Judicial act: Resolution of the Arbitration Court of the Far Eastern District of October 18, 2021 in case No. Ф03-5330/2021.
Court's findings:
1. The appearance of signs of bankruptcy of a legal entity prevents the fulfillment of the obligation to pay the actual value of a share in the authorized capital.
2. Claims for the payment of money to a company participant at the expense of the company's property cannot compete with the debtor's obligations to other creditors - participants in civil circulation: the debtor's participants have the right to claim only part of the property of the liquidated company remaining after settlements with other creditors.
3. The established procedure, however, does not exclude the very possibility that the court, before initiating an insolvency case, decides to recover the actual value of the share.
4. Such normative regulation is aimed at establishing a special regime for property claims against the debtor, which does not allow the satisfaction of these claims on an individual basis, which makes it possible to ensure the certainty of the volume of his property throughout the entire bankruptcy procedure, creating the necessary conditions both for taking measures to overcome the debtor’s insolvency, and and for the fullest possible satisfaction of the claims of all creditors.
Comment:
1. Legislative restrictions on the payment of the actual value of the share in the event of a participant leaving the LLC during the bankruptcy procedure are extremely unfavorable for the participant of the legal entity and are most aimed at protecting the property interests of creditors.
2. This rule is a guarantee of the safety of the property of organizations necessary for participation in civil circulation, conducting economic activities, is aimed at protecting the property interests of both the company itself and its counterparties (to the detriment of the interests of the participant who left the LLC).
3. Other legal regulation could lead to abuses on the part of companies whose activities would be to actively withdraw their assets through the exit of its participants.
4. Satisfaction of claims for payment of the actual value of the share of persons who were previously participants in the debtor company will entail the nullity of the payment made.
5. At the same time, the receipt by the participant of the actual value of the participation share in the company, even before the initiation of bankruptcy proceedings, carries significant risks of invalidating such payments with a corresponding requirement to return the funds received to the bankruptcy estate of the company in case of its bankruptcy, as well as possible bringing to subsidiary liability for the obligations of the debtor.
6. It is important to remember that the assessment of the presence of signs of bankruptcy in a company, or their appearance belongs to the assessment category and the occurrence of such signs is the product of many factors that must be assessed in each individual case. Otherwise, the debt to the former member of the society will die along with the devastated debtor.
Please note that in 2020 the law firm Vetrov & Partners was marked by the industry rating of law firms Pravo.ru-300 in the nominations Arbitration Proceedings, Dispute Resolution in Courts of General Jurisdiction and is one of the regional companies throughout Russia in these nominations.
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