Letter of the Federal Tax Service of Russia of November 29, 2017 N СА-4-18 / 24213
"On the direction of the review of judicial acts".
The Federal Tax Service of Russia presents an overview of legal positions on the results of dispute resolution related to bankruptcy procedures for the 3rd quarter of 2017. The review presents court decisions on disputing transactions, including requirements in the register of creditors' claims, disputing unreasonable claims of creditors, bringing to subsidiary liability; appointing an arbitration manager, recognizing actions (inaction) of an arbitration manager improperly, recovering damages, establishing the amount of interest on the arbitration manager's remuneration, qualifying a monetary claim as a current one, replacing assets, introducing a bankruptcy procedure. The following positions of the courts are given, in particular: the transaction may be invalidated if the execution is unequal in accordance with paragraph 1 of Article 61.2 of the Bankruptcy Law, if the behavior of the parties to the transaction clearly indicates the direction of their will to execute the agreement with unequal provision; if there are arguments about the imaginary and feigned agreements, on the basis of which the person claims to include the debtor's creditors' claims in the register, the court should not limit itself to a formal check of the documents submitted by the parties, but should take into account other evidence confirming the existence of actual contractual relations; in case of non-fulfillment of the court ruling on the obligation to transfer documents from the former head of the debtor in favor of the bankruptcy estate, a legal penalty shall be recovered in accordance with paragraph 1 of article 308.3 of the Civil Code of the Russian Federation; the person who exercised the authority of the bankruptcy commissioner during the period of settlements with creditors must reserve the amount of interest on the bankruptcy commissioner's remuneration on the debtor's account; debt collection may be denied when the debtor's creditors present evidence of the formal nature of the chain of transactions (operations) that do not entail any economic effect of the economic activity; when replacing assets to newly formed joint-stock companies that are not a party to the contract of sale of shares and their potential buyers, the current legislation does not impose the obligation to preserve the purpose of the bankrupt enterprise; when considering an application for declaring a debtor insolvent (bankrupt), the date for accepting such an application, rather than the date of arising of the debt, which served as the basis for filing, is the moment for determining the presence or absence of signs of bankruptcy. The losses of co-holders can be imposed not only on developers, but also on those who control them.
A draft has been submitted to the State Duma, which involves significant changes in the regulation of shared construction. One of them provides for joint responsibility of the developer and persons who control it. Those who can give instructions to the sole executive body (general director, management company) or a member of the collegial management body of the developer are named as controlling persons. This list is not exclusive. We note that there are no criteria in the document according to which one could determine the fact of control. If the project is not changed, the courts will be able to establish such a fact, even if there are no formal signs of control, for example, ownership of a certain share in the share capital of the LLC. Such an approach was met in insolvency litigation practice before the Bankruptcy Law determined who exactly was the controlling party. Document: Draft Federal Law N322981-7 (http://sozd.parlament.gov.ru/bill/322981-7) Submitted to the State Duma on November 24, 2017. Resolution of the Constitutional Court of the Russian Federation dated 10.17.2017
"In the case of verification of the constitutionality of clause 5 of part four of Article 392 of the Civil Procedure Code of the Russian Federation in connection with complaints of citizens D.A. Abramov, VA Vetlugaev and others".
The Constitutional Court of the Russian Federation prohibited the review of court decisions that entered into force on the basis of the rulings of the judicial boards of the Supreme Court of the Russian Federation. The Constitutional Court of the Russian Federation recognized clause 5 of part four of Article 392 of the Code of Civil Procedure of the Russian Federation that does not contradict the Constitution of the Russian Federation, since it does not imply its constitutional legal meaning the possibility of cancellation of the court decisions that have entered into legal force on new circumstances in connection with the determination (change) of the practice of applying the rule of law, by the court in a particular case, in the determination of the judicial collegium of the Supreme Court of the Russian Federation, which was issued following the results of the consideration of another case in cassation. The Constitutional Court of the Russian Federation indicated, in particular, the following. If the decisions of the Presidium of the Supreme Court of the Russian Federation are final, are made in the composition representing the Supreme Court of the Russian Federation as a whole, and only in cases of particular importance, in particular for the formation of a uniform law-enforcement practice, the definitions passed by the judicial boards of the Supreme Court of the Russian Federation in cassation, these criteria are not met. First, such definitions, if they violated the rights, freedoms and legitimate interests of the persons participating in the case, and other persons, may be revised according to their complaints by the Presidium of the Supreme Court of the Russian Federation; at that, the definition of the judicial collegium of the Supreme Court of the Russian Federation is subject to cancellation or amendment, if, when supervising the case, the Presidium of the Supreme Court of the Russian Federation determines that it violates either human and citizen rights and freedoms guaranteed by the Constitution of the Russian Federation, generally recognized principles and norms of international law, international treaties The Russian Federation, or the rights and legitimate interests of an indefinite number of persons or other public interests, or uniformity in the interpretation and application of the law by the courts. Secondly, according to the Federal Constitutional Law "On the Supreme Court of the Russian Federation", the judicial boards of the Supreme Court of the Russian Federation are composed of deputy chairmen of the Supreme Court of the Russian Federation - chairmen of the judicial boards of the Supreme Court of the Russian Federation and the judges of these boards; In the judicial boards of the Supreme Court of the Russian Federation, judicial panels are formed from among the judges who are part of the relevant judicial panel. From this it follows that judicial acts issued in such a judicial composition, by virtue of the very order of its formation, cannot be regarded as reflecting the position of the Supreme Court of the Russian Federation as a whole and do not