• to consider the creditor’s claims, and to keep their register;
• to submit to a creditors’ meeting a report concerning the results of implementing the external administration plan.
As for the receiver, the 2nd Law on bankruptcy established in respect to his appointment the same procedure as for the external administra tor’s appointment, while no fundamental changes, as compared to the 1st Law, were introduced by this document in regard to the legal regime regulating his activity.
One of the key innovations introduced by the 2nd Law on bankruptcy was the requirement that a bankruptcy commissioner have a special license. In this connection, we should mention the Provision concerning the licensing of the activity of a physical person in the function of a bankruptcy commissioner adopted as a “sequence” to the 2nd Law on bankruptcy (approved by Decree of the RF Government of 25.12.No. 1544, hereinafter – the Provision on licensing). This document, in particular, established the following:
• the issuing of licenses for the activity of bankruptcy commissioners was to be effectuated by the Federal Bankruptcy Service (FBS);
• in instances envisages by the law, the FBS’s officials were ap pointed bankruptcy commissioners;
• in order to obtain a license, an applicant had to pass an examination in accordance with an educational program established by the FBS.
The FBS issued three categories of licenses • first category license granted the right to act as a bankruptcy commissioner or a deputy bankruptcy commissioner when bank ruptcy procedures were being initiated only in respect to absent debtors, citizens, individual entrepreneurs and small enterprises;
• second category license granted the right to act as a bankruptcy commissioner or a deputy bankruptcy commissioner when bank ruptcy procedures were being initiated in respect to citizens, indi vidual entrepreneurs and organizations, except those who be longed to the category of large and economically relevant. In order to obtain such a license, an applicant had to provide documentation to prove a record of having been employed as a bankruptcy com missioner during no less than 6 months;
• third category license granted the right to act as a bankruptcy commissioner or a deputy bankruptcy commissioner when bank ruptcy procedures were being initiated in respect to citizens, indi vidual entrepreneurs and organizations. In order to obtain such a li cense, the applicant had to provide documentation to prove that during the period of employment under a second category license, no less than two procedures of external administration and (or) bankruptcy proceeding had been completed and received a posi tive opinion of an experts' board for administration in bankruptcy, as well as to pass an examination under a professional improvement program approved by the FBS;
• the period of operation for license of all categories was to be years.
It should be noted that the norms contained in the Provision on li censing, establishing three categories of licenses and requiring that in order to obtain second and third category licenses an applicant was to have an experience of successful activity as a bankruptcy commis sioner, and in the latter case – also to pass an additional examination, were recognized as unlawful and not applicable by Decision of the RF Supreme Court of 07.09.2001 No. GKPI 2001 778, 911. However, as early as on 23.11.2001, the operation of this Decision was suspended by the Deputy Chairman of the RF Supreme Court until the end of the supervision proceeding.
By way of conclusion, we should like to note that on 1.07.2002 (i.e., still during the period of the 2nd Law on bankruptcy being in force) the licensing of the activity of bankruptcy commissioners was terminated (Federal Law of 13.03.2002 No. 28 FZ), which entailed the abolition of the Provision on licensing (Decree of the RF Government of 23.12.No. 918).
The current phase in the development of the institution of bank ruptcy commissioners began with the coming into force of Federal Law “On insolvency (bankruptcy)” of 26.10.2002 No. 127 FZ (hereinafter – the 3rd Law on bankruptcy, or the Law currently in force). Many of its provisions establishing the legal procedure for the functioning of the institution of bankruptcy commissioners are close in content to the cor responding norms established by the previous, 2nd, Law on bankruptcy, and so, for the sake of shortness, we are going to discuss here only its main innovations.
1. The Law currently in force has once again modified the require ments to a bankruptcy commissioner, stating that this function can be performed by a citizen of the Russian Federation who answers the fol lowing criteria:
• is registered as an individual entrepreneurs;
• has received higher education;
• has a CEO’s record of no less than two years, in total. A CEO’s re cord is recognized as that of a juridical person’s director or deputy director, as well as of a bankruptcy commissioner executing the du ties of a debtor’s director, except in the event of bankruptcy proce dures being implemented in respect to an absent debtor;
• has passed an examination in theory in accordance with the pro gram for training bankruptcy commissioners;
• has had training for a period of no less than six months on the job of à bankruptcy commissioner’s assistant;
• has no record of conviction for crimes in the sphere of the econ omy, as well as for crimes of medium gravity, grave and exception ally grave crimes;
• is a member of one of the established self regulating organizations (for details concerning such organizations, see below). In this con nection, a bankruptcy commissioner has the right to be a member of only one self regulating organization.
Besides, an arbitrage court cannot approve, as candidates for the post of a bankruptcy commissioner, the following persons:
• those who have a relation to the debtor or creditors;
• in respect to whom bankruptcy procedures have been initiated;
• those who have made no compensation for losses incurred by the debtor, creditors, or third parties during the previous execution by them of the duties of a bankruptcy commissioner;
• those who have been disqualified or deprived, in accordance with the established procedure, of the right to hold office as CEOs and (or) to engage in entrepreneurial activity in respect to the manage ment of juridical persons, or to be members of boards of directors and (or) manage the affairs and (or) property of other persons;
• those who have not concluded, in accordance with the require ments of the Law currently in force, contracts for insuring the re sponsibility for the losses incurred by the persons participating in bankruptcy procedures.
