of October 18, 2018 No. 2597-VIII
This Code establishes conditions and procedure for recovery of solvency of the debtor - the legal entity or recognition by his bankrupt for the purpose of satisfaction of requirements of creditors, and also recovery of solvency of physical person.
Book the first. General part
For the purposes of of this Code terms are used in such value:
the administrator of preventive restructuring - the arbitration manager appointed by economic court for implementation of the procedure of preventive restructuring;
the arbitration manager - the physical person who received the appropriate certificate and information on which is entered in the Unified register of arbitration managers of Ukraine;
bankruptcy - the inability of the debtor recognized by economic court, except the insurer or credit union to recover the solvency by means of the procedure of sanitation and restructuring and to extinguish established according to the procedure, determined by this Code, monetary claims of creditors differently, than through application of the liquidating procedure or procedure of repayment of debts of the debtor, and also reference of the insurer or credit union according to the decision of the National Bank of Ukraine to category insolvent according to the Law of Ukraine "About insurance" or the Law of Ukraine "About credit unions";
the debtor - the legal entity or physical person, including physical person - the entrepreneur, incapable to fulfill the monetary commitments which completion date came;
monetary commitment (debt) - the obligation of the debtor to pay to the creditor certain sum of money according to the civil agreement and on other bases, stipulated by the legislation Ukraine. Also obligations on tax payment, charges (obligatory payments), insurance premiums for obligatory national pension and other social insurance belong to monetary commitments; the obligations arising owing to impossibility of performance of agreement obligations of storage, the contract, hiring (lease), rent, etc. and which shall be expressed in monetary units. The structure of monetary commitments of the debtor, including obligations concerning tax payment, charges (obligatory payments), insurance premiums for obligatory national pension and other social insurance, do not join penalty (penalty, penalty fee) and other financial sanctions determined for date of filing of application in economic court, and also the obligations which arose owing to damnification of life and to health of citizens, obligations on payment of award, the obligation to founders (participants) of the debtor - the legal entity, arisen from such participation. The structure and the size of monetary commitments, including the size of debt for the transferred goods, the performed works and the provided services, the amount of the credits taking into account percent which the debtor shall pay are determined on the date of giving in economic court of the statement for initiation of proceeedings about bankruptcy (insolvency) if other is not established by this Code. In case of filing of application about opening of proceeedings about bankruptcy (insolvency) the size of monetary commitments is determined on the date of giving in economic court of such statement;
threat неплатежеспособности-финансово-хозяйственное the debtor's condition which is characterized by availability of circumstances, confirmatory that the debtor within the next 12 months will not be able to fulfill the monetary commitments in time provided for their accomplishment or to make payments on regular economic activities;
interested persons concerning the debtor - the legal entity created with the assistance of the debtor, the legal entity performing or within the last three years exercising control over the debtor, legal entity or physical person over which exercises control or within the last three years were performed by the debtor, the legal entity with whom the debtor is or within the last three years was under control of the third party, owners (participants, shareholders) of the debtor, the head of the debtor, persons who are part of governing bodies of the debtor, the chief accountant (accountant) of the debtor including are discharged from office in three years prior to opening of proceeedings about bankruptcy; persons with whom or for benefit of which the debtor made transactions on property acquisition of the debtor which do not correspond to criteria of rationality (economic feasibility, availability of the business purpose) and conscientiousness; the party of the fraudatorny transaction made by the debtor or transactions which according to Article 42 of this Code is recognized as invalid; and also the faces consisting in the related relations with specified persons and the physical person - the debtor, namely: spouses and their children, parents, brothers, sisters, grandsons, and also other persons concerning whom there are reasonable bases to consider them interested. For the purposes of of this Code interested persons concerning the arbitration manager or creditors persons are recognized the same value, as well as interested persons concerning the debtor. The creditor is interested in the debtor's relation also if he within six months before date of opening of proceeedings about bankruptcy (insolvency) or procedures of preventive restructuring directly or indirectly acquired the right to claim against the debtor from the creditor interested in the debtor's relation;
the attracted creditors creditors in the procedure of preventive restructuring including provided with pledge of property of the debtor whose requirements, the rights and interests directly change the plan of preventive restructuring;
considerable transactions - transactions concerning property (works, services) which market value on the date of transaction makes 10 and more percent of asset cost of the debtor according to the last annual financial reporting. If instead of several transactions the debtor could make one considerable transaction, then each of such transactions is considered considerable;
the managing director of realization - the arbitration manager appointed by economic court in the case of insolvency of physical person for implementation of realization of property of the bankrupt and satisfaction of requirements of creditors;
the managing director of restructuring - the arbitration manager appointed by economic court in the case of insolvency of physical person for implementation of debt restructuring of the debtor;
the managing director of sanitation - the arbitration manager, and in the cases provided by this Code - the debtor's head appointed by economic court for implementation of the procedure of sanitation of the debtor;