possess the properties inherent in the decisions of the Presidium of the Supreme Court of the Russian Federation in specific cases, and therefore cannot be grounds for cancellation in respect of newly discovered or new circumstances of judicial acts that have entered into force, especially in cases that were not subject to review by the judicial board of the Supreme Court of the Russian Federation. Another would, in fact, lead to a violation of the constitutional right to judicial protection: if the judicial act of one of the judicial boards of the Supreme Court of the Russian Federation in a particular case, including a cassation order by a certain number of judges (usually three) that are part of this judicial collegium could serve as a basis for the abolition of several (many) judicial acts issued earlier in other cases, would not exclude situations in which the revision of the entered into legal force and enforceable judicial acts would result from not wearing the fundamental nature of violations in the application of the law. Meanwhile, as the European Court of Human Rights noted, the powers of the higher courts to set aside final and enforceable court decisions or to amend them should be exercised in order to correct material errors. In the prevailing judicial practice, giving the definition of a judicial collegium of the Supreme Court of the Russian Federation, rendered in a cassation procedure in another case, of the same legal significance as the ruling of the Presidium of the Supreme Court of the Russian Federation actually leads to the removal of the relevant procedural legal relations from the constitutional interpretation of the regulation the subject of consideration of the Constitutional Court of the Russian Federation in the decision of January 21, 2010 N 1-P, according to which in the act of judicial The authority that determined (changed) the practice of application of the legal norm should indicate the possibility of revision of judicial decisions that have entered into legal force due to newly discovered circumstances, in which the legal rule was applied differently by the court, and judicial decisions that are enacted may be revised if As a result of the new interpretation of legal norms, the position of the subordinate (weak) party in legal relations does not deteriorate. Meanwhile, this constitutional and legal interpretation fully applies to the decisions of the Presidium of the Supreme Court of the Russian Federation or the Plenum of the Supreme Court of the Russian Federation, since giving the same meaning in terms of revising court decisions on newly discovered and new circumstances other than the decision of the Presidium The Supreme Court of the Russian Federation or the decisions of the Plenum of the Supreme Court of the Russian Federation were not considered by the Constitutional Court of the Russian Federation as permissible from a constitutional point of view. In this regard, the Constitutional Court of the Russian Federation indicated that the federal legislator should make the following amendments to the civil procedural legislation relating to the revision of the judicial decision that entered into force on the basis specified in clause 5 of the fourth article 392 of the Code of Civil Procedure of the Russian Federation: provided that the relevant decision of the Plenum of the Supreme Court of the Russian Federation or the Presidium of the Supreme Court of the Russian Federation contains a direct indication of giving Anna in it retroactive legal position in relation to cases with similar factual circumstances; enshrine the inadmissibility of giving retroactive force to the interpretation of legal norms that worsen the situation of citizens in their legal relations (pension, housing, provision of compulsory social insurance, etc.) with state authorities, local governments or organizations endowed with separate state or other public powers (their officials), compared to how it was determined in the revised court order; establish a procedural period during which it is allowed to revise a court decision issued in a particular case and entered into legal force in connection with such a new circumstance as the definition (change) of the practice of application of the law applied by the court in a particular case, in a decision of the Plenum of the Supreme Court of the Russian Federation or in the decision of the Presidium of the Supreme Court of the Russian Federation, adopted following the results of consideration of another case in the procedure for supervision. The lawmakers introduced a new procedure by which developers will notify the SRO of the amount of contractual obligations.
The Ministry of Construction has determined what information the construction company should include in the notification of the actual total amount of obligations under the contracts: - a contract for the implementation of engineering surveys; - contract for the preparation of project documentation; - construction contract. This information about the legal entity and the amount of its obligations under the contracts. The rules relate to contracts concluded during the reporting year using competitive procurement methods for 44-ФЗ, 223-ФЗ and for the bidding required by law. To the notification you need to attach copies of documents confirming the size of the obligations. You can submit a notification: - personally; - by mail with an inventory of the attachment and a return receipt; - on the Internet in the form of an electronic document. Recall the obligation to notify the SRO will appear in July. The notification will need to be sent annually by March 1 of the year following the reporting year. Document: Order of the Ministry of Construction of Russia of April 10, 2017 N 700 / pr (comes into force on July 1, 2017). Draft Federal Law N 204628-7 "On Amendments to the Federal Law" On Joint-Stock Companies"
The Ministry of Economic Development of Russia has prepared a draft law aimed at improving corporate governance in a joint-stock company Amendments proposed for inclusion in the Federal Law" On Joint-Stock Companies ": Audit Commission of the company;
- specifies the criteria on the basis of which the amount of dividends on preferred shares is considered to be defined by the company's charter; the participation of the board of directors (supervisory board) in the formation of the governing bodies of the joint-stock company, including the possibility of transferring authority to elect executive bodies to the competence of the board of directors (supervisory board) holding a general meeting;
- the regulations on the committee of the board of directors (supervisory board) on audit, on the organization of internal audit and the internal contact and risk management of public companies;
- provisions are introduced that the annual report of the company, the charter of which regards the issue of its approval is within the competence of the board of directors, is subject to approval by the board of directors of the company no later than 30 days before the date of the annual general meeting of shareholders;
- clarifies the procedure for determining a quorum at the company's general meetings of shareholders, at which the issue of approving interested-party transactions is being considered.