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PROBLEMS OF A SETTLEMENT IN BANKRUPTCY CASES IN ECONOMIC COURTS
Ibratova F.
Senior Lecturer of the Department «Civil procedural and economic procedural Law» TSLU, Ph.D.
Abstract
The article discusses the theoretical and practical problems of a settlement agreement in bankruptcy cases, the requirements for the content of a settlement agreement, the legal issues of termination of the debtor's monetary obligations by granting an indemnity, novation of obligation, by forgiving the debt.
Keywords: settlement, bankruptcy, liabilities, debt discounts, novation, debt forgiveness.
At any stage of consideration by the economic court of a bankruptcy case, the debtor and creditors have the right to enter into a settlement agreement.
Requirements for the content of the amicable agreement are enshrined in Article 148 of the Law of the Republic of Uzbekistan "On Bankruptcy". The settlement agreement should contain provisions on the amount, procedure and terms for the fulfillment of the debtor's monetary obligations and (or) on the termination of the debtor's monetary obligations by granting an indemnity, novation of obligation, forgiveness of debt or other means provided by law. According to paragraph 33 of the Plenary Meeting of the Higher Economic Court of the Republic of Uzbekistan dated January 27, 2006 No. 142 "On some issues of application of bankruptcy laws by economic courts", providing financial support to the debtor by granting him a deferment, installments and (or) discounts on debts owed to creditors should considered as a subject of a settlement, and cannot be considered as a measure to restore the debtor's financial position in the course of another bankruptcy procedure (apart from providing financial support to discount discounts [5].
The Law of the Republic of Uzbekistan "On Bankruptcy" does not contain an exhaustive list of specific methods of performance or other types of termination of obligations, but indicates only certain conditions that can be included in the settlement agreement. In particular, about the postponement or installment plan of fulfillment of monetary obligations, about the assignment of the debtor's claims, about the fulfillment of the debtor's monetary obligations by third parties, about the discount from the debt, about the amendment about changing the terms and procedure for making obligatory payments in accordance with the law, about meeting creditors 'claims in ways that do not contradict the law (Part 2 of Article 148 of the Law of the Republic of Uzbekistan "On Bankruptcy").
In essence, the settlement is a legal fact that changes and (or) terminates the debtor's obligations to creditors. As a result, the content of the existing obligations between these persons will be updated or they will cease to exist. The terms of the settlement agreement, as a rule, change the subject of the obligation - the amount of money payable to the creditor is reduced or the original object is replaced by another. It is possible
to change the terms and methods of execution, as well as the subject composition of the obligation. However, it is not excluded the likelihood that the debtor's obligations in respect of individual creditors under the terms of the amicable settlement agreement will remain as they were.
Relations related to the change and termination of obligations of the debtor and creditors are governed by the norms of civil law, primarily the Civil Code of the Republic of Uzbekistan, unless otherwise established by the Law of the Republic of Uzbekistan "On Bankruptcy" or does not follow from the essence of these relations. Thus, in most cases, these obligations are contractual in nature, and therefore, when conditions are included in the settlement agreement on changing the size, order and deadlines for their fulfillment, you should be guided by the general rules of the Civil Code of the Republic of Uzbekistan on amendment of the agreement. In this situation, the change of previously concluded contracts is carried out by agreement of the parties, but since it is achieved and executed in a special order established by the Law of the Republic of Uzbekistan "On Bankruptcy", Article 384 of the Civil Code of the Republic of Uzbekistan does not apply, which stipulates that performed in the same form as the contract.
According to Art. 145 of the Law of the Republic of Uzbekistan "On Bankruptcy", a settlement agreement may contain a condition on the performance of the debtor's obligations by a third party. The will of such a person is expressed in the settlement agreement. The rules of Article 241 of the Civil Code of the Republic of Uzbekistan, according to which the performance of an obligation may be entrusted in whole or in part to a third party, should be applied to the emerging relations. The creditor in this case is obliged to accept the performance proposed by a third party. However, it should be borne in mind that the third party does not become a party to the obligation, since it only performs certain actions in relation to the creditor. The debtor remains responsible to the creditor for the fulfillment of the obligation, who is responsible for the failure to fulfill or improper fulfillment of the obligation by third parties to whom the execution was entrusted, unless the law or the contract stipulates that the third party who is the ex-
ecutor is responsible (art. 241 of the Civil Code of Uzbekistan) Considering that the Law of the Republic of Uzbekistan "On Bankruptcy" does not provide for exceptions from the general rule, and also on the basis of the circumstances in which the settlement agreement is concluded, the inclusion of such conditions in it is ineffective. If creditors have doubts that the settlement agreement will be executed by the debtor, then the imposition of the performance of its obligations on a third party will not allow them.
