CC BY
17LEGAL ISSUES OF THE WORLD AGREEMENT IN BANKRUPTCY AS A PROCEDURAL
INSTITUTE
Yunusova M.
Associate Professor of the Tashkent State Legal University of the Republic of Uzbekistan, PhD
Ibratova F.
Associate Professor of the Tashkent State Legal University of the Republic of Uzbekistan, Ph.D.
Abstract
The article is devoted to the legal issues of concluding, approving and invalidating an amicable agreement in bankruptcy as a procedural institution. It is concluded that the settlement agreement in a bankruptcy case is a civil contract, on the other hand, a procedural contract. At the same time, civil law elements prevail in it; its goals, first of all, are of a material nature - the satisfaction of creditors' claims, and only secondly - the termination of the economic business by the world.
Keywords: bankruptcy, amicable agreement, creditor, debtor, termination of the case, civil contract.
The institution of insolvency is an integral element of the legal system of the state with a market model for the development of the economic structures of society. An inevitable and objective result of the functioning of market relations is the emergence of financial difficulties for some of the subjects of property turnover, which they are not able to overcome on their own. According to independent experts, from 40 to 60% of all national enterprises are in one or another stage of bankruptcy, and 90% of all cases of financial insolvency end with the liquidation of the debtor42.
In such conditions, the creation of effective legal mechanisms aimed at restoring the solvency of debtors, regulating their further relations with creditors, acquires particular importance43.
An amicable agreement is the most economically profitable way of preventing the debtor's bankruptcy, restoring his solvency, and settling property disputes with creditors.
In the modern period, the number of cases when bankruptcy proceedings are completed with the conclusion of an amicable agreement is very significant and tends to grow. However, this process is largely complicated not only by the vagueness and inconsistency of a number of legal norms, but also by the theoretical lack of development of some fundamentally important issues related to the settlement agreement, the controversy of certain statements put forward by modern researchers of bankruptcy problems44. In this regard, a comprehensive scientific analysis of the problems related to the conclusion and implementation of an amicable agreement acquires particular relevance, and its results can contribute to the search for optimal conceptual foundations for further reforming Russian insolvency legislation.
Most authors note the dual nature of an amicable agreement, which is not only a legal transaction, but also comes into contact with procedural law 45.
So, I.I.Tadjiev, notes that "a procedural peace deal is, in essence, the same as a civil law, and therefore the conditions of its validity should be discussed according to the norms of substantive law, and only the form of commission and procedural consequences must be determined by procedural rules46.
An important aspect of an amicable agreement is the recognition that it is possible to conclude at all stages of the process, including at the stage of compulsory execution of a court decision that has entered into legal force.
The essence of the procedural side of the amicable agreement was well shown by I.I. Tadjiev, who noted that the amicable agreement concluded at the court consists not in the mutual expressions of the will of each of the parties, appeals to the other side, but in the appeal of both parties to the court, simultaneous and agreed upon in their own way content47.
The purpose of the amicable agreement is to liquidate a dispute between the parties, which takes place in the process and is subordinated to the procedural form. An amicable agreement in its procedural action is tantamount to a judicial decision on coercion, since it is the basis for compulsory execution.
The main conclusion from the amicable agreement is that it is impossible to bring a claim in the future, the
42 https://sud.uz/ru/
43 Ibratova F. Problems of a settlement in bankruptcy cases in economic courts //Norwegian Journal of Development of the International Science. - 2019. - №. 28-3.
44 Ибратова Ф. Б. Гражданско-правовые проблемы при-
знания банкротами индивидуальных предпринимателей
в Республике Узбекистан //Вопросы современной юрис-
пруденции. - 2015. - №. 5-6 (47).
45 Ibratova F. B. et al. Special features of modern legal systems: cases and collisions. - 2017.
46 Таджиев И.И. Комментарий к Закону Республики Узбекистан «О банкротстве» / Авт. Коллектив: М.К.Азимов и др. - Ташкент: 2007. - С.440.
47Таджиев И.И. Комментарий к Закону Республики Узбекистан «О банкротстве» / Авт. Коллектив: М.К.Азимов и др. - Ташкент: 2007. - С.440.
proceedings on which were terminated due to the conclusion of the amicable agreement48.
