Financial bankruptcy

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TABLE OF CONTENTS

INTRODUCTION

CHAPTER 1. THE BASIC CONCEPT AND TERMS IN BANKRUPTCY PROCEEDINGS

CHAPTER 2. THE BANKRUPTCY LEGISLATION OF KAZAKHSTAN

2.1 Features of the application of the law on bankruptcy

2.2 Acceptance of bankruptcy

2.3 The deliberate and fraudulent bankruptcy

2.4 Organization of bankruptcy proceedings of insolvent enterprises

CHAPTER 3. THE BANKRUPTCY OF AN INDIVIDUAL ENTREPRENEUR

3.1. The grounds for declaring bankrupt entrepreneur

3.2 Initiation of bankruptcy owner

CHAPTER 4. FINANCIAL PLANNING-RESCUE FROM BANKRUPTCY

CONCLUSION

LIST OF SOURCES



INTRODUCTION

The objective process of market economy based on competition, is a constant flow of capital in the most profitable areas, the redistribution of property from inefficient economic entities to efficient. The redeployment is carried out through the bankruptcy process. Therefore, in any civilized country with a developed economic system an essential part of the mechanism of legal regulation of market relations is the law on Insolvency (bankruptcy).

At the moment our market economy characterized by phenomena such as slump, economic crisis, lack of investment, monetary tightening that will undoubtedly lead to the insolvency of commercial entities. And the question arises: what to do with these bankruptcy companies.

Existing before 1998 in Kazakhstan legal framework regulating the process of bankruptcy has proved to be unworkable in today's economy and led to the fact that large businesses have been able to without fear of bankruptcy, continue to exacerbate the crisis of non-payments. But despite this, every year the number of insolvency cases dealt with by arbitration courts is increasing, which suggests that the institution of bankruptcy in Kazakhstan is one of the leading places in the development of normal economic relations among the participants of the economic turnover. bankruptcy law financial planning

The present Law "on bankruptcy" provides that the basis for the lender, a statement to the Court declaring the debtor bankrupt was insolvent, i.e., debtor obligation within three months from the date of its execution. In case the debtor is declared bankrupt by court-appointed bankruptcy trustee has bankruptcy proceedings with a view to the satisfaction of the claims of creditors and the bankrupt declared free from debt. After the sale of the property of the debtor bankruptcy trustee makes payments to creditors in accordance with the law of the Republic of Kazakhstan "on bankruptcy" precedence. The repayment requirements only those creditors which in time turned to competitive Manager a statement and included in the register of creditors ' claims. Thus, creditors of a bankrupt company, including its workers haven't been paid for a long time, in the course of bankruptcy proceedings receive it as a result of the insolvency administrator of debt recovery from debtors and property sales.

Since the initiation of bankruptcy proceedings, the bankruptcy trustee has tremendous work on the analysis of the financial condition of the debtor, verifying the validity of the claims of creditors. All this time the law is limited. The time-frame of the bankruptcy proceedings, the legislator did not take into account that, as a rule, the trustee has full neglect recordkeeping, lack the necessary accounting documentation. To restore the necessary specialists and the time is very limited.

Illiquidity of property for a long time can not be implemented, as is the lack of purchasing power on outdated equipment and machinery, and high book value of buildings, structures and equipment. Whatactions must take the bankruptcy trustee, legislation on bankruptcy does not provide. In such cases, the competition at their own risk managers in consultation with the Committee of creditors sell the property at the lowest price, in order to at least partially repay debts to creditors, or absorb it.

Only with these issues by amending the Law "on bankruptcy" could be expected to eliminate enterprise within the statutory deadlines.

The relevance and practical value of the themes of this coursework is due to several reasons.

First, at present, in the Kazakh economy a key problem is the crisis of non-payments, and a good half of the Kazakhstan enterprises should have been declared bankrupt, but the funds reallocated in favour of effective productions that undoubtedly would have contributed to the improvement of the Kazakhstan market.

Secondly, in the face of mass insolvency of commercial entities particularly relevant measures for crisis prevention, as well as activities aimed at restoring Enterprise solvency and stabilize its financial condition.

The main purpose of a term paper is to highlight the problems of bankruptcy as a whole in the light of current conditions. In this area addresses the following issues: the concept of insolvency as an indispensable attribute of a market economy; the main criteria of insolvency and bankruptcy proceedings of an individual entrepreneur, established by the legislation. Reviewed by both objective and subjective reasons for bankruptcy of many enterprises and proanal.



CHAPTER 1. THE BASIC CONCEPT AND TERMS IN BANKRUPTCY PROCEEDINGS

In accordance with the law of the Republic of Kazakhstan from January 21, 1997 "on bankruptcy" (as amended on July 1, 1998) to the insolvent (insolvent) debtors may be subject to different procedures of bankruptcy. To the judicial procedures, in particular the rehabilitation procedure and bankruptcy proceedings; -out-of-court extra judicial liquidation. It should be noted that in all bankruptcy proceedings changes the legal status of the debtor's property. This can, for example, show that the administration of the debtor's assets and transferred to third persons (rehabilitation or receivership management). In addition, in all procedures of bankruptcy transactions in respect of a debtor's assets is carried out in a particular order.

