The resolution is shaping the practice improving the efficiency of bankruptcy procedures and may become a turning point in the struggle of independent creditors against debtor affiliated persons.
In the course of the bankruptcy of Neftegazmash-Technologies (case No. A32-19056/2014), Igor Sviridov and Viktor Yurkov, the company’s founders, made an attempt to enter in the creditors queue. The total debt of the company comprising of loans and sureties provided by them amounted to RUB 10.5 million. The court included these debts in the total register, regardless of the fact, that businessmen provided loans out of their dividends. The appeal and the first cassation proceedings supported the above resolution.
The Judicial Chamber on Economic Disputes (JCED) of the Supreme Court of Russian Federation canceled resolutions of the lower courts, and reminded the law prohibition on inclusion of corporate requirements in the register of creditors. The corporate requirements include those that may deem to have civil nature, though, in fact, they are not (e.g., would be impossible unless the creditor had a stake in the debtor's capital). According to the Supreme Court, a founder of a company being creditor of the company due to interest owned, can not oppose his/her(its) claims to the requirements of other (independent) creditors. The judges of the Supreme Court stressed that, after all, such a participant is exposed to the risk of bankruptcy of the company caused by ineffective management.
Sergey Levichev, Head of the Bankruptcy practice of Pavlova & Partners Law Firm, notes the huge practical value of the Supreme Court resolution in this case. According to him, the Supreme Court resolution can improve the efficiency of bankruptcy procedures and may become a turning point in the struggle of independent creditors against debtor affiliated persons.