The literature notes that the conclusion of an amicable agreement in bankruptcy has features depending on the stage of the agreement. If, at the stage of observation, the settlement agreement turns out to be a major transaction in which there is an interest in accordance with the requirements of the legislation on joint stock companies, there is a question of observing the procedure for concluding such transactions.
It seems fair to say that the recognition of a legal entity as bankrupt is regulated by the Bankruptcy Law49.
So, according to the requirements of the Bankruptcy Law, an amicable agreement can be approved only if the mandatory rules are observed, one of which is the repayment of expenses and the satisfaction of the requirements provided for in part one of Article 134 of the Law of the Republic of Uzbekistan "On Bankruptcy", and the requirements for payment documents providing for the issuance of cash funds for the payment of wages (Article 149 of the Law of the Republic of Uzbekistan "On Bankruptcy).
The settlement agreement must be approved by the meeting of creditors. The decision of the meeting of creditors to conclude an amicable agreement is adopted by a majority vote of the total number of creditors and is considered adopted provided that all creditors voted for it on obligations secured by the pledge of the debtor's property50. The powers of the creditor's representative to vote on the issue of concluding an amicable agreement must be specially provided for in his power of attorney.
The decision to conclude an amicable agreement on behalf of the debtor is made, respectively, by the debtor - an individual entrepreneur or an individual who has lost the status of an individual entrepreneur, the head of the debtor, an external manager or liquidation manager. It is allowed to participate in the settlement agreement of third parties who assume the rights and obligations provided for by the settlement agreement.
The creditor who voted for the conclusion of the amicable agreement, the founders (participants) or the owner of the debtor's property have the right to fulfill the monetary obligations and (or) obligations for the obligatory payments of the debtor to the creditors who voted against the conclusion of the amicable agreement or did not take part in the vote. In this case, the creditor is obliged to accept the performance offered for the debtor, and the creditor's rights under the obligation pass to the person who fulfilled the debtor's obligations.
Third parties have the right to provide sureties or guarantees of the debtor's fulfillment of monetary obligations and (or) fulfill the obligation for mandatory payments under the settlement agreement, as well as otherwise ensure its proper execution. If the condition of the amicable agreement is the alienation in favor of a third party of the debtor's property, then it can be concluded only on the condition that the specified property is provided by a third party as a pledge, ensuring the repayment of creditors' claims.
The settlement agreement must clearly indicate to what extent and in what time frame the creditors' claims established and recognized by the court are reim-bursed51.
The terms of the amicable agreement for creditors who did not take part in the vote on the issue of concluding the amicable agreement, or who voted against, cannot be worse than for creditors of the same queue who voted for the adoption of the amicable agreement. At the same time, the terms of the settlement agreement do not apply to creditors who did not declare their claims in the prescribed manner.
The amicable agreement must be formalized in writing (Art. 132 EPK RUz). In this case, it is allowed to conclude an amicable agreement through a representative, whose authority to carry out this action is specially stipulated in the power of attorney issued to him.
The amicable agreement is subject to approval by the economic court, about which a ruling is made (Article 133 of the EPK RUz). At the same time, it is necessary to pay attention to the fact that the amicable agreement must contain the provisions agreed by the parties on the terms and conditions of the fulfillment of obligations. The fulfillment of obligations assumed by the parties under the terms of the settlement agreement cannot be made dependent on each other or on other events (actions). The amicable agreement may contain conditions on the deferral or installment plan of the fulfillment of obligations by the defendant, on the assignment of the right of claim, on the full or partial forgiveness or recognition of the debt, on the distribution of court costs and other conditions that do not contradict the law. In clause 33 of the Resolution of the Plenum of the Supreme Economic Court of the Republic of Uzbekistan dated January 27, 2006 No. 142 "On some issues of the application of bankruptcy legislation by economic courts", providing financial support to the debtor by providing him with a deferral, installment plan and (or) discounts on debts owed to creditors, should be considered as the subject of an amicable agreement, and cannot be considered as a measure to restore the financial position of the debtor in the course
48 Ибратова Ф. Б. ПРАВОВЫЕ ПРОБЛЕМЫ МИРОВОГО СОГЛАШЕНИЯ ПРИ РАССМОТРЕНИИ ДЕЛ О БАНКРОТСТВЕ В ЭКОНОМИЧЕСКИХ СУДАХ РЕСПУБЛИКИ УЗБЕКИСТАН //ПЕРСПЕКТИВЫ РАЗВИТИЯ НАУКИ В СОВРЕМЕННОМ МИРЕ. - 2019. - С. 163-170.