the creditor - legal entity or physical person, and also the monitoring body authorized according to the Tax code of Ukraine to perform actions for ensuring repayment of tax debt and shortage for payment of single fee on obligatory national social insurance within the powers, and other state bodies which have requirements concerning monetary commitments to the debtor, and also the administrator on bond issue which according to the Law of Ukraine "About the capital markets and the organized goods markets" acts for the benefit of bondholders who have the requirements supported in accordance with the established procedure by the documents concerning monetary commitments to the debtor; secured creditors are creditors whose requirements to the debtor or other person are provided with pledge of property of the debtor; competitive creditors are creditors according to requirements to the debtor which arose before opening of proceeedings about bankruptcy and which accomplishment is not provided with pledge of property of the debtor; the current creditors are creditors according to requirements to the debtor which arose after opening of proceeedings about bankruptcy;
the liquidator - the arbitration manager appointed by economic court for implementation of the liquidating procedure;
the best interests of creditors criteria in the procedure of preventive restructuring which means that any attracted creditor will not fall into the worst state concerning the size and/or the term of satisfaction of the requirements according to the plan of preventive restructuring, than in case of satisfaction of its requirements in the liquidating procedure within case on bankruptcy or in case of the best alternative scenario if the plan of preventive restructuring is rejected by court;
insolvency - insolvency of the debtor (other, than the insurer or credit union) to fulfill after approach of fixed term monetary commitments before creditors not differently, as because of application of the procedures provided by this Code or the insolvency of the insurer established by the National Bank of Ukraine according to the Law of Ukraine "About insurance" or insolvency of credit union according to the Law of Ukraine "About credit unions";
new financing loan, the credit or other financial aid provided to the debtor by the existing or new creditor in the procedure of preventive restructuring which is provided by the plan of preventive restructuring approved by court and is intended for implementation of this plan;
official promulgation - promulgation of data on case on bankruptcy on the official web portal of judicial authority of Ukraine;
the extinguished requirements of creditors - the met requirements of creditors, and also obligations stopped according to this Code;
repayment of debts of the debtor - judicial process on the case of insolvency of physical person which is applied for the purpose of satisfaction of requirements of creditors for the realization account of property of the debtor declared bankrupt according to the procedure, established by this Code;
transactions concerning which there is interest, - transactions which parties are interested persons from the debtor, the arbitration manager or creditors;
preventive restructuring system of the organizational and economic, managerial, investment, technical, financial and economic, legal measures directed to non-admission or prevention of insolvency of the debtor which can include change of structure, conditions or structure of assets and liabilities of the debtor, and also any necessary operational changes or combination of these elements which are performed according to the plan of preventive restructuring;
intermediate financing - financial aid to the debtor (loan, the credit), guarantee of execution by the debtor of obligations, etc. which provides functioning of the debtor before approval of the plan of preventive restructuring by economic court and is necessary for continuation of activities of the debtor (conducting regular economic activity) or for preserving or value addition of assets of the debtor;
the employee representative of the debtor person, authorized by general meeting (conference) at which there are at least a half of the number of staff of workers of the debtor, or the relevant decision of primary trade-union organization of the debtor (in the presence of several primary organizations - their common decision) to represent the interests of workers of the debtor during proceeedings about bankruptcy with the right of advisory vote or in the procedure of preventive restructuring;
debt restructuring of the debtor - judicial process on the case of insolvency of physical person which is applied for the purpose of recovery of solvency of the debtor by change of method and procedure for execution of its obligations according to the restructuring plan of debts of the debtor;
the manager of property - the arbitration manager appointed by economic court for implementation of the procedure of the order property;
sanitation system of the measures provided by this Code, performed during proceeedings about bankruptcy for the purpose of recovery of solvency of the debtor, directed to improvement of financial and economic condition of the debtor, and also satisfaction in full or partially requirements of creditors;
the automated "bankruptcy and insolvency" system - set of the program and technical and telecommunication means providing collection, storage, accounting, search, generalization, provision of data on course of production on the case of bankruptcy (insolvency) and financial and economic indicators of the debtor, forming of the Unified register of debtors concerning which proceeedings about bankruptcy (insolvency), the Unified register of arbitration managers of Ukraine, functioning of electronic office of the arbitration manager and protection against unauthorized access are open. Competitive creditors, secured creditors, investors, and also the current creditors (have right of access to information on the debtor containing in the closed part of the Unified register of debtors concerning whom proceeedings about bankruptcy are open (insolvency) from the moment of adoption by economic court of the resolution on recognition of the debtor by the bankrupt) according to the procedure, determined by state body concerning bankruptcy;
party litigants about bankruptcy (insolvency) - competitive creditors (the chairman of creditor committee), secured creditors, the debtor (bankrupt)
the authorized person of founders (participants, shareholders) of the debtor - person authorized by the supreme body of management of the debtor to represent the interests of founders during proceeedings about bankruptcy with the right of advisory vote;
the authorized person of founders (participants, shareholders) of the debtor person authorized by the supreme body of management of the debtor to represent the interests of founders during proceeedings about bankruptcy with the right of advisory vote or in the procedure of preventive restructuring;
participants on the case of bankruptcy (insolvency) - the parties, the arbitration manager, state body concerning bankruptcy, other participants of case on bankruptcy, concerning the rights or obligations of which exists dispute, and also in the cases provided by this Code, Fund of state-owned property of Ukraine, the National Bank of Ukraine, the National commission on securities and the stock market, the representative of local government body, the employee representative of the debtor, the authorized person of founders (participants, shareholders) of the debtor;
The term "the portal of electronic services of legal entities, physical persons-entrepreneurs and public forming" is used in the value given in the Law of Ukraine "About state registration of legal entities, physical persons entrepreneurs and public forming".
