Term of bankruptcy of a citizen, stages - how long it lasts, how long it lasts

Limitation periods

The limitation period (hereinafter referred to as the limitation period) is according to Art. 195 of the Civil Code of the Russian Federation, the period during which judicial protection of the rights of the interested party is possible. According to current legislation, the statute of limitations in a bankruptcy case has specific features in the order of application (starting point, duration of the period, etc.).

According to the Civil Code

In Art. 196 of the Civil Code of the Russian Federation establishes a general limitation period of 3 years, but there are also special limitation periods. The general rule applies to void transactions (committed by an incapacitated person, imaginary, made for show, feigned, etc.), the special rule applies to voidable transactions (under the influence of a threat, with preference to one of the creditors, etc.). According to Part 2 of Art. 181 of the Civil Code of the Russian Federation, the requirement to declare a transaction voidable in court is one year. There are other special limitation periods, for example for property insurance (2 years).

The period begins from the moment the parties enter into an agreement and flows forward. In court, the IDA is applied only upon a written application from the defendant; the judges themselves, on their own initiative, do not apply it (Article 199 of the Civil Code of the Russian Federation).

According to bankruptcy law

Most often, the statute of limitations for bankruptcy of a legal entity is applied when challenging transactions of a future bankrupt. The SIA is also used when bringing to subsidiary liability the persons controlling the debtor: founders, participants and managers.

There is no statute of limitations on a debtor's bankruptcy petition, since this is not judicial protection in a lawsuit, but a special procedure.

In the course of recognizing transactions as invalid, there are two LEDs: for the transactions themselves, it flows backwards, and for the presentation of claims by interested parties (primarily, the bankruptcy trustee, since this is his responsibility).

When a debtor is declared bankrupt, most of the transactions that raise questions are voidable, but there are also voidable ones; the bankruptcy trustee determines the SID depending on the type of transaction (according to Federal Law No. 127 of October 26, 2002 “On Bankruptcy”) and its type (void, voidable).

Limitation period for bankruptcy

I ask you to use the following current situation as an example to explain the application of the provisions of paragraph 1 of Article 7 of the Law of the Republic of Kazakhstan “On Rehabilitation and Bankruptcy”.

According to clause 1 of Article 7 of the Law, transactions are recognized as invalid if they were made by the debtor or his authorized person within three years before the initiation of rehabilitation and (or) bankruptcy proceedings, unless otherwise provided by this Law, if there are grounds provided for by the civil legislation of the Republic Kazakhstan and this Law.

According to Article 147 of the Civil Code of the Republic of Kazakhstan, transactions are the actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations. According to paragraph 2 of Art. 178 of the Civil Code of the Republic of Kazakhstan for certain types of claims, legislative acts may establish special limitation periods, shorter or longer than the general period. According to paragraph 3 of Article 178 of the Civil Code of the Republic of Kazakhstan, the rules of Articles 177, 179-186 of this Code also apply to special limitation periods, unless otherwise provided by legislative acts.

In accordance with paragraph 2 of Article 180 of the Civil Code of the Republic of Kazakhstan, for obligations with a certain period of performance, the limitation period begins at the end of the performance period. According to clause 1 of Article 367 of the Civil Code of the Republic of Kazakhstan, obligations are terminated in whole or in part by fulfillment, provision of compensation, offset, novation, forgiveness of debt, coincidence of the debtor and creditor in one person, impossibility of execution, issuance of an act of a state body, death of a citizen, liquidation of a legal entity. It has been established that the case for declaring the LLP bankrupt was initiated on March 6, 2021.

The bankruptcy manager identified a transaction made by the debtor under the circumstances specified in paragraphs 1 and 2 of paragraph 2 of Article 7 of the Law of the Republic of Kazakhstan “On Rehabilitation and Bankruptcy”.

The LLP agreement was concluded on 01/31/2012, its final execution was made by payment (transfer) of the remaining amount of funds on 12/29/2016 - within the time limits established by the agreement.

Based on the above, based on the above situation, I ask you to clarify whether in this case the three-year period established by paragraph 1 of Article 7 of the Law of the Republic of Kazakhstan “On Rehabilitation and Bankruptcy” has expired for invalidation of the LLP agreement dated January 31, 2012 ?

In practice, the date of conclusion of the agreement may be (on purpose) much earlier than the three-year period, and execution under it (transfer of property, payments of funds, etc.) within a three-year period before the initiation of rehabilitation and bankruptcy proceedings. Thus, unscrupulous debtors have the opportunity to evade liability due to different interpretations of the meaning of paragraph 1 of Art. 7 of the Law of the Republic of Kazakhstan “On Rehabilitation and Bankruptcy”, when the date of conclusion of the contract is taken as the basis.