Features of the legal regime of property of the debtor in the proceedings is particularly evident in relation to immovable property. The specifics of the legal regime of the property due to the fact that, in accordance with paragraph 1 article 118 the RK CIVIL CODE right of ownership and other rights to real property, the restriction of these rights, their emergence change and termination are subject to registration in a registry. /8, p. 4/

All bankruptcy proceedings are the debtor, that is, the right holder, the restriction of his rights to real estate owned. Therefore, these objects must be registered as encumbrance on the immovable property of the debtor's rights, although with the introduction of rehabilitation proceedings or bankruptcy proceedings, the power to order the real estate and other assets of the debtor are shifting to rehabilitation or receivership management. For the latter the procedure are rights.

Restriction of rights of the debtor to immovable property in the judicial procedures of bankruptcy starts with the determination of the Court to commence bankruptcy proceedings. In accordance with paragraph 1 article 28 of the law "on bankruptcy" from the moment of initiation of bankruptcy proceedings the debtor's property owner (authorized body), all bodies of a legal person are deprived of the right to dispose of property of the debtor. Thus, from the moment of making such a determination in a legal registry requires its registration. In its absence the registering body will not be able to ensure compliance with the rules set forth. In particular, transactions can be registered with the property of the debtor, entered into by the authorities in accordance with paragraph 1 of art.28 of the law "on bankruptcy" from the moment of initiation of bankruptcy proceedings are deprived of the right to dispose of property of the debtor.

Currently in Kazakhstan as the State registration of rights to immovable property is introduced only since the establishment of the registration authorities and portfolio, the registration of encumbrances on the immovable property of the debtor's rights, bankruptcy procedures, in some cases considerably difficult. This is due to the fact that the registration of encumbrances are subject to registration or if you have information about a debtor's rights prior to real estate. If the debtor arose prior to the introduction of the system of State registration and be accepted, without State registration, the legal inventory will be missing the information about real property belonging to the debtor. In such cases, registration of bankruptcy procedures in the legal inventory to each property, located within steps of the registering body, title document. If you do not have them (for example, when registering court to commence a proceeding in bankruptcy court does not have such instruments) in the registration authority may be submitted only to the manufacturer, which filed the bankruptcy procedure. In the latter case, registration of encumbrance of immovable property cannot be due to the fact that legal cadastre registration is in nature. The registration authority in this situation to get additional information on the subjects grounds, to record the information on the application in relation to the subject of bankruptcy proceedings. /8, p. 8/

Limitation of the rights of the owner of the property of the debtor (authority), founders (or participants) or bodies of a legal person by order of the debtor's assets really are as a general rule, prior to the completion of bankruptcy procedures. This means that the specified limit in legal cadastre will be terminated in respect of this real estate property in connection with the alienation of such property by persons authorized for such property. For example, the rehabilitation procedure exclusion in accordance with the established procedure can produce a rehabilitation Manager, in competitive manufacturing-trustee.

Such judicial bankruptcy proceedings, as the rehabilitation process and the receivership, also change the legal status of the debtor's property. During the implementation of the rehabilitation procedure, firstly, the powers of the debtor's property survey board pass rehabilitation Manager, and, secondly, the transactions for the disposition of real property of the debtor are carried out in a particular order. In particular, paragraph 2 of art. 51 of the law "on bankruptcy" revealed that rehabilitation Manager of transactions for the disposition of immovable property (transfer, pledge, etc.) take place with the consent of the creditors ' Committee. This requirement applies to all real estate transactions regardless of does the conclusion of such transactions under the plan of rehabilitation or committed to rehabilitation Manager to implement the goals of the rehabilitation procedure outside the plan. In cases where transactions with immovable property provided for in the rehabilitation plan, which is approved by the Court, with the consent of the creditors in the order, then there is no need to obtain the consent of the creditor committee to conduct such transactions. However, the current wording of the Act that follows and subsequent consent needed. /3/43, art.

Proposal demonstrates that the rehabilitation procedure, the legal regime of the debtor's property is changed and the introduction of such a procedure, you must register in the inventory, if the debtor's property is real estate.

When making a decision on termination of rehabilitation proceedings against the debtor, the debtor's bankruptcy and recognition on the opening of bankruptcy

proceedings.

In the competitive production of valid charges imposed in connection with the initiation of bankruptcy proceedings, since the restriction of the rights of the owner of the property of the debtor (authority), founders (participants) all bodies of a legal person debtor's disposition remains in force/3/68, St. In addition, competitive production in the legal regime of assets of the bankrupt experience other changes. Are they that the sale of the assets of the bankrupt by the insolvency administrator in accordance with the plan of property sale, approved by the creditors ' Committee.