The terms "real conflict of interest" and "potential conflict of interest" are used in this code in the values given in the Law of Ukraine "About prevention of corruption"
The term "budget institution" is used in the value given in the Budget code of Ukraine.
The terms "the administrator on bond issue", "derivative contract", "general agreement", "meeting of bondholders", "professional participant of the capital markets" and "professional participant of the organized goods markets" are used in this Code in the values given in the Law of Ukraine "About the capital markets and the organized goods markets".
The terms "subjects of microentrepreneurship" and "small business entities" are used in this Code in the values given in the Economic code of Ukraine
1. Bankruptcy proceeding is regulated by this Code, the Economic Procedure Code of Ukraine, other laws of Ukraine.
Application of provisions of the Economic Procedure Code of Ukraine and other legal acts of Ukraine is performed taking into account the features provided by this Code.
2. The legislation on recovery of solvency of the debtor or recognition by his bankrupt does not extend to banks which are removed from the market or are liquidated according to the laws of Ukraine "About banks and banking activity" and "About system of guaranteeing household deposits".
Proceeedings about recognition of the issuer of mortgage bonds by insolvent (bankrupt) are performed according to the procedure, provided by this Code, taking into account the provisions of the law of Ukraine "About mortgage bonds".
Proceeedings about recognition of institute of joint investment by insolvent (bankrupt) are performed according to the procedure, provided by this Code, taking into account the provisions of the law of Ukraine "About institutes of joint investment".
Proceeedings about recognition of the subject of business activity which is agreement party concerning financial instruments and/or the party of one or several derivative contracts by insolvent (bankrupt) are performed taking into account features, stipulated by the legislation.
If on bond issue the administrator on bond issue, bankruptcy proceeding of debtors who are issuers of the corresponding bonds is appointed, and also debtors who provide providing on bonds (further - the debtor having obligations on bonds) it is regulated by this Code taking into account the features established by the Law of Ukraine "About the capital markets and the organized goods markets".
3. Bankruptcy proceeding of separate categories of debtors is regulated taking into account the features provided by this Code.
4. Bankruptcy proceeding of debtors - the state companies, the state non-commercial enterprises and budgetary institutions, and also the procedure of preventive restructuring of such debtors are not allowed.
5. It is excluded according to the Law of Ukraine of 04.12.2024 No. 4114-IX
6. Bankruptcy proceeding (insolvency) with participation of nonresident creditors is regulated by this Code if other is not provided by international treaties of Ukraine which consent to be bound is provided by the Verkhovna Rada of Ukraine.
7. The procedure for execution in Ukraine of judgments of courts of foreign states is determined by cases on bankruptcy by international treaties of Ukraine which consent to be bound is provided by the Verkhovna Rada of Ukraine.
In case of lack of international treaties of Ukraine of decision of the courts of foreign states on cases on bankruptcy are recognized in the territory of Ukraine by the principle of reciprocity if other is not provided by the law.
8. The relations on acceptance, entry into force, appeal administratively, to accomplishment, cancellation of administrative acts in the field of bankruptcy are regulated by the Law of Ukraine "About ministerial procedure" taking into account the features determined by this Code.
8. Changes can be made to this Code only by the laws on introduction of amendments to the Code of Ukraine on insolvency proceedings.
