Bankruptcy of unitary enterprises. What are the nuances of bankruptcy

from 29.07.2017)

"On State and Municipal Unitary Enterprises"

(as amended and supplemented, effective from 01.11.2017) 2. The Russian Federation, a subject of the Russian Federation, a municipality shall not be liable for the obligations of a state or municipal enterprise, except in cases where the insolvency (bankruptcy) of such an enterprise is caused by the owner of his property. In these cases, if the property of the state or municipal enterprise is insufficient, the owner may be held subsidiary liable for his obligations.

(as amended on 07/29/2017)

(as amended and supplemented, effective from 06.08.2017) Article 65. Insolvency (bankruptcy) of a legal entity

Articles, comments, answers to questions: Bankruptcy of a unitary enterprise

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Forms of documents: Bankruptcy of a unitary enterprise

(Prepared for the ConsultantPlus system, 2017)

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Bankruptcy MUP

Bankruptcy of municipal unitary enterprises, as a procedure for declaring the insolvency of a legal entity, is regulated by the Civil Code of the Russian Federation (Article 65) and Federal Law No. 127-FZ “On Insolvency (Bankruptcy)” dated October 26, 2002.

The peculiarity of these legal relations lies in the special organizational and legal form of the subject, which actually exists only in the Russian Federation.

Key difference

A fundamentally important issue in the initialization and conduct of the bankruptcy procedure of MUEs is whether or not the head of the debtor enterprise has the right to apply to an arbitration court, with an appropriate application for recognition of the debtor's insolvency (“voluntary bankruptcy”). The disputability of the aspect is related to the form of a legal entity, in which a municipal unitary enterprise belongs to the category of commercial organizations, but is not endowed with the right of ownership of the property assigned to it. These enterprises have only the right of operational management or economic management of the property provided by the owner (Municipal entity), which is indivisible, that is, not subject to distribution by shares, deposits, shares, shares.

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Legislative features

The ambiguity of judicial practice regarding the rights and powers of the head of the MUP, if the enterprise has signs of bankruptcy, is resolved on the basis of general principles established by civil law and the specified Federal Law.

According to Article 9 and Article 30 of Law No. 127-FZ, as well as Article 65 of the Civil Code of the Russian Federation, it is provided that in the event of signs of insolvency (insolvency) of the MUE, the head of the debtor is obliged to notify the owner of the property, sending him information about the existence of grounds for the threat bankruptcy. The owner, in turn, must take timely measures to restore the debtor's solvency, or submit an appropriate application.

Decree No. 29 of December 15, 2004 “On Certain Issues in the Practice of Applying the Federal Law “On Insolvency (Bankruptcy)”” made certain adjustments to the situation.

The practical aspect of the bankruptcy of MUP

According to the legislation, the signs of bankruptcy (insolvency) of municipal unitary enterprises are their debt to creditors for the fulfillment of monetary obligations and (or) the payment of mandatory payments to the state budget and extra-budgetary funds, amounting to at least 100 thousand rubles, and not repaid within three months after the date of established (specified, specified) performance. Penalties, interest, fines and other financial sanctions for late payment are not included in the amount of the debt minimum.

In the presence of the indicated signs of insolvency, the creditor, the authorized body, or the person entitled to file an application on behalf of the debtor, may apply to the arbitration court.

The bankruptcy procedure of MUP is carried out on the basis of the general norms of the Law. Entering stages:

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observations;
financial recovery (sanation);
external management;
competitive production;
world agreement.

The appointment of an external manager, temporary economic management, etc. are envisaged.

Bankruptcy of a municipal enterprise

Sooner or later, many legal entities are faced with the accumulation of a huge amount of debt, to cover which there are not enough material resources and property available to the organization. Depending on the organizational and legal form of the enterprise, the process of its bankruptcy occurs in different ways. This article discusses the main aspects of the bankruptcy of municipal enterprises.

Bankruptcy of legal entities will cease to be a problem if you seek help from experienced lawyers of our company. Flexible prices, effective assistance in the most difficult situations.

Features of municipal enterprises

Before considering the process and features of the bankruptcy procedure through which enterprises created by the municipality go through, their features should be briefly highlighted.

Article 65.1 of the Civil Code of the Russian Federation determines that the founder of a MUP (municipality) cannot be a participant in an enterprise.
Article 113 of the Civil Code of the Russian Federation determines that the right to property, which the MUP is in charge of and uses, is assigned to the municipality that organized this MUP.

Legal provisions

The main issues related to the creation, operation and liquidation of MUEs are covered in a special law called “On Municipal and State Unitary Enterprises” (FZ No. 161 of November 14, 2002). In addition, general issues on the procedure for recognizing the MUP as insolvent to answer for its obligations are covered in the 65th article of the Civil Code. Federal Law No. 127, issued on October 26, 2002 and called "On Insolvency", defines in detail the features and procedure for the bankruptcy procedure for a municipal unitary enterprise.

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Who can apply for bankruptcy and who reviews it?

The content of Article 65 of the Civil Code of the Russian Federation determines that if a legal entity is not a religious organization, state-owned enterprise, institution or political party, the general procedure for insolvency is applicable to it. Federal Law No. 127, which entered into force on October 26, 2002, defines the following circle of persons who have the right to apply to the arbitration court considering cases of insolvency of the MUP with an application for bankruptcy of a legal entity:

Debtor;
Organizations or persons that issued a loan to the debtor;
Persons performing labor duties at the debtor's company;
State structures or bodies.

If the arbitration court satisfies the requirements of the applicant and recognizes the MUP, against which the claim was filed, as bankrupt, all necessary actions must be taken by the authorized structures within the time limits established by law. However, some categories of MUP, presented below, are exceptions, which determines a slightly different procedure for clerical work when they are recognized as insolvent organizations.

Producers of agricultural goods;
City-forming companies;
Enterprises of strategic importance for the state;
Organizations of the financial sector;
Construction organizations.

Grounds for declaring MUE bankrupt

Article 3 of the Federal Law No. 127 (issued on October 26, 2002) establishes the following categories for MUP, falling under which, the enterprise risks being declared bankrupt:

The total debt exceeds (in monetary terms) the amount of 300 thousand rubles;
The enterprise does not pay payments to the budget for 3 months or more, and also does not have the funds to timely fulfill its obligations previously assumed.

Procedure for declaring MUP bankrupt

Federal Law No. 127 defines a five-stage process for declaring a MUP insolvent:

observation. At the monitoring stage, the regulatory authorities collect all the information about the potentially bankrupt company and take the first steps to help the monitored organization.
Sanation. At the stage of reorganization, there is a transition to active actions designed to restore the ability of the enterprise to properly meet its bills and obligations.
External control. If the measures taken at the first two stages had no effect, a transition to external management is carried out, the main feature of which is the assignment of the responsibility for making decisions regarding the future of the organization not to the director, but to the chosen arbitration manager. Based on the results of the activities of the arbitration manager, three scenarios are possible:
Termination of office work in connection with a possible bankruptcy (the company has recovered and can work as before);
Conclusion of a settlement agreement with creditors and other interested parties;
Bankruptcy proceedings (liquidation of the enterprise, property valuation and its subsequent sale in order to satisfy the requirements of the MUP by its creditors).

We will carry out the bankruptcy of legal entities with the maximum observance of the interests of the owners. In any difficult situation with debts, entrust bankruptcy management to professionals.

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Features of bankruptcy of commercial organizations

Bankruptcy consists in the termination of activities and the recognition of a commercial organization as insolvent and unprofitable. After the organizations are declared bankrupt, the procedure for their liquidation is carried out due to the inability to fulfill their obligations to employees and creditors.

How to declare yourself bankrupt? Features of bankruptcy of individuals

A physical bankrupt is an insolvent person who owes more than 500 thousand rubles to creditors, who has not paid debts for more than three months and has gone through the bankruptcy procedure for individuals.

Step-by-step instructions for bankruptcy of legal entities in 2016

An organization may be declared bankrupt if the total debt to creditors is more than 300 thousand rubles, and the debt period exceeds three months. The organization is recognized as insolvent on the basis of the decision of the arbitration court, after consideration by it of all evidence of bankruptcy.

