Judicial act: Resolution of the Seventh Arbitration Court of Appeal dated 02.12.2021 in case A27-11648/2019
Court's findings:
1. If on the date of conclusion of disputed agreements with interested parties there are signs of insolvency or insufficiency of property, then the purpose of causing harm to creditors is assumed.
2. The application of the bankruptcy prevention procedure is a right, not an obligation, of the Central Bank of Russia.
3. Transactions were made from January to February 2019 and therefore fall under the period of suspicion. The period of suspicion in this case is to be determined from March 2019
4. The conclusion of agreements with interested persons does not in itself testify to the invalidity of these agreements.
5. As of March 2019, the insurance company had only signs of insufficiency of property, but not signs of insolvency.
6. Due to a corporate conflict, the defendants were actually excluded from doing business in the insurance company. The former General Director, due to the long term of work in this insurance company, began to hold the position of Deputy General Director for General Insurance Issues due to the fact that he needed time to transfer all cases, while the company itself during this period conducted ordinary business activities, but was actually managed by other persons, and the dismissed employees did not have the opportunity and they did not have access to the direct conduct of business on behalf of the insurance company.
7. The fact of the insufficiency of property as of the date of revocation of the license also cannot serve as evidence that the defendants were aware of the insufficiency of property as of the date of the disputed payments, since it does not prove the fact that this (the insufficiency of property as of the date of payments) was known to the defendants precisely on the date of conclusion of the disputed payments. payments.
8. The bankruptcy trustees have not proved their knowledge of the debtor's insolvency as of the date of conclusion of the disputed transactions, that is, the condition of their awareness of the existence of the purpose of causing harm to the debtor's creditors has not been proved.
9. The amounts of compensation provided for by the labor agreements of the interested parties upon dismissal, contrary to the position of the bankruptcy trustee, are not extraordinary and correspond to the customary business practice in the insurance organization.
Comments:
1. Refusing to satisfy the claims, the courts of both instances proceeded from the lack of evidence by the bankruptcy trustee of all the essential conditions necessary from the point of view of the Bankruptcy Law for these purposes. In fact, the courts confirmed the admissibility of paying the so-called "golden parachutes" for executives - recognizing that payments in a significant amount (3 million rubles for the general director, more than 1 million rubles for the financial director and chief accountant) correspond to business practices.
2. Drawing conclusions about the legality of payments, the courts found that on the date of payments the debtor had signs of insufficiency of property (the amount of assets - 663,820,000 rubles, the amount of liabilities - 1,146,810,000 rubles) and already subsequently the insurance company began to meet the signs of insolvency .
3. In addition, the courts assessed the reasons for the dismissal, which were forced, as a result of a corporate conflict that arose as a result of a change in the management of the insurance company. In fact, the defendants did not have access to the conduct of business and, accordingly, could not know about the financial situation of the insurance company.
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