1. State body concerning bankruptcy:
promotes creation of the organizational, economic, other conditions necessary for implementation of procedures of recovery of solvency of the debtor or recognition by his bankrupt, including insolvency proceedings of the state and economic societies in which authorized capital more than 50 percent of shares (shares) belong to the state;
will organize system of preparation, retraining and advanced training of arbitration managers;
establishes requirements for receipt of the certificate on the right to implementation of activities of the arbitration manager;
creates and keeps the Unified register of arbitration managers of Ukraine, the Unified register of debtors concerning which proceeedings about bankruptcy are open (insolvency), being components of the automated "bankruptcy and insolvency" system, and establishes procedure for submission of the data (information) necessary for maintaining the specified registers";
establishes procedure of control of activities of arbitration managers, checks of the organization of their work, observance of requirements of the legislation by them concerning bankruptcy;
establishes procedure for carrying out the analysis of financial and economic condition of subjects of managing concerning availability of signs of dummy bankruptcy, bringing to bankruptcy, concealment of steady insolvency, illegal actions in case of bankruptcy and will organize carrying out such analysis when opening bankruptcy proceeding of the state companies and economic societies in which authorized capital more than 50 percent of shares (shares) belong to the state;
determines and approves approximate form of the plan of sanitation, restructuring;
constitutes on requests of court, prosecutor's office or other authorized body of the conclusion about availability of signs of dummy bankruptcy, bringing to bankruptcy, concealment of resistant insolvency, illegal actions in case of bankruptcy;
the paragraph the eleventh is excluded according to the Law of Ukraine of 03.10.2019 No. 157-IX;
develops and approves standard documents on carrying out insolvency proceedings, methodical recommendations;
determines requirements to form and procedure for maintaining the register of requirements of creditors;
performs other powers provided by the law.
2. State body concerning bankruptcy in the field of prevention of insolvency:
provides forming and realizes state policy in the field of prevention of insolvency of debtors, including persons to whom procedures of preventive restructuring are applied;
provides placement on the website of state body concerning bankruptcy of information on instruments of early detection of insolvency and the procedure of preventive restructuring;
determines and approves standard form of the plan of preventive restructuring for subjects of microentrepreneurship and small business entities;
determines procedure and terms of representation by the debtor concerning which the procedure of preventive restructuring, or the administrator of preventive restructuring (in case of its appointment as court) information necessary for placement on the website of state body concerning bankruptcy is performed;
develops and approves standard documents on holding procedure of preventive restructuring, methodical recommendations;
approves standard form of the contract with the administrator of preventive restructuring;
performs other powers provided by the law.
3. The following information on prevention of insolvency is posted on the website of state body on bankruptcy:
about available tools of early warning system about insolvency;
about the procedures and measures concerning preventive restructuring;
the information materials, methodical recommendations and the control list of conditions for preparation of plans of preventive restructuring adapted for requirements and specifics of microentrepreneurship and small business which will be promulgated in Ukrainian and English or other official language of the European Union.
4. The state body concerning bankruptcy provides on annual basis collection, generalization and placement on the website of statistical information on procedures of preventive restructuring, bankruptcy and insolvency of physical person. The procedure for information collection is determined by state body concerning bankruptcy.
1. The executive body of the debtor, and concerning the state and utility companies also body, authorized to manage property of the debtor, within the powers shall reveal and take timely measures for prevention and reaction in case of approach of insolvency of the debtor.
2. If the auditor, the accountant rendering services to the debtor, or the debtor's accountant by results of creation of tax statements reveal signs of insolvency or its threat, such persons within 10 days report about it to the debtor.
3. In case of signs of insolvency or its threat, and also in case of receipt of the notification by the debtor from persons specified in part two of this Article, the head of the debtor shall no later than 30 days from the date of receipt of the relevant information send to founders (participants, shareholders) of the debtor, the owner of property (to body, authorized to manage property) the debtor, and also to other governing bodies within which competence the solution of these questions, data on availability of signs of insolvency or its threat is.
4. Executive body of the debtor, and in the cases provided by the law - founders (participants, shareholders) of the debtor, owners of property (body, authorized to manage property) the debtor, shall take measures for prevention of insolvency of the debtor, including implementation of extrajudicial settlement of debt, initiation of the procedure of preventive restructuring of the debtor, initiation of the procedure of restructuring according to the Law of Ukraine "About financial restructuring" or in the cases provided by this Code, to make the decision on the appeal to Economic court with the statement for opening of proceeedings for bankruptcy. In case of failure to carry out or inadequate accomplishment of the specified actions of person, specified in this part, bear responsibility in the cases provided by the law.
5. Measures for prevention of bankruptcy of the debtor insurer are taken according to the procedure, determined by the Law of Ukraine "About insurance".