49 Ибратова Ф. Б. БАНКРОТСТВО ЛИКВИДИРУЕМОГО
СУБЪЕКТА ПРЕДПРИНИМАТЕЛЬСТВА: ПРОБЛЕМЫ
И РЕШЕНИЯ //Norwegian Journal of Development of the International Science. - 2021. - №. 58-2.
50 Ibratova F., Khabibullaev D. LEGAL ISSUES OF SIGNS OF BANKRUPTCY AND THE REALIZATION OF THE RIGHTS OF WORKERS IN CASES OF BANKRUPTCY OF EMPLOYERS UNDER THE LAWS OF THE REPUBLIC OF UZBEKISTAN //Znanstvena Misel. - 2019. - №. 11-2. - C. 55-61.
51 Ibratova F., Esenbekova F. GENESIS AND EVOLUTION OF LEGISLATION ON CONCEPTIONAL PROCEDURES IN THE REPUBLIC OF UZBEKISTAN //Polish Journal of Science. - 2021. - №. 38-2. - C. 20-24.
of another bankruptcy procedure (except for the provision of financial support through debt relief)52.
How does an amicable agreement in general compare, as a basis for terminating proceedings in a case, and an amicable agreement concluded in bankruptcy cases, proceeding from the fact that, as in a lawsuit, in a bankruptcy case, the conclusion of an amicable agreement makes it possible to shorten the process of considering a case and even more? short terms, albeit partially, to satisfy the claims of creditors53.
In the legal literature, most authors are of the opinion that a settlement agreement in a bankruptcy case, although it has some peculiarities, is still a special case of a settlement agreement concluded in an economic process. So, N.G. Livshits believes that an amicable agreement means a voluntary agreement on a partial waiver of the claims of some persons and the simultaneous recognition of the remaining claims by other obligated persons54.
Correlation of Chapter 16 of the EIC RUz with Chapter VIII of the Law of the RUz "On Bankruptcy" allows her to conclude that, in terms of meaning and definition, the settlement agreement concluded in the economic process and the settlement agreement concluded during the bankruptcy process coincide. Other scientists adhere to a similar point of view. So, V.F. Popondopulo believes that the amicable agreement provided for by the legislation on insolvency is a kind of the institution of amicable agreement in general55. The opinion is expressed that the definition of a settlement agreement as an agreement on the partial waiver of the claims of some persons and the simultaneous recognition of the remaining claims by other obliged persons coincides with the civil procedural approach to understanding the term in question56. This approach must be taken critically, bearing in mind the following.
In accordance with Art. 210 EIC RUz bankruptcy cases are considered according to the rules stipulated by the EIC RUz, with the specifics established by the Law of the RUz "On Bankruptcy". In other words, when considering bankruptcy cases, the norms of the EIC of the Republic of Uzbekistan are applied subsidiary, only on issues that are not regulated by the Law of the Republic of Uzbekistan "On Bankruptcy". At the same time, the provisions of the EIC RUz are not always applicable to a bankruptcy case due to the specificity of these cases57.
EPK RUz provides only the general possibility of concluding an amicable agreement, without regulating the procedure for its conclusion, only demands the compliance of such an agreement with laws and other legal regulations and does not allow violation of the rights of other persons.
Issues related to the range of subjects entitled to participate in a settlement agreement, the procedure for its conclusion, approval by the economic court and other issues are regulated by the Law of the Republic of Uzbekistan "On insolvency". At the same time, the norm of Part 3 of Art. 131 of the EIC RUz, which provides for the possibility of ending the case by amicable agreement in any instance, corresponds to Part 1 of Article 145 of the Law of the RUz "On Bankruptcy".
