lifting restrictions on his legal capacity at the request of a guardian, trustee or guardianship and trusteeship body. Guardianship of minors ends when they reach 18 years of age. Guardianship can be established not only over partially or limitedly capable citizens, but also over capable persons who, for health reasons, cannot independently exercise and protect their rights and fulfill responsibilities, for example, over disabled people. A guardian over a legally capable minor citizen carries out his functions on the basis of an agency agreement or a trust management agreement.

One of the types of relations regulated by civil law is the institution of individual entrepreneurship. In accordance with the Civil Code of the Republic of Kazakhstan, a citizen has the right to engage in entrepreneurial activity without forming a legal entity as an individual entrepreneur. The rules of the Civil Code regulating the activities of legal entities that are commercial organizations are respectively applied to the entrepreneurial activity of a citizen carried out without forming a legal entity, unless otherwise follows from the law, other legal acts or the essence of the legal relationship.

Individual entrepreneurs who meet one of the following conditions are subject to mandatory state registration:

use hired labor on a permanent basis;

have from business activities a total annual income, calculated in accordance with tax legislation, in an amount exceeding the non-taxable amount of total annual income established for individuals by the legislative acts of the Republic of Kazakhstan. If an individual entrepreneur carries out activities that are subject to licensing, he must have a license to carry out such activities.

Thus, civil legislation in the Republic of Kazakhstan develops the basic constitutional rights and freedoms of citizens related to civil legal capacity, in particular the right to freedom of movement (choice of place of residence), the right to freely use one’s abilities and property for entrepreneurial and other economic activities not prohibited by law and other. Particular attention is paid to protecting the legitimate interests of citizens who, due to age, physical or mental state, cannot independently defend their interests.

But taking into account the gradual development of society, changes in the worldview of citizens in connection with ongoing processes in global civil society, the state is taking the necessary measures to introduce additions and changes to the legislation of the Republic in the field of civil law.

Chief specialist of the Katon-Karagai district court of East Kazakhstan region Erezhepova D.B.

If you are not declared bankrupt: other ways to solve the problem

The statement of claim will not necessarily be followed by a bankruptcy court decision. The court may make other decisions.

Settlement agreement

It is possible if the debtor and creditor were able to reach an agreement, and the latter is confident that the agreement will be fulfilled.

Confiscation of property

Confiscation is carried out if the loan is issued on the security of property. Property (most often real estate) can be sold at auction. After the sale, the lender will keep the amount he lent to the borrower.

See also on the topic Bankruptcy of individuals

  1. Why do people take out loans - 4 main reasons
  2. How to fix your credit history
  3. What is DTI, how to determine it and what does DTI above 35% mean?
  4. Business on borrowers, working methods of collection companies
  5. 6 tips on how to take out a loan correctly

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Difference between individuals and legal entities

For legal literacy, it is necessary to understand the difference between individuals and legal entities. An individual is always one person, a real subject.

A legal entity usually consists of several members, although it can also be owned by one person. The composition and number of participants may vary. A legal entity is created in accordance with all the rules of the law, is subject to mandatory registration, and always has its own legal address, organizational and legal form (LLC, JSC, PJSC...). On its own behalf, it can make various transactions, be a plaintiff or defendant in court.

An individual can carry out activities on behalf of a legal entity.

A legal entity acquires a legal obligation at the moment it arises, a person - as he grows older.

The risks of participants in a legal entity (organization) are always limited. The property that belongs to the organization is divided among its participants.

Unlike an individual, a legal entity can only be responsible for administrative and civil violations.

Thus, it becomes clear that there are quite a lot of differences between these two entities, as well as many features of legal entities and individuals, although these definitions are interrelated.

An individual legally receives much more rights, freedoms and responsibilities; he can participate in the creation of commercial and non-profit organizations, make transactions, and own his own property. Based on knowledge of what an individual is, you can protect your interests and build legal relationships with people.

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Disadvantages of Bankruptcy

Even if the financial insolvency of an individual is declared. a person is not released from debt for:

  • payment of alimony, bank fees, penalties and fines;
  • compensation for moral damage caused to third parties during a crime (offence).

Such debts cannot be written off. Creditors' claims can be satisfied only for obligatory payments. Although in the event of seizure and sale of property, the citizen is released from unsatisfied claims of creditors.

A significant disadvantage of the procedure is the inability to manage your funds and conduct banking transactions on accounts. While the court case is pending, all financial matters of the debtor are transferred to the care of the financial manager.

Also, in connection with bankruptcy, certain risks arise. If transactions concluded over the last 3 years seem dubious to the court, they will be declared invalid.

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