6. Measures for prevention of bankruptcy of the debtor credit union are taken according to the procedure, determined by the Law of Ukraine "About credit unions".
It is excluded according to the Law of Ukraine of 04.12.2024 No. 4114-IX
1. According to this Code concerning the debtor - the legal entity the following judicial processes are applied:
order property of the debtor;
sanitation of the debtor;
liquidation of the bankrupt.
2. According to this Code concerning the debtor - physical person the following judicial processes are applied:
debt restructuring of the debtor;
repayment of debts of the debtor.
The procedure of repayment of debts of the debtor is entered in the case of insolvency together with recognition of the debtor by the bankrupt.
3. Procedures of sanitation of the debtor or liquidation of the bankrupt are performed with observance of requirements of the legislation on protection of the economic competition.
4. When implementing judicial processes concerning the debtor for the purpose of reduction of terms of proceeedings about bankruptcy (insolvency) the economic court is guided by the principle of procedural economy.
1. Disputes in which party is the debtor are considered by economic court by the rules provided by the Economic Procedure Code of Ukraine taking into account the features determined by this Article.
2. The economic court in which production there is case on bankruptcy (insolvency) within this case solves all receivership proceeding in which party is the debtor; disputes with claims to the debtor and concerning its property; disputes on recognition invalid results of auction; disputes on recognition invalid any bargains concluded by the debtor; disputes on return (reclamation) of property of the debtor or compensation of its cost respectively; disputes on indemnification and/or the losses caused to the debtor; disputes on collection of the salary; disputes on recovery at work official and officials of the debtor; disputes on other requirements to the debtor, including disputes on determination and payment (collection) of the monetary commitments (tax debt) determined according to the Tax code of Ukraine.
The list of participants of consideration of dispute is determined according to the Economic Procedure Code of Ukraine.
The economic court considers disputes in which party is the debtor, by the rules determined by the Economic Procedure Code of Ukraine. By results of consideration of dispute the court makes the decision.
Statements (actions for declaration) of participants of proceeedings for bankruptcy (insolvency) or other persons in disputes in which party is the debtor are considered within matters on bankruptcy (insolvency) by rules of the expedited claim production.
The claimant has the right in the action for declaration to declare the motivated petition for consideration of the case on rules of general claim production. If the court by results of consideration of the petition of the claimant comes to conclusion about consideration of the case according to the procedure of general claim production, he notes about it in the resolution on opening of proceeedings.
If defendant in such dispute is the subject of powers of authority, the court is guided by the principle of official clarification of all circumstances on case and takes the measures necessary for clarification of all circumstances for case determined by the law, including concerning identification and reclamation of proofs on own initiative.
3. Case papers in which the party is the debtor concerning the disputes specified in part two of this Article in which production is open to or after opening of proceeedings about bankruptcy (insolvency), at the initiative of the participant of case or court instantly, but no later than five working days go to Economic court in which production there is case on bankruptcy (insolvency) which considers dispute over being within this case.
4. If the economic court, considering within case on bankruptcy (insolvency) dispute on collection from the debtor of money, will determine that the claimant in such dispute submits on the case of bankruptcy (insolvency) of the debtor the statement with monetary claims to the debtor, the economic court leaves such claim without consideration.
1. Cases on bankruptcy (insolvency) are considered by economic courts on the location of the debtor - the legal entity to the residence, physical person or the physical person - the entrepreneur. Change by the debtor of the registered location or the residence after giving by the creditor or debtor of the statement for opening of proceeedings for bankruptcy (insolvency) does not influence change of territorial cognizance of economic court
2. With the statement for opening of proceeedings for bankruptcy the debtor, the creditor have the right to the appeal to economic court.
With the statement for opening of proceeedings for insolvency the debtor has the right to the appeal to Economic court.
In case of insolvency of the insurer or credit union the right to the appeal to Economic court with the statement for opening of proceeedings for bankruptcy is had the National Bank of Ukraine, the debtor (if the National Bank of Ukraine provided to such debtor permission to voluntary exit from the market), the liquidator of the debtor or is appointed by the National Bank of Ukraine according to the law the temporary administrator of the insurer or credit union if the decision of the National Bank of Ukraine on appointment of the temporary administrator provides the right of the temporary administrator to file such petition.
3. Proceeedings about bankruptcy (insolvency) open economic court according to the statement of the debtor also in case of threat of its insolvency.
4. If case is not jurisdictional to such economic court, case papers are transferred by economic court on the established cognizance according to the procedure, determined by the Economic Procedure Code of Ukraine.