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What are the nuances of bankruptcy MUP

Recognition as financially insolvent and identifying signs of bankruptcy of the MUP (municipal unitary enterprise) has much in common with the same procedure as for other commercial organizations. This process is regulated by the Federal Law "On Insolvency (Bankruptcy)".

For an enterprise of a municipal form of organization, there are some nuances, while additional special norms of legislative acts are applied. The specifics of the activity of this type of legal entities, its management and the form of the legal status of property are taken into account.

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Fundamental differences

A municipal unitary enterprise is essentially a type of commercial entity, its legal variety, but with some peculiarities. The presence of the word "unitary" in its name implies that the property and assets are not the property of the enterprise, they cannot be divided into shares between its participants. The property does not belong to such an organization, it is only assigned to it by the owner.

Bankruptcy of state formations is regulated by special rules, and not by the Federal Law “On Insolvency (Bankruptcy)”, this is an exception to it, but MUEs are not state-owned enterprises, these two concepts should not be confused.

Therefore, for them, the procedure is carried out on a general basis in accordance with the specified law with the same stages and rules, but taking into account the peculiarities of its form of ownership, management and legal status of property.

In Art. 61 of the Civil Code is the definition of the liquidation of such an organization. This is a system of actions of a legal and accounting nature, provided for by law and aimed at terminating its activities in full. At the same time, rights and obligations are not transferred to third parties, that is, the process is carried out without succession.

Unlike other objects of bankruptcy, the process is often initiated by the municipality (a state municipal formation of local self-government). Liquidation is carried out by their decision as owners of property and by a court decision on the basis and in the manner prescribed by law.

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Often, during the liquidation of the MUE, initiated in a pre-trial procedure according to the voluntary decision of the owner, the liquidation commission determines that the property is not enough to fulfill the requirements of creditors. This means that signs of bankruptcy have been discovered, which, in turn, obliges creditors, the liquidation commission, and the head to file a bankruptcy claim with the arbitration court.

Founders are not members.
The company does not own property, it is in its economic jurisdiction. Municipalities are its owners.
The enterprise is managed by a single manager appointed by the owner.
The management reports to the founder, but resolves all issues regarding property, except for the alienation of real estate, independently.
MUP is liable with its property, and the owner is subject to subsidiary liability with him only when the property is not enough to pay off debts. This is the main feature of the bankruptcy of MUP.

The main difference between MUP and ordinary organizations is that its head does not belong to the founder owners. Although formally he makes a decision on bankruptcy, but in fact this is done on the basis of the order of the owner of the property, that is, the local administration, to which he sends a report on the circumstances of insolvency that have arisen. It is she who decides whether to file an application with the court.

Order of procedure

The bankruptcy procedure is initiated by filing a claim with the court by bankruptcy creditors, employees, the debtor himself, authorized or state bodies, which also include local government. It is they who often act as initiators in this case.

Identification of signs of bankruptcy of the MUE is carried out, as a rule, by the initiators of the procedure.

The head of the MUE and the owner of his property are obliged, having identified potential problems, to file a bankruptcy claim themselves in such cases:

fulfillment of creditor requirements will lead to the impossibility of paying mandatory or other payments;
the managing, authorized body, including the owner, decided to file a bankruptcy claim;
the procedure for paying off debts by selling property will complicate or block the activities of a potential bankrupt;
there are signs of insolvency, lack of property to cover debts or normal work.

Stages

Features of the stages of CBM are related to the legal status of the property and the rights of its owner:

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analysis of the state of the enterprise and decision-making on further actions;
ensuring the safety of property.

Only observational and analytical actions, analysis of documents.
The enterprise operates as before, but such actions are prohibited: liquidation, reorganization, creation of branches, representative offices, issue of securities, payment of dividends, transactions with property worth more than 5% of assets.
Loans, credits, guarantees, guarantees - only with the consent of the interim manager.
At the request of creditors, recovery, execution of executive documents are suspended, excluding the recovery of wages, royalties, alimony, damage to life and health, moral damage, recovery of property from someone else's possession. Arrests are removed, allocation of shares is prohibited.

The term, together with the consideration of the bankruptcy case by the court, is no more than 7 months. from the date of filing for bankruptcy.
Creditor claims are made.
A register of requirements is being compiled. The first meeting of creditors is held.

The restrictions are the same plus the accrual of penalties is suspended. Search for ways to improve.
About measures to prevent bankruptcy - about financial injections, lending - the manager informs the creditors in writing.

term - up to 2 years;
a payment schedule, a recovery plan is drawn up;
the debtor begins to pay off debts;
identification of debit debt and non-purpose equipment that can be sold.

12 months with an option to extend for 6 months.
An external management plan is being drawn up.
All seals, documents, financial statements are transferred to the external manager.

The payout limits are the same. Transactions on loans, guarantees, guarantees, assignments of claims, manipulations with shares, shares are allowed.
Property can be sold only with the consent of creditors.
Possible organizational actions: staff reductions, reorganization into other forms of a legal entity (merger, accession) in order to improve and optimize work. The competence of the governing bodies is only to increase the authorized capital, the procedure for the meeting of shareholders and representation in the meeting of creditors.
Re-profiling, closure of unprofitable production facilities, collection of receivables, sale of part of the property is allowed.
The owner of the MUP property has the right to fully satisfy all the requirements at any time or provide the debtor with funds under an interest-free loan agreement sufficient for this.
Large transactions can be coordinated with the meeting of creditors.

The deadline for the fulfillment of all obligations that arose before this procedure is considered to have come.
Penalties are not charged, the execution of executive documents is terminated, they are transferred to the manager. Company information is no longer confidential. Arrests and restrictions on property are removed.

Term 1 year with an extension of 6 months.
Competitive mass is formed.
Individual creditor claims are suspended.
Sale of property at auction. Distribution of funds among creditors in order of priority.

The settlement agreement provides for a debt repayment plan.
It is agreed with the creditors and the manager of the enterprise and approved by the arbitration court.

Each stage is introduced by the arbitration court on the basis of the application and reports of the arbitration manager. If the court immediately decides on liquidation, these stages do not apply - the competitive stage is immediately introduced.

Types of schemes

There are several types of bankruptcy schemes. The procedure is called planned or voluntary bankruptcy when the decision on it is made by the debtor himself in the event of the circumstances of the insolvency of the enterprise.

In the case of MUP, the decision is actually made by the local administration, although the claim is filed on behalf of the debtor. After the decision on bankruptcy is made by the local administration, the head of the municipal unitary enterprise is obliged to file an application with the court within a month from the date of such a decision.

If there is a voluntary decision of the head and owner, the MUP is also liquidated in a pre-trial order. Then a commission for liquidation is formed, a congress of creditors is held. But if at least one of the creditors has an objection, a bankruptcy claim is filed with the court.

Why do you need a pledge in bankruptcy and what law regulates its retention - read on.

The forced liquidation of an enterprise occurs when an application is submitted immediately to the court by creditors, its employees or consumers of utilities in the event of the insolvency of the management company.

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There are three schemes regarding the order of the stages of the procedure. The first stage - observation - is always mandatory, the rest may not be introduced, it depends on the state of the enterprise.

After observation, there are three ways to develop the procedure:

If a decision is made to improve, an appropriate stage is introduced.
If at the observation stage it is decided that the measures taken for rehabilitation will be ineffective, bypassing all other stages, a competitive stage is introduced. This means that the company is already bankrupt and is preparing for liquidation.
The third is a settlement agreement at any stage of the procedure.

Liquidation conditions

The main conditions and reasons for the bankruptcy of MUP are the same as for commercial organizations: debts over 100 thousand rubles. and impossibility for 3 months. pay them voluntarily or the inability of the creditor to keep them through the bailiff service.

Features of diagnosing the possibility of bankruptcy of the MUP include the fact that often the municipality "throws off" its financial problems on such enterprises, thus bankrupting it.

