WWW.DISSERS.RU


...
    !

Pages:     | 1 |   ...   | 101 | 102 || 104 | 105 |   ...   | 117 |

Since 11 February 2011, transactions handled at public auctions on the basis of even a single bid addressed to an unlimited range of auction participants, as well as actions aimed at implementing the obligations and duties arising from such transactions, cannot legally be challenged as suspicious and resulting in preference being given to one creditor at the expense of another.

The most important innovations of that period are as follows:

1) the abolition of judges exclusive right to determine whether or not supervision should be introduced, to consider petitions, applications and complaints in bankruptcy cases; disputes concerning the amount of the creditors claims; the creditors claims whose validity has been contested; the creditors claims in the bankruptcy cases of failed financial institutions and absentee debtors;

2) the extension of grounds for recognizing a transaction as null and void in the event of an interrelated contract that should be understood as a contract concluded with the central contracting party on the basis of an offer, including the bid, submitted at an auction, on whose basis the now invalid contract with the central contracting party was concluded (Item 5, Article 61.6 of the Federal Law On Insolvency (Bankruptcy)). Interrelated contracts that entail losses eligible for recovery can be concluded in the course of suspicious transactions or the debtors transactions resulting in preference being given to one creditor at the expense of another.

Federal Law of 7 February 2011, No. 8-FZ On the Introduction of Alterations in Some Legislative Acts of the Russian Federation in Connection with the Adoption of the Federal Law On Clearing and Clearing Activities.

Section Institutional Issues In July 2011, Russia adopted a new bankruptcy regulation1 specifically targeting developers2. Item 6, Article 201.1 of the Federal Law, of 12 July 2011, No. 210-FZ contains an extensive list of grounds for deeming a person to be a creditor of a developer, reflecting the various forms of consolidation of legal relationships introduced into practice in the field of construction.

As of the date of introduction of supervision upon an indebted developer, the debtor has the right to conclude contracts envisaging transfer of residential property and agreements altering or dissolving those contracts only after having been granted an express written permission of the interim manager. The same holds true for any other real estate transactions, including transactions in land.

The court decision on the imposition of supervision upon a developer should be forwarded by the arbitration court to the agencies carrying out the state registration of real property rights and real estate transactions, at the place of location of the developers land plots.

The decision of the creditors meeting that an amicable agreement should be concluded in a debtors bankruptcy case, should be taken by a majority vote of all creditors in bankruptcy and the authorized state agencies, in accordance with the register of the creditors claims. This decision will be deemed to be adopted if it has been voted for by all the creditors whose claims related to the debtors obligations are secured by pledge, and by no less than threequarters of participants a given construction project.

Unlike in all the other categories of bankruptcy cases, the bankruptcy case of a developer is participated in by the participants in a construction project who have claims for residential property transfer, and the authorized executive agency of a RF subject, exercising control and supervision over the participatory share construction of blocks of flats and (or) other real estate objects in the area where the said construction project is being implemented.

In response to a petition filed by the applicant or some other person-participant in the bankruptcy case of a developer, the application court has the right to take measures designed to satisfy the creditors claims and the debtors interests (measures ensuring the performance of obligations) in the form of a ban on the lessor concluding a contract on the lease of the land plot with any other person but the developer, and a ban on the lessor disposing of that plot in any other way.

As of the date of introduction, by the arbitration court, of supervision upon an indebted developer, any claims against the developer for the transfer of residential properties and (or) any monetary claims except those regarding current payments should be filed against the developer only within the framework of the developers bankruptcy case throughout the whole period of supervision and the duration of all the subsequent procedures applied in the developers bankruptcy case, in accordance with the established procedure for filing a claim against a developer.

Federal Law of 12 July 2011, No. 210-FZ, On the Introduction of Alterations in the Federal Law On Insolvency (Bankruptcy) and Articles 17 and 223 of the Code of Arbitration Procedure of the Russian Federation with Regard to the Determination of the Particulars of the Bankruptcy of Developers Having Attracted Monetary Resources of Participants of Construction.

Developer is a legal entity irrespective of its organizational-and-legal form, including a housing construction cooperative society or an individual entrepreneur, to which claims are presented for the transfer of residential property, or monetary claims. The special bankruptcy rules should be applied irrespective of whether or not the developer has any ownership, rental or sublease rights to the land plot, and also irrespective of whether or not the developer has ownership rights or any other property rights to the construction object.

RUSSIAN ECONOMY IN trends and outlooks As of the date of introduction of supervision upon an indebted developer, the implementation of the documents of execution concerning the claims filed by participants in a construction project, should be suspended for the whole period of supervision and all subsequent procedures applied in the developers bankruptcy case. As of the date of opening of bankruptcy proceedings, the implementation of the said documents of execution should be discontinued.

Within 5 days from the date of confirmation of supervision and bankruptcy proceedings, the interim manager and the commissioner in bankruptcy should inform all the participants in the construction project known to them, of the introduction of supervision or the opening of bankruptcy proceedings. They should also inform these participants in the construction project that they are now eligible to file claims for the transfer of residential properties and (or) monetary claims, and that a participant in the construction project is now eligible to unilaterally refuse to implement a contract envisaging the transfer of a residential property.

