“Kommersant” has found imaginative ways of application in practice of the amendments on moratorium on bankruptcy courts refuse to issue writs to recover debts and make arrests of property of debtors, even just affiliated with the company from martinego list. According to lawyers, the courts too broadly interpreted and exemptions violate the rights of creditors.As found “Kommersant”, introduced by the government on 4 April a moratorium on the bankruptcy began to be used not only as immunity in insolvency proceedings (see “Kommersant” on April 27). In particular, according to article 9.1 of the law “On bankruptcy” at a time of moratorium in respect of debtors, who are under him, is not allowed foreclosure on the mortgaged property (including in court), and suspended the enforcement proceedings for claims that arose prior to the moratorium (the arrests and other restrictions imposed by the bailiffs to the debtor’s property, not removed).The application of these rules in practice has shown that in some cases courts have widely interpreted the moratorium established by the relief. On 21 April the Arbitration court of Sverdlovsk region recovered 18.9 thousand rubles. for the supply of thermal energy from Alapayevsk children’s art school named after P. I. Tchaikovsky, pointed out in its decision that the writ in this duty “cannot be issued before the termination of the moratorium established in respect of the defendant”. The inclusion of the school in the list is supported by data from site FNS. The same remark, the same court made in the decision on collecting from JSC RZD 1.5 thousand RUB over heating.In the framework of the dispute, where the agricultural Bank requires to foreclose on owned by JSC “Volgostroy” property (15 semi-trailers of tanks), pledged on the loan, the Arbitration court of Republic Mordovia on April 21 agreed upon the debtor’s request to lift the seizure of collateral. The court reasoned that under the law within six months of the moratorium is not allowed foreclosure on the mortgaged property companies received immunity. Moreover, although the “Volgostroy” is not included in the list of the government, the court found that he was still subject to the moratorium because the company is a holding company JSC “EUROCEMENT group”, referred to systemically important institutions.Lawyers the position of the courts surprised. Partner at Pepeliaev Group, Yulia Litovtseva explains that courts should not prohibit the issuance of writs against podmoratornyh companies, on the contrary, the bailiff is obliged to initiate enforcement proceedings. “You can’t carry out itself directly enforce,” said the lawyer. The General Director of legal Bureau “Padva and Epshtein” Pavel Gerasimov adds that on April 21 the Supreme court in the review of practice indicated that the Executive leaves may be granted by the court, and the bailiff is entitled to seize the property of debtors. In this regard, lawyers expect that practice to ban the issuance of an Executive leaves during the moratorium in the near future will be stopped.”The moratorium does not apply to affiliates moratoria companies,” says partner Saveliev, Batanov & Partners Radik Lotfullin. Pavel Gerasimov agrees that the privileges granted only to those who are included in the list of strategic or strategic or entering the list by its code NACE: “If the company is not listed, then I don’t care whose “daughter” or “granddaughter”, a law this broad interpretation is not provided”.But even if “Volgostroy” and was in moratorium the list, it still does not should entail removal of arrest from its property, indicate the lawyers. “The actions of the courts for the removal of arrests and the cancellation of other security measures motivated by podmoratornyh status of the defendant violate the rights of creditors, because the already existing obligation of the debtors will be fully preserved, and a moratorium on their execution does not absolve,”— said Yulia Litovtseva. Mr. Lotfullin admits that in some cases the prohibition on foreclosure of the mortgaged property may be used podmoratornyh in favor of the debtor in making or revocation of interim measures, but it depends on the subject of the claim.The arbitral panel
