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Publication date: 21.05.2024
lawyer, 23 years of experience in enforcement.
Liquidation procedure in the process of bankruptcy of a legal entity.
According to Art. 58 of the Code of Ukraine on Bankruptcy Procedures, the commercial court, in a court session with the participation of the parties, adopts a resolution declaring the debtor bankrupt and opens a liquidation procedure with the aim of liquidating the LLC in bankruptcy (for more details on the circumstances resulting in the liquidation procedure, see the General bankruptcy procedure of a legal entity and the Procedure rehabilitation of the debtor).
In the resolution declaring the debtor bankrupt and opening the liquidation procedure, the commercial court appoints the liquidator of the bankrupt from among the arbitration administrators entered in the Unified Register of Arbitration Administrators of Ukraine.
The court determines the period during which the liquidator is obliged to liquidate the debtor. This period cannot exceed 12 months.
Failure to appear at a court session of persons who were duly notified of the time and place of such a session does not prevent the proceedings in the case.
The general functions of the court in the liquidation procedure are defined in Art. 60 of the Code.
Part 1 of Art. 59 of the Code of Ukraine on Bankruptcy Procedures establishes the consequences of declaring a debtor bankrupt.
The notification of declaring the debtor bankrupt and opening the liquidation procedure must contain:
- the name and other details of the debtor declared bankrupt;
- the name of the commercial court in which the bankruptcy case is pending;
- the date of adoption by the commercial court of the resolution on declaring the debtor bankrupt and opening the liquidation procedure;
- information about the liquidator.
The legal status and general powers of the arbitration administrator are determined by Book II, Chapter I of the Code of Ukraine on Bankruptcy Procedures.
The powers of the liquidator are defined in Art. 61 of the Code.
According to Art. 67, the liquidator ensures the proper registration, arrangement and storage of all, including financial and economic, documents of the bankrupt during the liquidation procedure.
According to the provisions of Art. 62 of the Code of Ukraine on Bankruptcy Procedures, all types of property assets of the bankrupt, which belong to him by right of ownership or economic trust, are included in the composition of the liquidation mass.
Exceptions are:
- individually determined property belonging to the bankrupt on the basis of property rights, except for the right of ownership and economic trust;
- an object of trust property (not included in the liquidation mass of the trust owner or founder);
- property withdrawn from circulation (the liquidator is obliged to transfer such property to the relevant persons in accordance with the established procedure);
- joint ownership (the liquidator allocates the debtor's share and then realizes it);
- assets included in the mortgage coverage;
- property for which the debtor is the user, custodian, balance keeper (the liquidator returns such property to the owners);
- state property that was not included in the authorized capital in the process of privatization (corporatization) and is on the balance sheet of the bankrupt;
- grain of the bankrupt, which is stored in his warehouses (can be included only after the grain is fully returned to the depositors according to all warehouse documents;
- property rights of intellectual property, exclusive property rights to which are held by the state-owned educational institution (returned to the state-owned higher education institution that contributed them to the company's charter capital).
After carrying out an inventory and obtaining consent for the sale of property, the liquidator sells the property of the bankrupt at auction. Chapter V of Book III of the Bankruptcy Code of Ukraine contains comprehensive instructions on the organization and conduct of the auction, setting out detailed provisions.
According to the provisions of Article 63 of the Code, the liquidator is responsible for the sale of perishable or low-value goods (the market value of which does not exceed 1 minimum wage) by direct sale or on commission.
In accordance with the Law of Ukraine "On Securities and the Stock Market" dated February 23, 2006 No. 3480-IV, securities are traded by an authorized participant of the stock market of Ukraine.
Contracts for the sale and purchase of the bankrupt's property, which are concluded, should not contain conditions for deferred payments or deferred payments for the purchased property.
Funds received from the sale of the bankrupt's property are used to fulfill the obligations of creditors.
The procedure for meeting the demands of creditors is established by the first part of Article 64 of the Code of Ukraine on Bankruptcy Procedures.
In general, the requirements of each subsequent stage are fulfilled after the receipt of funds from the sale of the bankrupt's property, after full satisfaction of the requirements of the previous stage.
If the sale of the bankrupt's property does not generate sufficient funds to fully satisfy all claims in one stage, the claims are prorated based on the amount owed to each creditor in that stage.
Parts 4-6 of the said article describe certain aspects of repayment of creditors' claims.
If the property is insufficient to repay the claims, they are considered repaid in accordance with part seven of Article 64 of the Code.
After repayment of all financial obligations to creditors, the liquidator prepares a detailed report together with the liquidation balance sheet and submits them to the commercial court. These documents are accompanied by special documents stipulated by the first part of Article 65 of the Code of Ukraine on Bankruptcy Procedures.
According to the third part of Article 65 of the Civil Procedure Code, if the liquidator has not determined the property to be included in the liquidation mass, he is obliged to submit to the commercial court a balance sheet that confirms the absence of the debtor's property.
The commercial court notifies the liquidator and creditors about the date and place of the court session, in which the report and liquidation balance will be considered.
After carefully considering the liquidator's report, the expressed position of creditors, the commercial court makes a decision.
The decision to approve the liquidator's report and the liquidation balance sheet is pending.
In accordance with the procedure established by the Code, a decision was made to appoint a new liquidator.
After reviewing the liquidator's report and taking into account the opinion of the creditors, the commercial court issues a decision approving the liquidator's report and the liquidation balance sheet.
In accordance with the second part of Article 65 of the Bankruptcy Code of Ukraine, after the end of the liquidation procedure and satisfaction of the demands of creditors, in the absence of property, the commercial court issues a decision to recognize the liquidation of an insolvent legal entity. .
The court's decision on the liquidation of a debt-free legal entity, as specified in the fifth part of Article 65 of the Code, depends on whether the remaining property is less than the legally established limit necessary for the continuation of the economic activity of the business entity.
According to Part 5 of Article 65 of the Code, if the property of a bankrupt is sufficient to fully satisfy the demands of creditors, he is considered to be debt-free and has the right to continue business activities.
If, based on the results of the review of the liquidator's report and the liquidation balance sheet, the commercial court determines that the liquidator has not fully identified and sold the property assets of the bankrupt, the court makes a decision on the appointment of a new liquidator.
The liquidator must immediately notify the relevant body or official responsible for the appointment of the head (management bodies) of the debtor about the repayment of the debts of the legal entity, within 5 days from the day of the decision of the commercial court. In addition, if necessary, the liquidator is obliged to convene general meetings or meetings of the relevant body and continue to perform the duties of the head (management bodies) of the debtor until the moment of their appointment in accordance with the established procedure.
In accordance with Part 6 of Art. 65 of the Code of Ukraine on Bankruptcy Procedures, the liquidator continues to exercise his powers until the entry into the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Organizations of the termination of the bankrupt legal entity, at the time of liquidation of Com.
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