Under the terms of the settlement agreement, the debtor may assign the rights to him to the creditors by way of a general civil assignment. Although the consent of the debtor in the obligation, the rights under which are transferred, is not required, nevertheless, it must be expressed in an amicable settlement. Speaking about the use of the institution of the change of persons in the obligation, it is necessary to pay attention to the requirements of the Civil Code of the Republic of Uzbekistan concerning the registration of the cession. According to Part 1 of Article 320 of the Civil Code of the Republic of Uzbekistan, the assignment of a claim based on a transaction made in simple written or notarial form must be made in the appropriate form. This norm is imperative and cannot be changed either by another legal act or by agreement of the parties. In this regard, if the rights arising from a notarized transaction are assigned, in addition to concluding a settlement agreement, subjects need to issue a notary notice in addition, otherwise the corresponding condition of the settlement agreement, approved by the economic court, will be void (Part 1 of Article 112 of the Civil Code of Uzbekistan) As for the assignment of rights under a transaction requiring state registration, according to Art. 112 of the Civil Code of the Republic of Uzbekistan, it is subject to state registration only unless otherwise provided by law. In this case, the Law of the Republic of Uzbekistan "On Bankruptcy" establishes otherwise, recognizing the validity of the settlement agreement approved by the economic court, without requiring compliance with any other formalities.
The settlement agreement may provide for the termination of the debtor's obligations by novation. According to Art. 347 of the Civil Code of the Republic of Uzbekistan, novation is understood as an agreement of the parties to replace the original obligation that existed between them, another obligation between the same persons, providing for another object or method of performance. Thus, the debt in monetary terms can be repaid by the debtor by supplying the creditor with inventory items in the range within the terms of shipment of products, provided for by the amicable agreement. The previous obligation will be deemed terminated, and the new one will come into force from the moment the economic court approves the amicable agreement containing the novation condition.
The obligation between the debtor and the creditor may also be terminated by the provision of compensation in return. The size and procedure for granting compensation shall be established by the parties (Arti-cle.342 of the Civil Code of the Republic of Uzbekistan). It should be noted that the question of possible compensation objects is controversial.
Article 342 of the Civil Code of the Republic of Uzbekistan calls for compensation only "payment of money" and "transfer of property", leaving the question of the list of items of the obligation to provide compensation in open. In this regard, many scientists believe that this list can be supplemented with such items of obligations as the execution of works and the provision of services. Thus, according to O. Yu. Shilokhvosta, "performance of work is, by virtue of civil law, one of the subjects of obligation, and, therefore, to exclude such an object from the scope of an institution of law of obligations, it is necessary to directly specify the law missing" [4, c.364]. A. Babaev adheres to a different point of view, who believes that the wording specified in the legislation does not allow to state unequivocally that other objects of civil law can be used as an object of compensation [1, c.17].
When concluding a settlement agreement, there may be problems related to the possibility of applying this method of termination of obligations, such as forgiveness of a debt, in relations between commercial organizations. Some scientists, in particular M.I. Braginsky believe that since debt forgiveness is a debtor's debtor's release from property obligations by agreement of the parties, it becomes a subject of a deed of gift, therefore, the provisions of the Civil Code prohibiting donation, in particular, between commercial legal entities, should be used to forgive the debt [2, c.455]. A different point of view is expressed in the literature, according to which the agreement on debt forgiveness should not be considered as a donation agreement. So, M.V. Teliukina believes that forgiveness of a debt is not a gift, since a deed of gift is always a gratuitous transaction, and forgiveness of debt, although it does not contain a condition of consideration, may be compensable. The reason for this conclusion is that in civil law there is a general presumption of retribution of the transaction. That is, if the parties in the agreement do not indicate any kind of consideration, this does not mean that it is absent -"some favorable consequences for the creditor who has forgiven the debt can be assumed." It is difficult to agree with such a position, if only because, in accordance with Part 3 of Article 355 of the Civil Code of the Republic of Uzbekistan, the contract is supposed to be compensated, unless the law, the content or the substance of the contract otherwise. According to Article 348 of the Civil Code of the Republic of Uzbekistan, when forgiving a debt, the obligation is terminated by the release of the debtor's creditor from the obligations lying on it, if this does not violate the rights of other persons with respect to the property of the lender. From this norm of the law, in our opinion, it directly follows the conclusion that there is no counter-provision for the forgiveness of debt. If the creditor wants to receive it, then in this case we should talk only about the termination of the obligation by novation or the provision of compensation. As for the ratio of the institutions of debt forgiveness and donation, then, in our opinion, the gift agreement is a special manifestation of debt forgiveness, especially since many modern scholars admit the existence of debt forgiveness as a one-sided transaction [4, c.579].
