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About rehabilitation and bankruptcy

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How to get rid of debts and complete the bankruptcy procedure? According to the Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy" one of the grounds for initiating proceedings in a bankruptcy case by a court is the debtor's application. However, not every individual entrepreneur or legal entity can declare bankruptcy. The basis for the debtor's application to the court on recognition as bankrupt is his insolvency in the absence of the possibility to restore it. Under the insolvency of a debtor is understood his inability to fulfill monetary obligations and other monetary claims within three months from the time of the onset of their execution. It follows that if the debtor does not have unfulfilled obligations, or if it is possible to satisfy the creditors' claims for these obligations outside the bankruptcy proceedings, the court may refuse to recognize the debtor as a bankrupt. The debtor's application shall be submitted to the court in writing, signed by the head of the debtor-legal entity or by the person substituting it, in accordance with the constituent documents. After the initiation of the bankruptcy case, the execution of the previously issued judicial acts with respect to the debtor's property is not allowed, as well as the non-acceptance withdrawal of money from the bank accounts of the debtor and foreclosure on property, any creditors claim only in the framework of bankruptcy. Since the date of the court's ruling on initiating a case, the debtor's bodies and members are prohibited from using and disposing of property, except for the usual commercial operations for the company. The debtor has the right to perform the specified actions only after preliminary coordination with the temporary manager. After the initiation of the case, not later than two working days, the court appoints an interim manager - a person who passed the qualification examination and is admitted to the administrator's activities in accordance with the procedure established by law. The main task of the temporary manager at this stage is to collect information, as well as to draw up an analytical conclusion on the financial condition of the debtor. In conclusion, having examined the accounting and accounting documentation, the interim manager gives conclusions regarding the solvency or insolvency of the debtor, the existence of grounds for recognizing the insolvency of the debtor, or other conclusions. The conclusion is submitted by the temporary administrator to the court and is considered as one of the proofs, for the possibility of a comprehensive and full investigation by the court of the issue of insolvency of the debtor. In addition to the debtor, the representative of the authorized body, the representative of the prosecutor's office, creditors and other interested persons participate in the court session, who also give explanations, comments and enjoy all other rights provided for in civil procedural law. If the debtor is not at the hearing, the court issues a ruling on the compulsory reconduction, except for cases of bankruptcy of the absent debtor. If the bankruptcy petition is filed by the creditor, then his failure to appear in court session entails the court's ruling on leaving the application without consideration. The completion of the stage is determined by the issuance of a judicial act on the recognition or non-recognition of the insolvency of the debtor. In this case, the court is limited by a strict timeframe: a bankruptcy case, if the applicant is a debtor shall be considered within a month, in cases when the creditor or the prosecutor submits an application to the court - within two months from the moment of initiation of the case. After the debtor is declared insolvent, the final and longest stage begins, which ends with the entry of a bankruptcy record in the state register of legal entities. Since the day the court passes a decision on recognizing the debtor as bankrupt, all the terms of its obligations are considered expired; there is no penalty and compensation; all property disputes in courts in which a bankrupt participates, cease; on the application of the administrator all restrictions and encumbrances on property are removed. All property claims against the debtor are made only within the framework of the bankruptcy procedure. All bodies and participants of a bankrupt enterprise are prohibited from using and disposing of property, except for the usual commercial operations of the company, as well as within the repayment of obligations. The deadline for this phase is nine months, but in some cases the bankruptcy procedure may be extended or delayed. Functions for managing the affairs and property of the debtor are carried out by the temporary administrator, who forms a register of creditors' claims, conducts an inventory of the estate, organizes and conducts the first meeting of creditors, at which the candidature of the bankruptcy administrator is elected. The main tasks of the bankruptcy manager are protection and control over the property of the debtor, the formation of the estate, keeping the register of creditors 'claims, developing and implementing a plan for the sale of property, demanding debts, fulfilling creditors' claims in accordance with the register, establishing contracts and other transactions that were concluded in violation of legislation and the presentation of claims on their invalidity. The bankruptcy manager also has the right to conclude an amicable agreement in cases provided for by the legislation on rehabilitation and bankruptcy. Transactions made within three years prior to the initiation of bankruptcy proceedings on the initiative of the bankruptcy trustee and the court decision may be declared null and void with all the ensuing consequences. In addition, participants and officials of the bankrupt can be brought to subsidiary (property), administrative or criminal liability in cases of violation of the requirements of legislation when concluding these transactions. Based on the results of settlements with creditors, the bankruptcy manager submits to the court, a final report on his activities agreed with the creditors' meeting with the application of the liquidation balance sheet and a report on the use of the property left after settlements with creditors. After approval of the final report and the liquidation balance, the court issues a ruling on the termination of the bankruptcy procedure. At the same time, the bankrupt is considered exempt from debts, and the bankruptcy procedure is completed.
 

 


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