• dispose of the enterprise’s property (except leasing it), including the sale or mortgage of its fixed assets (except buildings and facili ties) or circulating assets. In this connection, no less than 80% of the proceeds from the sale of mortgage of fixed or circulating as sets were to be used for the purposes of financial rehabilitation and repayment of the enterprise’s debts;
• make decisions, in coordination with a committee for property management, and in the event of the existence of several owners of the enterprise – in coordination with the board of the owners’ rep resentatives, concerning the enterprise’s division, as well as its re organization into an open joint stock company;
• directly manage the production process.
In the event when the reorganization resulted in eliminating the grounds for an enterprise’s bankruptcy, the independent entrepreneur would become its owner. Then, his share in the enterprise’s property was constituted by his funds invested in the enterprise during the reor ganization, as well as the enterprise’s profit, as of the moment of mak ing the decision concerning the termination of the status of bankruptcy, less the existing debt liabilities of the enterprise. An administrative manager, having successfully effectuated an enterprise’s reorganiza tion, would receive a lumpsum remuneration from the enterprise’s funds in the amount of 25 salaries envisaged in the contract, as well as would be appointed, with his consent, the enterprise’s director.
The actual onset of the legal history of the institution of bankruptcy commissioners in this country should be considered to be the adoption of RF Law “On insolvency (bankruptcy) of enterprises” of 19.11.No. 3929 1 (hereinafter – the 1st Law on bankruptcy). This document specified two categories of commissioners – the bankruptcy commis sioner proper, or a person appointed by the arbitrage court, to whom the function of external administration of a debtor’s property is to be delegated, and the receiver – a person who effectuates bankruptcy proceeding.
The bankruptcy commissioner was to be appointed by the arbitrage court when the procedures of external administration of a debtor’s property were initiated. The debtor and creditors were granted the right to nominate their candidates for the administrator’s post. If there were several such candidates, the appointment of the bankruptcy commis sioner was made on a competitive basis.
In respect to the candidacy for the bankruptcy commissioner, the following major requirements were established:
• the person should be a professional economist or lawyer, or have an experience of economic management;
• should be a no record of conviction;
• the person should submit a declaration of incomes and estate.
Besides, it was established that no representative of the debtor’s or a creditor’s administration could be appointed bankruptcy commis sioner.
The amount of remuneration to the bankruptcy commissioner was determined by a creditors’ meeting and was subject to the approval by the arbitrage court. The remuneration to the bankruptcy commissioner was paid from the debtor’s estate195.
In the event when the petition for introducing external administration was filed by a debtor enterprise’s owner or by the creditors, and the arbitrage court thereafter made the decision concerning the termination of the external administration of the debtor’s prop The sphere of competence of the bankruptcy commissioner was to be as follows:
• the administration of the debtor enterprise;
• the dismissal, in the event of necessity, of its director from the exe cution of the responsibilities pertaining to the administration of the debtor enterprise, and hiring and dismissing its employees;
• the disposal of the debtor’s property;
• the calling of creditors’ meetings;
• the development of a plan for external administration of the debtor’s property and the organization of its implementation.
The receiver was to be appointed by an arbitrage court in the event of a debtor being deemed bankrupt and of the initiation, in respect to the latter, of bankruptcy proceeding. The requirements to the candi dacy for the receiver were exactly the same as those to the candidacy for the bankruptcy commissioner.
From the moment of bankruptcy proceeding being initiated, the rights and responsibilities of the debtor’s director were to be trans ferred to the receiver, the former having been dismissed by the court from this post. The list of the receiver’s main functions was as follows:
• the administration of the debtor enterprise;
• an analysis of the debtor’s financial status, an investigation as to whether the creditors’ claims are truly substantiated, with their rec ognition or rejection;
• the conduct of an inventory and evaluation of the debtor’s property and liabilities with the help of outside experts;
• the formation of the mass of the debtor’s estate, including the activ ity aimed at recovering receivables;
• the submitting to the arbitrage court and to creditors all the neces sary information concerning the debtor’s financial status and prop erty as of the moment of the initiation of bankruptcy proceeding;
• the formation of a liquidation board and direction over its activity;
• the effectuation of the sale of the debtor’s property;
erty, or concerning the appointment of a new bankruptcy commissioner due to the rejec tion, by the creditors’ meeting, of the external administration plan, the remuneration in full or in part could be charged to the party which had filed the petition concerning external administration.
• the preparation of a report on his activity and its submission to the arbitrage court.
The receiver is granted the right to contest at the arbitrage court the transactions concluded by the debtor during the six months preceding the initiation of bankruptcy proceedings, as well as the decisions of creditors’ meetings which surpass a creditors’ meeting’s competence or limit the powers of the receiver.
The amount of remuneration to the receiver was to be determined by a creditors’ meeting and was subject to the approval by the arbitrage court.
The person of a receiver emerged also within the framework of the procedure of a debtor’s voluntary liquidation as determined by the 1st Law on bankruptcy. In this case, the receiver was appointed by the debtor’s owners on the recommendation by its director, while the credi tors, in their turn, were granted the right to appoint a new receiver in stead of that appointed by the owners.
From the moment of the appointment of the receiver, the debtor’s property was transferred to his disposal, the director being dismissed from the execution of the debtor’s administration. The receiver’s func tions in general coincided with the functions performed by a bankruptcy commissioner within the framework of bankruptcy proceeding.