In accordance with art. 84 and 85 of the law "on bankruptcy" in competitive production, while meeting the demands of creditors allowed passage of the debtor's property in kind. Before making any of these changes the transfer with the consent of the creditors, in their common ownership of the debtor's property in kind is allowed only in cases where the property was offered for sale, but remained unimplemented for lack of a buyer/3/84, art.

The interpretation of norms of the law "on bankruptcy", in our view, it is necessary to take into account the rules bankruptcy and the law on enforcement proceedings. The rules bankruptcy laws do not regulate in detail the order of satisfaction of claims of creditors. In this regard, there are questions of the norms governing the relations other relations: tendering, Executive production, sales collateral, etc. Standards specified areas of legislation contain different rules on alienation of property. However, in the competitive production of advanced, if they do not contradict relevant provisions of bankruptcy law, should apply legislation on enforcement proceedings. In Kazakhstan at present, the law on enforcement proceedings and the status of bailiffs from June 30, 1998 allows the transfer to the recoverer with the consent of the debtor's property in nature (p. 3 article 35). /8, p. 13/

Part of the estate of the bankruptcy law is not only to the debtor's property. In accordance with clause 2 Article 74 of the law "on bankruptcy" in it turns on and ignored separately personal property of general partners, the property of the former participants and the limited partnerships, participants in the partnership with additional liability, as well as members of the production cooperative, which in case of insufficiency of the property of a bankrupt in accordance with the civil procedure legislation, may be levied. Property of others that should also be liable for the obligations of a bankrupt's estate is not included. However, in accordance with paragraph 3 of art. 74 Law bankruptcy trustee is obligated to submit to them, in the interest of all creditors. In particular, such requirements are to be presented to the persons responsible for making the debtor prior to the bankruptcy. /3, p. 1/5 CT.

Thus, it should be noted that in all bankruptcy proceedings there is a change in the legal regime of immovable property belonging to the debtor. Bankruptcy proceedings usually refer to encumbrances, established for the benefit of creditors, and shall be recorded in the inventory.

The law on bankruptcy, the following terms and definitions are used:

-failure-the inability of the debtor to satisfy the requirements of lenders on monetary obligations, including claims for payment of wages and compensation for the injury caused to life and health, as well as the obligatory payments to the budget and off-budget funds;

-the debtor-legal entity insolvency or bankruptcy, which is the reason the bankruptcy or judicial liquidation procedure in the manner prescribed by law;

-Monetary obligation-obligation of the debtor to pay the cost of (transmitted) creditors of goods (works, services), to return the loan amount with interest payments for its use, as well as to make payments on other requirements themselves;

-voluntary liquidation of an insolvent debtor-liquidation of an insolvent debtor on the basis of its application by the Court or extra-judicial liquidation under the control of creditors;

-official-head (Deputy head) of a legal person insolvent debtor and any other person included in the collegial executive body of legal person exercising functions of a legal entity;

-bankruptcy-court decision recognized the debtor's insolvency, which is the basis for its elimination;

bankrupt debtor, insolvency which is set by the Court;

-out-of-court procedure of liquidation-bankruptcy debt settlement process out of court by reaching an agreement with creditors, the debtor on its voluntary liquidation under the control of creditors;

-insolvency of the debtor's failure to execute-monetary obligations and other requirements themselves, the deadline for which has come;

-the creditor is a person having the debtor property claims arising from civil-legal and other obligations, including the obligation to pay, payment of royalties, obligatory payments to the budget and off-budget funds;

-competitive lender-creditor that does not have advantages in getting their property claims neither the legislation nor the agreement on security interest;

-mortgage lender-creditor liabilities, claims which are secured by a pledge of property of the debtor;

-competition weight of the debtor's property which may be seized in bankruptcy proceedings;

-bankruptcy proceedings-a procedure performed to the satisfaction of the claims of creditors and bankruptcy (bankrupt) free from debt.

-trustee-a person appointed in accordance with the established procedure for the implementation of the bankruptcy proceedings; /4/

-forced liquidation of a debtor-termination of an insolvent debtor, by a court decision based on claims of creditors of the Prosecutor;

-rehabilitation procedure-judicial procedure, in which the insolvent debtor to apply any reorganization, organizational, economic, management, investment, technical, financial and economic, legal and other steps which do not contradict the legislation aimed at restoring debtor's solvency in order to prevent its liquidation;

rehabilitation Manager-the person who sent in the order established by this law, the functions of asset management and the Affairs of the insolvent debtor for a period of rehabilitation procedures;

-secondary liability-the liability of the person, which, in accordance with the law or the terms of the obligation it is in addition to the liability of another person who is the principal debtor;