1. The determinations of economic court which are taken out in the case of bankruptcy (insolvency) by results of consideration by economic court of statements, petitions and claims and also resolutions on recognition of the debtor by the bankrupt and opening of the liquidating procedure or the procedure of repayment of debts of the debtor can be appealed according to the procedure, established by the Economic Procedure Code of Ukraine, taking into account the features provided by this Code.
2. In appeal procedure the resolution on recognition of the debtor by the bankrupt and opening of the liquidating procedure / procedure of repayment of debts, all determinations of local economic court accepted in the case of bankruptcy (insolvency) except the cases provided by the Economic Procedure Code of Ukraine and this Code can be appealed.
3. In cassation procedure are not subject to appeal of the resolution of Economic Court of Appeal, accepted by results of review of judgments, except: determinations about opening of proceeedings about bankruptcy (insolvency), determinations of the previous meeting, resolutions by results of consideration of monetary claims of the creditors given after the term established for their idea, determination of approval of the plan of sanitation on the case of bankruptcy, determinations about approval of the restructuring plan of debts of the debtor on the case of insolvency of physical person, the resolution on closing of proceeedings on bankruptcy (insolvency), and also resolutions on recognition of the debtor by the bankrupt and opening of the liquidating procedure or the procedure of repayment of debts of the debtor and the decisions made by results of consideration of the applications, submitted within proceeedings about bankruptcy (insolvency).
Claims to the resolutions of Economic Courts of Appeal accepted by results of appeal of resolutions of economic court on cases on bankruptcy which are not subject to appeal in cassation procedure separately can join in the writ of appeal on the determinations, resolutions on cases on bankruptcy (insolvency) which are subject to appeal.
4. Determination and the resolution on recognition of the debtor by the bankrupt and opening of the liquidating procedure or the procedures of repayment of debts of the debtor adopted by economic court in the case of bankruptcy (insolvency) take legal effect from the moment of their acceptance if other is not provided by this Code.
5. Appeal of judgments in insolvency proceeding (insolvency) does not stop proceeedings about bankruptcy (insolvency).
In appeal or court of cassation case papers in requested by determination appeal or court of cassation of part go. The court considering appeal or the writ of appeal, case on bankruptcy (insolvency) in full on own initiative can request. Put properly verified copies or parts of case remain in Economic court for further implementation of proceeedings about bankruptcy (insolvency).
The case papers about the bankruptcy (insolvency) concerning the application (claim) submitted (given) according to the procedure, determined by article 7 of this Code go economic court in appeal or court of cassation in full. Properly verified copies of case remain in Economic court for further implementation of proceeedings about bankruptcy (insolvency).
Book the second. Arbitration manager
1. The arbitration manager is subject of independent professional activity.
2. The arbitration manager from the moment of removal of determination (resolution) on appointment as his managing director of sanitation or the liquidator until the termination of implementation of powers by it is equated to the official of debtor enterprise.
The same person can perform powers of the arbitration manager on all production stages on the case of bankruptcy according to requirements of this Code.
3. The right to implementation of activities of the arbitration manager is granted to person who received the appropriate certificate according to the procedure, established by this Code, and entered in the Unified register of arbitration managers of Ukraine.
4. At the companies performing the activities connected with the state secret, the arbitration manager shall have the admission to the state secret, and in case of its absence - to get such admission in the procedure established by the law.
1. The arbitration manager can be the citizen of Ukraine who has the higher legal or economic education of the second (master) level, general length of service in at least three years or at least one year after receipt of the higher education on executive positions, underwent training and training within six months according to the procedure, established by state body concerning bankruptcy, knows state language and passed qualification examination.
2. Person cannot be the arbitration manager:
1) recognized as the court limited in civil capacity to act or incapacitated;
2) which has the criminal record which is not removed or not extinguished in the procedure established by the law;
3) which is not capable to fulfill duties of the arbitration manager for health reasons;
Which 4) it is forbidden to hold executive positions or which is considered subjected to administrative punishment in the form of deprivation of the right to hold certain positions or to be engaged in the certain activities connected with accomplishment of functions of the state or local self-government, or the activities equated to such activities;
To which 5) authority punishment in the form of deprivation of the right to implementation of activities of the arbitration manager from the date of which application there passed less than three years is applied.
3. The arbitration manager has the certificate and seal which description and procedure for use establishes state body concerning bankruptcy.
