Журнал ЗАКОН

Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF No. 305-ЭС22-9597, 27 April 2023 The bankruptcy of a pledgee that has provided security for the obligations of a third party has always been associated with numerous problems in enforcing the rights of the pledgee. In the context of corporate insolvency, there was initially a discussion regarding the procedure for filing a pledge claim: within or outside the bankruptcy case; the uncertainty on this issue was resolved by amendments to art. 138.5 of the Bankruptcy Law. At the same time, it was clarified in the Ruling No. 58 of the Plenum of the Supreme Arbitrazh Court of the Russian Federation of 23 July 2009 that bankruptcy of the pledgee under the obligation of a third party, even if payment schedule is observed, is a ground for acceleration of the secured debt (subpar. 2 of par. 22.2). Emphasis on the creditor’s interests resulted in a sudden withdrawal of previously provided financing from a duly performing principal debtor and foreclosure of the collateral. In the context of individual bankruptcy (pledgee for someone else’s debt), these problems are further aggravated by social specifics — the risk of losing the only mortgage housing. That is why in the commented case, against the background of the absence of arrears, the supreme instance sought to prevent early reclamation of the secured obligation. To this end, for the first time a mechanism of forced restructuring of the debt to an individual creditor (the so-called local restructuring plan) was applied. This publication is devoted to the advantages and disadvantages of the proposed model of regulation.

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Keywords: citizen’s bankruptcy, pledge for someone else’s debt, sole residence, local restructuring plan, cramdown

The property which was accumulated by the spouses during the marriage is governed in England by specific rules. On the one hand, the matrimonial property as it is known in the Continental law, does not exist in England and this could be interpreted as the divided matrimonial property regime. On the other hand, when the marriage is terminated, the court has wide powers to order the transfer of the part of the property, and sometimes very considerable part (which can make 70–80%) of the economically stronger spouse towards to the economically weaker spouse. The practical result of that order is at least the same as the liquidation of matrimonial property in the Continental law, but sometimes even surpasses it. Because the ancillary relief mixes up the matrimonial property, maintenance obligations and the compensation of the damages, its conflict of laws-characterization is unclear. In 1997, this issue was even raised before the European Court of Justice. The attempts either to divide the ancillary relief of English law to the separate segments or to subordinate the competing institutions are not much help in practice as well as raise doubts from the theoretical point of view. In this article argues for the characterization which was intuitively chosen by the Supreme Court of Germany and which depends on the amount of the ancillary relief: big money cases are likely to be characterized as focused on the matrimonial property regime and small cases are likely to be understood as relating to maintenance obligations.

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Keywords: private international law, conflict of characterization, matrimonial property, maintenance obligations, compensation of damages, England, common law, ancillary relief

The debate over the legal nature of the crediting of a security payment remains relevant to this day. The author argues that such crediting should not be considered as set-off. The issues raised in the article are most pertinent in the event of bankruptcy: qualifying the crediting as an independent legal mechanism allows for a solution that prevents its contestation in insolvency cases.

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Keywords: security payment, set-off, crediting, bankruptcy, voidable transactions

The article analyses the problem of bankruptcy of foreign legal entities from the point of view of theoretical foundations of cross-border bankruptcy, international standards in this area, as well as through the prism of the development of law enforcement practice in Russia. The first part of the study characterises the internationally recognised taxonomy of bankruptcy proceedings, identifies the underlying reasons for the existence of multiple proceedings in cross-border insolvency, lists the features of COMI proceedings and establishment proceedings, outlines the connection of insolvency jurisdiction issues with the tools for recognising the cross-border effect of foreign bankruptcy. The author identifies both COMI-jurisdictional and COMI-recognising countries and COMIonly countries whose competence criteria for commencing bankruptcy proceedings may be much broader than COMI and establishment. The author investigates the role and importance of state affiliation, personal law and place of incorporation of the debtor for access to bankruptcy proceedings.

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Keywords: cross-border bankruptcy, modified universalism, foreign bankruptcy, debtor centre of main interests, establishment, main proceedings, non-main proceedings, secondary proceedings, jurisdiction, lex societatis, lex fori concursus

The rules of the Law on Insolvency (bankruptcy) are designed for capable persons. This is not stated in the Law directly, but it follows from the context and from judicial practice. At the same time, the widespread occurrence of bankruptcy cases of persons has led to the fact that in bankruptcy cases minors began to appear not only in the register of creditors’ claims as creditors for alimony obligations, but also as legal successors of a person bearing subsidiary liability, defendants in a claim for invalidation of a transaction. The article argues that the participation of minors in bankruptcy proceedings is only part of the general problem of the debt of minors. The problem of such liability has not been fully resolved in Russian legislation and doctrine. On the one hand, it is necessary to protect the right of a minor, on the other hand, to avoid violating the rights of creditors. The method of comparative jurisprudence has been used in the study. Russian and German judicial practice, legislation and doctrine have been compared. The author proves that bankruptcy procedures in respect of a minor are hardly possible without changing bankruptcy regulations. The problem can be partly smoothed by the application of norms on bankruptcy of inheritance, nevertheless, the issue of the consequences of ineffective management of a minor’s property remains open.

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Keywords: debt, obligation, discharge from obligations, bankruptcy, minor, parents, children, guardian

This article provides the analysis of problems concerning inclusion in a contract of potestative and mixed terms which means that the fact of fulfillment of respective terms which causes arising, modification or termination of contract rights or duties remains open and depends on actions of the contracting party (entirely or partly). Formerly Russian courts have been demonstrating negative attitude towards such terms. Examined approaches of courts show that reluctance to apply such terms remains strong, although is not so directly manifested. However, lots of court decisions show carefully considered approach to restriction concerning application of such terms, providing the analysis from a perspective of freedom of contract (e.g., in a way to avoid abuse of law, to compensate parties’ inequality etc).

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Keywords: contingent transaction, potestative term, mixed term, suspensive term, resolutive term