RESOLUTION OF THE PLENUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of June 6, 2014 No. 36

About some questions, the bank accounts of persons which are in insolvency proceedings linked with maintaining by credit institutions

Due to the questions arising in court practice connected with maintaining by credit institutions bank accounts of persons which are in insolvency proceedings, the Plenum of the Supreme Arbitration Court of the Russian Federation, being guided by article 13 of the Federal constitutional Law of 28.04.1995 No. 1-FKZ "About Arbitration Courts in the Russian Federation", decides to give to Arbitration Courts (further - courts) the following explanations:

1. By consideration of disputes on legitimacy of transactions of credit institutions on accounts of persons which are in insolvency proceedings, courts it is necessary to consider that owing to paragraphs two and the fourth Item 1 and Item 2 of Article 63, of paragraphs two and the fifth Item 1 of Article 81, of paragraphs of the seventh and eighth Item 1 of Article 94, of paragraph two of Item 2 of Article 95, paragraphs of the fifthof - the seventh and the tenth Item 1 of article 126 of the Federal Law of 26.10.2002 No. 127-FZ "About insolvency (bankruptcy)" (further - the Bankrupcy law, the Law) in case of receipt in credit institution of any order of any person about transfer (transfer) or issue of money from customer account concerning which insolvency proceeding is entered (further - the debtor) (except for orders external or the receiver of this debtor), the credit institution has the right to accept such order to execution and to perform it only provided that at this order or in documents, attached to it, the data confirming reference of the paid requirement of the receiver of money to the current payments (article 5 of the Law) or to other requirements according to which the payment from the account of the debtor is allowed during the corresponding procedure (the paragraph the fourth Item 1 of Article 63, the paragraph the fifth Item 1 of Article 81, paragraph two of Item 2 and Item 5 of article 95 of the Law) (further - the permitted payments) contain. Such check is performed, in particular, concerning payment orders and checks of the debtor (in procedures of observation or financial improvement), collection orders (including tax authorities) and the executive documents (which arrived both from the bailiff, and from the claimant according to the procedure of article 8 of the Federal Law of 02.10.2007 No. 229-FZ "About enforcement proceeding").

By consideration of question of whether such inspection was carried out properly, courts need to recognize that the credit institution performs this check on formal grounds. If the order or documents attached to it do not contain the called data, or these data are contradictory or if from them it is visible that the paid requirement does not belong to the permitted payments (for example if the judgment about repayment of the loan based on which the executive document was issued is accepted before initiation of proceedings about bankruptcy), then the credit institution has no right to perform the order - it is subject to return to the provided his face with indication of the reason of its return.

Specifying in itself on hand or the documents of the words "current payment" attached to it, etc. is not enough for acceptance by its credit institution for execution; in these documents the specific data confirming reference of the obligation to flowing (for example, the paid period of lease, date of transfer of goods on superimposed, specific tax period or date of its termination are in addition specified (for tax), etc.).

The credit institution does not consider on the substance of the debtor's objection against indisputable write-off, including the outstanding amounts based on arguments about incorrect specifying by the claimant or the moment of its origin.

2. If owing to violation by credit institution of the provisions of the Bankrupcy law specified in Item 1 of this resolution, money of the debtor is listed or issued to the creditor whose requirement does not belong to the permitted payments (for example, to the competitive creditor or authorized body which requirement arose before initiation of proceedings about bankruptcy), then the debtor (including on behalf of external or the receiver) has the right to demand from credit institution of indemnification, caused by illegal cash write-off from the account of the debtor, in the amount of written-off amount in connection with violation of the agreement obligations of the bank account by bank (Articles 15, 393, 401 Civil code of the Russian Federation; further - the Civil Code of the Russian Federation).

Violation from credit institution is absent if the documents submitted for cash write-off met the criteria specified in Item 1 of this resolution. Cannot be collected by the debtor from credit institution of the amount, written off in situation when the submitted documents contained data which unauthenticity could not be found in case of formal check (including if person which provided them included in them obviously false information).

2.1. The credit institution performs duty to pay damages only provided that by the time of cash write-off she knew or shall know that concerning the debtor insolvency proceeding is entered. If by this moment of the data on introduction of such procedure were published in the corresponding official publication or are included in the Unified Federal Register of Bankruptcy Information (Article 28 of the Bankrupcy law), then it is supposed that the credit institution shall know about it (including taking into account the electronic information collection systems which are available in turnover).