4. The arbitration manager shall improve skills according to the procedure, established by state body concerning bankruptcy every two years. The arbitration manager on cases on bankruptcy of non-bank financial institutions shall improve skills according to the procedure, established by state body concerning bankruptcy in coordination with the National Bank of Ukraine or the National commission on securities and the stock market according to distribution of powers, certain Law of Ukraine "About financial services and finance companies" every two years. The National Bank of Ukraine and the National commission on securities and the stock market together with state body concerning bankruptcy participate in system of preparation, retraining and advanced training of arbitration managers on cases on bankruptcy of non-bank financial institutions
1. The arbitration manager has all rights of the managing director of property, the managing director of sanitation, the managing director of restructuring, the managing director of realization, the liquidator according to the legislation, including has the right:
1) to appeal to courts in the cases provided by this Code;
2) to convoke meeting and creditor committee and to take part in them with the right of advisory vote;
2-1) to hold meetings and committee meetings of creditors in case of their failure to act or according to their order;
3) to earn reward in the amount of and procedure, provided by this Code;
To attract 4) to ensuring implementation of the powers on a contract basis other persons and the specialized organizations with payment of their activities at the expense of the debtor if other is not established by this Code or the agreement with creditors;
5) to make inquiries of the arbitration manager, including concerning receipt of copies of documents, in public authorities, local government bodies, their official and officials, the companies, organizations, including banks, non-bank payment service providers, issuers of electronic money, depository institutions and other professional participants of the capital markets, the organizations, public associations, and also to physical persons;
5-1) to receive from banks, non-bank payment service providers, issuers of electronic money, depository institutions and other professional participants of the capital markets information on availability of accounts and/or balance on accounts of the debtor (including on accounts in securities) / e-wallets, movement of means and transaction on accounts of the debtor (including on accounts in securities) / e-wallets, and also information on agreements of the debtor on storage of values or provision to the debtor in property employment (lease) of the individual bank safe;
6) to obtain information from the state registers;
7) to submit the application for early termination of the powers to economic court;
8) to perform other powers provided by this Code.
2. The arbitration manager shall:
1) strictly to observe requirements of the legislation;
2) to perform measures for protection of property of the debtor;
3) to carry out the analysis of financial and economic condition, investing and other activities of the debtor and provision in the markets of the debtor and to bring results of such analysis into economic court together with the documents confirming the relevant information;
4) to submit data, documents and information on activities of the arbitration manager according to the procedure, established by the legislation;
4-1) upon the demand of economic court and state body concerning bankruptcy to provide the information, documents and information on accomplishment of powers on implementation of judicial process;
5) to submit data (information) on financial condition of debtors concerning which proceeedings about bankruptcy are open (insolvency), and on course of production on the case of bankruptcy (insolvency) to the Unified register of debtors concerning whom proceeedings about bankruptcy are open (insolvency) to which closed part access for competitive and secured creditors, investors, and also current creditors (is provided from the moment of adoption by economic court of the resolution on recognition of the debtor by the bankrupt and opening of the liquidating procedure or the procedure of repayment of debts of the debtor) and to provide updating of such information according to the procedure and the terms determined by state body concerning bankruptcy. Information belongs to information on financial condition of the debtor and course of production on the case of bankruptcy (insolvency) about:
the considerable transactions or bargains with interest concluded by the debtor or from his name (the name of the parties, essence of obligations, property value, transferred according to the transaction, completion date of obligations);
inventory counts of property of the debtor (start and end date of inventory count);
the debtor's debtors which size of debt exceeds 5 percent of cumulative requirements of competitive creditors (the name or name, the location or the residence, identification code of the legal entity or registration number of accounting card of the taxpayer (in the presence) and the debt size is entered);
encumbrances of property of the debtor (subject to encumbrance, encumbrance type, body or person for the benefit of whom encumbrance, the encumbrance imposing bases is imposed);
register of requirements of creditors;
terms of accomplishment of the plan of sanitation (the managing director of sanitation) or the restructuring plan (for the managing director of restructuring);
analysis of financial and economic activities of the debtor;
dates, time and the venue of creditor meeting and creditor committee (it is specified not later than three working days about day of holding such meeting);
texts of decisions of meeting and creditor committee (are brought within three working days from the date of adoption of the relevant decision);
the text of the plan of sanitation or the restructuring plan approved by court (it is brought within three working days from the date of approval of the plan by court);
the declaration on property status of the debtor - physical person;
6) to create conditions for conducting check of observance by the arbitration manager of requirements of the legislation;
7) to perform measures for ensuring protection of the state secret according to the requirements established by the legislation;
8) No. 2971-IX is excluded according to the Law of Ukraine of 20.03.2023
9) to take measures to non-admission of any possibility of real or potential conflict of interest and to instantly report to court about availability of such conflict of interest;
To send 10) to law enforcement agencies, bodies, specially authorized in the field of anti-corruption, and the Security Service of Ukraine of the message on the facts of violation of the law elicited in activities of employees of the companies and organizations containing signs of action (failure to act) pursued in criminal or administrative procedure;
11) to carry out other powers, stipulated by the legislation.