An amicable agreement in a bankruptcy case, like an amicable agreement in general, is drawn up in writing and is subject to approval by the economic court. This is the main reason for their similarities.
The subjects of the settlement agreement can be the debtor, in respect of whom a bankruptcy case has been initiated or liquidation proceedings are already being carried out, and creditors, and the decision to conclude an agreement on their behalf is made by the meeting of creditors in a strictly established manner (part 2 of article 145 of the Law of the Republic of Uzbekistan "On Bankruptcy "). These persons participate in the case, although they are not recognized by the defendant and the plaintiffs, because insolvency cases cannot be recognized as disputes between the subjects of property turnover. In this regard, unlike economic disputes, the filing of a statement of claim is not required to initiate a bankruptcy case, it is replaced by a statement, there are no plaintiffs and defendants in the case, and the debtor, creditors, judicial manager, tax and other authorities are recognized as persons participating in the case. provided for by the Law of the Republic of Uzbekistan "On Bankruptcy".
Third parties can also take part in the settlement agreement concluded in the bankruptcy case, who assume the rights and obligations provided for by the settlement agreement (part 4 of article 145 of the Law of the Republic of Uzbekistan "On Bankruptcy"). As practice shows, their applications for involvement in the case as third parties who do not make independent claims are rejected by the court.
The procedure for concluding an amicable agreement in a bankruptcy case is regulated in detail by the Law of the Republic of Uzbekistan "On Bankruptcy". If the conclusion of an amicable agreement is generally allowed through representatives, then the amicable agreement in a bankruptcy case must be signed by the debtor (court administrator) directly and by a person authorized by the meeting of creditors. They are not entitled to entrust the commission of such an action to someone by issuing an appropriate power of attorney.
The moments when the settlement agreements come into force are also different. The ruling of the economic court on the approval of the amicable agreement
52 https://lex.uz/docs/3523895#4262938
53 Ibratova F., Egamberdiev D. PURPOSE AND SIGNIFICANCE OF OBSERVATION-BANKRUPTCY PROCEDURES APPLICABLE BY THE ECONOMIC COURT FOR LEGISLATION OF THE REPUBLIC OF UZBEKISTAN //Polish Journal of Science. - 2019. - №. 202. - С. 37-42.
54 Лившиц Н.Г. Мировое соглашение в деле о банкрот-
стве // Вестник Высшего Арбитражного Суда РФ, 1999,
№ 1, с.101.
55Попондогтуло В.Ф. Конкурсное право. Правовое регулирование несостоятельности (банкротства) предпринимателей: Учебное пособие. СПб., 1995, с.42. 56Гражданский процесс: Учебник для вузов. Отв. Ред. Ю.К.Осипов. М., 1995, с.222.
57 Барышова М. В. и др. Социальное предпринимательство: научные исследования и практика. - 2019.
and the termination of the proceedings on the case is equivalent to a court decision and enters into force in the manner prescribed by Article 192 of the EPK RUz. That is, upon the expiration of a month after the court made a ruling on its approval. If an appeal has been filed, and the specified ruling has not been canceled, the settlement agreement comes into force from the moment the decision is made by the appellate instance. In this case, the ruling on the approval of the settlement agreement is subject to immediate execution. As for the amicable agreement in the bankruptcy case, according to Part 3 of Article 150 of the Law of the Republic of Uzbekistan "On Bankruptcy", it enters into force for all persons participating in it from the date of approval by the economic court, that is, from the moment the corresponding determination is made. If the amicable agreement approved by the court contradicts the requirements of the law and other normative acts, it can be appealed in the general procedure established by the EPK RUz.
According to Article 153 of the Law of the Republic of Uzbekistan "On Bankruptcy", upon the application of the debtor, creditor, prosecutor, as well as persons whose rights and legitimate interests have been violated, an amicable agreement can be declared invalid by the economic court:
- if the settlement agreement contains conditions providing for advantages for individual creditors or infringement of the rights and legitimate interests of individual creditors;
- if there are other grounds for the invalidity of transactions provided for by law.
The recognition of the settlement agreement as invalid is the basis for the resumption of the bankruptcy proceedings. The economic court issues a ruling on the resumption of bankruptcy proceedings, which can be appealed (protested).