2.2. In case of compensation by credit institution to the debtor of losses in the amount of the amount which is illegally transferred by it (including on obligatory payments) she because in essence the debtor became widespread from it same which was due to it from contest of the transaction with preference, had the right to demand compensation of this amount from the debtor by rules of Article 61.6 of the Bankrupcy law (taking into account special procedure for calculation of term on the statement of the requirement in the register).

Besides, as nobody has the right to benefit by the illegal or unfair behavior (item 4 of article 1 Civil Code of the Russian Federation), the credit institution has the right to demand also in addition to the address to the debtor compensation of the corresponding amount by it from the creditor (including on obligatory payments) to whom she transferred money from the account of the debtor if he at the time of receipt of money knew or shall know about introduction concerning the debtor of insolvency proceeding. After payment of the corresponding amount by the creditor for benefit of credit institution at him by analogy with item 4 of Article 61.6 of the Bankrupcy law earlier extinguished requirement to the debtor which he has the right to declare in the register of requirements of creditors is recovered. If earlier the register included the relevant requirement of credit institution, then it is excluded by court from the register.

3. By consideration of disputes on application of Item 2 of Article 134 of the Bankrupcy law courts should consider that control of observance of the priority of the current payments provided by this Item in any insolvency proceeding in case of expenditure of money from the account of the debtor is exercised by credit institution which makes check on formal grounds, determining payment priority based on data, the available or attached to it documents (except orders external or the receiver).

Such check is performed, in particular, concerning collection orders (including tax authorities) and executive documents.

The credit institution has no right to perform the provided order if it and the documents attached to it do not contain the relevant data; such document is subject to return by credit institution with indication of the reason of its return.

By consideration of question of whether the priority was performed properly, courts need to recognize that specifying in itself on hand or the documents of number of queue of the current payment or the name relating requirements to the conforming queue, not allowing to check its priority attached to it (for example, by use of the words "first priority", "operational payment", "fee of the involved person", etc.), is not enough for its execution by credit institution; in these documents the specific data confirming reference of the obligation to the corresponding queue of the current payments are in addition specified.

In case of determination of priority of repayment of requirements for the current payments availability of the executive document or other document providing indisputable procedure for collection does not matter.

The documents arriving from the arbitration manager or creditors on the current payments not being orders about money transfer but only informing credit institution on availability at the debtor of the current obligations, are not considered by credit institution in case of determination of priority of execution of orders.

The calendar priority established by the paragraph the sixth Item 2 of Article 134 of the Bankrupcy law is determined by credit institution proceeding from the receipt moment in credit institution of the order.

Courts need to consider that for violation of the obligation established by the Bankrupcy law to control when carrying out account transactions of the debtor observance of priority on the current payments the credit institution bears responsibility in the form of indemnification taking into account the explanations made in Item 2 of this resolution.

By consideration of claims of creditors on the current payments on the violation of their rights (Item 2 of Article 35 of the Bankrupcy law) which is expressed in default of payments by the debtor it is necessary to consider that the debtor's head (in procedures of observation or financial improvement) or the arbitration manager (in procedures of external management or bankruptcy proceedings) shall in case of approach of completion date of the corresponding obligation to send the order for its execution to credit institution, without waiting for reminder from the corresponding creditor or presentation of the requirement to them in court.

4. Courts should mean that external or the receiver in case of the order it the accounts of the debtor the credit institution does not perform control of observance of the rules of the Bankrupcy law specified in Items 1 and 3 of this resolution; responsibility for their observance is born by the managing director from whom in case of their violation the corresponding damages (item 4 of Article 20.4 of the Bankrupcy law), including upon the demand of the creditor on the current payments can be claimed.

However proceeding from inadmissibility of abuse of the right (article 10 Civil Code of the Russian Federation) in those exceptional cases when violation of the provided rules by the managing director is obvious to any reasonable person (for example if the receiver provided the order about transfer of the considerable amount only to one creditor whose competitive requirement arose before initiation of proceedings about bankruptcy that is obvious from specified at the disposal of dates, or asks to pay the requirement which is obviously not relating to this queue in the first priority of the current payments), the credit institution has no right to perform such order of the managing director and bears in case of its execution responsibility taking into account the explanations containing in Item 2 of this resolution.