-rehabilitation-rehabilitation measure, in which the owner of the property of the debtor (a body authorized by it), creditors or other persons to the insolvent debtor provides financial assistance as well as a set of measures is being implemented to mobilize reserves and improving its financial and economic situation;

-bankruptcy-debtor's insolvency to cast intentionally committed by the owner of the property or by a legal person debtor in personal interests or interests of other persons;

-false bankruptcy-patently false treatment of debtor or the owner thereof to the Court or competent authority declaring it bankrupt in order to mislead lenders, to receive a deferral or installment owed to creditors of payments or debt reduction, as well as for non-payment of debts, and its capacity to satisfy the claims of creditors in full;

-authorized entity defined by the Government, local executive bodies of authority empowered to represent the interests of the creditors on obligatory payments to the budget and non-budget funds in the bankruptcy proceedings and out-of-court procedure of liquidation, as well as initiate extrajudicial liquidation procedure; /5/

-creditor creditors voting for obligatory payments to the budget and off-budget funds, involved in the bankruptcy proceedings and out-of-court procedure elimination through an authorized body, and competitive lenders;

-non-voting creditors-all other categories of creditors;

-administrative costs-all costs associated with the initiation and conduct of the bankruptcy, rehabilitation procedures and out-of-court liquidation procedure, including costs for payment of services involved and the amount of specialized organizations, rehabilitation and bankruptcy Trustees.



CHAPTER 2. THE BANKRUPTCY LEGISLATION OF KAZAKHSTAN

Bankruptcy legislation is based on the Constitution of the Republic of Kazakhstan and consists of the Act on bankruptcy and other normative legal acts of the Republic of Kazakhstan.

2.1 Features of the application of the law "on bankruptcy"

Features bankruptcy procedures in respect of the agricultural organizations, regardless of their legal form, may be established by legislative acts. Features of the application provided for in this Act of bankruptcy procedures against organizations with a continuous production cycle can be set by law. /6/

The legislative acts can be installed application features of bankruptcy procedures under this Act with respect to banks, insurance companies, pension funds and certain other entities.

Bankruptcy of the individual entrepreneurs, including farmers, are regulated by article 21 of civil code of the Republic of Kazakhstan (General part) and legislative acts.

Bankruptcy Court under the General rules of civil procedure with the features laid down by this law.

With the bankruptcy of major strategic importance to the economy of influence on citizens ' lives, health, national security or the environment, as well as recognized by the bankrupt on the initiative of the State, the Government of the Republic of Kazakhstan shall have the right to establish special conditions and modalities for implementation of the estate/7/



2.2 Acceptance of bankruptcy

The bankruptcy court is established on the basis of the application of the debtor in the Court. Bankruptcy is enforced upon application to the Court by creditors or other authorized persons. In the cases provided for by law, the debtor is obliged to apply to the Court a statement declaring it bankrupt.

Bankruptcy Court, if the claims of creditors against the debtor in the aggregate amount of not less than one hundred and fifty times the monthly accounting index.

If the value of the property of the legal person against whom the decision on liquidation, is insufficient to meet the claims of creditors, such legal person shall be liquidated in court or out of court according to the rules established by the present law. /2, p. 1 article 49/

The failure to file the application by the debtor in the cases provided for in paragraph 2 ofarticle 17 ofthelaw on bankruptcy,the debtor entails subsidiary liability for the obligations of the debtor to creditors.

Thereason for declaring thedebtorbankruptjudiciallyor conduct extrajudicial liquidationis its inconsistency.

In determining whether the insolvency debtor's obligations should be taken into account, due and payable, as well as and (or) are performed.

2.3 The deliberate and fraudulent insolvency

The owner of the property of the debtor, the founder and the officials of the debtor's legal person bear subsidiary liability to the creditors of the insolvent debtor property belonging to them for the deliberate bringing of the debtor to the insolvency (bankruptcy).

Officer of the bankrupt Corporation compensate the owner of his property for the deliberate bringing of the debtor to insolvency. If a declaration of acceptance of the bankrupt debtor to court whenever possible, meet the demands of creditors in full (a false bankruptcy), the lenders have the right to demand from the debtor compensation of these damages. Transactions made by the debtor before its bankruptcy, or before a decision is taken on the out-of-court liquidation procedure shall be declared invalid:

1) if there are grounds under civil law;

2) upon application by the creditor, rehabilitation or receivership if a transaction made by a debtor with a private lender or other person after the commencement of a bankruptcy case or decision taken to hold out-of-court liquidation procedure, leads to the prefer entail claims of some creditors over others;

3) when there are other grounds stipulated by legislative acts.

Creditors, bankruptcy Trustees, and rehab party reorganization may demand recognition of deals and reset the property transferred by the debtor, including rent or in ensuring the implementation of previously concluded deals, for a period of up to one year prior to the initiation of a bankruptcy case or initiate the out-of-court procedure of liquidation of persons who received the property free of charge, at prices well below market or without sufficient cause, to the detriment of the creditors. Lenders may require the return of the debtor's property passed to them for a period of up to one year prior to the initiation of a bankruptcy case or initiate the out-of-court procedure of liquidation, creditors, to whom the obligations were performed before their execution.

