Article title Participation of the Bankruptcy Trustee in the Bankruptcy Case (Insolvency)
Authors

Candidate of Law, Associate Professor of International, Civil and Commercial Law Kyiv National University of Trade and Economics (Kyiv, Ukraine) ORCID ID: https://orcid.org/0000-0001-9342-3835 y.kabenok@knute.edu.ua

 

Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 4/2021
Сторінки [71-83]
Annotation

An important aspect of the bankruptcy procedure is the proper implementation of the tasks of trustee management, which is provided by the bankruptcy trustee. His involvement in the bankruptcy (insolvency) case is directly related to the close relationship with other participants in such proceedings. The key role is played by the appointment and removal of the bankruptcy trustee, as well as the possible impact on his activities and control over it by the commercial court and creditors.

The purpose of the article is an in-depth analysis of the legal regulation of the bankruptcy trustee’s participation in bankruptcy (insolvency), case law, identification of collisions and gaps in the legislation, as well as providing suggestions for its improvement.

It was stated that the identified inaccuracies in the legislation indicate the inadequate state of legal support for the selection and appointment of an bankruptcy trustee at the stage of opening bankruptcy proceedings (insolvency).

It is argued that the candidacy of the bankruptcy trustee should be assessed from the standpoint of facts that occur only during the consideration of his appointment, while avoiding unfounded judgments that could lead to violations of the rights of participants in bankruptcy (insolvency).

 There are types of removal of the bankruptcy trustee: voluntary (carried out at the request of the bankruptcy trustee, as his own will) and (compulsory removal – at the initiative of the commercial court or at the request of the party to the case). Compulsory, in turn, is divided into removal if there are grounds, and without such.

It is emphasized that the existing procedure for dismissal of the bankruptcy trustee at the request of the creditors’ committee violates the explicit principle of the latter’s independence. It is stated that in the event of a request from the creditors ‘committee, the commercial court must also assess it from the standpoint of possible abuse of rights by the creditors’ committee. Because, having endowed the latter with such a right, the legislator, in particular, actually introduced the “adjustment” of the debtor’s trustee management exclusively to the interests of the creditors’ committee.

In this context, it is proposed to provide for a mandatory justification of the grounds for dismissal and a direct indication of the obligation of the commercial court to provide an assessment of the bankruptcy trustee in considering the petition of the creditors’ committee.

The author concludes that at present it is seen to create unfavorable conditions for the implementation of trustee management in terms of complete dependence of the bankruptcy trustee after the appointment by the court and during the bankruptcy proceedings from the creditors’ committee.

 

Keywords insolvency; bankruptcy; bankruptcy trustee; committee of creditors; trustee management
References

Bibliography

Authored books

1. Butyrska I, Pravovyi status uchasnykiv spravy pro bankrutstvo (Tekhnodruk 2017) (in Ukrainian). 2. Pryguza P, Dovgan A, Katrechko D, Umysne bankrutstvo: teoriya i praktyka subsydiarnoii vidpovidalnosti: naukovo-praktychnyi posibnyk (Borysfen-pro 2020) (in Ukrainian).Journal articles 3. Butyrskyj A, ‘Koncepciia udoskonalennia zakonodavstva pro nespromozhnist’ (2018) 6 Pravo Ukrainy 87 (in Ukrainian).

 4. Grabovan L, ‘Pravovyi status kredytoriv u Kodeksi Ukrainy z procedur bankrutstva’ (2019) 10 Pidpryyemnycztvo, gospodarstvo i pravo 56 (in Ukrainian).

5. Radzyviliuk V, Poliakov R, ‘Problemy zastosuvannia hospodarsko-protsesualnykh norm u protseduri bankrutstva (neplatospromozhnosti)’ (2020) 7 Pravo Ukrainy 148 (in Ukrainian).

 

Thesis

6. Kabenok Yu, ‘Pravove rehuliuvannia arbitrazhnoho upravlinnia v protseduri bankrutstva v Ukraini’ (dys kand yuryd nauk, 2019) (in Ukrainian).

 

Websites

7. Poliakov B, Poliakov R, ‘Zolote telia, abo Arbitrazhnyi keruiuchyi ne rab kredytoriv, a subiekt nezalezhnoi profesiinoi diialnosti za rakhunok ostannikh’ (Zakon i Biznes, 02.05–08.05.2020) (accessed: 15.11.2020) (in Ukrainian).

8. Zhukov S, Zhyla B, ‘Iaki rishennia mozhe pryimaty komitet kredytoriv u spravi pro bankrutstvo’ (Zakon i Biznes, 12.09–18.09.2020) (accessed: 15.11.2020) (in Ukrainian).