The onset of a new phase in the development of the institution of bankruptcy commissioners in Russia was marked by the enactment of Federal Law “On insolvency (bankruptcy)” of 8.01.1998 No 6 FZ (here inafter – the 2nd Law on bankruptcy). First of all, it should be noted that this document considerably expanded the list of requirements to the candidacy for a bankruptcy commissioner, having established, in par ticular, the following criteria:
• a bankruptcy commissioner should be registered as an individual entrepreneur;
• a bankruptcy commissioner should have specialized qualification;
• a bankruptcy commissioner should hold a special license issued by am empowered state body. In this connection, the recalling of such a license in the period during which the bankruptcy commissioner was executing his duties served as the grounds for his dismissal, by the arbitrage court, from the execution of these duties;
• a bankruptcy commissioner had to be registered with the arbitrage court.
The following persons could not be appointed bankruptcy commis sioners:
• persons having a relation to the debtor or the creditors;
• persons who had previously managed the debtor’s affairs, except ing in the cases when no less than three years had passed from the moment of this person’s dismissal from the management of the debtor’s affairs;
• persons in respect to whom there were established restrictions as to the right to manage the affairs and property of other persons (disqualified persons);
• persons with record of conviction.
A bankruptcy commissioner enjoyed the following basic rights:
• to convene a creditors’ meeting and the creditors’ committee;
• to appeal to an arbitrage court in instances envisaged by the law;
• to be remunerated in the amount envisaged by the law in accor dance with the procedure established thereby;
• to attract other persons, in order to provide for the execution of his duties, on a contractual basis, with the payment for their activity from the debtor’s estate, if not otherwise established by the law or by an agreement with the creditors;
• to petition with the arbitrage court concerning a pre term termina tion of his duties.
The main duties of a bankruptcy commissioner included:
• to implement measures designed to protect the debtor’s property;
• to analyze the debtor’s financial status, financial, economic and investment activities, as well as the debtor’s position on commodi ties markets;
• to consider the declared claims of the creditors.
Non execution or undue execution, by a bankruptcy commissioner, of his duties could serve as the grounds for his dismissal by the arbi trage court, and in the event of incurring losses to the debtor or credi tors – for recalling his license. In this connection, the debtor and credi tors were granted the right to demand that the bankruptcy commis sioner make compensation for the losses incurred as a result of his ac tions, which had been a violation of the law.
The remuneration to a bankruptcy commissioner was to be deter mined by a creditor’s meeting and (or) the arbitrage court, if not other wise established by the law.
Among the fundamental innovations introduced by the 2nd Law on bankruptcy, a new bankruptcy procedure – that of observation – should be mentioned, and, consequently, the introduction of a new figure par ticipating in bankruptcy – that of a temporary administrator. The tempo rary administrator was to be appointed by an arbitrage court from among the candidates nominated by the creditors, and in absence of such candidates – from among the bankruptcy commissioners regis tered with the arbitrage court, and in absence of the latter from among the persons suggested by an empowered state body.
A temporary administrator was granted the following basic rights:
• to submit to the arbitrage court, in his own name, the demands that certain transactions be deemed null and void, as well as concerning the application of the consequences of the recognition as null and void of transactions concluded or implemented by the debtor with a violation of the requirements established by the law;
• to petition with the arbitrage court that additional measures be im plemented in order to secure the safety of the debtor’s property and that its director be dismissed from his post;
• to receive any information and documents concerning the debtor’s operation. In this connection, the managerial bodies of the latter were obliged to grant such information to the temporary administra tor.
A temporary administrator was entrusted with the following duties:
• to implement measures designed to secure the safety of the debtor’s property;
• to analyze the debtor’s financial status;
• to determine the presence of the indicia of fictitious and premedi tated bankruptcy;
• to determine the debtor’s creditors and the amounts of their claims, to notify the creditors concerning the initiation of bankruptcy pro cedures;
• to convene the first creditors’ meeting;
• to submit to the arbitrage court, on the completion of the supervi sion period, a report on his activity, the information concerning the debtor’s financial status and proposals concerning the possibility or impossibility to restore its solvency.
The bankruptcy commissioner involved in the procedure of external administration was named, in the 2nd Law on bankruptcy, an external administrator. The external administrator was to be appointed by an arbitrage court simultaneously with the introduction of external admini stration, and in the event of lack of such a possibility – within one month’s period from the moment of the initiation of external administra tion196. The external administrator was to be appointed by the arbitrage court from among the candidates nominated by the creditors, and in absence of such candidates – from among the bankruptcy commis sioners registered with the arbitrage court, and in absence of the lat ter – from among the persons suggested by an empowered state body.
In this connection, the temporary administrator could be considered as a candidate for the post of external administrator.
From the moment of introducing external administration, the powers of an empowered director and the debtor’s other administrative bodies were to be transferred to the temporary administrator, who was thus granted the following rights:
• to independently dispose of the debtor’s property, with due regard to the limitations envisaged by the law;
• to conclude, on the debtor’s behalf, an amicable settlement;
• to declare a refusal to execute the debtor’s contracts.
The external administrator was invested with the following basic du ties:
• to receive in his jurisdiction the debtor’s property and to conduct its inventory;
• to open a special account for the execution of external administra tion and settlements with the creditors;
• to develop an external administration plan and submit it for the ap proval of a creditors’ meeting;
• to carry out accounting and reporting, to keep financial and statisti cal records;
In this event, prior to the moment of appointing an external administrator, a temporary administrator had executed his powers.
• to declare, in the established procedure, objections concerning the creditor’s claims to the debtor;
• to implement measures designed to recover debts to the debtor;