COMPENSATORY FINANCING OF THE PARTICIPANT AND ITS LEGAL QUALIFICATION IN CASE OF BANKRUPTCY

The entrepreneur applied to the court for inclusion of the claim in the debtor's register (case no. A27-6419/23).

In rejecting the application, the court of first instance proceeded from the fact that the entrepreneur is affiliated with the debtor, did not eliminate doubts about the good faith of the purpose of filing this claim, did not provide indisputable relevant and acceptable evidence confirming the existence of unfulfilled obligations on the debtor's side, which is unfair behavior. 

The court concluded that the creditor made payments in fulfillment of a gratuitous transaction concluded with the debtor, and subsequently used the payment documents solely for the unlawful purpose of reducing, in the interests of the creditor, the number of votes held by independent creditors.

The appeal subordinated the claim based on the provision of compensatory financing by the participant to the debtor during the property crisis, and the existence of grounds for lowering the stated claim in relation to the claims of independent creditors. 

The cassation sent the dispute for reconsideration, pointing out that the basis for including the claim in the register is the creditor's presentation of evidence clearly and convincingly confirming the existence and amount of debt owed to him and refuting the objections of interested parties about the absence of debt. 

At the same time, recognizing the entrepreneur's claim as justified, the court of appeal, in violation of the requirements of procedural legislation, did not properly assess the manager's objections to the participant's repayment of the debtor's obligations, did not check whether all payments indicated in the application were made in the interests of the debtor, whether the debtor had monetary obligations to third parties who received funds from its participant.

 

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