Description of the conditions and the process of bankruptcy of MUP on a voluntary basis using the example of a standard procedure in stages:

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The local government decides on liquidation. An order is being made to that effect.
A commission for liquidation is appointed, which must include a representative of the municipality. If the enterprise is small, one liquidator is appointed. Members of the commission are authorized representatives of MUP.
Notification of the Federal Tax Service about the procedure.
Before liquidation/reorganization, employees are notified at least 2 months before its completion.
Documents are being prepared to reduce staff, the employment service is notified.
Publication of an announcement in the official mass media ("Kommersant").
Creditors are notified in writing of the commencement of procedures and measures taken.
Drawing up a liquidation interim balance sheet, having previously waited a 2-month period for accepting creditor claims. The balance sheet is approved by the general creditor meeting or the body that made the decision to liquidate.
If there are not enough funds, public auctions are organized.
Approval of the bankruptcy plan, priority and distribution of funds in accordance with the law (Article 64 of the Civil Code of the Russian Federation).
The result of the fulfillment of obligations, a liquidation balance sheet is drawn up, the remaining property is returned to the owner.
Consequences of the procedure: settlement with creditors, exclusion from the Unified State Register of Legal Entities, bankruptcy petition to the Federal Tax Service, destruction of seals, submission of documents to the archive.

Compulsory liquidation is carried out according to the above table through five stages: observation, rehabilitation, external management, bankruptcy proceedings, settlement agreement. The procedure may include fewer steps (for example, only the first and fourth), depending on the characteristics of the process.

Responsibility

The features of the responsibility of a municipal enterprise are directly related to the legal status of its property, which belongs to the municipality. MUP disposes of it in the order of economic management, but this does not mean that such property is not subject to inclusion in the bankruptcy estate.

Responsibility for violation of the bankruptcy procedure occurs in accordance with the Criminal Code and the Code of Administrative Offenses. Participants in the procedure are responsible for concealing property, information about it, falsifying accounting or accounting documents, for fictitious bankruptcy, and obstructing the arbitration manager.

The owner of the MUP property is a state municipal formation (local self-government bodies), which act in relation to it within their competence established by legislative acts on their status.

MUP is liable with all its property. Such an enterprise is not responsible for the actions of self-government bodies and other municipalities, except for cases when the insolvency of the MUP is caused by the owner of the property. Then the owner bears subsidiary liability, that is, the missing funds of the MUP are compensated at the expense of his property.

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Municipal enterprises often act as founders of unitary entities, in court they act as third parties without independent claims, since a court decision may affect the obligations of a public entity if the claim is satisfied.

The municipality in court represents its body, but it itself, as a legal entity, is not involved as a third party in the case. Its subsidiary liability arises only when the arbitration court declared MUP bankrupt.

Details of MUP bankruptcy in practice

When liquidating an MUP, they always take into account the nuances associated with the organizational form of activity, the powers of the head and the property of the debtor, since their legal status is quite different from ordinary commercial organizations.

The property situation

MUP disposes of two types of property: movable and immovable. In the initial stages of bankruptcy, it meets the first type.

Creditor claims are satisfied from it before the introduction of the competitive stage, but after its introduction, all powers of the owner (municipal formation) are terminated.

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His right of ownership in relation to real estate MUP is lost, and it is included in the bankruptcy estate, from which creditor claims are satisfied: the property from the bankruptcy estate is sold at auction, and the funds are distributed among creditors.

If the property of the MUP is not enough to fully pay off the debts, the municipality has an obligation to add the missing funds, but only when it initiated the procedure.

In all other cases, the local government is not responsible for the debts of the MUP. An analysis of judicial practice shows that there are often cases when, foreseeing insolvency, a municipal institution removes real estate from the jurisdiction of MUP so as not to include it in the bankruptcy estate. But such actions are successfully challenged by creditors, and transactions are declared invalid by the court.

Leader's actions

Art. 65 of the Civil Code provides that the decision on bankruptcy is made by the owner of the property, but the Federal Law “On Insolvency (Bankruptcy)” states that the head is obliged to apply to the court with an application for insolvency himself, if signs of it are found.

The question arises whether the head has the right to make a decision on bankruptcy, because in fact it is subordinate to the owner of the property - the municipality.

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In practice, this situation is resolved as follows: the manager sends a report or statement to the owner that signs of bankruptcy have been found. And he decides whether to start the procedure or not, while issuing the appropriate order. The decision is made by the owner, and the application to the court is submitted on behalf of the head of the MUP.

Otherwise, the actions of the housing and communal services of the enterprise are the same as in the bankruptcy of ordinary commercial organizations.

timely respond to potential problems of the enterprise, take measures to prevent bankruptcy;
do not hide the property and provide the liquidation commission, the arbitration manager with all information about it;
not hinder the actions of the liquidators;
not violate the sequence of satisfaction of creditors' claims;
exclude actions aimed at deliberate bankruptcy, do not contribute to the removal of property from economic management.

Legislation

Legislative acts that regulate the procedure:

Federal Law "On insolvency (bankruptcy)";
relevant articles of the Civil Code of the Russian Federation Art. 61, 64, 65;
Federal Law "On State and Municipal Enterprises";
responsibility is regulated by Art. 195, 196, 197 of the Criminal Code and 14.12, 14.13 of the Code of Administrative Offenses.

Read more about mortgage bankruptcy here.

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The difference between the liquidation and bankruptcy procedures of MUP

What is the difference between bankruptcy and liquidation procedures in relation to a municipal unitary enterprise (MUP)? What are the terms and stages of their implementation? Can the founder of the MUP make a decision on its liquidation? Can the founder of the MUPa file an application for declaring him bankrupt? What are the consequences of liquidation and bankruptcy? What are the operations with the property of the MUP during its liquidation and in the event of its bankruptcy?

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Liquidation of a municipal unitary enterprise

In accordance with paragraph 1 of Art. 61 of the Civil Code of the Russian Federation, the liquidation of a legal entity is understood as its termination without transferring its rights and obligations to other persons by way of universal succession.

The procedure for liquidating a unitary enterprise is determined by the Civil Code of the Russian Federation, Federal Law No. 161-FZ of November 14, 2002 "On State and Municipal Unitary Enterprises" (hereinafter - Law No. 161-FZ) and other regulatory legal acts (clause 6, article 35 of Law No. 161 -FZ).

As follows from paragraph 2 and paragraph 3 of Art. 61 of the Civil Code of the Russian Federation, paragraphs 1 and 2 of Art. 35 of Law N 161-FZ, a unitary enterprise may be liquidated by decision of the owner of its property, as well as by a court decision on the grounds and in the manner established by the Civil Code of the Russian Federation and other federal laws.

For more information about the procedure for liquidating a municipal unitary enterprise, see Question: A municipal unitary enterprise is liquidated by decision of the owner of the property. What is the course of action in this situation? (response from the Legal Consulting Service GARANT, December 2014).

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Here we note that if during the liquidation signs of bankruptcy of the enterprise are revealed or it is established that the property available to the enterprise is not enough to satisfy the requirements of creditors, the liquidation commission or the head is obliged to apply to the arbitration court with an application for bankruptcy of the enterprise (clause 5 of article 35 of Law N 161-FZ, paragraph 4 of article 63 of the Civil Code of the Russian Federation). In this case, the liquidation of a unitary enterprise is possible only in compliance with the procedure provided for by Federal Law No. 127-FZ of October 26, 2002 "On Insolvency (Bankruptcy)" (hereinafter referred to as the Bankruptcy Law).

Insolvency (bankruptcy) of a municipal unitary enterprise

In accordance with Art. 2 of the Bankruptcy Law, insolvency (bankruptcy) is the inability of the debtor recognized by the arbitration court to fully satisfy the claims of creditors for monetary obligations and (or) fulfill the obligation to make mandatory payments.

Like other commercial organizations, a unitary enterprise that is not state-owned (Article 65 of the Civil Code of the Russian Federation) may be declared insolvent (bankrupt) by a court decision, which entails its liquidation. The grounds for declaring a unitary enterprise insolvent (bankrupt) by a court, the procedure for its liquidation, as well as the order of satisfaction of creditors' claims are established by the Bankruptcy Law.