If the settlement agreement is recognized as invalid, the claims of creditors for which a deferral and (or) an installment plan of payments due to them or a discount on debts has been made, are restored in their unsatisfied part.
Recognition of the settlement agreement as invalid does not entail the obligation to return the debtor to the paid expenses and to satisfy the requirements provided for in the first part of Article 149 of the Law of the Republic of Uzbekistan "On Bankruptcy".
If the settlement agreement is recognized as invalid, the notice on the resumption of the bankruptcy proceedings of the debtor is published in the official publication by the economic court at the expense of the debtor's property in the manner prescribed by Articles 52 and 53 of the Law of the Republic of Uzbekistan "On Bankruptcy".
The claims of creditors with whom settlements have been made on the terms of an amicable agreement that do not contradict the law are considered extinguished. Creditors, whose claims were satisfied in accordance with the terms of the settlement agreement, providing for their advantages or infringement of the rights and legitimate interests of other creditors, are obliged to return everything received in order to fulfill
the settlement agreement. In this case, these requirements are restored in the register of creditors' claims.
So, we can say that the consequence of the recognition of the settlement agreement as invalid will be the resumption of the proceedings on the case. This, of course, indicates that the amicable agreement is considered by the legislator as a contestable civil law transaction.
In our opinion, these differences are significant and allow us to conclude that a settlement agreement concluded in a bankruptcy case should not be identified with a settlement agreement as a ground for termination of proceedings in any other case considered by an economic court. On the one hand, an amicable agreement in a bankruptcy case is a civil contract, on the other, a procedural contract. At the same time, it is obvious that civil law elements prevail in it; its goals, first of all, are of a material nature - the satisfaction of creditors' claims, and only secondly - the termination of the economic business by the world. It was from this that the legislator proceeded, establishing special conditions for the conclusion and approval of such an amicable agreement, requirements for its content, as well as the possibility of its termination and invalidation. Exclusively in the material interests of creditors, it is allowed to participate in the settlement agreement of third parties who do not become persons participating in the case.
Based on the foregoing, it seems necessary to include in the Law of the Republic of Uzbekistan "On Bankruptcy" a definition that discloses the essence of an amicable agreement in a bankruptcy case. This will ensure a uniform approach to the application of general provisions of civil substantive and procedural law to the settlement agreement. So, an amicable agreement is a transaction between a debtor and creditors, concluded on the basis of mutual concessions in order to terminate bankruptcy proceedings.
REFERENCES:
1. https://sud.uz/ru/
2. Ibratova F. Problems of a settlement in bankruptcy cases in economic courts //Norwegian Journal of Development of the International Science. - 2019. - №2. 28-3.
3. Ибратова Ф. Б. Гражданско-правовые проблемы признания банкротами индивидуальных предпринимателей в Республике Узбекистан //Вопросы современной юриспруденции. - 2015. - №2. 56 (47).
4. Ibratova F. B. et al. Special features of modern legal systems: cases and collisions. - 2017.
5. Таджиев И.И. Комментарий к Закону Республики Узбекистан «О банкротстве» / Авт. Коллектив: М.К.Азимов и др. - Ташкент: 2007. - С.440.
6. Ибратова Ф. Б. ПРАВОВЫЕ ПРОБЛЕМЫ МИРОВОГО СОГЛАШЕНИЯ ПРИ РАССМОТРЕНИИ ДЕЛ О БАНКРОТСТВЕ В ЭКОНОМИЧЕСКИХ СУДАХ РЕСПУБЛИКИ УЗБЕКИСТАН //ПЕРСПЕКТИВЫ РАЗВИТИЯ НАУКИ В СОВРЕМЕННОМ МИРЕ. - 2019. - С. 163-170.
7. Ибратова Ф. Б. БАНКРОТСТВО ЛИКВИДИРУЕМОГО СУБЪЕКТА
ПРЕДПРИНИМАТЕЛЬСТВА: ПРОБЛЕМЫ И РЕШЕНИЯ //Norwegian Journal of Development of the International Science. - 2021. - №. 58-2.