Finally, a creditor in bankruptcy, an empowered state body or a creditors’ meeting has the right to envisage additional requirements to the candidates for a bankruptcy commissioner:
• higher education in law, economics or in the specialty correspond ing to the debtor’s sphere of activity;
• a certain record of employment as an organization’s director in a corresponding branch of the economy;
• an established number of bankruptcy procedures previously effec tuated by a candidate to the post of a bankruptcy commissioner.
When putting forth these requirements, a creditor in bankruptcy, an empowered body or a creditors’ meeting has the right to specify the amount of and the procedure for an additional remuneration to the bankruptcy commissioner.
2. As follows from the abovesaid, for a bankruptcy commissioner to be appointed, a special contract concerning the insurance of his re sponsibility should be concluded. This contract should be effective for a period of no less than one year, with its subsequent mandatory pro longation for the same period, the insured amount being no less that million roubles per year.
Also, a bankruptcy commissioner, within ten days from the date of the approval of his appointment by an arbitrage court within the frame work of a bankruptcy case, must additionally insure his responsibility in respect to the possibility of causing losses to persons participating in this bankruptcy case, in the following amounts:
• if the balance sheet value of the debtors’ assets amounts to be tween 100 and 300 million roubles – 3% of the balance sheet value of the assets in excess of 100 million roubles;
• if the balance sheet value of the debtors’ assets amounts to be tween 300 million roubles and 1 billion roubles – 6 million roubles and 2% of the balance sheet value of the assets in excess of million roubles;
• if the balance sheet value of the debtors’ assets is over 1 billion roubles – 20 million roubles and 1% of the balance sheet value of the assets in excess of 1 billion roubles.
3. In the 3rd Law on bankruptcy, the procedure for appointing a bankruptcy commissioner has been substantially modified. In particu lar, it has been established that an arbitrage court (when introducing an observation procedure), or a creditors’ meeting (in all other cases) submits to a self regulating organization an inquiry concerning the presentation of candidates for the post of a bankruptcy commissioner, with possible specification of the requirements to the candidate. After receiving the inquiry, the self regulating organization makes a list con sisting of three of its members who have expressed their consent to being appointed a bankruptcy commissioner, and when the inquiry con tains certain requirements to the candidates – those who to the great est degree satisfy the requirements. The candidates are entered in the list in the order of their diminishing compliance to the requirements, and in absence of such requirements – in the order of their diminishing professional quality.
Then, no later than five days after the receipt of the inquiry, the self regulating organization submits to the arbitrage court, to the creditors’ meeting or to the applicant (the creditor who has filed the petition in bankruptcy), as well to the debtor, a list of candidates for the post of a bankruptcy commissioner containing the information concerning their professional qualities, and when the inquiry contains certain require ments – a substantiated conclusion as to their compliance to these re quirements. The debtor and the petitioner (or a representative of a creditors’ meeting) each have the right to challenge one of the candi dates presented, and the remaining candidate is then approved by the arbitrage court. In the event when the debtor and (or) the petitioner (or the representative of a creditors’ meeting) have not used their right of challenge, the arbitrage court appoints the first candidate on the list presented by the self regulating organization.
Finally, in the event when the self regulating organization does not present the list of candidates during the established period, the arbi trage court must apply with a request to an empowered state body, which is obliged, within seven days from the date of the receipt of the request, to ensure that other self regulating organizations present their lists of candidates.
It should be emphasized that the procedure described here is ap plied when bankruptcy commissioners of all the categories envisaged by the law (temporary administrators, administrative managers, exter nal administrators and receivers) are appointed.
4. The 3rd Law on bankruptcy has, as compared to the 2nd Law, in troduced a new bankruptcy procedure – that of financial recovery, re sulting from which the institution of bankruptcy commissioners is aug mented by one more figure – that of an administrative manager.
The administrative manager is granted the following basic rights:
• to demand from the debtor’s director information concerning its current operations;
• to participate in an inventory, in the event it is conducted by the debtor;
• to coordinate the debtor’s transactions and decisions in instances established by the law, and to submit to the creditors information concerning such transactions and decisions;
• to petition with the arbitrage court that the debtor’s director be dismissed in instances established by the law, as well as that addi tional measures be implemented in order to secure the safety of the debtor’s property, or that such measures be repealed;
• to submit to the arbitrage court, on his own behalf, demands that transactions and decisions be deemed to be null and void, as well as concerning the application of the consequences of the recogni tion as null and void of transactions concluded or implemented by the debtor with a violation of the requirements established by the law.
The main duties of an administrative manager are as follows:
• to keep a register of the creditors’ claims, excepting in the in stances envisaged by the law;
• to convene creditors’ meetings in instances established by the law;
• to effectuate control over the implementation of the financial recov ery plan and the schedule of debt repayments, to consider reports submitted by the debtor, to submit to creditors’ meetings informa tion and opinions concerning the implementation of the said plan and schedule;
• to ensure that the transfers of money to satisfy the creditors’ claims (including current claims) be effected timely and in full;
• in the event of the debtor’s failure to execute the liabilities in accor dance with the schedule of debt repayments, to demand that the persons who have issued a suretyship for the execution by the debtor of its liabilities, fulfill the obligations that follow from the suretyship.
5. It seems that the most substantial innovation in the 3rd Law on bankruptcy in respect to bankruptcy commissioner is the introduction of the institution of self regulating organizations. In accordance with the norms established by this Law, such organizations are assigned a very important role in the bankruptcy process. It is suffice to mention that it is the self regulating organizations (and not the creditors, as used to be established by the 2nd Law) that submit for the arbitrage court’s ap proval the lists of candidates for the posts of bankruptcy commission ers.