PROBLEMS OF SUBORDINATION OF REQUIREMENTS OF AFFILIATED CREDITORS IN CASES OF BANKRUPTCY OF BORROWERS

Abstract

In article the newest practice of the Supreme Court of the Russian Federation concerning subordination (decrease in sequence) loans of participants (shareholders) of the debtor in the case of bankruptcy of this debtor is considered. One of the principles in procedures of bankruptcy is the principle of equality of creditors. However this principle isn’t absolute, and the Federal law from 10/26/2002 No. 127-FZ «About insolvency (bankruptcy)» contains a number of rules for determination of sequence of creditors within case of bankruptcy. For example, the law has set sequence of repayment of requirements of creditors (Art. 134 of the Law on bankruptcy). Also privileged position at repayment of requirements is allocated for mortgage creditors (Art. 138 of the Law on bankruptcy). The certain place is taken by the requirements of participants (shareholders) of the legal entity following not from civil transactions, and connected with the fact of participation in the legal entity that is corporate requirements. According to paragraph 8 of Art. 2 of the Law on bankruptcy competitive creditors of the debtor founders (participants) of the debtor according to the obligations following from such participation don’t admit. In this case just there is also a qualification problem court of requirements about inclusion in the register of requirements of the creditors who are arriving from participants of the debtor and their affiliates and externally looking as the usual civil transaction as corporate and following only from the fact of participation in the bankrupt organization. So, the Supreme Court of the Russian Federation in a number of judicial acts which are analysed in the present article has drawn a conclusion that on sense of this norm don’t join in the register as the requirement of participants for corporate obligations (payment of dividends and so forth), and the requirements which only formally have the civil nature, but in fact by those not being. The author comes to a conclusion that the legal approaches developed by the Supreme Court of the Russian Federation need to be extended also to the loans issued by affiliates of the debtor in anticipation of his bankruptcy