SUPREME COURT : THE PARTICIPANTS OF THE DEBTOR-BANKRUPT HAVE PRIORITY TO SATISFY THE CLAIMS

In support of the claim, the applicant pointed out that he had withdrawn from the company's membership before the latter showed signs of bankruptcy, but the payment of the actual value of the share was not made, the debtor's creditors' claims were repaid, after which the company had funds left to repay corporate claims (liquidation quota).

The courts of three instances did not see grounds for satisfying the application, considering that the former participant does not have priority over the other participants of the debtor, and his claim should be repaid in the general order of distribution of the liquidation quota.

The Supreme Court of the Russian Federation did not agree with this approach and noted that the procedure for satisfying the claim for payment of the actual value of the share is not directly regulated by the Bankruptcy Law. At the same time, such a claim, which has a corporate nature, cannot compete with the claims of creditors included in the register.

Determining the ratio between the distribution of the liquidation quota and the payment of the actual value of the share, it is necessary to analyze the order and period of occurrence of such a requirement. If the withdrawal was carried out by a participant at the stage when the company has signs of a property crisis or objective bankruptcy, it is necessary to proceed from the fact that the claims of the exited participant are subject to satisfaction on an equal basis with the claims of the remaining persons in the company.

If the withdrawal is carried out by a participant before the signs of the company's insolvency arise, then his claim is subject to satisfaction before the distribution of the liquidation quota among the remaining participants, but after the claims of the controlling debtor and affiliated persons.

Having established that the remaining participants independently or through the executive bodies of the company unfairly evaded the payment of the actual value of the share (including through the withdrawal of assets, the creation of fictitious debt, etc.), the court, in order to balance the interests of creditors, has the right to recognize the claim of the exited participant to be satisfied in priority over competing creditors who committed unfair actions.