3. During realization of the rights and obligations the arbitration manager shall act honesty, reasonably and on purpose with which these rights and obligations are provided (are assigned).
4. During realization of the rights and obligations the arbitration manager shall observe requirements of the Law of Ukraine "About prevention of corruption" about restriction of use of the powers for the purpose of receipt of illegal benefit or adoption of the offer of such benefit for himself or other persons, receipt of gifts (donations).
5. Violation by the arbitration manager of requirements of the Law of Ukraine "About prevention of corruption", and also emergence of real or potential conflict of interest when implementing by the arbitration manager of powers is the basis for its discharge from fulfillment of duties of the arbitration manager during proceeedings about bankruptcy (insolvency) about what the economic court takes out determination.
6. The arbitration manager is forbidden to disclose data which became known to him in connection with its activities and to exploit them or interests of the third parties.
The obligation of preserving this information extends also to persons who are with the arbitration manager in employment relationships, and also on other persons who have access to the specified information.
7. Information specified in Item 5 parts two of this Article, the arbitration manager can provide to other persons only in the cases and procedure established by the law.
8. During execution of powers the arbitration manager has the right to direct information access about debtors, their property, the income and means, including confidential, containing in the state databases and registers, including electronic. The procedure for access to such information from databases and registers is established by the central executive bodies which provide their maintaining.
9. The arbitration manager shall notify body not later than 10 days, authorized to manage state-owned property, about time, the place and the agenda of creditor meeting and committee meeting of creditors of the state company or economic society in which authorized capital more than 50 percent of shares (shares) belong to the state.
10. The managing director of sanitation quarterly reports to body, authorized to manage state-owned property of the debtor, about accomplishment of the plan of sanitation of the state company or economic society in which authorized capital more than 50 percent of shares (shares) belong to the state.
The report of the managing director of sanitation of the state company or economic society in which authorized capital more than 50 percent of shares (shares) belong to the state is considered by creditor committee, and the arbitration manager sends the minutes of creditor committee no later than five days from the date of holding meeting to body, authorized to manage state-owned property of the debtor.
1. The request of the arbitration manager is written or in electronic form the address of the arbitration manager appointed by economic court the manager of property, the managing director of sanitation, the liquidator managing restructuring, the managing director of realization in public authority, local government body their official and officials, the companies, organizations, including banks, non-bank payment service providers, issuers of electronic money, depository institutions and other professional participants of the capital markets, the organizations irrespective of pattern of ownership and subordination, public associations, physical persons about provision of information, copies of the documents necessary for the arbitration manager for implementation of powers on the case of bankruptcy (insolvency) concerning the debtor, and also members of the family of the debtor - the physical persons determined by the paragraph the second parts five of article 116 of this Code concerning which the arbitration manager performs powers of the manager of property of the managing director of sanitation, the liquidator managing restructuring or the managing director of realization.
Obtaining by the arbitration manager from banks of information containing bank secrecy is performed according to the procedure and amount, determined by the Law of Ukraine "About banks and banking activity".
Receipt of information by the arbitration manager from non-bank payment service providers, issuers of electronic money containing the secret of the payment service provider or issuer of electronic money is performed according to the procedure and amount, determined by the National Bank of Ukraine.
The copy of the judgment on appointment certified by the arbitration manager it on the case of bankruptcy (insolvency) by the manager of property, the managing director of sanitation, the liquidator managing restructuring or the managing director of realization is attached to request of the Arbitration manager. It is forbidden to demand from the arbitration manager of provision together with request of the arbitration manager of other documents.
The request of the arbitration manager cannot concern provision of consultations and explanations of provisions of the legislation.
2. The public authority, local government body, their official and officials, heads of the companies, organizations, including banks, non-bank payment service providers, issuers of electronic money, depository institutions and other professional participants of the capital markets, organizations, public associations, physical persons which sends inquiry of the arbitration manager shall no later than ten working days from the date of receipt of request provide to the arbitration manager the relevant information including which is bank secrecy, the secret of the payment service provider or issuer of electronic money except secret and/or office information and copies of documents which contain secret and/or office information, copies of documents.
If the request of the arbitration manager concerns provision of considerable amount of information or requires information search among significant amount of data, the term of consideration of request of the arbitration manager can be prolonged to 20 working days with reasons for the reasons of such prolongation what to the arbitration manager it is in writing reported no later than five working days from the date of receipt of request of the arbitration manager about.
The satisfaction of request of the arbitration manager can be performed by provision of the relevant information, copies of documents in electronic form.
Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info
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