In exercising his powers, the rehabilitation or bankruptcy trustee has the right to sue on the grounds provided by the legal acts of the debtor's property at the request of third parties, on the termination of the contracts entered into by the debtor, and perform other acts provided for under civil law, to the return of property of the debtor.

If it is not possible to reclaim property in connection with the loss, damage or subsequent bona fide third party purchasers of the initial acquisition of the claimed items are liable to the debtor to recover the resulting damages to the extent of the value of the lost, corrupted or acquired in good faith by third parties property.

Rehabilitation Manager has the right to refuse execution of prisoners by the debtor prior to the bankruptcy case of treaties both parties unsatisfied in whole or in part, if one of the following circumstances:

1) fulfillment of the contract will result in damage to the debtor;

2) agreement covers the onerous terms for the debtor as compared to similar treaties concluded under comparable circumstances;

3) contract is a long-term (over one year) or calculated results only in the long term by the debtor;

4) there are other reasons to believe that the performance of the contract by the debt or would have adverse consequences for the remaining creditors.

Upon cancellation of the execution of the agreement in the cases provided for in paragraph1 of this article, the Contracting Party may justice ability of the claim from the debt or damages caused by termination of the contract, in the amount of actual damages or to challenge the grounds for refusal.

Bankruptcy cases are considered by the courts at the location of the debtor, determined in accordance with the law.

2.4 Organization ofbankruptcyproceedings of insolvent enterprises

For bankruptcy proceedings of insolvent companies by Decree of the President of Kazakhstan was organized by "Agency for reorganization and liquidation of enterprises"

JSC "Agencyfor reorganizationand liquidation of enterprises 'commercialstructure that represents the realization of the law of the Republic of Kazakhstan" on bankruptcy ", the interests of the State in matters of restructuring, rehabilitation and/or liquidation of insolvent State-owned enterprises, as well as business partnerships, in the authorized Fund of a State, to which the Government of the Republic submitted to the appropriate authority. The Agency shall maintain a register of insolvent and bankrupt enterprises, monitoring activities, analysis of financial and economic conditions, assessment of the prospects for rebuilding their capacity to pay and, if necessary, initiates bankruptcy proceedings the judicial and extrajudicial enforcement.

In the process of economic recovery, restructuring, rehabilitation and/or liquidation of insolvent (bankrupt) companies the Agency is the only authorized representative on behalf of the State as a creditor on policy loans, budget loans and other types of debts to the budget of the companies transferred to the Agency. The choice of bankruptcy procedures, the concept of the financial and economic recovery of enterprises and ways of its realization are defined by a particular economic situation, demand and competitiveness of products and investment potential of production.

The agency specialists and its affiliates, drawing upon consulting firms, assess the viability of insolvent companies and prepare recommendations and/or organize the implementation of the above activities. The ultimate goal of the Agency is transforming the economy of enterprises to improve management and avoid insolvency.

Given the importance of the purposes and the tasks performed by the Agency, the President of the Republic of Kazakhstan by Decree of 12 October, in order to implement the main provisions of the strategy of development of Kazakhstan, introduced it into the structure of the newly formed Ministry of State revenues of the Republic of Kazakhstan.



CHAPTER 3. THE BANKRUPTCY OF AN INDIVIDUAL ENTREPRENEUR

3.1 The grounds for declaring bankrupt businessman

The reason to declare bankrupt the debtor-individual entrepreneur is its inability to meet the demands of creditors on monetary obligations, including claims for payment of wages, as well as the obligatory payments to the budget and off-budget funds at the expense of the property belonging to him.

Bankruptcy is a court decision or is declared to be out of court by a debtor under an agreement with the creditors. Foundation treatment in bankruptcy court to the debtor to the creditor of the debtor's insolvency is.

The debtor is insolvent if it failed to perform the obligation within three months from the date of its execution. The reason for the debtor to the Court with an application for bankruptcy is its inconsistency.

The right to submit an application for recognition of an individual entrepreneur bankrupt debtor, creditors have under civil law obligations related to the implementation of the debtor's business, tax and other public authorities in respect of compulsory payments to the budget and off-budget funds.

When applied to an individual entrepreneur's bankruptcy creditors on obligations not connected with entrepreneurial activity, also have the right to assert their claims, if the performance of such obligations has come.

A statement of the debtor-individual bankruptcy is filed with the Court at the place of business registration, and where such activity is undertaken without registration on place of residence as defined by the rules of civil procedure legislation, when the enterprise-at the place of residence of one of individual entrepreneurs.

Statement of individual bankruptcy is a citizen, when the enterprise-all the parties or their representatives and should include all necessary information for the debtor's bankruptcy petition is a legal person, as well as information on the obligations of the individual businessman, not related to business activities.