At the same time, local courts take the side of such debtors, and in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 2, 2015 No. 5 “On the practice of applying legislation on rehabilitation and bankruptcy”, the provisions of paragraph 1 of Article 7 of the Law of the Republic of Kazakhstan “On Rehabilitation” are not fully disclosed and bankruptcy" for its uniform application.

Thank you!

When challenging the debtor's transactions

Chapter III of Federal Law No. 127 lists the following types of transactions that can be challenged, and the statute of limitations under the bankruptcy law is different for each type:

suspicious, unequal, that is, counter-performance does not meet the debtor’s obligations (low price, etc.) - 1 year;
suspicious, harmful, committed with the aim of causing harm to the debtor, which the other party knew about - 3 years;
with the possibility of giving preference, entailing the possibility of giving preference to one or more creditors - 1 month;
with preference, when the other party knew about the sign of insolvency and insufficiency of property - 6 months.

These rules are specified in Art. 61.2 and 61.3 FZ-127. The countdown point is until the court accepts the application to initiate bankruptcy (not the date of filing the application with the office, but the date of acceptance by the judge with the issuance of the ruling). Judicial practice shows the effectiveness of this method of protection and the sufficiency of LED. For example, the statute of limitations for bank bankruptcy is the same as for all other persons, but bankruptcy trustees often determine preferences for some creditors and decide on the issue of selling assets at low prices.

Limitation periods for challenging transactions of an individual

Kalyuzhin Dmitry

Arbitration manager

Denis Lobanenko

Honest Raider

I don't know. We did not have such practice. Yes, and such a question is impossible for me. Even if it’s impossible, but you really want to, then in the vastness of our Motherland you can always dig up satisfactory judicial practice.

PS: Your first message in two years. Long time no see. Are you returning to the game? “I haven’t picked up checkers for a long time” (c)

Kalyuzhin Dmitry

Arbitration manager

It just seems crazy to me. Conventionally, this is a loophole in the Law. They made a deal, all whose rights it may allegedly violate, and have been sitting on their butts for many years. Then bam, after 20 years they introduce a procedure and the arbitration manager is like this: - Yeah, remember 20 years ago I sold a cow to my mother and it was twice as cheap as the market, and there was a guarantee to the bank, and it doesn’t matter that the main debtor then fulfilled the contract properly . In the end, the debt was not fully repaid and the guarantee came into effect. Unfolding a cow or money is equivalent to the cost. Why then do there even exist statutes of limitations? Even most criminal cases have statutes of limitations. It is precisely the theory of this issue that worries me for now.

arbitration manager

Hello Dmitry! Glad you're doing well! On topic - what if we remove the concept of “physics” from the topic? Situation - the organization has a creditor (since 2011, in fact) The basis for the occurrence is the consequences of the invalidity of the transaction (they owned shares, sold them illegally, after the transaction was declared illegal, there were no shares, the amount was recovered in money) The amount of the liability is about 100 million rubles. Why did they go to court for a long time and go into bankruptcy for a long time? It’s trite that the examination of the value of shares (more than once) takes a lot of time. While they were suing, the debtor, 3.5 years before filing for bankruptcy, sold his other property (in fact he donated it, since 3-5-10 times, the examination will show) to his interested parties (founders). Payment of the invoice also did not go through. There is an opinion that this transaction is void (Article 10, in my opinion, is provable) This means that this rule applies to it

1. The limitation period for claims to apply the consequences of the invalidity of a void transaction and to recognize such a transaction as invalid (clause 3 of Article 166) is three years. The limitation period for these claims begins from the day when the execution of a void transaction began, and in the event of a claim being brought by a person who is not a party to the transaction, from the day when this person learned or should have known about the beginning of its execution. In this case, the limitation period for a person who is not a party to the transaction, in any case, cannot exceed ten years from the date of commencement of execution of the transaction.

And here a “gag” arises - according to Chapter III.1, the manager files a challenge to the transactions on behalf of the debtor. That is, the applicant (the holder of the claim) is the debtor, who, of course, knew about the “inconsistency” of the transaction. There is a creditor in the case, but he was also sued on all these topics all this time. The question is: how to avoid the application of the statute of limitations in this case? And still apply invalidity? Thanks in advance for your opinions, please forgive me if I duplicate questions and this has already been discussed. PS - the debtor is a legal professional, has nothing to do with physicists.

