The Supreme Court has issued the fourth Review of Practice for 2021
18 feb 2022
CIVIL CASES
The price of the property is disproportionate to the debt
The person owed 500,000 rubles. At the same time, he has only a plot of property worth 3 million rubles. Is it possible to impose a penalty on him? It is possible, the Supreme Court decided. Only the rest of the money then needs to be returned to the debtor (item 2).
Case No. 18-KG21-38-K4
How to assess moral damage
When the court determines the amount of compensation for moral damage, it must take into account the degree of moral or physical suffering that a person has suffered, taking into account his individual characteristics. It is also impossible to ignore the degree of guilt of the violator and other noteworthy circumstances of a particular case (paragraph 4).
Case No. 5-KG21-28-K2
The director pays
If a top manager of a company is convicted of non-payment of taxes, then it is possible to recover damage caused to the state from him. But first you need to try to collect unpaid taxes from the company itself or persons who are responsible for its debts in accordance with the procedure provided for by law (paragraph 6).
Case No. 73-KG20-5-K8
Limitation period on the loan
The bank's request for a court order for the early recovery of the entire amount of the loan debt changes the term of the obligation. In this case, the limitation period can no longer be calculated separately for each payment from the moment of its delay (paragraph 7).
Case No. 66-KG21-8-K8
Payment without the consent of the owners
Can a management company set a fee for its services without the approval of the general meeting of owners? No, it can't, the Supreme Court explained (paragraph 8).
Case No. 5-KG21-42-K2
ECONOMIC DISPUTES
Choosing a manager
The Question-answer section in the fourth Review consists of only one item. In it, the Supreme Court confirmed that the arbitration court should ask the Central Bank for the candidacy of an arbitration manager only when accepting an application for bankruptcy of a financial institution. If the first manager was removed from the procedure, it is not necessary to contact the Central Bank again.
Bankruptcy of the seller
The court ordered the seller to return the money to the buyer for a low-quality car. After that, the debtor filed an application for declaring him bankrupt. The buyer's claim was included in the third stage of the register of creditors' claims. Then the financial manager decided to claim the car before the refund.
The lower authorities granted the manager's application. But the Supreme Court did not agree with them. He reminded the courts that after the termination of the contract, the seller's ownership of the goods is not restored automatically, so the buyer remains the owner of the car until the money is returned. (item 7 of the Resolution of the Plenum of the Supreme Arbitration Court of 06.06.2014 No. 35).
The Supreme Court also indicated that if the buyer decides to keep the thing for himself, then the amount of his losses should be partially covered by the value of the thing. And if the creditor transfers the thing to the bankruptcy estate, then the buyer's claim in the register is given a collateral status in relation to the thing, the court explained (paragraph 13).
Case no. A56-154235/2018
Subsidiary responsibility for the head of the Municipal Unitary Enterprise
The head of the Municipal Unitary Enterprise warned the owner about the financial problems of the enterprise. But he did not give the director instructions to file for bankruptcy. In such a situation, the manager can avoid subsidiary responsibility, since he tried to assist in overcoming the crisis situation (paragraph 14).
Case no. A40-240402/2016
Transaction based on recommendation
When deciding on bringing the bank's controlling persons to subsidiary responsibility, it is necessary to take into account whether they complied with corporate norms and rules when concluding transactions. The approval of the transaction, which was concluded on the basis of the recommendation of the bank's profile division, indicates that the top managers acted in accordance with the standards of reasonableness and integrity. The burden of proof to the contrary lies with the bankruptcy trustee (paragraph 15).
Case no. A40-252160/2015
The right to a share
The arbitration manager asked the court to distribute the only asset of the bankrupt company - a share in the company. But the court refused to satisfy the claim, since one of the company's participants did not consent to the transfer of the share, which was necessary in accordance with the company's charter.
As a result, it came to the Supreme Court, which indicated that the subject of distribution in this case should have been the right to receive the actual value of the share (paragraph 16).
Case no. A43-7619/2019
There is no corpus delicti
The Homeowners' Association, which did not transmit the meter data of one of the tenants, was fined under Part 2 of Article 14.6 of the Administrative Code for "violation of the established pricing procedure". The Supreme Court recognized that it is impossible to fine the Homeowners' Association for this. There is no offense in such actions (paragraph 26).
Case no. A05-14143/2019
Prohibition of registration actions
The police cannot lift the ban on registration actions from the car of a bankrupt company if it was imposed by bailiffs (paragraph 27).
Case no. A63-6015/2020
When can I get a duplicate of the writ of execution
Ten years after the entry into force of the decision on debt collection, the creditor tried to get a duplicate of the writ of execution, which the bailiff lost. The lower courts refused with reference to missing a month period for applying for a document.
The Supreme Court disagreed. A duplicate of the writ of execution can be obtained if the three-year deadline for submitting the document for execution has not expired at the time of applying for a duplicate (paragraph 28).
