Seventhly, the problems relating to a comprehensive financial reha bilitation of several enterprises within the framework of technological chains or an industry, or a region, remain as yet unsolved. Indeed, a successful rehabilitation of one enterprise in some instances may have only a short term effect, because the inefficiency of certain enterprises may be conditioned primarily not by its intrinsic problems but by the status of its contractors.
Eighthly, one of the efficient forms of maintaining a business may become the sale of an enterprise (as a property entity) to an organiza tion forming a company town. In the previous law, the terms of sale (Ar ticle 137) were too burdensome for the buyer, and so this form of reor ganization has not become widespread. Therefore, by softening the requirements to the buyer in Article 175 of the new Law on bankruptcy (reduction in the required number of preserved jobs from 70% to 50%, introducing a limit for such a requirement (a period of three years), in creased possibilities of changing an enterprise’s orientation), it will be come possible to make enterprises forming company towns more at tractive in terms of purchasing them as single entities.
At the same time, the formal (non economic) character of the re quirements to the buyer has been preserved. Indeed, a dishonest buyer may slightly reduce the number of personnel, simultaneously dramati cally lowering the wages at the enterprise. This, in fact, may result only in the preservation or even in a growth of “hidden” unemployment.
Therefore, it is believed necessary to additionally establish a certain framework for changing the enterprise’s wages fund as a whole, while expanding the possibilities for job cutting.
Ninthly, it is necessary to define the peculiarities of the bankruptcy of enterprises forming company towns more precisely (Articles 168– 176). The “modification” of the criteria for placing enterprises within this category that has actually taken place remains rather disputable.
Though the definition of an enterprise forming a company town has been made more strict, the formal approach to this category of enter prises has remained as before. It would be feasible to make use of criteria like the share of an enterprise’s total tax payments within the total amount of taxes collected in a given urban entity; the enterprise’s dominant status on the commodities market; etc. Besides, the new law on bankruptcy has dramatically reduced the possibilities for reorganiz ing enterprises forming company towns, because the period of financial recovery or external administration can be extended to no more than one year (Article 172), and the terms of even this short term prolonga tion have become more strict. At the same time, enterprises forming company towns probably represent one of the most complicated ob jects in terms of financial recovery.
The law enforcement practice and the problem of infrastructure Although legislation on bankruptcy underwent rather serious changes during the last few years due to the enactment of the new law “On insolvency (bankruptcy)”, the latter has failed to provide solutions to all the problems existing in this sphere. Consequently, it would be reasonable even now to make a number of amendments to the present law.
Firstly, it is necessary to introduce certain changes in the procedure of initiating proceedings in bankruptcy as it is established by the Law «On bankruptcy», that is:
1) It would be feasible to further extend the 30 day period during which the creditor in bankruptcy or an authorized agency responsible for monetary liabilities has the right to petition the court, by introducing amendments to Item 2 of Article 7 of the Law “On bankruptcy”.
2) It is necessary to consider the issue concerning the imposition of limitations to the settlement of the creditors’ claims at the expense of the debtor’s property categorized as capital assets, against which bankruptcy procedure can be initiated.
3) The list of juridical persons that can be deemed to be insolvent (bankrupt) consolidated in Item 1 of Article 65 of the RF Civil Code should be revised and brought into agreement with Item 2 of Article 1 of the Law “On Bankruptcy”.
Secondly, the Law “On Bankruptcy” has changed the procedure of nomination and activity of bankruptcy commissioners; these norms also need to be further specified and amended; in particular, the following ones:
1) In accordance with Article 20 of the Law “On bankruptcy”, it is mandatory that a bankruptcy commissioner must be a member of one of self regulating organizations. This stipulation in the law, in fact, con tradicts the RF Constitution, wherein Article 30 states that “No one may be coerced into joining any association or into membership thereof”.
The issue of the constitutionality of this requirement of the law must, in our opinion, be resolved by the RF Constitutional Court.
2) It would be reasonable to expand the list of the grounds on which bankruptcy commissioners may be recognized as having an interest in respect to the debtor or the creditors.
3) Article 45 of the Law “On bankruptcy” must contain clearly deter mined criteria for estimating the professional skills of bankruptcy com missioners.
4) It is necessary to establish criteria for the filing of objections to the candidates for the job of bankruptcy commissioners by the debtor and the petitioner (representative of a creditors’ meeting).
5) It would be advisable to reconsider the norms contained in the Law “On bankruptcy” that determine the procedure liability insurance for bankruptcy commissioners. In particular, the Law should determine what the consequences would be of an instance when a bankruptcy commissioner nominated by the court is unable to pay the sum of insur ance on his (or her) own.
Thirdly, one of the essentially new provisions of the new Law “On bankruptcy” is the introduction of a new procedure – that of financial recovery. Presently, this procedure is not sufficiently widespread. Nev ertheless, an analysis of the norms consolidated in Chapter V “Financial Recovery” of the Law “On bankruptcy” has led to a conclusion that the application of certain provisions of the Law “On bankruptcy” that determine the procedure of financial recovery may give rise to complications, and therefore they need to be amended.
1) It is necessary to reconsider the provisions consolidated in subitem 3 of Item 2 of Article 75 of the Law “On Bankruptcy”, in the part regulating the periods of debt redemption.
2) Amendments are needed to be made to Item 3 Article 75 the Law “On bankruptcy”, in order to expand the list of methods for fulfilling ob ligations.
3) The contradictions between Article 79 of the Law “On bank ruptcy”, whose provisions envisage that an agreement be concluded concerning the fulfillment of the debtor’s obligations, and the norms of Section 6 of Chapter 23 of the RF Civil Code, which do not envisage any agreements between the guarantor and the beneficiary, must be elimi nated.
