Fourth, the problem of state debts to enterprises, for instance, as concerns the pay ments related to state procurement, remains partially unsettled. In a number of cases, this resulted in enterprises’ indebtedness to budgets. It seems feasible to supplement the law on bankruptcy with provisions stipulating that authorized agencies or local government should have no right to submit to arbitration courts creditor claims on behalf of the Russian Federation, RF subjects, or municipal entities in the case the debtor has debtor indebted ness to the budget of the respective level. However, this way is possible only on condition that interbudgetary liabilities are fully met, otherwise there are inevitable conflicts, where local governments might claim that they could not make respective payments to enter prises due to delayed and (or) not full transfers from the federal budget.
Fifth, the new law on insolvency, similarly to the previous one, contains provisions on pretrial rehabilitation, which have not been implemented in practice yet (article 31). Al though the new law on bankruptcy does not contain provisions envisaging that the state should include the respective expenditures in the federal budget does not mean that such expenditures should not be preliminary estimated in the budget. Therefore, there arises the problem of evaluation of the minimal amount of expenditures to be included in the budgets for the purposes of pretrial rehabilitation. Besides, there should be determined the limited group of enterprises, with respect to which the state is ready to carry out the pretrial rehabilitation in a certain unfavorable situation and, what is very important, there should be preliminary determined the amount of liabilities of the debtors to the state in the course of pretrial rehabilitation.
Sixth, the new law on insolvency introduces the new bankruptcy procedure – finan cial rehabilitation (Section 5, articles 76 – 92). This procedure may become an important RUSSIAN ECONOMY in trends and outlooks tool of rehabilitation and reform of enterprises under control of their owners (including the state as a shareholder). At the same time, it should be taken into account that this proce dure may be introduced by arbitration courts without consent of creditors (items 2, 3 of article 75, item 1 of article 80). However, at the same time the plans of financial rehabilita tion and the schedule of debt repayment prepared by owners should be approved by the meeting of creditors. It is necessary to correct the following principle flaw of the law: it fails to stipulate, what possible decisions may be taken in the case the meeting of creditors re fuses to approve the plan of financial rehabilitation (what is highly probable in the case the meeting of creditors is against the introduction of this procedure).
Seventh, in the course of bankruptcy proceedings the exchange of enterprises’ debts for the shares transferred to creditors could became a rather efficient mechanism aimed at the preservation of businesses of large economically and socially important en terprises. The previous law on insolvency did not determine the questions of additional is sues of shares. However, this mechanism was applied in practice: in certain cases credi tors received shares in newly created enterprises (to which there were transferred assets of debtor enterprises cleared of debts), and in other cases additionally issued shares of debtor enterprises. As concerns the regulation of additional issues in the framework of ex ternal management, in accordance with the new law on insolvency shareholders should have the preferential right to purchase the placed shares, the placement should be carried out exclusively on conditions of closed subscription, while the payment for additional shares should be made only in money. However, the law failed to paid attention to the situations, where the state is a shareholder.
Eight, as concerns the sales of strategic enterprises in the course of bankruptcy pro ceedings, it is important to note the following provision of the new law on bankruptcy: in accordance with item 8 of article 195, bankrupt’s creditors and the respective affiliated persons. Although the concept of this norm is rational, in the present Russian situation it may create a number of serious problems as concerns bankruptcies of large companies.
In particular, as it is demonstrated by the practices of activities of antimonopoly agencies, the detection if person is affiliated or not is a labor intensive, disputable, and long process.
Ninth, there has not been yet settled the problems of integrated financial rehabilita tion of several enterprises making technological chains of an industry or a region. In a number of cases, the successful rehabilitation of one enterprise may produce only a short time effect, since the inefficiency of operations of concrete enterprises may be primarily determined not by their internal problems, but the situations at their partner enterprises.
Tenth, one of the efficient forms of preservation of business may be the sale of the enterprises (the single property complexes) of organizations in the single company towns.
The respective terms of sale the previous law set forth with respect to the buyer (article 137) were too burdensome; therefore this form was not widespread. More soft require ments to the buyer set forth in article 175 of the new law on insolvency (the requirement to keep not 70 per cent but 50 per cent of jobs, introduction of the time limit on this require ment (3 years), enhancement of the options to change the core activities of such enter prises) will permit to render the enterprises in single company towns more attractive for purchase as single property complexes.
At the same time, there persists the formality (non economic character) of require ments to buyers. Indeed, mala fide buyers may insignificantly reduce the number of jobs and sharply reduce the average wages and salaries at the enterprise. In fact it may result in persistence or even an increase in the scale of “hidden unemployment.” It seems to be also necessary to set forth the framework regulating the changes in the wage bills at en terprises, while enhancing possibilities to reduce personnel.
Institutional and Macroeconomic Challenges At last, it is necessary to more precisely define the specifics of bankruptcy of enter prises in single company towns (articles 168 – 176). The “modification” of the criteria ac cording to which enterprises may be included in this category is rather arguable. Although these criteria of definition of enterprises were toughened, the formal approach here per sisted. It would be feasible to use such criteria as the share of tax payments made by the enterprise in the total amount of taxes collected in the respective town, the fact of dominat ing position of the enterprise on the commodity market, etc. Besides, the new law on insol vency sharply reduces the possibilities to rehabilitate enterprises in single company towns because financial rehabilitation or external management may be prolonged for only one year (article 172), and the terms of even so insignificant prolongation have been tough ened. At the same time, it should be noted that enterprises in single company towns are probably the most difficult object of financial rehabilitation.
