“Limiting the use of property immunity to the only housing” — comments of Inna Vavilova for Fedresurs
Further development of legislation and judicial practice will contribute to the wider application of the institution of personal bankruptcy. The main directions are the expansion of access to the procedure for citizens who are in a difficult life situation, and the protection of the interests of creditors.
The Ministry of Economic Development of the Russian Federation in December 2018 has published another version of the draft law on the simplified procedure of bankruptcy for people with debt no more than 700 thousand rubles. From the idea to carry it without the manager decided to refuse, but his responsibilities will be significantly less: you can not hold a creditors' meeting and analysis of the financial condition of the debtor. The property of a citizen in a simplified procedure is implemented by him or her or the manager, not necessarily at the auction on the electronic trading platform, as it is now. The participant of the bankruptcy case may demand the sale of the property at the auction, but only on condition that he himself will finance them. Creditors, in turn, do not need to "sue" for inclusion in the register.
In order to protect creditors, both the armed forces and lawmakers have stepped up attempts to solve the long-standing problem of selling luxury housing, which is the only one at the same time.
The inability to foreclose on the only suitable for the debtor's residence mansion with a swimming pool is a long - standing problem and is characteristic not only for bankruptcy proceedings. Attempts to find a middle ground between observance of the constitutional right of the citizen to housing and protection of interests of the injured creditor were repeatedly made at the level of the highest judicial instances. Thus, in 2012, the constitutional court of the Russian Federation ordered the legislator to determine the reasonable limits of property (executive) immunity - the immunity should not apply to luxury housing,
- reminds the managing partner of "Prime Advice" Inna Vavilova. But the relevant changes in the legislation have not been made.
But now, perhaps, the problem will be solved. In November of 2018, the Ministry of justice began to discuss with the authorities the next version of the bill on this subject, and the armed forces released a landmark determination in the case of Anatoly Frushchak.
The Supreme court of the Russian Federation pointed to the possibility to limit the application of property immunity to the only housing, if it became such as a result of unfair actions of the debtor. This approach reflects the law enforcement trend of recent years - the widespread use of such evaluation criteria as good faith. Lower courts were asked to carefully clarify the circumstances of the change in the living conditions of the debtor, not to ignore the arguments of creditors and not to neglect the study of all the circumstances relating to the behavior of the parties in the event of a disputed debt, including those that occurred before the initiation of bankruptcy proceedings,
- notes Inna Vavilova.
The bill of the Ministry of justice, in turn, proposes to allow the sale of luxury housing in the bankruptcy case, provided that the debtor in return will buy another. In addition, rules are established to determine which housing is luxurious and how to prove this and the opposite.
Until proven otherwise, not considered luxury housing, the cost of which obviously does not exceed 30 million rubles, or on each member of the family of the debtor living there, not more than 30 sq m, according to the bill. According to the document, to prove the "luxury" of housing will be the applicant who wants to withdraw it, and the court in addressing this issue will take into account the number of living with the debtor and other circumstances.