4) It is necessary to further elaborate the norm consolidated in Item 1 of Article 69 of the Law “On bankruptcy”, in the part that contains the list of violations or the criteria for estimating the violations of the law made by the debtor’s director and serving as the grounds for the direc tor’s dismissal by the arbitrage court.
5) Item 4 of Article 69 of the Law “On bankruptcy” must be aug mented by the provision to the effect that in the event of delegating the director’s responsibilities to one of the employees, the said employee must occupy one of the top administrative positions within a given or ganization. It is advisable to consider the issue of developing more de tailed requirements to the employee to whom the court delegates the responsibilities of the debtor’s director.
6) Article 69 of the law must be augmented by a provision to the ef fect that the arbitrage court may delegate the responsibilities of the debtor’s director to a given person only with his or her preliminary writ ten consent.
Fourthly, it is also necessary to introduce amendments to certain norms of the Law «On Bankruptcy» that determine the procedure of performing external administration.
1) It is advisable to legally consolidate the definition of interrelated transactions and to establish a finalized list of instances when transac tions may be recognized as interrelated.
2) It is necessary, in a legislative procedure, to clearly establish the notion of an indirect alienation or the possibility of an indirect alienation of the debtor’s property.
3) In order to prevent any violations in the course of managing the debtor’s property externally, we believe it necessary to expand the list of instances when a transaction relating to the managing the debtor’s property is to be recognized as a transaction with an interest involved.
4) In order to avoid controversial interpretations of the clause “coor dination with a creditors’ meeting (or a creditors’ committee)”, we be lieve that the said clause in Item 4 of Article 101 of the Law “On bank ruptcy” must be replaced by “with the consent of a creditors’ meeting (or a creditors’ committee)”.
5) Item 5 of Article 103 of the Law “On bankruptcy”, in our opinion, must be excluded from the law as incompatible with existing legislation and limiting the rights of the founders (or participants) of juridical per sons to withdraw from the body of participants (or founders), simulta neously withdrawing their stake (or share) in the debtor’s property.
6) It would be feasible to augment the Law “On bankruptcy” by a provision similar to that consolidated in Article 86 of the 1998 Law “On bankruptcy”, which stipulates that “in the event when the main type of the debtor’s activity shall be performed only on the basis of a permit (or a license), the buyer of the enterprise shall acquire a priority right to obtain the said permit (or license)”.
7) Item 2 of Article 110 of the Law “On bankruptcy” should be amended in order to further specify the list of the debtor’s administra tive bodies to be authorized to make the decision as to including the sale of the enterprise in the plan of external administration.
Fifthly, many of the norms contained in the Law “On bankruptcy” that regulate the procedure of bankruptcy proceedings also need to be further specified.
1) It is necessary to establish a uniform order of priority for satisfying the claims of creditors, as stipulated in Article 134 of the Law “On bank ruptcy” and in Article 64 of the RF Civil Code.
2) It is advisable to reconsider the provisions contained in Article of the Law “On bankruptcy” that establish the procedure of satisfying the claims of secured creditors, their priority over other creditors, with the exception of liabilities to the creditors of first and second priority, and the claims that had occurred before the agreement on a secured credit was concluded.
3) Item 3 of Article 138 should be augmented by a provision to the effect that the sale of the object that secures a credit may take the form of close bidding in instances envisaged by legislation.
4) It is necessary to make amendments to Article 141 of the Law “On bankruptcy” and to word the provision consolidated in Item 1 of Article 141, beginning with the phrase “all creditors” as “the creditors the debtor’s liabilities to whom shall be secured by the debtor’s property”.
5) Item 1 of Article 141 of the Law “On bankruptcy” also needs to be made more specific, to the effect that the decision as to replacing the debtor’s assets must be made in an ordinary procedure by a majority of votes of creditor in bankruptcies and authorized agencies, on the condition that the adoption of the said decision has been voted for by all the debtor’s creditors secured by the debtor’s property.
Sixthly, it would be feasible to eliminate the gaps in the regulation of the concluding of an amicable settlement as stipulated in the Law “On bankruptcy”, that is:
1) The stipulations contained in Item 2 of Article 151 – 154 should be made more specific, to the effect that an amicable settlement is subject to coordination (or approval) by the debtor’s administrative bodies.
2) In order to eliminate the possibility of a double interpretation of Item 2 of Article 150 of the Law “On bankruptcy”, the said norm needs to be amended, by adding a clause to the effect that decision of a credi tors’ meeting concerning the conclusion of an amicable settlement is to be considered effective on the condition that it has been voted for by all the creditors entered in the register of creditors secured by the debtor’s property.
3) It would be reasonable to specify the definition of the violation of the rights and lawful interests of the persons participating in a bank ruptcy, the third parties participating in an amicable settlement, and other persons whose rights and lawful interests have been violated or may be violated by the amicable settlement, as stipulated in Article of the Law “On bankruptcy”, by making amendments to the said Article, or by issuing an official interpretation of this norm.
4) We believe it feasible to establish a deadline for an appeal against the court decision concerning the approval of an amicable settlement on the grounds that new circumstances have been revealed.
5) It is necessary to make amendments to Article 165 of the Law “On Bankruptcy”, by excluding the provisions stipulating that the arbitrage court may cancel the amicable settlement in respect to certain credi tors.
Seventhly, multiple problems are presently arising due to the appli cation of the norms contained in the Law on bankruptcy concerning an absent debtor, and therefore the corresponding provisions of the Law “On bankruptcy” that determine the procedure of filing a petition in bankruptcy against an absent debtor need to be amended, in particular, along the following lines:
1) The Law “On bankruptcy” should determine the procedural con sequences of petitioning that an absent debtor be deemed to be bank rupt in the event of absence of appropriate resources required to fi nance the bankruptcy procedures.