The debtor, the bankruptcy creditor, authorized bodies have the right to apply to the arbitration court with an application for declaring the debtor bankrupt (clause 1, article 7 of the Bankruptcy Law).

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According to paragraph 1 of Art. 9 of the Bankruptcy Law, the head of the debtor is obliged to apply to the court for declaring the debtor bankrupt in cases where:

1) satisfaction of the claims of one creditor or several creditors leads to the impossibility of the debtor to fulfill monetary obligations or obligations to pay mandatory payments and (or) other payments in full to other creditors;

2) the body of the debtor, authorized in accordance with its constituent documents to make a decision on the liquidation of the debtor, made a decision to apply to the arbitration court with the application of the debtor;

3) the body authorized by the owner of the debtor's property - a unitary enterprise, made a decision to apply to the arbitration court with the debtor's application;

4) levying execution on the debtor's property will significantly complicate or make impossible the economic activities of the debtor;

5) the debtor meets the signs of insolvency and (or) signs of insufficiency of property;

6) The Bankruptcy Law provides for other cases.

By virtue of paragraph 2 of Art. 6 of the Bankruptcy Law, unless otherwise provided by this Law, bankruptcy proceedings may be initiated by an arbitration court, provided that the claims against the debtor - legal entity in the aggregate amount to at least 300 thousand rubles, and there are signs of bankruptcy established by Art. 3 of the Bankruptcy Law. In particular, according to paragraph 2 of Art. 3 of the Bankruptcy Law, a legal entity is considered unable to satisfy the claims of creditors for monetary obligations and (or) fulfill the obligation to make mandatory payments if the relevant obligations and (or) obligation are not fulfilled by it within 3 months from the date when they should have been fulfilled.

The composition and amount of monetary obligations and obligatory payments are determined on the date of filing an application for declaring the debtor bankrupt to the arbitration court, unless otherwise provided by the Bankruptcy Law (clause 1, article 4 of the Bankruptcy Law, clause 11 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 04/08/2003 N 4 "On Some Issues Related to the Enactment of the Federal Law "On Insolvency (Bankruptcy)").

When considering a bankruptcy case of a debtor - a legal entity, the following procedures are applied (Article 2, Clause 1, Article 27 of the Bankruptcy Law):

1) observation - a procedure applied in a bankruptcy case to a debtor in order to ensure the safety of his property, analyze the financial condition of the debtor, draw up a register of creditors' claims and hold the first meeting of creditors. The maximum duration of the observation procedure is set by paragraph 3 of Art. 62 of the Bankruptcy Law with reference to Art. 51 of this Law. On the basis of these norms, the monitoring procedure must be completed within a period not exceeding 7 months from the date of receipt of the application for declaring the debtor bankrupt in the arbitration court;

2) financial recovery - a procedure applied in a bankruptcy case to a debtor in order to restore its solvency and repay debt in accordance with the debt repayment schedule. Financial recovery is introduced for a period of not more than 2 years (clause 6, article 80 of the Bankruptcy Law);

3) external administration - a procedure applied in a bankruptcy case to a debtor in order to restore its solvency. This procedure is introduced for a period of no more than 18 months, which can be extended for no more than 6 months, unless otherwise provided by the Bankruptcy Law. At the same time, external management cannot be extended for a period exceeding the total period of financial recovery and external management, which is 2 years (clause 2, article 92 of the Bankruptcy Law);

4) bankruptcy proceedings - a procedure applied in a bankruptcy case to a debtor declared bankrupt in order to adequately satisfy the claims of creditors. Bankruptcy proceedings are introduced for a period of up to 6 months. At the same time, the period of bankruptcy proceedings can be extended by no more than 6 months (clause 2, article 124 of the Bankruptcy Law);

5) settlement agreement - a procedure applied in a bankruptcy case at any stage of its consideration in order to terminate the bankruptcy proceedings by reaching an agreement between the debtor and creditors.

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The peculiarity of these legal relations lies in the special organizational and legal form of the subject, which actually exists only in the Russian Federation.

Key difference

Legislative features

According to Article 9 and Article 30 of Law No. 127-FZ, as well as Article 65 of the Civil Code of the Russian Federation, it is provided that in the event of signs of insolvency (insolvency) of the MUE, the head of the debtor is obliged to notify the owner of the property, sending him information about the existence of grounds for the threat bankruptcy. The owner, in turn, must take timely measures to restore the debtor's solvency, or submit an appropriate application.

Decree No. 29 of December 15, 2004 “On Certain Issues in the Practice of Applying the Federal Law “On Insolvency (Bankruptcy)”” made certain adjustments to the situation.

The practical aspect of the bankruptcy of MUP

In the presence of the indicated signs of insolvency, the creditor, the authorized body, or the person entitled to file an application on behalf of the debtor, may apply to the arbitration court.

The bankruptcy procedure of MUP is carried out on the basis of the general norms of the Law. Entering stages:

observations;
financial recovery (sanation);
external management;
competitive production;
world agreement.

The appointment of an external manager, temporary economic management, etc. are envisaged.

Free legal advice:

Bankruptcy of a municipal enterprise

Bankruptcy of legal entities will cease to be a problem if you seek help from experienced lawyers of our company. Flexible prices, effective assistance in the most difficult situations.

Features of municipal enterprises

Before considering the process and features of the bankruptcy procedure through which enterprises created by the municipality go through, their features should be briefly highlighted.

Article 65.1 of the Civil Code of the Russian Federation determines that the founder of a MUP (municipality) cannot be a participant in an enterprise.
Article 113 of the Civil Code of the Russian Federation determines that the right to property, which the MUP is in charge of and uses, is assigned to the municipality that organized this MUP.

Legal provisions

Who can apply for bankruptcy and who reviews it?

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Debtor;
Organizations or persons that issued a loan to the debtor;
Persons performing labor duties at the debtor's company;
State structures or bodies.

Producers of agricultural goods;
City-forming companies;
Enterprises of strategic importance for the state;
Organizations of the financial sector;
Construction organizations.

Grounds for declaring MUE bankrupt

Article 3 of the Federal Law No. 127 (issued on October 26, 2002) establishes the following categories for MUP, falling under which, the enterprise risks being declared bankrupt:

The total debt exceeds (in monetary terms) the amount of 300 thousand rubles;
The enterprise does not pay payments to the budget for 3 months or more, and also does not have the funds to timely fulfill its obligations previously assumed.

Procedure for declaring MUP bankrupt

Federal Law No. 127 defines a five-stage process for declaring a MUP insolvent:

observation. At the monitoring stage, the regulatory authorities collect all the information about the potentially bankrupt company and take the first steps to help the monitored organization.
Sanation. At the stage of reorganization, there is a transition to active actions designed to restore the ability of the enterprise to properly meet its bills and obligations.
External control. If the measures taken at the first two stages had no effect, a transition to external management is carried out, the main feature of which is the assignment of the responsibility for making decisions regarding the future of the organization not to the director, but to the chosen arbitration manager. Based on the results of the activities of the arbitration manager, three scenarios are possible:
Termination of office work in connection with a possible bankruptcy (the company has recovered and can work as before);
Conclusion of a settlement agreement with creditors and other interested parties;
Bankruptcy proceedings (liquidation of the enterprise, property valuation and its subsequent sale in order to satisfy the requirements of the MUP by its creditors).

We will carry out the bankruptcy of legal entities with the maximum observance of the interests of the owners. In any difficult situation with debts, entrust bankruptcy management to professionals.

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Regulations: Bankruptcy of a unitary enterprise

(as amended on 07/29/2017)

"On State and Municipal Unitary Enterprises"

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(as amended on 07/29/2017)

(as amended and supplemented, effective from 06.08.2017) Article 65. Insolvency (bankruptcy) of a legal entity

Articles, comments, answers to questions: Bankruptcy of a unitary enterprise

The document is available: in the commercial version ConsultantPlus

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Forms of documents: Bankruptcy of a unitary enterprise

(Prepared for the ConsultantPlus system, 2017)

The document is available: in the commercial version ConsultantPlus

Arbitration and crisis management

Bankruptcy of state and municipal unitary enterprises

Bankruptcy procedure of state and municipal unitary enterprises

A fundamentally important issue in the bankruptcy of state and municipal unitary enterprises: does the head of the debtor enterprise have the right to independently apply to the arbitration court with the debtor's application for bankruptcy?