5. By consideration of disputes on powers over the order the account of the debtor courts need to consider that owing to paragraph one of Item 2 of Article 126 and paragraph two of Item 3 of Article 129 of the Bankrupcy law from the date of recognition of the debtor by the bankrupt the credit institution has no right to perform the orders about carrying out account transactions of the debtor signed by the debtor's head - the legal entity or the debtor - the citizen.

Besides, based on the subitem 7 of Item 1 of article 188 Civil Code of the Russian Federation from the date of recognition of the debtor by the bankrupt the credit institution has no right to perform the orders about carrying out account transactions of the debtor signed by the representative of the debtor to whom before opening of bankruptcy proceedings the power of attorney by the debtor's head - the legal entity or the debtor - the citizen was issued.

According to Item 1 of Article 207 of the Bankrupcy law from Date of Introduction of observation concerning the debtor - the citizen the credit institution has no right to charge money off account of the debtor on any orders as all its accounts are arrested from this date. Exception are cases when by law about bankruptcy the order by money on the account of the debtor is allowed (we will press the Law).

In case of write-off of money by credit institution from the account of the debtor in defiance of the listed rules of the Bankrupcy law it upon the demand of the arbitration manager shall pay the damages caused to the debtor (competitive weight) in the amount of illegally written-off amount (taking into account the explanations made in Item 2 of this resolution except Item 2. 2). The court refuses claiming damages if the effected payment belonged to permitted and its implementation did not violate other rules of the Law (for example if the current payment with observance of priority was extinguished).

6. Article 63 of the Bankrupcy law does not provide cancellation of suspension of account transactions of the debtor made by tax authority before observation introduction and does not prohibit to apply it in this procedure. At the same time owing to the paragraph of third Item 1 of article 76 of the Tax Code of the Russian Federation such suspension of account transactions of the debtor does not extend to payments which execution priority according to Article 134 of the Bankrupcy law precedes discharge of duty on tax payment and charges.

From Date of Introduction of the procedure of financial improvement, external management or bankruptcy proceedings the specified suspension of transactions stops automatically by law and does not require adoption by tax authority of the decision on its cancellation (paragraphs the third and fourth Item 1 of Article 81, paragraphs of the fifth and sixth of Item 1 of Article 94, the paragraph the ninth Item 1 of Article 126 of the Bankrupcy law and paragraph two of Item 9.1 of article 76 of the Tax Code of the Russian Federation); the credit institution notifies on it tax authority. Also adoption by tax authority of the decision on such suspension is not allowed in any of these procedures; in case of receipt of such decision in credit institution it returns it to tax authority with reference to prohibition of its execution by law about bankruptcy.

7. In cases when by law about bankruptcy from Date of Introduction of insolvency proceeding the arrest of money on the account of the debtor imposed before its introduction is cancelled (the paragraph the fourth Item 1 of Article 63, paragraphs the third and fourth Item 1 of Article 81, paragraphs of the fifth and sixth of Item 1 of Article 94 and the paragraph the ninth Item 1 of Article 126), such arrest is cancelled directly by law from Date of Introduction of the corresponding procedure and does not require adoption of the act of its cancellation by the body which seized. The credit institution notifies the body which seized on such cancellation.

8. Recognize invalid:

1) paragraphs third - the fifth Item 12 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 22.06.2006 No. 25 "About some questions connected with qualification and establishment of requirements for obligatory payments, and also sanctions for public offenses in the case of bankruptcy";

2) Item 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 23.07.2009 No. 59 "About some questions of practice of application of the Federal Law "About Enforcement Proceeding" in case of initiation of proceedings on bankruptcy";

3) paragraphs the third and fourth Item 40 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 23.07.2009 No. 60 "About some questions connected with adoption of the Federal Law of 30.12.2008 No. 296-FZ "About introduction of amendments to the Federal law "About Insolvency (Bankruptcy)".

9. The explanations made in this resolution do not extend to cases when debtor on the case of bankruptcy is the credit institution.

10. The court resolutions of Arbitration Courts which took legal effect adopted based on the rule of law in the interpretation dispersing from the interpretation containing in this resolution can be reviewed based on Item 5 of part 3 of Article 311 of the Arbitral Procedure Code of the Russian Federation if for this purpose there are no other obstacles.

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info