The Supreme Court has issued the fourth Review of Practice for 2021
CIVIL CASES
The price of the property is disproportionate to the debt
The person owed 500,000 rubles. At the same time, he has only a plot of property worth 3 million rubles. Is it possible to impose a penalty on him? It is possible, the Supreme Court decided. Only the rest of the money then needs to be returned to the debtor (item 2).
Case No. 18-KG21-38-K4
How to assess moral damage
When the court determines the amount of compensation for moral damage, it must take into account the degree of moral or physical suffering that a person has suffered, taking into account his individual characteristics. It is also impossible to ignore the degree of guilt of the violator and other noteworthy circumstances of a particular case (paragraph 4).
Case No. 5-KG21-28-K2
The director pays
If a top manager of a company is convicted of non-payment of taxes, then it is possible to recover damage caused to the state from him. But first you need to try to collect unpaid taxes from the company itself or persons who are responsible for its debts in accordance with the procedure provided for by law (paragraph 6).
Case No. 73-KG20-5-K8
Limitation period on the loan
The bank's request for a court order for the early recovery of the entire amount of the loan debt changes the term of the obligation. In this case, the limitation period can no longer be calculated separately for each payment from the moment of its delay (paragraph 7).
Case No. 66-KG21-8-K8
Payment without the consent of the owners
Can a management company set a fee for its services without the approval of the general meeting of owners? No, it can't, the Supreme Court explained (paragraph 8).
Case No. 5-KG21-42-K2
ECONOMIC DISPUTES
Choosing a manager
The Question-answer section in the fourth Review consists of only one item. In it, the Supreme Court confirmed that the arbitration court should ask the Central Bank for the candidacy of an arbitration manager only when accepting an application for bankruptcy of a financial institution. If the first manager was removed from the procedure, it is not necessary to contact the Central Bank again.
Bankruptcy of the seller
The court ordered the seller to return the money to the buyer for a low-quality car. After that, the debtor filed an application for declaring him bankrupt. The buyer's claim was included in the third stage of the register of creditors' claims. Then the financial manager decided to claim the car before the refund.
The lower authorities granted the manager's application. But the Supreme Court did not agree with them. He reminded the courts that after the termination of the contract, the seller's ownership of the goods is not restored automatically, so the buyer remains the owner of the car until the money is returned. (item 7 of the Resolution of the Plenum of the Supreme Arbitration Court of 06.06.2014 No. 35).
The Supreme Court also indicated that if the buyer decides to keep the thing for himself, then the amount of his losses should be partially covered by the value of the thing. And if the creditor transfers the thing to the bankruptcy estate, then the buyer's claim in the register is given a collateral status in relation to the thing, the court explained (paragraph 13).
Case no. A56-154235/2018
Subsidiary responsibility for the head of the Municipal Unitary Enterprise
The head of the Municipal Unitary Enterprise warned the owner about the financial problems of the enterprise. But he did not give the director instructions to file for bankruptcy. In such a situation, the manager can avoid subsidiary responsibility, since he tried to assist in overcoming the crisis situation (paragraph 14).
Case no. A40-240402/2016
Transaction based on recommendation
When deciding on bringing the bank's controlling persons to subsidiary responsibility, it is necessary to take into account whether they complied with corporate norms and rules when concluding transactions. The approval of the transaction, which was concluded on the basis of the recommendation of the bank's profile division, indicates that the top managers acted in accordance with the standards of reasonableness and integrity. The burden of proof to the contrary lies with the bankruptcy trustee (paragraph 15).
Case no. A40-252160/2015
The right to a share
The arbitration manager asked the court to distribute the only asset of the bankrupt company - a share in the company. But the court refused to satisfy the claim, since one of the company's participants did not consent to the transfer of the share, which was necessary in accordance with the company's charter.
As a result, it came to the Supreme Court, which indicated that the subject of distribution in this case should have been the right to receive the actual value of the share (paragraph 16).
Case no. A43-7619/2019
There is no corpus delicti
The Homeowners' Association, which did not transmit the meter data of one of the tenants, was fined under Part 2 of Article 14.6 of the Administrative Code for "violation of the established pricing procedure". The Supreme Court recognized that it is impossible to fine the Homeowners' Association for this. There is no offense in such actions (paragraph 26).
Case no. A05-14143/2019
Prohibition of registration actions
The police cannot lift the ban on registration actions from the car of a bankrupt company if it was imposed by bailiffs (paragraph 27).
Case no. A63-6015/2020
When can I get a duplicate of the writ of execution
Ten years after the entry into force of the decision on debt collection, the creditor tried to get a duplicate of the writ of execution, which the bailiff lost. The lower courts refused with reference to missing a month period for applying for a document.
The Supreme Court disagreed. A duplicate of the writ of execution can be obtained if the three-year deadline for submitting the document for execution has not expired at the time of applying for a duplicate (paragraph 28).
Case No. 305-ES20-21635
Link: https://pravo.ru/story/239259/