THE CONSEQUENCES OF THE INVALIDITY OF A FAKE TRANSACTION MUST BE APPLIED CORRECTLY

In the framework of the bankruptcy case of a citizen (No. A40-262317/20), the creditor applied to the court to challenge the chain of transactions involving the alienation of the debtor's share in the company.

Satisfying the requirements, the courts of two instances proceeded from the fact that the main purpose of the chain of transactions is the acquisition by the counterparty of real estate owned by the company, as well as the land plot located under this building for the construction of an apartment building. The purpose of the counterparty is to acquire ownership of land without bidding, regardless of how such a goal will be achieved: by acquiring a real estate object or acquiring rights to a share in the amount of 100% of the authorized capital of the company that owns such real estate.

Sending the dispute for a new review, the cassation drew attention to the arguments of the counterparty to the transaction about the improper application of restitution by the courts. Taking into account the judicial acts that have entered into force, the defendant believes that the conclusions of the courts on the invalidity of these transactions, including the already terminated agency agreement, terminated option, are not based on the norms of law.

Essential for the correct consideration of a separate dispute, based on the stated grounds of contestation, were the circumstances concerning the establishment of the presence (absence) of the fact of the pretense of successive transactions, which, in the opinion of the courts, covered the purchase and sale of a 100% share in the authorized capital of the company in order to obtain the right to a real estate object located on the territory necessary for the defendant the purpose of the construction of the land plot, the reality of the transfer of actual control over the company and real estate objects to the final buyer, for which it is necessary to determine the intention of the parties: whether their will corresponded to the expression of will expressed externally, through the registration of documents formally testifying to the commission of not one, but several transactions.

Thus, the conclusion of the courts is contradictory that there are grounds for recognizing all declared (including terminated, terminated, etc.) transactions as invalid and at the same time applying the consequences in the form of recognition of a 100% share in the authorized capital of the company concluded between the debtor and the defendant and recovery from the defendant in favor of the debtor money.

In this separate dispute, the courts invalidated a number of transactions aimed at covering up the transaction for the alienation of a share secured by real estate (the transfer of the share did not actually take place), while contradicting their own conclusions, applying the consequences of the invalidity of the pretended transaction, recognized the covered transaction as concluded.