The current Federal Law "On insolvency (bankruptcy)" does not give a direct answer to this question. The ambiguity of judicial practice regarding the powers of the head of a unitary enterprise to apply to the arbitration court with a debtor's application is explained by the fact that the legislator does not seem to have raised such a question at all. Therefore, the answer to it has to be sought, following general principles and based on an analysis of civil legislation.

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Article 9 of the Federal Law “On Insolvency (Bankruptcy)” establishes that upon the occurrence of signs of insolvency, the law provides that the head of the debtor is obliged to apply to the arbitration court with the debtor’s application for recognition as insolvent (bankrupt) if:

1) satisfaction of the claims of one or several creditors will lead to the impossibility of satisfying the claims of the rest in full;

2) the body authorized by the owner of the property has made a decision to apply to the arbitration court with the application of the debtor;

3) levying execution on the debtor's property will complicate or make it impossible for the debtor's economic activity.

Moreover, the debtor's application must be filed no later than one month from the date of occurrence of the above circumstances.

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However, Art. 30 of the Federal Law "On Insolvency (Bankruptcy)" provides that in the event of signs of bankruptcy, the head of the debtor is obliged to send information about the presence of signs of bankruptcy to the owner of the property of the debtor - a unitary enterprise. The owner of the property of the debtor - a unitary enterprise is obliged to take timely measures to prevent the bankruptcy of enterprises and restore the debtor's solvency before filing the debtor's application.

Article 65 of the Civil Code of the Russian Federation establishes that declaring a legal entity bankrupt entails its liquidation. Decisions on liquidation in relation to state and municipal enterprises can only be taken by the owner.

The application of the debtor to declare the enterprise bankrupt, as a rule, is aimed at liquidating the enterprise, respectively, the decision to apply to the arbitration court with such an application should be made by the authorized body of the owner of the property.

Thus, we can conclude that without the consent of the owner of the property, the head of the debtor is not authorized to apply to the arbitration court with the debtor's application for bankruptcy.

The question of the rights of the head of a unitary enterprise without the consent of the owner of the property of the enterprise to apply to the court with a debtor's application in practice is of tremendous importance. Since if the head has such a right, then with the help of well-known technologies, subject to clear legal work, it costs nothing for the head to bankrupt the organization entrusted to him in the shortest possible time and choose a self-regulatory organization, from among whose members a manager will be appointed.

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Unfortunately, law enforcement practice has taken the path of simplifying the bankruptcy filing procedure. In Decree No. 29 of December 15, 2004 “On Certain Issues of the Practice of Applying the Federal Law “On Insolvency (Bankruptcy)”, the Supreme Arbitration Court of the Russian Federation indicated that “when considering the application of Art. 9 of the Bankruptcy Law, when the satisfaction of the claims of one or more creditors leads to the impossibility of fulfilling the debtor's monetary obligations in full to other creditors, the application of the head of the debtor is accepted by the arbitration court for consideration, regardless of the decision of the body authorized in accordance with the constituent documents of the debtor to make a decision on the liquidation of the debtor, or a decision of a body authorized by the owner of the debtor's property - a unitary enterprise.

This practice is clearly not aimed at protecting the interests of the owner and significantly weakens his control over the actions of the management. If the head of the debtor applies for declaring him bankrupt, the owner can generally learn about such an application only after it has been accepted by the arbitration court and the monitoring procedure has been introduced.

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Bankruptcy of a State Enterprise

If an enterprise cannot successfully carry out its activities, has a large debt on loans, and is unable to pay taxes, then it can be declared bankrupt. This is stated in the Civil Code of the Russian Federation, and the conditions under which the procedure can be carried out are also indicated there.

There is a possibility to carry out bankruptcy of the state unitary enterprise.

Bankruptcy of a state unitary enterprise

On the pages of our journal, we have repeatedly raised the issues of imperfection of the legislative framework, the inconsistency of the norms of laws relating to various branches of law (civil, land, privatization, bankruptcy law, etc.), problems of law enforcement and judicial practice.

One of the most difficult and painful problems is the legal status of unitary enterprises.

Bankruptcy of the state

A state-owned enterprise carries out its activities in accordance with the estimate of income and expenses approved by the owner (similar to a state budgetary institution). This circumstance predetermines strictly target (and not formally.

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Nabiullina: - It's not the ruble is weakening, but the dollar and the euro are becoming more expensive. -How is it, how is it? Edrosluhiya messed up, now you need to push the blame on someone. Well, of course it is the West and the USA.

Bankruptcy of SUE (state unitary enterprises)

Practice shows that the activities of state unitary enterprises (SUEs) are not always commercially effective due to a number of external and internal circumstances that can lead to bankruptcy as a result of high debt, as well as a general deplorable state.

The rules of the bankruptcy procedure in Russia, including the State Unitary Enterprise, are established by the Civil Code of the Russian Federation (Article 65), together with other federal legislation regulating the specifics of conducting legal activities in relation to the entity.

The first relevant regulatory act was the Law of the Russian Federation No. of November 19, 1992 “On the Insolvency (Bankruptcy) of Enterprises”, which became invalid from the moment the Law No. 6-FZ of January 8, 1998 “On Insolvency (Bankruptcy)” entered into force.

Bankruptcy of SUEs: technology, practice and recent trends

As practice shows, the bankruptcy mechanism in relation to SUEs is mainly used to clear the enterprise of accounts payable or re-register ownership of assets. In the first case, the customer is the state itself, in the second case it is a potential buyer, that is, the future owner of the enterprise.

A positive aspect of the bankruptcy procedure in the interests of the state is that it is easy to obtain its consent to the sale of part of the assets or the entire enterprise as a whole (this is required for external management or bankruptcy proceedings).

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Bankruptcy of a Municipal Unitary Enterprise with Property

The authorized body (the Federal Tax Service of Russia) applied to the Arbitration Court with an application to declare the debtor MUP D. insolvent (bankrupt). The requirement of the Federal Tax Service of Russia was justified by the fact that the debtor has an arrears in taxes and fees, an obligation to fulfill payment for current payments that has not been fulfilled for more than 3 months, and the amount of arrears exceeds (one hundred thousand) rubles.

By the ruling of the Arbitration Court, the application of the Federal Tax Service of Russia was satisfied, in relation to the debtor MUP D.

Bankruptcy of a unitary enterprise

A selection of the most important documents on request Bankruptcy of a unitary enterprise (legal acts, forms, articles, expert advice and much more).

Guide to corporate disputes. Issues of judicial practice: Liquidation of a joint-stock company By virtue of paragraph 2 of Article 226 of the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law), the owner of the property of the debtor - a unitary enterprise, the founders (participants) of the debtor, the head of the debtor and the chairman of the liquidation commission (liquidator) who have committed a violation of the requirements provided for in Clauses 2 and 3 of Article 224 of this Federal Law shall bear subsidiary liability for unsatisfied claims of creditors for monetary obligations and for the payment of obligatory payments by the debtor.

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Please tell me, during bankruptcy proceedings, the property of the state unitary enterprise (OS) is included in the bankruptcy estate, if it is included, is it necessary to consent to the sale of this property from the owner of the property.

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According to the act approved by the Ministry of State Property of the Russian Federation on May 20, 1999, the above property was transferred to the State Unitary Enterprise "Gosimpeks" for economic management (vol. 3, pp. 1-13) in the amount in which it was subsequently transferred to the bankruptcy trustee.

What are the nuances of bankruptcy MUP

Fundamental differences

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Founders are not members.
The company does not own property, it is in its economic jurisdiction. Municipalities are its owners.
The enterprise is managed by a single manager appointed by the owner.
The management reports to the founder, but resolves all issues regarding property, except for the alienation of real estate, independently.
MUP is liable with its property, and the owner is subject to subsidiary liability with him only when the property is not enough to pay off debts. This is the main feature of the bankruptcy of MUP.

