Judicial act: Resolution of the Arbitration Court of the North Caucasus District of October 20, 2021 in case No. A22-2506/2020.
Court's findings:
1. The very fact of termination of the agreement between the parties in the absence of amendments to the USRN (and, as a result, the indication of another owner there) does not give rise to the right of the party to distribute the property of the liquidated legal entity due to the operation of the principle of reliability of the state register.
2. In itself, the exclusion of a legal entity from the Unified State Register of Legal Entities is not provided for by the Civil Code of the Russian Federation or other laws as a basis for the founders of a legal entity to acquire ownership of the property belonging to the excluded legal entity.
3. The plaintiff failed to take due measures to register in the USRN the company's ownership of the disputed property, based on the principle of reliability of the state register.
4. Since the ownership of the disputed objects in the Unified State Register of Real Estate is registered to another legal entity, the applicant did not provide evidence that after the liquidation of the company, the property of the company was found, which can be distributed, since the authority to dispose of the disputed real estate objects is limited by the absence of an entry in the Unified State Register of Real Estate about the ownership of the company for controversial items.
Comment:
1. Regulation of the distribution system of property discovered after the liquidation of the company is established by Part 5.2 of Art. 64 of the Civil Code of the Russian Federation, according to which a number of conditions must be met:
a) Such a request may be filed by an interested person or an authorized state body. The law is silent as to who may be an interested person. Meanwhile, judicial practice refers to such persons: participants in a legal entity, creditors of a liquidated legal entity, including recoverers who have not received execution under a writ of execution, but, for example, a creditor cannot demand the introduction of a procedure for distributing property discovered after the liquidation of a company, whose claim is not supported by judicial acts
It is necessary to determine the composition of the persons participating in the case, including those who have the right to distribute the discovered property;
b) Next, we determine the property to be distributed and available (including the claims of the liquidated legal entity against third parties, including those arising from a violation of the order of satisfaction of creditors' claims, as a result of which the interested person did not receive full execution) ;
c) It is important to comply with the five-year period after making an entry on the liquidation in the Unified State Register of Legal Entities of a legal entity whose property is distributed when applying for appointment;
d) The availability of funds sufficient for the implementation of this procedure is also determined, and there is the possibility of distributing the discovered property among interested parties.
2. If the above conditions are observed, the interested person shall apply to the arbitration court with an application in which he substantiates the need and submits the necessary evidence for consideration by the court. In this case, the court appoints an arbitration manager who is responsible for distributing the discovered property of the liquidated legal entity.
3. In the case under consideration, the unreliable USRN information, in its essence, excluded the applicant from participating in the distribution, since there are no grounds to consider him a person entitled to the corresponding distribution.
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