The lender's statement declaring the debtor bankrupt shall conform to the requirements established by the legislation of the bankruptcy to the creditor's statement is a legal person.

3.2 Initiation of bankruptcy entrepreneur

Initiation of bankruptcy proceedings and individual entrepreneur is based on rules established for legal persons, with the following features:

1) bankruptcy case considered by the Court, regardless of the amount of the claims of creditors against the debtor;

2) initiation of bankruptcy proceedings does not entail the introduction of external management of the debtor, unless otherwise established by the decision of the Court;

3) in order to safeguard the interests of the creditor of the debtor in bankruptcy court from the moment of initiation of proceedings imposes an arrest on his property, including his share in the common property, unless submitted by affidavit or otherwise to enforce the obligations of the debtor by a third party;

4) on application by the debtor, the Court may postpone the hearing for a period not exceeding one month to reach an amicable agreement or the application of rehabilitation procedures. The settlement agreement is in accordance with the rules stipulated by the civil procedure law, and may not be distributed to the creditors, not accepted at its conclusion;

5) in case of failure by the debtor to the term proof of satisfaction or the ability to meet the claims of creditors or a settlement agreement, as well as the refusal of the application on the application of rehabilitative procedures the Court renders a decision on considering a debtor bankrupt/3, paragraph 4 of article 38 of the law "on bankruptcy"/

6) initiation of bankruptcy proceedings the debtor-individual entrepreneur is not an obstacle to the execution of court decisions on recovery of sums or foreclosure on his property for obligations that are not related to the business of the debtor;

7) performance of obligations not connected with entrepreneurial activity, for which no court decisions or other Executive documents on recovery from the debtor monies shall be suspended until the Court decision;

8) invalidation of debtor's transactions is carried out by the Court on its own initiative or at the request of interested persons in the manner and in accordance with the Civil Code of the Republic of Kazakhstan and the law on bankruptcy;

9) when returning the assets and recognition of invalidity of transactions of the debt or committed to recognizing it bankrupt on the grounds provided by the bankruptcy law for legal persons could be demanded property transferred within one year prior to the initiation of the bankruptcy case the spouse, relatives in the direct ascending and descending lines, sisters, brothers and their family descendant, sisters, brothers and their relatives of the direct ascending and descending lines of a spouse of an individual entrepreneur.

After the commencement of the bankruptcy case of individual debtor's petition the Court may grant the use of rehabilitation procedures.

Rehabilitation treatment on bankruptcy of individual entrepreneurs are the rules established by the law on bankruptcy for individuals with the following features:

1) rehabilitation plan is debtor-individual entrepreneur or as a candidate for rehabilitation management within a month since the Court will postpone the bankruptcy proceedings, and approved by the Court with the consent of the competition and of pledge lenders, the amount of which is not less than 2/3 of the total amount of their claims;

2) with the consent of the collateral and bankruptcy creditors, the amount of which is not less than 2/3 of the total amount of their claims, the Court may not appoint a rehabilitation Manager and save the debtor management of its property and affairs.

Since the Court's decision on recognition of the individual entrepreneur bankrupt there comes the following consequences:

1) timing of execution of obligations related to the entrepreneurial activity, are considered valid immediately;

2) stops accruing penalties and interest on all types of debts of the bankrupt connected with entrepreneurial activity;

3) stops in recovery from the debtor of all the Executive instruments, with the exception of Executive documents according to the requirements of citizens to whom the debtor is responsible for the damage to life or health, as well as for the recovery of maintenance claims;

4) Court decision terminates the license granted by the business.

The Court publishes in one of the official printed publications of the central organ of Justice announcement on recognition of the individual entrepreneur bankrupt. An advertisement specifies the period for presentation in Court of creditors ' claims, which may not be less than two months from the date of publication of the announcement.

The Court examines claims made within the time limits specified in paragraph 2 of article42 of the law "on bankruptcy"/3/. The Court shall determine the amount of the claims of creditors and their satisfaction.

The Court is also set to meet the claims of creditors on obligations not connected with entrepreneurial activity, which commenced in the Court before making a decision.

To meet the demands of creditors from the amount accrued on the deposit of the Courts hall be borne by the court costs and the costs of remuneration of an administrator, the rehabilitation, the contest Manager subject to their appointment. The claims of creditors are met in accordance with the order established by article 21 of civil code of the Republic of Kazakhstan (General part)/2/.

Scope and procedure to its creditors, different priorities are defined according to the rules established by the law of the Republic of Kazakhstan "on bankruptcy"/3/.

Remaining after satisfaction of the claims of creditors of the property shall be returned to the debtor or is distributed among participants in a joint enterprise under the rules established by paragraph 3 of article 37 of the law on bankruptcy.