In practice, economic courts recognize amicable agreements complying with the law on the termination of obligations by forgiveness of debt.
In accordance with Part 3 of Article 148 of the Law of the Republic of Uzbekistan "On BankRosts", the terms of a settlement agreement for creditors who did not participate in voting on the issue of entering into a settlement agreement, as well as voting against its conclusion, cannot be worse than for creditors the same queue who voted for his conclusion. This provision, of course, aims to ensure that the interests of those creditors who have not expressed their will to conclude a settlement agreement and to include certain conditions in it are respected. However, in practice this provision cannot always be applied with the necessary efficiency. For example, a settlement agreement was concluded between bankruptcy creditors and the debtor, according to which the amount of payments due to each creditor of the fifth line was determined and a five-year maturity period was set. At first glance, the terms of the settlement agreement are the same for all creditors of this turn. However, individual lenders may be interested in a debtor enterprise, and therefore meeting the requirements for them is less relevant than for other bankruptcy creditors. In this regard, it may actually be that the creditors who voted against the conclusion of a settlement agreement are in worse conditions, since they have to wait five years for the debt to be repaid, which may adversely affect their financial condition.
By joining S.Zinchenko's opinion, it should be noted that it would be advisable to set a maximum period for the debtor to execute the amicable agreement equal to one year [3, c.579] or introduce a preventive deadline for the debtor to comply with the terms of the settlement agreement, which would eliminate the possibility of abuse by both the debtor and creditors who are not interested in the prompt repayment of the debt.
REFERENCES:
1. Babaev AB Agreement on novation, compensation and forgiveness of debt // Legislation, 2001, N°9, - C.17.
2. Braginsky M.I., Vitryansky V.V. Contract law. Book One: General Provisions. M., 1999, p.455-456.
3. Zinchenko, S., Kazachansky, S., Zinchenko, O. Search for a new model of bankruptcy legislation // Economy and Law, 2001, No. 3, p. 40
4. Shilokhvost O. Yu. On termination of obligations forgiveness of debt // Civil Code of Russia. Problems. Theory. Practice: Collection of memory SA Khokhlova / Otv. ed. A.L.Makovsky. M., 1998, p. 364-370.Ea6aeB A.E.
5. http://www.lex.uz/acts/1634607
LEGAL ASPECTS OF INTERACTION OF GOVERNMENT BODIES AND LOCAL SELF-
GOVERNMENT IN AZERBAIJAN
Ismayilov Kh.
Doctor of Science in Law, Professor Department of Theory and History of State and Law of Baku State University (Baku, Azerbaijan)
ПРАВОВЫЕ АСПЕКТЫ ВЗАИМОДЕЙСТВИЯ ОРГАНОВ ГОСУДАРСТВЕННОЙ ВЛАСТИ И МЕСТНОГО САМОУПРАВЛЕНИЯ В АЗЕРБАЙДЖАНЕ
Исмайлов Х.Дж.
Доктор юридических наук, профессор кафедры Теории и истории государства и права Бакинского Государственного Университета
Abstract
The issues of interaction of government bodies and local self-government in Azerbaijan are becoming actual theoretical and practical problems in the light of the prospects for rapprochement of this South Caucasian state with the European community. State power and local self-government in modern Azerbaijan are inextricably linked with the process of the establishment of a democratic regime and, as a result, the formation of a new legal framework governing the activities of self-government institutions. Decentralized governance is a necessary condition for the democratization of state power and society. But with regret we have to admit that the principles of decentralization of management, subsidiarity, self-organization of citizens, developed in the light of European experience in order to resolve local issues, have not yet been fully and adequately reflected in the legislation of Azerbaijan. The article sets such tasks as clarifying issues of the relationship between state bodies and local self-government and analyzing the legal foundations of their interaction in Azerbaijan. For this purpose, are traced the patterns of development and functioning of local government structures in Azerbaijan and the issues of their support from the state, and also are made a number of assumptions by analyzing the rule-making on improving relations between state and municipal institutions.
