To clear a car priced to Rb 200 thousand, one has to pay now Rb 500. At the cost of a car from Rb 200 to Rb 450 thousand, the charge rate will make Rb 1000. If a car is crossing the border and it’s cost is from Rb 450 thousand to Rb 1.2 million, one will have to pay Rb 2000. If the car’s value does not exceed Rb 2.5 million, the charge rate will constitute Rb 5500. A person who owns a car priced no more than Rb 5 million, will have to clear it for Rb 7500. For carriage of a car that cost from Rb 10 to RB 30 million, one will have to pay for clearing Rb 50 thousand. The highest rate (Rb 100000) has been established for “rare” cars, which cost is over Rb 30 million.
In addition, on the first days of the new year thee had been signed the government regulation, establishing the list of equipment to be imported without special permission. These, in particular are cellular phones, videophones, fax machines, teleprinters, machine answering devices, satellite and radiotelegraph antennas.
Since January 15, 2005 a new scheme of goods transportation has been introduced, which basically concerns those foreign trade participants who carry out importation of goods by small batches. As a rule, these are so-called “shuttler traders” and cargo companies. Principally, the requirements are as follows. The customs bodies’ managers must require to provide them data on the transported goods for each package, through “presentation in the packing list of specifications, sheets, or other commercial, shipping (carriage) documents”. Compulsory attributes of such sheets are the data on the name (description) of goods contained in a package, their number and markings.
More than that, all goods must be separated and packed by their type and name. For each package it is necessary to provide a full list with description of the names, markings and quantity of goods contained in it. Otherwise, an importer will have to unpack sacks and boxes right at the temporary storage warehouse. Then goods will have to be graded and repacked. In this case, the customs clearing term will be prolonged until all is performed properly.
N.Volovik The third law on insolvency: the first results and prospects An analysis of the results of enforcement of bankruptcy procedures in 2003 and 2004 revealed that due to the lack of formed court practices of enforcement of the provisions of the third law on insolvency, it may be considered that its potential is far from being exhausted; however, even now it is possible to form a judgment on the most noticeable miscalculations relating to the evaluation of the situation in the sphere of enforcement of insolvency procedures and certain flaws in the provisions of the new law.
While in the period in which the first law on insolvency was in force (1992 through 1998) the institution of bankruptcy was rather of the imitation nature, the second law (1998 through 2002) had even more distorted the situation turning the institute of bankruptcy from a method to instill financial discipline into a tool of redistribution of property and withdrawal of assets. 12 The new (third) law on bankruptcy has been in force since 2003 and it envisages a number of positive innovations: lower risks of misuse of the rights on the part of creditors, granting of equal rights to the state and bankruptcy commissioners, consolidations of state claims, expansion of the mechanisms aimed at the protection of bona fide owners, introduction of the procedure of financial rehabilitation, greater control over the actions of bankruptcy commissioners, etc.
In March of 2004, the alignment of forces of the respective authorities engaged in the regulation and practical enforcement of bankruptcy procedures principally changed. Accordingly, the problem of further division (coordination) of the functions performed by different authorities in the sphere of insolvency became more urgent. In 2004 and 2005, there were observed two most pronounced trends:
first, the trend towards a reduction in the number of “poles” of regulation in this sphere after their “atomization” in the course of the liquidation of the Federal Service of Financial Rehabilitation (Russ.
abbr. FSFO), and, second, towards an enhancement of Federal Tax Service (Russ. abbr. FNS) powers.
The approval of a new law on bankruptcy, which has significantly modified the institution of insolvency, determined the necessity to revise the regulatory bylaws in this sphere. In 2002 through 2005, different state authorities issued more than 20 bylaws pertaining to the sphere of bankruptcy, however, the “tuning” of the new legislative mechanisms continues. At the same time, after the enactment of the new bankruptcy law there is required a period for formation of the respective infrastructure and its adaptation to new legislative regulations. It is also apparent that such “tuning” requires to take into account the specifics of real demand for institutional innovations, which would be adequate to the existing economic realities. However, the practices of 2003 and 2004 indicate significant changes in the dynamics of respective cases, appearance of new important trends in the sphere of bankruptcy, revision of the significance of certain problems observed in the preceding period.