After settlements with creditors, the debtor, the bankrupt is exempt from execution of the remaining liabilities associated with the business requirements of citizens to whom the person is declared bankrupt, is responsible for the damage to life or health, as well as other personal requirements stipulated by legislative acts of the Republic of Kazakhstan.

Requirements for the obligations not connected with entrepreneurial activity, if such requirements were not met in full from the estate, shall remain in force and may be brought to recover after bankruptcy proceedings the debtor as an individual. The size of these claims is reduced by the amount of satisfaction in the process of bankruptcy of the debtor.

Extrajudicial liquidation cases the individual entrepreneur and the Elimination of its debts by agreement with all creditors.

Any lender following agreement with the debtor on out-of-court liquidation proceedings of an individual entrepreneur may apply to the Court for a declaration of bankruptcy of the debtor.

The extrajudicial liquidation case of individual debtor should make an announcement in one of the official printed publications of the central organ of Justice and apply to a registering body on cessation of its individual business.

Since the conclusion of the agreement with the creditors of the extrajudicial liquidation business sole proprietorship the consequences provided for in paragraph 1 of article 42 of this law.



CHAPTER 4. FINANCIAL PLANNING-RESCUE FROM BANKRUPTCY

In a planned economy, where all around belonged to the owner is the State, the notion of "bankrupt" was for us something very abstract. State in the event of financial failure of an enterprise just financial resources from one business entity to another./12, s. 9/

The situation is completely changed when we started building a civilized market. Problem is the inability of the company to pay its obligations has become very relevant. Mass mutual non-payments, debts on wages-all these realities.

You should understand the objective conditions for mass insolvency of enterprises of various organizational-legal forms of ownership and economic complex of the Republic of Kazakhstan. They are, above all, piecemeal economic concepts and strategies for the development of the economy in the conditions of market relations, low quality management capacity, and were the result of:

* the severance of economic relations between the CIS countries and entities of the Republic of Kazakhstan;

* unfounded and hasty privatization;

* delayed development of the legal and institutional foundations of economic development;

* availability of socio-psychological stereotypes, not perceiving the need for transition to market relations;

* poor financial and economic situation in the country and the subjects of the Republic of Kazakhstan;

* evanescent pace of innovation processes;

* high rates of inflation.

Go to the market means a heavy structural crisis of the economy. A great number of enterprises becomes unnecessary. Do not need their products, their equipment. This crisis develops avalanche: chain start to collapse the manufacturing enterprise suppliers and consumers. Creates a new market niche, but their take, adapt to new conditions, need investments. But the mechanisms of accumulation of investment, adequate to market conditions, and creating them is a matter of time. In the country there is the phenomenon of so-called "spin crisis": while all manufacturers due to the uncertainty in dropping production. At the same time there are foreign competitors that have stable sources of income and reliable channels of investment. The crisis continues to deepen. Financial failure, the inability to pay their debts has become a mass phenomenon. One company pulls the other.

Bankruptcy is a civilized form of avoidance of physical production. The enterprise may formally exist long, accumulating debts and increasing the number of creditors. Need tidying up the hopeless situation in which money does not give even on current activities. And in that position has proved to be a large part of the Kazakhstan enterprises. /12, s.119/

The introduction of bankruptcy allows you to trim away a diseased segments of the economy. But most importantly, there is the possibility to organize legally and improvement of enterprises, which became colorings not at the market.

The effectiveness of crisis management depended largely on the radical actions of the insolvency administrator, who is appointed by the Court of arbitration and which are transferred to the out of band management feature, the debtor's assets. The basis for the appointment of an external control of the debtor's property is a real opportunity to restore the financial solvency of the debtor to continue its activities through the implementation of its property and other organizational and economic activities.

Out of band management plan may include the following measures to restore the solvency of the debtor:

* conversion of production;

* closing of unprofitable enterprises;

* Elimination of receivables;

* sale of the debtor's property;

* the assignment of the right of claim of the debtor;

* the performance of the obligations of the debtor of the debtor's property-owner of the company or a third party (third party);

* sale of the debtor's business.

The sale of the debtor's property may be effected after the inventory and assessment through open bidding. Similarly, the assignment of the debtor's requirements. /10/73, s.

Performance of the obligations of the debtor by a third party is permitted, provided that such performance pay at the same time the requirements of all of the bankruptcy creditors in accordance with the register of creditors ' claims.

When selling a business debtor disposed of all kinds of equipment intended for the business of the debtor, including land, buildings, constructions, equipment, inventory, raw materials, products, claims, as well as the right to refer to the debtor, individualizing it products, works and services (trade name, trademarks, service marks), other exclusive rights pertaining to the debtor, with the exception of the rights and responsibilities that cannot be delegated to others.

It is important to note that when selling Enterprise bonds and mandatory payments of the debtor on the date of acceptance by Arbitration Court of the debtor's Declaration of acceptance of the bankrupt are not included in the enterprise. All labour contracts in force at the time of the sale of the business, shall remain in force, the rights and obligations of the employer enterprise shall pass to the buyer.