8. Ibratova F., Khabibullaev D. LEGAL ISSUES OF SIGNS OF BANKRUPTCY AND THE REALIZATION OF THE RIGHTS OF WORKERS IN CASES OF BANKRUPTCY OF EMPLOYERS UNDER THE LAWS OF THE REPUBLIC OF UZBEKISTAN //Znanstvena Misel. - 2019. - №. 112. - С. 55-61.
9. Ibratova F., Esenbekova F. GENESIS AND EVOLUTION OF LEGISLATION ON CONCEPTIONAL PROCEDURES IN THE REPUBLIC OF UZBEKISTAN //Polish Journal of Science. - 2021. - №. 38-2. - С. 20-24.
10. https://lex.uz/docs/3523895#4262938
11. Ibratova F., Egamberdiev D. PURPOSE AND SIGNIFICANCE OF OBSERVATION-BANKRUPTCY PROCEDURES APPLICABLE BY THE ECONOMIC COURT FOR LEGISLATION OF THE REPUBLIC OF UZBEKISTAN //Polish Journal of Science. - 2019. - №. 20-2. - С. 37-42.
12. Лившиц Н.Г. Мировое соглашение в деле о банкротстве // Вестник Высшего Арбитражного Суда РФ, 1999, № 1, с.101.
13. Попондогтуло В.Ф. Конкурсное право. Правовое регулирование несостоятельности (банкротства) предпринимателей: Учебное пособие. СПб., 1995, с.42.
14. Гражданский процесс: Учебник для вузов. Отв. Ред. Ю.К.Осипов. М., 1995, с.222.
15. Барышова М. В. и др. Социальное предпринимательство: научные исследования и практика. - 2019.
16. Абдувахидов, А. М., Маннопова, Э. Т. (2018). Теоретические подходы к формированию интеллектуальных систем как к инструменту обеспечения эффективности управления. С.239-243.
17. Абдувахидов, А. М., Маннопова, Э. Т. Интеллектуальная система как инструмент управления образовательным процессом в вузе. (2018). Иктисодиёт ва таълим.
SERIAL CRIMES IN THE SYSTEM OF CRIMES AGAINST THE PERSON
Ilikbaeva E.
Candidate of Law, Senior Lecturer of the Department of Criminal Procedure and Criminalistics of the Crimean Branch of the Krasnodar University of the Ministry of Internal Affairs of Russia (Simferopol)
Yablukovskaya A.
student of the Crimean branch of the Krasnodar University of the Ministry of Internal Affairs of Russia
(Simferopol)
СЕРИЙНЫЕ ПРЕСТУПЛЕНИЯ В СИСТЕМЕ ПРЕСТУПЛЕНИЙ ПРОТИВ ЛИЧНОСТИ
Иликбаева Е.
кандидат юридических наук, старший преподаватель кафедры уголовного процесса и криминалистики Крымского филиала Краснодарского Университета МВД России
(г. Симферополь) Яблуковская А.
слушатель Крымского филиала Краснодарского университета МВД России
(г. Симферополь)
Abstract
At the present stage, crime is a relatively independent and dynamic social system, the elements of which are specific crimes. One such element is serial crime, which includes serial murder and serial rape. These terms are relatively new, despite the deep historical roots of the studied phenomena. Currently, there is no single approach to the definition of "serial murder" in science. This definition is not mentioned in any regulatory legal act. As a result, without a theoretical and legislative framework, it is impossible to properly organize investigations and solve such crimes
Аннотация
На современном этапе преступность представляет собой сравнительно самостоятельную и динамичную социальную систему, элементами которой являются конкретные преступления. Одним из таких элементов являются серийные преступления, которые включают серийные убийства и серийные изнасилования. Данные термины являются сравнительно новыми, несмотря на глубокие исторические корни исследуемых явлений. В настоящее время в науке не существует единого подхода к определению понятие «серийные убийства». Не упоминается данное определение и ни в одном нормативно-правовом акте. Как следствие, без теоретической и законодательной основы невозможно соответствующим образом организовывать расследования и раскрывать такие преступления.
Keywords: serial crimes, serial murders, serial rapes, serial crime investigations.
Ключевые слова: серийные преступления, серийные убийства, серийные изнасилования, расследование серийных преступлений.