The opening of bankruptcy proceedings against a developer constitute a ground for a participant in the relevant construction project to unilaterally refuse to implement a contract envisaging the transfer of a residential property. This refusal can be stated, within the framework of the developers bankruptcy case, in the process of determining the amount of the monetary claim of that participant in the construction project.

When determining the amount of the monetary claim of a participant in a construction project, the court should take into account the amount of his or her losses in the form of the actual damage caused by violation of the developers obligations relating to the transfer of the residential property. The amount of that damage represents the difference between the cost of the residential property (determined as of the date of dissolution of the contract envisaging the transfer of the residential property) that should be transferred to the participant in the relevant construction project, and the amount of the monetary resources paid prior to the dissolution of that contract, and (or) the cost of the property (determined by the contract envisaging the transfer of the residential property) transferred to the developer.

When the validity of claims for the transfer of residential properties is being considered by the arbitration court, it is required that evidence confirming the fact that a participant in the relevant construction project has indeed made a full or part partial payment in pursuance of his or her duties towards the developer should be submitted thereto.

The claim for the transfer of a residential property, declared to be valid by an arbitration court should be entered in the register of claims for the transfer of residential properties.

The rules for maintaining a register of claims for the transfer of residential properties, including the content of information required to be entered in that register and the procedure for release of information from the register of claims for the transfer of residential properties should be in conformity with the established federal standards.

As of the date of introduction, by an arbitration court, of supervision over an indebted developer, the following claims against the developer on the part of other persons or against other persons on the part of the developer should be submitted and considered throughout the whole period of supervision and all subsequent procedures applied in the developers bankruptcy case only within the framework of the developers bankruptcy case:

1) claims for the recognition of the existence or non-existence of a property right or any other right or encumberment with regard to real estate, including uncompleted construction objects;

2) claims for the recovery of real estate, including uncompleted construction objects, from the unlawful possession of another person;

Section Institutional Issues 3) claims for the demolition of an unauthorized structure;

4) claims for the declaration of a real estate transaction to be invalid or non-concluded, and for the application of the consequences of the invalidity of that void transaction;

5) claims for the transfer of real estate for the purposes of performing an obligation by a debtor to transfer that real estate in ownership, economic jurisdiction or operative management, or to transfer that real estate for use to the claimant;

6) claims for the State registration of the transfer f title to real estate (Article 201.8 of the Federal Law On Insolvency (Bankruptcy)).

In the course of bankruptcy proceedings against a developer, the creditors claims, except the creditors claims relating to current payments, should be satisfied in the following order of priority:

1) first priority should be given to the claims for the compensation for damage (harm) caused by the debtor to the life or health of citizens; their settlement involves the capitalization of the corresponding time payments and the payment of compensation for the inflicted moral damage;

2) second priority should be given to the claims for severance benefits, for the payment of labor of persons working or having worked under labor contracts, and for the remuneration payable to the authors of intellectual activity results;

3) third priority should be given to the monetary claims of citizens-participants of construction;

4) forth priority should be given to the claims filed by other creditors.

In the process of financial recovery, external management and bankruptcy proceedings, in the event that a debtor developer has an uncompleted construction object, the arbitration commissioner should put forward for consideration at a meeting of participants of construction, no earlier than 1 month and no later than 2 months after the date of his or her appointment, the issue of addressing the arbitration court with an appeal that the claims filed against the developer by participants of construction be settled by way of transferring the developers rights to the uncompleted construction object and the land plot to a housing cooperative or to a specialized consumer cooperative of another type.

The transfer of an uncompleted construction object to participants in the relevant construction project may be carried out if the following conditions are simultaneously met:

1) the value of the debtors rights to the uncompleted construction object and the land plot does not exceed by more than 5% the aggregate amount of the participants of constructions claims entered in the register of the creditors claims and the register of claims for the transfer of residential properties; or the decision that the uncompleted construction object should be transferred to participants of construction has been approved by the affirmative vote of threequarters of the forth-priority participants of construction; or the necessary amount of money has been paid into the deposit account of the arbitration court in accordance with Item 4, Article 201.10 of the Federal Law On Insolvency (Bankruptcy);

2) the value of the property remaining in possession of the debtor after the transfer of the uncompleted construction object is sufficient for covering the current payments and for settling the claims filed by the first-priority and second-priority creditors; or the necessary amount of money has been paid into the deposit account of the arbitration court in accordance with Item 5, Article 201.10 of the Federal Law On Insolvency (Bankruptcy);

3) the register of the creditors claims does not contain any claims filed by the creditors who are not participants in the relevant construction project with regard to the obligations se RUSSIAN ECONOMY IN trends and outlooks cured by a pledge of the developers rights to the uncompleted construction object and the land plot; or the afore-said creditors have given their assent to the transfer of the uncompleted construction object; or the necessary amount of money has been paid into the deposit account of the arbitration court in accordance with Item 6, Article 201.10 of the Federal Law On Insolvency (Bankruptcy);

Pages:     | 1 |   ...   | 101 | 102 || 104 | 105 |   ...   | 117 |



2011 www.dissers.ru -

, .
, , , , 1-2 .