Special regulation is required with respect to the problem of protection of minority shareholders in the process of bankruptcy proceedings. This problem is even more urgent in the cases, where the state is the largest creditor of the enterprise.
From the authors’ point of view, as concerns bankruptcy there is necessary the whole range of innovations in the sphere of enforcement and technical procedures of con duct of bankruptcy cases. The same is true with respect to the procedures governing initiation of bankruptcy proceedings; the order of appointment and activities of bankruptcy commissioners; the procedures governing financial rehabilitation, external management, and bankruptcy proceedings; regulation of amicable settlements; the procedures govern ing bankruptcies of absent and liquidated debtors. It would be feasible to amend article 224 of the law “On bankruptcy” by adding a provision, in accordance with which creditors should also have the right to submit bankruptcy petitions with respect to liquidated debt ors. At the same time, as it has been demonstrated by the practice of bringing of culprits to civil, administrative, and criminal responsibility for offences of the bankruptcy legislation, the respective provisions of article 10 of the law “On bankruptcy,” as well as articles 14.12, 14.13 of the RF Code of Administrative Violations and articles 195 – 197 of the RF Criminal Code practically have not been enforced; in this connection all these provisions should be radically and conceptually revised in stead of being subjected to fragmented changes94.
It is also necessary to note that in spite of a number of apparent achievements, the new law on insolvency has principally failed to settle a number of principal problems being outside the framework of technical procedures.
First, since the state is granted the same rights as other creditors, it will require the creation of a respective infrastructure necessary for representation of its interests. It is unlikely that the necessary resources will be available. Therefore, while at several hun dreds of enterprises the progress and control of bankruptcy proceedings may be really improved, at the majority of other enterprises these actions will result in an increase in cor ruption and interest to the buying up of “administrative resources.” The latter is very prob able also because the state has the better possibility to initiate bankruptcy proceedings: it is not required to confirm its claims in courts.
Second, more tough terms, on which there can be initiated bankruptcy proceedings will not result in a significant restriction of the processes of redistribution of property. It is an objective process and even if it was not reflected in the law on joint stock companies it will continue, but now in the framework of executive proceedings.
For details see: Radygin A., Swain H., Simachev Yu., Entov R. et al. Institut bankrotstva: stanovleniye, problemy, naprav leniya reformirovaniya (The institution of bankruptcy: it’s rise, challenges, and reform avenues). M., IET – CEPRA, 2005.
RUSSIAN ECONOMY in trends and outlooks Third, in the case there are set specific features of insolvency in certain sectors, there originate prerequisites for dumping of debts to such sectors. At the same time, if it is not done, there increase social costs. Besides, the issue of classification of enterprises as natural monopolies, enterprises in single company towns, or strategic enterprises is rather complicated.
Fourth, A considerable part of proposals concerning the reform of the legislation re sulted from the insufficiently developed enforcement infrastructure (dependence of arbi tration courts of local governments, the professional level of judges, etc) rather than the imperfection of the regulations being in force at that time. One of the most important prob lems in this sphere is the dependence of arbitration courts on local authorities and insuffi cient level of professional skills of the judges required to examine complex economic dis putes.
Fifth, a significant part of changes in the legislation on insolvency resulted from over estimation of certain problems; therefore, some provisions of the new law on insolvency have not been in demand yet.
Important, although rather distant prospects are related with the improvement of ju dicial practices at large. For instance, in the interests of protection of enterprises from mala fide interception of control over them (or a part of their assets) via bankruptcy pro ceedings it is necessary to develop the practice of enforcement of article 10 of the RF Civil Code (misuse of a right) and envisage both the transparency of judicial procedures, and responsibility of the judges. It is necessary to make additional efforts in order to develop self regulating organizations of bankruptcy commissioners and nongovernmental en forcement institutions, including those applicable to the sphere of bankruptcies.
Accordingly, time is needed in order to form an adequate infrastructure and its adap tation to new legislative regulations. As it turned out, the institution of bankruptcy has been in demand as a tool of redistribution of property. In this connection, speaking about large enterprises, it is more often applied with respect to potentially attractive businesses. Re cently, there have been observed significant shifts as concerns the protection of the rights of minority shareholders. Therefore, for a long time yet bankruptcy will remain a tool of set tlement of different corporate problems: from protection of the rights of managers from owners to carrying out hostile takeovers. Therefore, there can not be excluded the possi bility of further expansion of the practices of bankruptcy of large potentially attractive en terprises. Most probably, in the nearest future the ambiguous impact of bankruptcies on economic development will be even more apparent.
4.4. Problems of competitiveness of the Russian stock market An indispensable condition of competitive economy is competitiveness of its market institutions. In this case, competitiveness of institutions is regarded here as “correspon dence of formal and informal institutions of the country – legislation, behavioral norms and traditions, exercising power, range of discretion, degree of confidence to requirements of production of competitive goods and services”95. The stock market may be considered as one of institutions of the market economy, which competitiveness has an overall impact on the country’s national economy.
The stock market may be regarded as an aggregate of specific segments, to domi nate which different structures are engaged in competition. By a market niche is meant a demand for securities on the part of different groups of investors or offering securities on 95 th Yasin E.G. Report at the 5 International Conference of the the State University – Higher School of Economics “Competi tiveness and Modernization of the Economy”. April 6, 2004. Internet www.hse.ru.
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