Sale of a business is made through open bidding. The amount received from the sale of the business, is included in the assets of the debtor and is used to pay off creditors.

This mechanism allows you to effectively implement the change of ownership of enterprise by keeping it as a socio-economic system. In this regard, the sale of the debtor's property, especially if it's a necessary technological equipment, can cause an inability to implement production process and, consequently, to stop production and increased unemployment. However, the sale of the debtor's business requires substantial investment that today's global crisis and recession investment is difficult.

The best option for the enterprise-debtor appears to be engaging in their capacity as shareholders in their immediate suppliers and consumers of products. This allows you to create an effective system of management, cohesive, and where the participants are interested in preserving the stability and sustainability of the system and its parts, as it is directly related to their own situation. This principle is widely used by many successful Western corporations.

Crisis management can and should be effective. To do this, it is important to deal with the various parties involved. Control should be:

* assets (liabilities) of the enterprise;

* the stages of a business process (sales, production, procurement, accounting);

* programs of protection of property and business security;

* personnel (including the formation of human resources policy, social issues, relations with trade unions);

* programmes of building relationships with the shareholders, partners, Government;

* the information support programs (including informing the workforce information on plans, methods and management principles, as well as bringing socially relevant aspects of the work to the public).

The crisis management of major industrial facilities in its various modifications, will undoubtedly contribute to the preservation and development of the industrial potential of the country.

Looking at various ways to restore the financial health of enterprises, it should be noted the possibility of debt restructuring on obligatory payments to the budget. In accordance with the procedure of restructuring the order is voluntary the enterprise-debtor with the threat of measures provided by the law on bankruptcy. However, experience shows that, despite the significant benefits to the State completely and for the enterprises themselves, restructuring procedure was not a mass phenomenon. Companies have been slow to restructure contracts, hoping for further relaxation of the State towards them. The threat of bankruptcy is also a little daunted because everyone understands that the mass bankruptcy of the State cannot afford. One possible way out of this situation-to change the prevailing practice of debt restructuring towards compulsory team of restructuring, on the initiative of the public authorities.

Thus, there is an urgent need for an inventory of mutual debts. If businesses are ready to start "a new life", then there is every reason to believe that accumulated debts are a major constraint on energy development. Many enterprises also need to reorient production to the demand for their products.

The balance sheets of enterprises must be "cleared" of accumulated arrears, since in many cases occurs of debt due to the predominance of its structure of fines and penalties and distortion of the financial condition of the companies. In addition, non-payment of inflated prices resulting response "natural monopolies" to the already existing non-payments of buyers. The growth of all types of payments in large part due to the imperfections of the evolving under the influence of world prices and competition of imported goods relative price system in the sectors of Kazakhstan's economy.

However, this is not the only measure of a given organization, as there is no guarantee against renewed build-up of debt.

At present, in the presence of a developed capital market may spend an entire cycle of "clean-up" payments from their Division to recapitalize. However, without the participation of the public authorities alone cannot solve this problem.

So, in summary, that today's dire financial condition of many of the Kazakhstan enterprises resulted from both objective and subjective reasons. Bankruptcy is one of the legal mechanisms of the renewal and reform of our enterprises; This development through the effective mechanism of property redistribution. Bankruptcy does not necessarily mean liquidation of the enterprise.

Certainly, it is necessary to take all measures to prevent a crisis. If the company was in debt hole, it is necessary to take integrated efforts to restore solvency, effectively using the legislative procedures for bankruptcy and crisis management techniques. A specific list of activities will depend on the desirability and feasibility of the rehabilitation debtor, the scale of the crisis and the importance of the given enterprise.

The financial condition of the company is expressed in proportion of its assets and liabilities, i.e. means for enterprises and their sources. The main tasks of financial analysis-definition of quality financial condition, exploring the reasons for his improvement or deterioration during the preparation of recommendations to enhance financial stability and solvency of the company. These are based on the research of dynamics of absolute and relative financial performance and analytical units are broken down into the following:

* structural analysis of assets and liabilities;

* analysis of financial sustainability;

* analysis of the solvency of (liquidity);

* analysis of the necessary increase in shareholders ' equity.

Information sources for indicators and analysis are annual and quarterly financial statements and the accounting data and the necessary analytical balances and decryption non synthetic accounts.

The purpose of structural analysis-the study of the structure and dynamics of the enterprise and the sources of their generation to become familiar with the big picture of the financial situation. Structural analysis is preliminary because it is impossible to give a final assessment of the quality of financial condition, for which you need the calculation of specific indicators.

Most fully synthetic indicator of financial sustainability is the excess or lack of sources of funds for building reserves, derived as the difference of magnitude of sources of funds and stocks. This refers to the availability of certain types of sources (own, credit and other loans) as sufficient amounts of all possible types of sources(including accountspayable and othercurrent liabilities)

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