The arbitral receiver is a professional participant in the cases of bankruptcy, and he is and is responsible to act conscientiously and reasonably in the interests of the debtor, creditors and other participants in the bankruptcy procedure. For deviation from this rule, he may be prosecuted disciplinary, administrative, civil or criminal. It must be said that prosecution of an arbitral receiver entails negative legal consequences for him, as well as reputational costs (his mistakes will be taken into account when he is reappointed to the procedure) and financial costs (a multiple increase in insurance rates, a decrease in remuneration for work). But first things first.
Disciplinary liability of arbitral receiver
It is associated with his mandatory membership in a self-regulatory organization. The disciplinary authority of such organization, upon the complaint of any person, has the right to issue an order, a warning, a fine, and a recommendation for deletion from the self-regulatory organization, financial measures (forfeit, increased contribution to the self-regulatory organization) to of the arbitral receiver. Such sanctions are imposed on the arbitral receiver following the results of the audit of all his activities in the self-regulatory organization. Responsibility is provided for by internal documents of the self-regulatory organization.
Often, the self-regulatory organization, for formal violations, releases the arbitral receiver from punishment, by writing that he has not violated the law and internal rules of the self-regulatory organization. Such a refusal to prosecute, of course, needs to be appealed. However, for gross violations such as: non-payment of contributions to the self-regulatory organization, failure to provide planned accountability on its activities it can be applied stricter measures.
The most radical measure of disciplinary prosecution is the exclusion of the arbitral receiver from the self-regulatory organization due to the violation by the arbitral receiver of the conditions of membership in the self-regulatory organization, the requirements of the Law, standards and rules of professional activity. For example, it can be due to the lack of a compulsory insurance policy. This type of liability for the arbitral receiver is essential. Filing a complaint to the self-regulatory organization is an effective and efficient tool for putting pressure on the receiver and creating maximum discomfort and inconvenience for him.
Administrative liability of arbitral receiver
The body that considers and establishes the fact of a violation is the department of Russian State Register. Based on the results of consideration of the complaint of the creditor or any person in the bankruptcy case, a protocol is drawn up in relation to the receiver, which is sent to the commercial court in the place where the offense was committed.
It is the court that imposes penalties on the violator. Liability for non-fulfillment by an arbitral receiver of the obligations established by bankruptcy law can be in the form of a warning or a fine in the amount of 25,000 rubles or up to 50,000 rubles. Repeated similar violation within 1 year entails disqualification of the arbitral receiver for a period of 6 months to 3 years. It is also possible to disqualify an arbitral receiver both for minor violations that do not affect the rights of creditors and do not cause them losses, and for significant violations of the rights of participants in a bankruptcy process. Disqualification that is applied even for a minimum period is an extremely strict punishment for an arbitral receiver because it means his removal from all ongoing procedures and exclusion from the self-regulatory organization. Filing a complaint about illegal actions (inaction) to the Russian State Register helps to achieve the maximum effect: providing the receiver with the required discomfort and inconvenience, encouraging the receiver to perform certain actions or to refrain from doing them.
Drafting of a complaint against the actions (inaction) of arbitral receiver
Appeal against the actions of the arbitral receiver is the most popular method for prosecution of the arbitral receiver and putting pressure on him. The bankruptcy law establishes the possibility of protecting the rights and legitimate interests of creditors by appealing against specific actions (inaction) of an arbitral receiver.
The ground for satisfaction of the complaint is the establishment of the facts:
- non-compliance of actions (inaction) of the receiver with the legislation
- Violation by such actions (inaction) of the rights and legitimate interests of the creditors of the debtor.
In this case, failure to perform or improper fulfillment of obligations, that causes losses, is a reason for the removal of the arbitral receiver. The law is based on the fact that a situation is unacceptable when the powers of an arbitral receiver are held by a person who does not have competence, integrity, and independence. When the arbitral receiver repeatedly, grossly and intentionally violates his duties, he can be removed. In contrast, for careless and minor violations that did not cause significant damage, the receiver will not be punished. The removal of a receiver entails the appointment of a candidate for a new receiver.
How to recover damages from arbitral receiver
The reduction by the arbitration manager of the array of the debtor's property (money) or in case of loss of the opportunity to increase the insolvency estate, resulting from his illegal actions (inaction), entail the recovery of damages from him. Thus, the arbitration manager is liable in the form of compensation for losses, in case if they are because of his illegal actions. This liability of the arbitral receiver is of a civil law nature, so the damages are subject to recovery according to the general rules.
Therefore, it is necessary to prove the existence of a set of conditions:
- unlawful behavior (actions, inaction) of the receiver
- The fact that there are damages
- causal link between illegal actions (inaction) and losses
- the amount of such losses.
The absence of one of the above elements entails the refusal to satisfy the claim for damages. If the receiver proves that the damages were not caused because of his actions, then he will not be liable.
Criminal liability of arbitral receiver
The arbitration manager, as a subject of economic activity, is criminally responsible along with other persons of such activity under the economic articles of the Criminal Code of the Russian Federation, which establish liability for fraud, theft, non-payment of wages, bribery, illegal actions in bankruptcy. To prosecute the arbitral receiver criminally is possible according to the usual procedure. For criminal prosecution, it is necessary to prove damage in the amount of 2 million 250 thousand rubles.
Author is Oleg Grinev