Order of procedure

The bankruptcy procedure is initiated by filing a claim with the court by bankruptcy creditors, employees, the debtor himself, authorized or state bodies, which also include local government. It is they who often act as initiators in this case.

Identification of signs of bankruptcy of the MUE is carried out, as a rule, by the initiators of the procedure.

The head of the MUE and the owner of his property are obliged, having identified potential problems, to file a bankruptcy claim themselves in such cases:

fulfillment of creditor requirements will lead to the impossibility of paying mandatory or other payments;
the managing, authorized body, including the owner, decided to file a bankruptcy claim;
the procedure for paying off debts by selling property will complicate or block the activities of a potential bankrupt;
there are signs of insolvency, lack of property to cover debts or normal work.

Stages

Features of the stages of CBM are related to the legal status of the property and the rights of its owner:

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analysis of the state of the enterprise and decision-making on further actions;
ensuring the safety of property.

Only observational and analytical actions, analysis of documents.
The enterprise operates as before, but such actions are prohibited: liquidation, reorganization, creation of branches, representative offices, issue of securities, payment of dividends, transactions with property worth more than 5% of assets.
Loans, credits, guarantees, guarantees - only with the consent of the interim manager.
At the request of creditors, recovery, execution of executive documents are suspended, excluding the recovery of wages, royalties, alimony, damage to life and health, moral damage, recovery of property from someone else's possession. Arrests are removed, allocation of shares is prohibited.

The term, together with the consideration of the bankruptcy case by the court, is no more than 7 months. from the date of filing for bankruptcy.
Creditor claims are made.
A register of requirements is being compiled. The first meeting of creditors is held.

The restrictions are the same plus the accrual of penalties is suspended. Search for ways to improve.
About measures to prevent bankruptcy - about financial injections, lending - the manager informs the creditors in writing.

term - up to 2 years;
a payment schedule, a recovery plan is drawn up;
the debtor begins to pay off debts;
identification of debit debt and non-purpose equipment that can be sold.

12 months with an option to extend for 6 months.
An external management plan is being drawn up.
All seals, documents, financial statements are transferred to the external manager.

The payout limits are the same. Transactions on loans, guarantees, guarantees, assignments of claims, manipulations with shares, shares are allowed.
Property can be sold only with the consent of creditors.
Possible organizational actions: staff reductions, reorganization into other forms of a legal entity (merger, accession) in order to improve and optimize work. The competence of the governing bodies is only to increase the authorized capital, the procedure for the meeting of shareholders and representation in the meeting of creditors.
Re-profiling, closure of unprofitable production facilities, collection of receivables, sale of part of the property is allowed.
The owner of the MUP property has the right to fully satisfy all the requirements at any time or provide the debtor with funds under an interest-free loan agreement sufficient for this.
Large transactions can be coordinated with the meeting of creditors.

The deadline for the fulfillment of all obligations that arose before this procedure is considered to have come.
Penalties are not charged, the execution of executive documents is terminated, they are transferred to the manager. Company information is no longer confidential. Arrests and restrictions on property are removed.

Term 1 year with an extension of 6 months.
Competitive mass is formed.
Individual creditor claims are suspended.
Sale of property at auction. Distribution of funds among creditors in order of priority.

The settlement agreement provides for a debt repayment plan.
It is agreed with the creditors and the manager of the enterprise and approved by the arbitration court.

Types of schemes

Why do you need a pledge in bankruptcy and what law regulates its retention - read on.

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After observation, there are three ways to develop the procedure:

If a decision is made to improve, an appropriate stage is introduced.
If at the observation stage it is decided that the measures taken for rehabilitation will be ineffective, bypassing all other stages, a competitive stage is introduced. This means that the company is already bankrupt and is preparing for liquidation.
The third is a settlement agreement at any stage of the procedure.

Liquidation conditions

Features of diagnosing the possibility of bankruptcy of the MUP include the fact that often the municipality "throws off" its financial problems on such enterprises, thus bankrupting it.

Description of the conditions and the process of bankruptcy of MUP on a voluntary basis using the example of a standard procedure in stages:

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The local government decides on liquidation. An order is being made to that effect.
A commission for liquidation is appointed, which must include a representative of the municipality. If the enterprise is small, one liquidator is appointed. Members of the commission are authorized representatives of MUP.
Notification of the Federal Tax Service about the procedure.
Before liquidation/reorganization, employees are notified at least 2 months before its completion.
Documents are being prepared to reduce staff, the employment service is notified.
Publication of an announcement in the official mass media ("Kommersant").
Creditors are notified in writing of the commencement of procedures and measures taken.
Drawing up a liquidation interim balance sheet, having previously waited a 2-month period for accepting creditor claims. The balance sheet is approved by the general creditor meeting or the body that made the decision to liquidate.
If there are not enough funds, public auctions are organized.
Approval of the bankruptcy plan, priority and distribution of funds in accordance with the law (Article 64 of the Civil Code of the Russian Federation).
The result of the fulfillment of obligations, a liquidation balance sheet is drawn up, the remaining property is returned to the owner.
Consequences of the procedure: settlement with creditors, exclusion from the Unified State Register of Legal Entities, bankruptcy petition to the Federal Tax Service, destruction of seals, submission of documents to the archive.

Responsibility

The owner of the MUP property is a state municipal formation (local self-government bodies), which act in relation to it within their competence established by legislative acts on their status.

Details of MUP bankruptcy in practice

The property situation

MUP disposes of two types of property: movable and immovable. In the initial stages of bankruptcy, it meets the first type.

Creditor claims are satisfied from it before the introduction of the competitive stage, but after its introduction, all powers of the owner (municipal formation) are terminated.

If the property of the MUP is not enough to fully pay off the debts, the municipality has an obligation to add the missing funds, but only when it initiated the procedure.

Leader's actions

The question arises whether the head has the right to make a decision on bankruptcy, because in fact it is subordinate to the owner of the property - the municipality.

Otherwise, the actions of the housing and communal services of the enterprise are the same as in the bankruptcy of ordinary commercial organizations.

timely respond to potential problems of the enterprise, take measures to prevent bankruptcy;
do not hide the property and provide the liquidation commission, the arbitration manager with all information about it;
not hinder the actions of the liquidators;
not violate the sequence of satisfaction of creditors' claims;
exclude actions aimed at deliberate bankruptcy, do not contribute to the removal of property from economic management.

Legislation

Legislative acts that regulate the procedure:

Federal Law "On insolvency (bankruptcy)";
relevant articles of the Civil Code of the Russian Federation Art. 61, 64, 65;
Federal Law "On State and Municipal Enterprises";
responsibility is regulated by Art. 195, 196, 197 of the Criminal Code and 14.12, 14.13 of the Code of Administrative Offenses.

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1) satisfaction of the claims of one or several creditors will lead to the impossibility of satisfying the claims of the rest in full;

2) the body authorized by the owner of the property has made a decision to apply to the arbitration court with the application of the debtor;

3) levying execution on the debtor's property will complicate or make it impossible for the debtor's economic activity.

Moreover, the debtor's application must be filed no later than one month from the date of occurrence of the above circumstances.

Thus, we can conclude that without the consent of the owner of the property, the head of the debtor is not authorized to apply to the arbitration court with the debtor's application for bankruptcy.

For an enterprise of a municipal form of organization, there are some nuances, while additional special norms of legislative acts are applied. The specifics of the activity of this type of legal entities, its management and the form of the legal status of property are taken into account.

Fundamental differences

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Bankruptcy of state formations is regulated by special rules, and not by the Federal Law “On Insolvency (Bankruptcy)”, this is an exception to it, but MUEs are not state-owned enterprises, these two concepts should not be confused.

MUP features:

Founders are not members.
The company does not own property, it is in its economic jurisdiction. Municipalities are its owners.
The enterprise is managed by a single manager appointed by the owner.
The management reports to the founder, but resolves all issues regarding property, except for the alienation of real estate, independently.
MUP is liable with its property, and the owner is subject to subsidiary liability with him only when the property is not enough to pay off debts. This is the main feature of the bankruptcy of MUP.

Order of procedure

Identification of signs of bankruptcy of the MUE is carried out, as a rule, by the initiators of the procedure.