From what moment do you start counting?

The moment of acceptance of the application by the court does not cause disputes in judicial practice, in contrast to the moment when the statute of limitations begins for the bankruptcy trustee to apply the consequences of the disputed transaction.

The Supreme Court explained that the challenge takes place under Part 2 of Art. 181 of the Civil Code of the Russian Federation within a year from the moment when the bankruptcy trustee learned or should have learned about the existence of grounds for going to court. This point is not always associated with vesting a person with the functions of a bankruptcy trustee. What is important is the emergence of a legal opportunity to find out about the existence of such grounds, this was explained by the Supreme Court in paragraph 32 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 63 of December 23, 2010. If previously the bankruptcy trustee was external, he had a legal opportunity during the period of external management.

If there are grounds for recognizing a transaction as void, the IDA is applied according to the norms of the Civil Code of the Russian Federation, that is, the statute of limitations for sham bankruptcy is 3 years by virtue of Part 1 of Art. 181 Civil Code of the Russian Federation. To recognize void transactions as invalid, a court decision is not actually required; they are such by law, but you will have to formally go to court.

When brought to subsidiary liability

Judicial practice is different both when calculating the moment of calculation and when applying the period of SID. The most recent practice, taking into account the positions of the Supreme Arbitration Court of the Russian Federation and the Constitutional Court, formulates the following provision: it is necessary to apply two SIDs - a one-year subjective one, calculated from the moment when the person learned or should have known about the existence of grounds for subsidiary liability, and a three-year objective one, calculated from the date of recognition of the debtor insolvent (the use of one of the two types of SID depends on specific circumstances, taking into account changes in the legislation on bringing to subsidiary liability).

The procedure for applying SID in bankruptcy proceedings is not tied to the subject; the limitation period for bankruptcy of individuals is similar to Federal Law-127 and the Civil Code of the Russian Federation.

Are you preparing to go to court? To make your complaint more convincing and help solve the problem, study court decisions on similar cases. The database of judicial practice in ConsultantPlus will help you find them (get free access to it by clicking on the link below). The database contains decisions of all Russian courts, and the search is as simple as in Yandex. Be sure to refer in the text of the appeal to those cases that the court has already decided “in your” favor.

Legal documents

Article 195 of the Civil Code of the Russian Federation. The concept of limitation of actions
Article 196 of the Civil Code of the Russian Federation. General limitation period
Article 181 of the Civil Code of the Russian Federation. Limitation periods for invalid transactions
Article 199 of the Civil Code of the Russian Federation. Application of the limitation period
Federal Law of October 26, 2002 N 127-FZ

Terms for challenging transactions

According to the Bankruptcy Law, the limitation period is calculated from the moment when the first person authorized to bring a claim learned or should have known about the existence of grounds for recognizing the transaction as invalid. clause 1 art. 61.9 of the Bankruptcy Law, can be filed by a bankruptcy or external manager (further in the article we will talk about bankruptcy proceedings and a bankruptcy manager, but all arguments will be valid for external management and an external manager). This norm is in paragraph 32 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 12/23/2010 N 63 is explained as follows. In accordance with Art.

Limitation period in arbitration proceedings

Limitation periods are established by the Civil Code or special laws. Procedural legislation does not regulate the length of limitation periods for various categories of disputes. But it prescribes the procedure in case of their omission or restoration.

Important!

As a general rule, the statute of limitations for civil cases is 3 years.

However, there are disputes when it is less. These are the requirements:

on declaring a voidable transaction invalid (the period is calculated from the date when the plaintiff became aware of the circumstances that are considered the basis for declaring the transaction invalid) - 1 year;
on invalidation of a decision of the general meeting - 6 months;
on invalidation of the decision on reorganization - 3 months from the date of entry into the register;
on forcing the signing of the main agreement after concluding a preliminary agreement - 6 months from the date specified in the preliminary agreement;
on declaring auctions invalid - 1 year from the date of their holding;
on the transfer of rights and obligations under a contract for the sale and purchase of a share in common shared ownership - 3 months from the day it became known about the transaction;
about inadequate quality under a contract (not construction) – 1 year;
to the carrier, forwarder arising from the contract for the carriage of goods, transport expedition - 1 year;
from a property insurance contract – 2 years;
LLC participant to invalidate the decision of the general meeting – 2 months;
shareholder on invalidation of the general meeting of shareholders – 3 months.

This is not a complete list of disputes for which a shortened statute of limitations is provided. Therefore, in each specific case this period must be clarified.