The question of the application of the moratorium on bankruptcy is becoming more acute. As found “Kommersant”, the Fourth arbitration court of appeal decided that classifying the company to the affected industries sufficient to provide protection from creditors. In the result the appeal refused to suspend the collection bailiffs debt with the airline “Yakutia”, considering that to use moratoria privileges against the debtor must be instituted bankruptcy proceedings. The lawyers disagree, emphasizing that the purpose of the moratorium is the prevention of bankruptcy.As it became known“”, the Fourth arbitration court of appeal questioned that the debtors of the affected industries deserve privileges, which provides for a moratorium on bankruptcy introduced by the government of the Russian Federation from April 4 to six months in the pandemic.In particular, in clause 3, article 9.1 of the law on bankruptcy States that “the execution of property penalties for claims that arose prior to the moratorium” is suspended. A guarantee for the creditor is that the debtor’s property not removed arrests. The practice of application of norms is only beginning to emerge, and the courts have not yet come to a unified interpretation.The court expressed its position in a dispute on recovery of 223,6 million rubles with JSC “Aviokompanija “Yakutia”” the claim “Aerokargo+”. The claim was satisfied, the court decision entered into force, a writ of execution issued and passed to bailiffs, who initiated the enforcement proceedings for the enforcement of this duty. In March, the airline has addressed in court with the request for installment payment of the debt until the end of the year. But the court failed to consider, because after the introduction of the government moratorium, the carrier assigned to the most affected by the pandemic industries, decided to use the new tool.”Yakutia” has addressed in court with the petition for suspension of enforcement proceedings for debt “Aerokargo+”, referring to the amendment on the moratorium. The arbitration court of Sakha Republic April 9, complied with this request. “Aerokargo+” did not agree and filed an appeal, believing that the moratorium applies only to the claims of creditors under the bankruptcy and is not insolvent. “Yakutia” insisted a difficult financial situation and referred to the fact that regular passenger flights related to be the most affected by the pandemic.The threat of bankruptcy, “Yakutia” the court did not see and did not accept the documents of the carrier on the debt, arguing that they do not prove the excess of liabilities over assets. Substantiating the thesis, the appeal is referred to the size of the Charter capital of carrier 2.63 billion roubles and profit for the year 2018 in the amount of 1.076 billion rubles. In conclusion, the court made the surprising finding that “because the defendant has not entered bankruptcy”, it can not apply the rules on moratoria, and “the court of first instance applied the law, not subject to application”. In the result the appeal is overturned the suspension of the proceedings authorizing debt.The Chairman of the “Bankruptcy club” Oleg Zaitsev, calls the court’s conclusion “clearly erroneous”: “In fact, the meaning of a moratorium is to protect debtors from the introduction of full-fledged bankruptcy proceedings, replacing it with the extrajudicial rehabilitation procedure in the form of moratorium”. “The position of the court of appeal may not be surprising, confirms managing partner of law firm “Arbitration.ru” Daniil Savchenko.— In case you agree with the proposed restrictive interpretation of the self-sense norms of a moratorium is lost at all, since the General provisions of bankruptcy law on the consequences of introducing observation and bankruptcy proceedings themselves provide for suspension and termination of enforcement proceedings”.Partner MGP Lawyers Denis Bykanov believes that disputes about the application of the moratorium due to the “extremely sloppy wording” rules on the suspension of the enforcement proceedings in respect of podmoratornyh debtors, which is “ambiguous”. “On the one hand, this rule is not included in the law regulating the enforcement proceedings, where he belongs, and in the text of the law on bankruptcy, so you may feel that the rule applied only in bankruptcy proceedings. However, a teleological interpretation of this provision it is obvious that it pursues the goal of protecting those who are most affected in an emergency situation and was unable to satisfy the claims of creditors, that is, is on the verge of bankruptcy. The appeal is the intended interpretation ignored”,— says Mr. Bykanov. He also recalled that the bankruptcy law contains the rules that apply and before the commencement of the case, such as the duty of a Director of the debtor company to file a statement for a recognition its bankrupt.However, whether the court to verify the solvency of the debtor company to resolve the issue of extending the moratorium and the rules on suspension of the enforcement proceedings, the legal opinions diverge.”In accordance with this provision, the court does not have the right to assess the debtor’s solvency,”— said Denis Bykanov. In his opinion, there is sufficient compliance with the formal criteria — included or no activity in the list of the most affected by the pandemic. This opinion is shared by Mr. Savchenko, believing that “the circumstances of the debtor’s solvency, his financial solvency for the purposes of p��change to him of the provisions on moratorium on bankruptcy do not have legal value”. “The solvency of the company is verified by the court to an entirely different stage — the stage of deciding on the validity of the bankruptcy petition and the imposition of insolvency proceedings. Here the appellate court clearly went beyond the limits of its competence”,— believes Mr. Bykanov.Oleg Zaitsev, in contrast, believes that such an argument has a right to exist and “the moratorium should apply only to insolvent debtors.” If the debtor from the affected industry transfers the pandemic without financial difficulties, he should not receive moratoria privilege, the lawyer says. However, he adds, in the case of the airline, given the sharp decline in the number of flights, the probability of remaining solvent is low.The arbitral panel