The head of the MUE and the owner of his property are obliged, having identified potential problems, to file a bankruptcy claim themselves in such cases:

fulfillment of creditor requirements will lead to the impossibility of paying mandatory or other payments;
the managing, authorized body, including the owner, decided to file a bankruptcy claim;
the procedure for paying off debts by selling property will complicate or block the activities of a potential bankrupt;
there are signs of insolvency, lack of property to cover debts or normal work.

Stages

Features of the stages of CBM are related to the legal status of the property and the rights of its owner:

Stages	Target	Powers of Arb. ex.	Result
	analysis of the state of the enterprise and decision-making on further actions; ensuring the safety of property.	The interim manager has only supervisory functions.	The decision to improve or immediately proceed to the stage of bankruptcy proceedings.
	Restoration of solvency	The administrative manager has some management powers, but the management of the enterprise is not removed.	Rehabilitation or transition to the next stage
	Restoration of solvency and preservation of activity	All management powers are transferred to the external manager. The management is completely removed, the powers of the management bodies and the owner of the property of a unitary enterprise are terminated. But the manager does not yet have the right to sell property to pay off debts.	Rehabilitation of the enterprise or transition to the next stage.
	If this procedure is introduced, it means that the debtor is bankrupt and the court has already made a decision on this. Although his rehabilitation is not ruled out. The purpose of the procedure is to satisfy the claims of creditors at the expense and assets of the debtor.	has full authority to manage and dispose of property	Sale of property and at the expense of proceeds payment of debts. .
	Aimed at reaching an agreement between creditors and the debtor in order to maintain the efficiency of the organization.	An agreement can be entered into at any stage.	A debt repayment plan is drawn up. The enterprise is not being liquidated, its work is being restored.

Stages	Peculiarities	Conditions
Observation	Only observational and analytical actions, analysis of documents. The enterprise operates as before, but the following actions are prohibited: liquidation, reorganization, creation of branches, representative offices, issue of securities, payment of dividends, transactions with property worth more than 5% assets. Loans, credits, guarantees, guarantees - only with the consent of the interim manager. At the request of creditors, recovery, execution of executive documents are suspended, excluding the recovery of wages, royalties, alimony, damage to life and health, moral damage, recovery of property from someone else's possession. Arrests are removed, allocation of shares is prohibited.	The term, together with the consideration of the bankruptcy case by the court - no more than 7 months. from the date of filing for bankruptcy. Creditor claims are made. A register of requirements is being compiled. The first meeting of creditors is held.
Recovery (sanation)	The restrictions are the same plus the accrual of penalties is suspended. Search for ways to improve. About measures to prevent bankruptcy - about financial injections, lending - the manager informs the creditors in writing.	term - up to 2 years; a payment schedule, a recovery plan is drawn up; the debtor begins to pay off debts; identification of debit debt and non-purpose equipment that can be sold.
External management	12 months with the option to extend 6 months An external management plan is being drawn up. All seals, documents, financial statements are transferred to the external manager.	The payout limits are the same. Transactions on loans, guarantees, guarantees, assignments of claims, manipulations with shares, shares are allowed. Property can be sold only with the consent of creditors. Possible organizational actions: staff reductions, reorganization into other forms of a legal entity (merger, accession) in order to improve and optimize work. The competence of the governing bodies is only to increase the authorized capital, the procedure for the meeting of shareholders and representation in the meeting of creditors. Re-profiling, closure of unprofitable production facilities, collection of receivables, sale of part of the property is allowed. The owner of the MUP property has the right to fully satisfy all the requirements at any time or provide the debtor with funds under an interest-free loan agreement sufficient for this. Large transactions can be coordinated with the meeting of creditors.
Bankruptcy proceedings	The deadline for the fulfillment of all obligations that arose before this procedure is considered to have come. Penalties are not charged, the execution of executive documents is terminated, they are transferred to the manager. Company information is no longer confidential. Arrests and restrictions on property are removed.	Term 1 year with an extension to 6 months Competitive mass is formed. Individual creditor claims are suspended. Sale of property at auction. Distribution of funds among creditors in order of priority.
settlement agreement	It is adopted by the meeting of creditors if all creditors whose claims are secured by the debtor's property have voted.	The settlement agreement provides for a debt repayment plan. It is agreed with the creditors and the manager of the enterprise and approved by the arbitration court.

Types of schemes

In the case of MUP, the decision is actually made by the local administration, although the claim is filed on behalf of the debtor. After the decision on bankruptcy is made by the local administration, the head of the municipal unitary enterprise is obliged to file an application with the court within a month from the date of such a decision.

After observation, there are three ways to develop the procedure:

If a decision is made to improve, an appropriate stage is introduced.
If at the observation stage it is decided that the measures taken for rehabilitation will be ineffective, bypassing all other stages, a competitive stage is introduced. This means that the company is already bankrupt and is preparing for liquidation.
The third is a settlement agreement at any stage of the procedure.

Liquidation conditions

The main conditions and reasons for the bankruptcy of MUP are the same as for commercial organizations: debts over 100 thousand rubles. and impossibility throughout 3 months pay them voluntarily or the inability of the creditor to keep them through the bailiff service.

Features of diagnosing the possibility of bankruptcy of the MUP include the fact that often the municipality "throws off" its financial problems on such enterprises, thus bankrupting it.

Description of the conditions and the process of bankruptcy of MUP on a voluntary basis using the example of a standard procedure in stages:

The local government decides on liquidation. An order is being made to that effect.
A commission for liquidation is appointed, which must include a representative of the municipality. If the enterprise is small, one liquidator is appointed. Members of the commission are authorized representatives of MUP.
Notification of the Federal Tax Service about the procedure.
Before liquidation/reorganization, employees are notified at least 2 months before its completion.
Documents are being prepared to reduce staff, the employment service is notified.
Publication of mass information ("Kommersant").
Creditors are notified in writing of the commencement of procedures and measures taken.
Drawing up a liquidation interim balance sheet, having previously waited a 2-month period for accepting creditor claims. The balance sheet is approved by the general creditor meeting or the body that made the decision to liquidate.
If there are not enough funds, public auctions are organized.
Approval of the bankruptcy plan, priority and distribution of funds in accordance with the law ().
The result of the fulfillment of obligations, a liquidation balance sheet is drawn up, the remaining property is returned to the owner.
Consequences of the procedure: settlement with creditors, exclusion from the Unified State Register of Legal Entities, bankruptcy petition to the Federal Tax Service, destruction of seals, submission of documents to the archive.

Responsibility

Responsibility for violation of the bankruptcy procedure occurs in accordance with the Criminal Code and the Code of Administrative Offenses. Participants in the procedure are responsible for concealing property, information about it, falsifying accounting or accounting documents, for fictitious bankruptcy, and obstructing the arbitration manager.

The owner of the MUP property is a state municipal formation (local self-government bodies), which act in relation to it within their competence established by legislative acts on their status.

MUP is liable with all its property. Such an enterprise is not responsible for the actions of self-government bodies and other municipalities, except for cases when the insolvency of the MUP is caused by the owner of the property. Then it is assigned to the owner, that is, the missing funds of the MUP are compensated at the expense of his property.

The municipality in court represents its body, but it itself, as a legal entity, is not involved as a third party in the case. Its subsidiary liability arises only when the arbitration court declared MUP bankrupt.

Details of MUP bankruptcy in practice

The property situation

MUP disposes of two types of property: movable and immovable. In the initial stages of bankruptcy, it meets the first type.

Creditor claims are satisfied from it before the introduction of the competitive stage, but after its introduction, all powers of the owner (municipal formation) are terminated.

If the property of the MUP is not enough to fully pay off the debts, the municipality has an obligation to add the missing funds, but only when it initiated the procedure.

Leader's actions

The question arises whether the head has the right to make a decision on bankruptcy, because in fact it is subordinate to the owner of the property - the municipality.

Now, when the market is subject to fluctuations caused by objective and subjective reasons, practically no one is immune from situations when it is impossible to fulfill their credit obligations. Thus, the bankruptcy of a municipal unitary enterprise is just as commonplace. Extremely unpleasant for creditors, but commonplace. Therefore, it would be useful to know what are the important points and features of the process of liquidating the MUP through declaring it bankrupt.