See: Radygin A., Simachev Yu. Bankrotstva (Bankruptcies). – In: Ekonomika perekhodnogo perioda. Ocherki ekonomicheskoi politiki postkommunisticheskoi Rossii 1998 – 2002. M., Delo, 2003, pp. 498 – 512.
Yet in 2003, the scale of application of bankruptcy proceedings sharply declined: the number of bankruptcy claims against debtors declined 7.5 times from 106647 cases in 2002 to 14277 cases in 2003 (see Diagram 1). Even a more dramatic decline was observed with respect to the claims resulted in initiation of bankruptcy proceedings – the number of such claims decreased 9.8 times from 94531 in 2002 to 9695 in 2003 (see Diagram 2).
Diagram 1. The dynamics of bankruptcy claims against debtors Total number of claims Number of claims without those against absent debtors 1998 год 1999 год 2000 год 2001 год 2002 год 2003 год The fact that tax authorities have practically stopped to accept bankruptcy claims against absent debtors accounts for about 85 per cent of this radical reduction in the number of bankruptcy claims. In 2003, there were registered only 2129 claims against absent debtors as compared with 81251 claims registered in 2002. It is an illustrative demonstration of the enforcement of the provisions of the third law on insolvency, which stipulates that bankruptcy procedures with respect to absent debtors should be applied only in the case budgets have the respective funds; however, as it should be expected, no such funds were provided in the budget for year 2003. On the whole, this result may be positively appraised, since it reduced the irrational burden on the system of arbitration courts. However, the problem of absent debtors has not been resolved by a legislation envisaging methods other than bankruptcy procedures.
At the background of such a massive reduction of claims against absent debtors, the decline in the number of claims against “substantive” debtors does not look very significant; however, in reality the number of such claims decreased about two times. The number of initiated bankruptcy cases involving monitoring made 5351 in 2003 as compared with 10739 cases registered in 2002. It seems that these developments resulted from more strict conditions of the registration of claims concerning insolvency.
However, it is expected that this would be a rather short term effect as it is probable that many creditors have not yet subjected their debtors to executive proceedings.
On the face of it, a more sharp reduction of the number of initiated bankruptcy cases in comparison with the decline in the number of bankruptcy claims against debtors may be interpreted as a more strict approach of courts to the submitted claims (see Diagram 3). However, the growth in the number of initiated bankruptcy proceedings observed in 1999 through 2002 was related to the increase in the specific weight of the number of claims against absent debtors; therefore, in 2003 the activity related to the initiation of cases governed by simplified procedures sharply declined, while the share of rejected claims increased. On the whole, the “exclusiveness” of the application of bankruptcy procedures has significantly increased. On the face of it (judging by the number of submitted claims and the share of claims against absent debtors in this number), the scale of application of bankruptcy procedures in 2003 reminds of the situation existing in 1998 and 1999.
