Review of the decision of the Commercial Court of Cassation of the Supreme Court of Ukraine

Commercial law
Dyedov Yevheniy
14.12.2020
Law Services - Review of the decision of the Commercial Court of Cassation of the Supreme Court of Ukraine

Bankruptcy of state-owned enterprises and enterprises in the authorized capital of which the share of state ownership exceeds 50%

(More details with the text of the resolution of the Supreme Court of Ukraine dated 10.12.2019 in the case
№ 906/1290/15 can be found at the link http://reyestr.court.gov.ua/Review/86400486
)

 

Subject: achievement of a legitimate goal defined by the Bankruptcy Law, which establishes the conditions and procedure for restoring the solvency of the debtor or declaring him bankrupt and the application of liquidation proceedings to fully or partially satisfy creditors’ claims.

Part 4 of Art. 96 of the Bankruptcy Law stipulates that the provisions of this Law apply to legal entities – enterprises that are objects of state property that are not subject to privatization, in terms of rehabilitation or liquidation after their exclusion in the prescribed manner from the list of such objects. According to Part 3 of Art. 214 of the Civil Code of Ukraine to state-owned enterprises, which in accordance with the law are not subject to privatization, these procedures are applied in terms of rehabilitation or liquidation only after their exclusion in the prescribed manner from the list of objects not subject to privatization. Judicial procedures of reorganization and liquidation of the debtor included in the list of objects of state property that are not subject to privatization, in accordance with the Law of Ukraine “On the list of objects of state property that are not subject to privatization” can be carried out only after exclusion of the debtor from of this list.

The only possible completion of the bankruptcy proceedings of such a debtor in accordance with the law in force at the time of the decisions of the courts of previous instances is the conclusion of an amicable agreement in the bankruptcy case at te stage of disposition of property.

Thus, the courts of previous instances came to the correct conclusion that these norms and provisions of the Law of Ukraine “On the list of state property not subject to privatization” in force at the time of decisions of courts of previous instances establish restrictions on the application of the Bankruptcy Law. reorganization or liquidation procedures for legal entities – enterprises that are state-owned and included in the list of objects that are not subject to privatization.

At the same time, bankruptcy proceedings under the provisions of the Bankruptcy Law are urgent. Part 1 of Art 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention), to which Ukraine is a party, stipulates that everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. and duties of a civil nature or establish the validity of any criminal charges against him.

Taking into account that the bankruptcy proceedings of the Chervonensky Foodstuffs Plant have been going on for more than three years at the stage of disposing of property, the debtor was not excluded from the list of state-owned objects not subject to privatization during this period. the creditors’ committee and the debtor have not reached an amicable agreement in the procedure of disposing of property in this case, as well as the fact that the moratorium in the bankruptcy case for a long time prohibits satisfaction of the debtor’s bankruptcy creditors, to ensure the principles of consideration of the case within a reasonable time by an independent and impartial court and to guarantee the legal certainty of creditors whose claims are recognized by the court are included in the register by a preliminary ruling in the bankruptcy case , in order to ensure the principles of consideration of the case within a reasonable time by an independent and impartial court and to guarantee the legal certainty of creditors, the court of first instance correctly concluded the closure of the bankruptcy proceedings “Chervonensky Zavod Prodtovary”.

This does not preclude the possibility of terminating the subject matter of the dispute on the basis of a legislative instruction. In this case, such a legislative requirement is the requirements of Part 4 of Art. 96 of the Bankruptcy Law (in force at the time of the decisions of the courts of previous instances), which limit the possibility of bankruptcy proceedings of an enterprise that is not subject to privatization, the transition to reorganization and liquidation proceedings.

Thus, the procedure for disposing of property may end with the conclusion of an amicable agreement in the bankruptcy case or the closure of bankruptcy proceedings with the application of paragraph 2 of Part 1 of Art. 231 Commercial Procedural Code of Ukraine.

In view of the above, the existence of a statutory restriction on the application to the debtor, which was not excluded from the list of objects of state property that are not subject to privatization, reorganization or liquidation, failure to conclude a long-term settlement agreement in the procedure of disposition of property in this case and the absence in connection with the above successful completion of bankruptcy proceedings.

According to h. 1 Art. 83 of the Bankruptcy Law, the commercial court must close the bankruptcy proceedings in other cases provided by law.

 

 

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