Principal differences of MUP bankruptcy

Usually, in order to start the procedure for closing a company due to an inability to repay debts, the head must apply with a corresponding application to the court dealing with legal entities. A creditor or an employee of an enterprise who is not paid wages, that is, in fact, the same creditor, can also apply there. In the case of declaring a municipality bankrupt, there is a controversial legislative issue about the possibility of applying to the judiciary specifically for the head of the enterprise. This is due to the fact that enterprises of this type have only the possibility of operational management of property. Ownership belongs to the city or other municipality. Thus, in fact, the decision to send an application to the court to start the bankruptcy procedure of a unitary enterprise is made not by the head, but by the owners of the property, that is, local authorities.

There are a few more differences:

the founders of the company cannot be its participants;
the organization is managed by one head alone;
MUP reports to the founders, but manages the property independently;
in the event of bankruptcy, first the property under the management of the MUP is used, and then, on the terms of subsidiary liability, the property of the founders.

Legal provisions

At the legislative level, the bankruptcy procedure is regulated by several legal documents. First of all, it is the civil code. Specifically, Article 61 defines the concept of liquidation of an enterprise, describes the options for the liquidation process, and when a company is declared insolvent before creditors. The lower legislative acts on bankruptcy include the law adopted at the level of the Federation Council No. 161 dated November 14, 2002 “On municipal enterprises”. It describes in detail the entire process of education, work and termination of activity.

Special bankruptcy conditions apply to municipal enterprises

Federal law No. 127, also adopted on October 26, 2002, regulates the procedure and features of the bankruptcy process. Bankruptcy of state and municipal enterprises also appears in this legal act. The latest changes to this law came into force on October 29, 2017. Some controversial points arising from the application of this law are covered in the Resolution of the Supreme Arbitration Court No. 29 of December 15, 2004.

Criteria by which an organization is liquidated as unable to repay debts

Despite all the differences between a unitary organization and an ordinary one, the criteria for declaring a municipal enterprise bankrupt are no different. There are two such criteria:

the organization has not paid wages and social payments for three months, has tax debts and does not have money for such payments;
the amount of the debt is not less than three hundred thousand rubles.

There is one more additional criterion for communal organizations: non-fulfillment of promises to suppliers and, consequently, to citizens - the final recipients of services.

Who initiates the bankruptcy procedure of a municipal enterprise

In accordance with the legislation of Russia and common sense, it is possible to determine the categories of individuals and legal entities that have the opportunity to apply to arbitration to initiate a case on the termination of the organization's activities due to the inability to pay the amount of debt.

The organization itself is a debtor. If the management realizes that the amount of debt to creditors exceeds the amount indicated in the law, and there are no options for a positive resolution of the situation, then the head of the enterprise, with the consent of the municipality, files for bankruptcy.
Organizations are lenders. Suppliers of natural resources, financial institutions, suppliers of inventory items that supplied on credit. This group applies, after a long, unrecoverable debt, to collect funds from municipal property or otherwise legally. Suppliers take such steps when the risk of not receiving the full amount of the debt is lower than the risk of full non-payment if the organization continues to exist.

Appeal to the arbitration court allows creditors to recover the amount of the debt

MUP employees who do not receive payment for work or various benefits for the time established by law. The meaning of their actions to declare the organization bankrupt is to receive their legal compensation for their work.
State bodies. The activities of the organization can be recognized as irrational. Its functions are transferred to another office, with more efficient management.

Bankruptcy Procedure

If the court satisfies the plaintiff's application, then a standard procedure follows, which includes several points. The first step will be observation. Controlling structures collect all the information about the company, create plans to get out of the financial crisis without liquidation. This stage lasts a maximum of 7 months from the date of application.

Then comes the rehabilitation phase. Here, the external manager gets some opportunity to influence the decisions of the current leader. A debt repayment schedule is drawn up. The current leader is still working. It may take up to two years.

If at the stage of rehabilitation the restoration of solvency did not occur, the process goes to the third stage. The external manager fully controls the activities of the organization, takes measures to improve the financial condition. The seals of the organization are also kept by the external manager. The only thing he cannot do is to sell the property of MUP to pay off obligations to creditors. This period lasts up to a year, but can be extended for another six months. If contracts for large amounts are concluded in the period, this process is usually coordinated with the board of creditors of the organization.

As a result of the third stage, several options are possible. If the actions of the external manager were successful, the bankruptcy procedure is terminated and the MUP returns to its normal mode of operation.

Competent activity of the external manager is a guarantee of successful financial recovery of the enterprise

If it was possible to agree with creditors, then a settlement agreement is concluded, the organization continues to function, debts are extinguished according to the plan.

Important: a settlement agreement with creditors can be concluded at any stage of bankruptcy. If for some reason the existence of a particular MUP is important for a credit institution, then it can agree to an agreement even at the monitoring stage.

If there are no improvements, bankruptcy proceedings are appointed, the functions of which include the sale of property and the repayment of debts at the expense of the funds received. The term is set to one and a half years. During this period, all accruals of penalties cease, documentation on loan obligations is with the external manager.

Liquidation conditions

The main conditions for the liquidation of MUP - non-payment of debts within three months and the amount of debt over 300 thousand - were described above. In addition, in case of liquidation on a voluntary basis, the municipality must issue a liquidation order, appoint a commission for liquidation. As a rule, it is created with the participation of municipal employees. It is necessary to notify the tax authorities, workers of the enterprise, creditors.

Official information about the upcoming bankruptcy is published in the media. Debt repayment plans are created, which are then implemented. As a result of all actions, the seals of the organization are broken. The company is excluded from accounting with the tax authorities. All documentation is archived.

Consequences and liability

The consequences of the bankruptcy procedure directly include the liquidation of a unitary structure and the sale of its property to pay off debts. The responsibility of individuals in such events does not go beyond the scope of administrative and criminal liability. MUP workers, according to their official duties, are responsible for the completeness and correctness of accounting, for the full reflection of all the property of the organization in it, as well as for creating obstacles for the external manager. Fictitious intentional bankruptcy is also a punishable act.

You can learn about the bankruptcy of the enterprise from the video:

Attention! Due to recent changes in legislation, the legal information in this article may be out of date!

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Bankruptcy of unitary enterprises. What are the nuances of bankruptcy

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Bankruptcy MUP

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Features of bankruptcy of commercial organizations

How to declare yourself bankrupt? Features of bankruptcy of individuals

Step-by-step instructions for bankruptcy of legal entities in 2016

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SRO operations

ISO / TS certification

Tenders

What are the nuances of bankruptcy MUP

Fundamental differences

Order of procedure

Stages

Types of schemes

Liquidation conditions

Responsibility

Details of MUP bankruptcy in practice

The property situation

Leader's actions

Legislation

The difference between the liquidation and bankruptcy procedures of MUP

Key difference

Legislative features

The practical aspect of the bankruptcy of MUP

Bankruptcy of a municipal enterprise

Features of municipal enterprises

Legal provisions

Who can apply for bankruptcy and who reviews it?

Grounds for declaring MUE bankrupt

Procedure for declaring MUP bankrupt

Sections

Popular Articles

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SRO Specialists for the unified register of SROs (NOSTROY / NOPRIZ)

How to complain about the SRO?

Recent Articles

Read about this topic

Features of bankruptcy of commercial organizations

How to declare yourself bankrupt? Features of bankruptcy of individuals

Step-by-step instructions for bankruptcy of legal entities in 2016

Working hours

Feedback

Worker training

Licensing

Legal services

SRO approval

SRO operations

ISO / TS certification

Tenders

Regulations: Bankruptcy of a unitary enterprise

Articles, comments, answers to questions: Bankruptcy of a unitary enterprise

Forms of documents: Bankruptcy of a unitary enterprise

Arbitration and crisis management

Bankruptcy of state and municipal unitary enterprises

Bankruptcy procedure of state and municipal unitary enterprises

Bankruptcy of a State Enterprise