The legal and organizational support sanation and liquidation procedures
Bankruptcy Institute is one of the effective tools of market reforms, which contributes to effective ownership and increasing the competitiveness of the economy. These factors contribute to the need for state regulation of the bankruptcy process, which occurs by applicable law. In 1999 the Law of Ukraine "On restoring solvency or declaring the company bankrupt." The name of the law emphasizes the interest in preserving the legislator entity - the taxpayer, easing social tensions by maintaining jobs. And only when measures to restore solvency will not give a positive result, the procedure of bankruptcy.
The law prefers not punitive functions bankruptcy (liquidation of the enterprise division of property among the creditors) and the reorganization and recreational activities aimed at the revival of business activity, the competitive capacity of enterprises. So much of this legislative instrument regulates the issue of prevention of bankruptcy of businesses, its pre-judicial and curative procedures.
Under the legally defined term "bankruptcy" is meant the tribunal recognized the failure of the debtor to restore its solvency and satisfy the court recognized the claims of creditors not only through the application of the liquidation procedure.
Equally important is the clear definition of insolvency of the entity. Debtor law treats as a "business entity not meet its financial obligations to creditors, including the obligation to pay taxes and duties (mandatory payments) within three months after the fall due."
Thus, it is a stable financial insolvency. Within three months the company must confirm its viability and restore solvency or be bankrupt. In a market environment, any business entity may be in a state of insolvency, bankruptcy but it can be recognized only after the decision of the arbitral tribunal.
Breaking the bankruptcy case are entitled to both creditors and debtors themselves. The condition of the violation of such cases are:
a) the debtor debts amounting to no less than 300 times the minimum wage;
b) debt default within three months after they mature;
c) if there is a court decision, which has dealt with the creditor to the debtor.
Bankruptcy proceedings of the debtor is in the case where the company has opportunities for financial improvement, but it is not enough time to implement the rehabilitation plan. In this case, the debtor together with the statement sues rehabilitation plan. Thus debtor can get creditors to delay payment on debt during the bankruptcy proceedings.
The court appoints the administrator of the debtor's property from persons who are registered with the Agency for the Prevention of bankruptcy and organizations as arbitration managers and introducing a moratorium on creditors' claims.
Asset restricted the rights of intervention in operational business activities of the debtor. It shall ensure the property interests of creditors and the debtor detect signs of fraudulent bankruptcy or bankruptcy, to provide proposals for the reorganization and others.
At any stage of the bankruptcy proceedings can be concluded settlement agreement between the debtor and creditors. It applies only to claims secured by collateral.
The settlement agreement can be viewed as a means of protecting the rights of creditors, because under certain circumstances the lender can benefit from its conclusion. First, the settlement agreement can reduce the costs of court proceedings; Second, the lender more profitable to hire than to lose the entire amount of the debt. However, the settlement is appropriate only if there is no tendency for further deterioration in the financial status of the debtor. If this trend appeared, then any delay to the lender lose meaning.
The decision on the settlement agreement on behalf of the creditors by a majority vote. It is considered approved provided that all creditors whose claims are secured by collateral assets of the debtor, expressed written consent to a settlement agreement. It is important that people who have not given consent to a settlement agreement can not be set conditions worse than those who backed the deal.
The decision on the settlement agreement is signed, on behalf of the debtor - manager or trustee in bankruptcy (managers and liquidators), on behalf of creditors - the chairman of the creditors' committee.
The settlement agreement provides scope, procedure and terms of fulfillment of obligations by the debtor; delay, installments or debt forgiveness or only parts thereof; the obligations of the debtor third parties; exchange for shares of creditors of the debtor and other creditors' claims ways that do not contradict the law. Settlement agreement approved by the tribunal, which is grounds for termination of the bankruptcy proceedings.
The aim of the reorganization is to prevent bankruptcy and liquidation. Organization of curative procedures are presented in Fig. 12.6. This is a complex multistage process that is approved by decision of the arbitral tribunal on:
1) bankruptcy and the liquidation procedure;
2) approval of the report of the rehabilitation manager and the termination of the proceedings of bankruptcy;
3) deadline of payments to creditors, but not more than six months. In this case, the case of bankruptcy stops after payments to creditors.