The institute of invalidation of transactions in the bankruptcy procedure has a direct impact on the course of the entire bankruptcy procedure in general, and on the return of the debtor’s assets, filling the liquidation mass, as well as protecting the interests of creditors in particular. This is due to the fact that in approaching the imminent economic collapse, the debtor, in order to avoid insolvency, commits transactions that are completely unfavourable to him, or, conversely, maliciously tries to save his property by passing it to a third party. Moreover, the institute under study is so deeply rooted that its prototype is found even in the law of the ancient Rome.

The purpose of the article is a comprehensive analysis of the institute of invalidation of transactions in the bankruptcy procedure in Ukraine, current positions of judicial practice, identification of conflicts and gaps in the legal regulation of this institution, and provide suggestions for its improvement.

It is emphasized that in terms of appealing the debtor’s transactions, the innovation in the Bankruptcy Code is the replacement of the “competitive creditor” by “creditor”,which in turn leads to the expansion of the entity entitled to such an appeal (impugnment of property actions) and may result the unreasonable delay of the bankruptcy procedure.

It is highlighted that given the requirements of Part 3 of Art. 42 of the Bankruptcy Code, in case the commercial court declares the transaction as invalid, third parties who have made such a transaction with the debtor are obliged to return the property to the liquidation mass. At the same time, in the absence of provisions on bilateral restitution in mentioned legal norm, there is a risk of violation of the property rights of bona fide acquirers.

It is stated that it is necessary to invalidate the debtor’s transactions in the bankruptcy procedure both as in case of intent to conceal funds, as well as in case of their unprofitableness or in case of the presence of quasi-tort.

It is proposed to differentiate the period of “distrust” depending on the situation, in particular, one year – to appeal unprofitable transactions committed without the intent to defraud the creditors, three years – in case of quasi-tort, from ten to fifteen years – in case of debtor’s intention to conceal the assets.

It is determined that if before the beginning of the period of “distrust” the debtor has signs of insolvency, then the beginning of the mentioned period should be considered at the moment of manifestation of insolvency signs.

It is proposed to establish the prohibition on invalidation of the donation agreement if it is concluded by the debtor not earlier than one year preceding the opening of bankruptcy proceedings, and it was not accompanied by malicious intent of the debtor or his counterpart to reduce liquidation mass, and the amount of donation does not exceed from 100 minimum wages payments at the time of the contract conclusion and this did not lead to the insolvency of the debtor or its threat, as well as provided that the gifted person did not further alienate the donated property.

It is proposed to provide for the possibility of impugnment of the amicable agreement and claim recognition as the debtor’s property actions, if he causes damage to creditors or reduces the volume of the liquidation mass.

The view is expressed regarding the change of the position of the Supreme Court in terms of non-dissemination of new grounds for invalidation of the debtor’s transactions, provided for in Art. 42 of the Bankruptcy Code in cases which were opened under the provisions of this Code and for which the three-year period has not expired.

Bibliography

Authored books

1. Endemann W, Das Deutsche Konkursverfahren (Fues’s Verlang 1859) (in German).

2. Butyrskyi A, Zakhody shchodo vidnovlennia platospromozhnosti borzhnyka yak shliakh podolannia bankrutstva (Knyhy 2008) (in Ukrainian).

3. Golmsten A, Uchenye o prave kredytora oproverhat yurydycheskye akty, sovershennыe dolzhnykom v eho ushcherb, v sovremennoi yurydycheskoi lyterature (Typ M M Stasiulevycha 1894) (in Russian).

4. Malyshev K, Ystorycheskyi ocherk konkursnoho protsessa (Typ Tovaryshchestva “Obshchestvennaia polza” 1871) (in Russian).

5. Poliakov B, Pravo nespromozhnosti (bankrutstva) v Ukraini: pidruchnyk dlia studеntiv vyshchyh navchnyh zakladiv (In Yure 2011) (in Ukrainian).

6. Shershenevich G, Konkursnoe pravo. Vtoroe yzdanye (Typ Ymperatorskoho unyversyteta 1898) (in Russian).

7. Telyukina M, Konkursnoe pravo: Teoriya praktika i processa (Delo 2002) (in Russian).

 Journal articles

8. Belianevych O, ‘Pro osoblyvosti zastosuvannia norm pro pozovnu davnist u spravakh pro bankrutstvo’ (2017) 10 Pidpryiemnytstvo, hospodarstvo i pravo 8 (in Ukrainian).

9. Honcharenko O, Chernenko O, Kovalyshyna O, ‘Pravova pryroda tryrichnoho stroku, peredbachenoho statteiu 42 Kodeksu Ukrainy z protsedur bankrutstva’ (2021) 6 Pidpryiemnytstvo, hospodarstvo i parvo 77, 78 (in Ukrainian).

 10. Radzyviliuk V, ‘Vyznannia nediisnymy ta vidmova vid pravochyniv (dohovoriv) borzhnyka u sudovii protseduri sanatsii’ (2013) 3 Visnyk Kyivskoho natsionalnoho universytetu imeni Tarasa Shevchenka. Yurydychni nauky 46 (in Ukrainian).