Diagram 2. The dynamics of initiated bankruptcy cases Initiated bankruptcy cases Including monitored bankruptcy cases 1998 год 1999 год 2000 год 2001 год 2002 год 2003 год Diagram 3. The rate of initiation of bankruptcy proceedings against debtors Number of bankruptcy 120000 claims against debtors (left scale) Number of initiated 70 bankruptcy cases (left scale) 60000 The rate of initiation of claims in % of the total number of submitted claims The specific weight of claims against absent 0 debtors in % of the total 1998 1999 2000 2001 2002 number of claims (right год год год год год год scale) The practices of enforcement of the third law on insolvency in 2003 do not permit to indicate any positive shifts in the solution of reorganization and rehabilitation problems in the course of implementation of bankruptcy procedures. In about 70 per cent of cases, the monitoring procedures resulted in the initiation of bankruptcy proceedings. The trend towards a decline in the both the number, and the share of rulings initiating external administration persisted (547 cases in 2003 as compared with cases in 2002). There was observed a significant decline in the number of approved amicable settlements: from 145 in 2002 to 54 in 2003. At the same time, there was observed a significant increase in the share of rulings rejecting bankruptcy claims against debtors and the share of rulings ceasing bank% ruptcy proceedings, what is an evidence of a growing role played by arbitration courts as concerns the protection of interests of potentially solvent enterprises. Only due to these factors the bankruptcy bias of monitoring procedures has somewhat decreased. The procedures of external administration proved to be even less suitable both for the achievement of amicable settlements, and for recovery of enterprises’ paying capacities. In 2003, more than 90 per cent of external administration procedures resulted in rulings initiating bankruptcy proceedings. The trend towards a decline in the number of amicable settlements persisted (53 cases in 2003 as compared with 121 cases in 2002), while financial rehabilitation of enterprises was achieved only in few cases (only 28 cases). On the whole, taking into account all “stages” of bankruptcy procedures, in 2003 there were registered about 230 cases where businesses were “rehabilitated”: 170 proceedings were ceased after the conclusion of amicable settlements and 56 bankruptcy proceedings resulted in the rehabilitation of debtors and satisfaction of debtors’ claims. The practice of enforcement of insolvency procedures indicates that the bankruptcy bias persists and even grows; it is apparent that in the course of elaboration of the provisions of the third law on bankruptcy the wish of owners to rehabilitate and develop debtors’ businesses was overestimated.
The trends noted above were also characteristic in 2004. 13 According to the data presented by the RF Ministry of Economic Development and Trade, as on September 1, 2004, the number of bankruptcy cases examined by Russian arbitration courts declined two times (to 48833) as compared with the respective figure registered in 2002. As it has been noted above, a sharp decline (including the data for year 2004) of the number of bankruptcy claims against debtors was to a significant extent related to the “freezing” of the state activity as concerns the initiation of bankruptcy procedures since March of 2004 because of the administrative reform and the necessity to provide budgetary funds for the payment of bankruptcy procedures related costs. At the same time, about 50 per cent to 60 per cent of the consolidated debts of enterprises undergoing the bankruptcy procedures are due to the state. The changes in this situation (including the solution of administrative, legal, and financial issues) will result in a sharp increase in the number of bankruptcies. In particular, this also means that in the near future the state will become the major “contractor” of bankruptcies and the issues relating to the criteria of initiation of such cases become extremely urgent at present.
The problem of fraudulent and deliberate bankruptcies remained urgent in 2003 and 2004. According to the data presented by FSFO, in 2002 there were revealed 457 cases of deliberate and fraudulent bankruptcies and 417 such cases in 2003. It should be noted that in 2002 through 2004 there were initiated about 300 respective criminal cases, however, only 20 were examined in courts and only 12 of them resulted in convictions. Due to the introduction of more complicated procedures governing the initiation of bankruptcy proceedings and restriction of the discretion of bankruptcy commissioners, since 2003 the number of “contracted” bankruptcies (according to the FSFO estimates) has significantly declined in 2003 and 200414; however, there were implemented corporate procedures (withdrawal of assets is carried out prior to bankruptcy). This problem is rather urgent as concerns state unitary enterprises, especially those included in yearly privatization plans. According to certain estimates, up to 10 per cent of such state unitary enterprises (included in privatization plans) go bankrupt within a year, while 70 per cent to 80 per cent of assets of such enterprises are withdrawn prior to bankruptcies.As a result, as it is demonstrated by the practices of 2003 and 2004, since the enactment of the provisions of the new law on bankruptcy the role of this institution in the sphere of seizure of assets has significantly declined. However, it means only that the respective “burden” was transferred to the traditional market of corporate control (hostile takeovers via purchase of shares or other actions related to the company’s shares) and the sphere of executive proceedings. According to the provisions of the At the moment the work with this material was completed, the official statistics for year 2004 (VAS RF etc) was not available.
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