On the special case of exercising the right of pledge during the freezing of the satisfaction of creditors’ claims (Moratorium)
Parts 1 and 2 of Article 39 of the Bankruptcy Law of the Republic of Armenia (hereinafter referred to as the Law) regulate the freezing of the satisfaction of the creditors’s creditors (hereinafter referred to as the Debtor) after initiating bankruptcy proceedings until the person is declared bankrupt. related relationships and issues.
Among other things, this norm defines the types and scope of the requirements to which the Moratorium applies.
The importance of the Moratorium Institute in the implementation of the problems and goals of bankruptcy proceedings can not be underestimated, especially in connection with the implementation of the goal of recovery of Debtors, which is a corporation, given their role in ensuring the economic development and employment of the Republic of Armenia.
At the same time, however, it should be noted that the effect of the Moratorium does not always have absolute significance, due to which the legislator extended the effect of the Moratorium on the property of the Debtor, but did not limit the possibility of disposing of it in cases provided by law.
One of these cases is the case of pledging the property of a third party for the benefit of the Debtor, the application of which is often encountered in practice, the cause of which is hidden not only in practice but also in the relevant legislation.
Thus, in order to ensure the full validity of the Moratorium, ie to exclude the management of the Debtor’s property outside the bankruptcy proceedings, Part 4 of Article 13 of the Law reserves the right for the interim bankruptcy trustee to petition the court over the Debtor’s property before making a decision to declare the Debtor bankrupt. on the application of a lien, which in practice is almost always applied and continues to be applied after the Debtor is declared bankrupt, by virtue of Article 19 1 1 (h) of the Law. Section 5 of Article 13 of the Law stipulates that from the moment of receiving the court decision on accepting the debtor’s bankruptcy application, the Compulsory Enforcement Service suspends all enforcement proceedings on confiscation of the debtor’s property (a similar provision is established in Article 39 of the Law). Part 1, point “c”, which contains a general wording and ambiguity, which, however, is beyond the scope of this article).
Pursuant to Article 47 1 1 of the Law, the Debtor’s property pledged to secure the liabilities of other persons is also included in the Debtor’s bankruptcy estate.
Due to the above-mentioned regulations, in practice, especially in credit relations arising between banks, credit organizations and entrepreneurs, the debtor’s creditors or out-of-court proceedings are blocked in order to confiscate the pledged property to ensure the fulfillment of other obligations owed by the Debtor.
In such a situation, the realization of the right of creditors, in particular banks and credit organizations, to receive satisfaction from the collateral is unnecessarily delayed, which can not be considered legally, financially, economically and logically justified, as creditors of other persons secured by the Debtor’s property are subject to Article 226 of the RA Civil Code. Pursuant to Article 3, Part 1, Article 243.1, the Debtor has the right to primary satisfaction with the subject of the pledge in comparison with the other creditors, regardless of the circumstances of the moratorium on the subject of the pledge and the imposition of a prohibition to ensure it. And obstructing the exercise of this right unreasonably hinders the normal course of civil circulation, leading to the disruption of a number of processes that contribute to the development of the economy.
It is self-evident that the application of the prohibitions in the case of accepting the application for declaring the Debtor bankrupt and then deciding to declare the Debtor bankrupt is lawful and pursues a legal purpose, but it is not accidental that Article 243.1, Part 1 of the RA Civil Code that the restraints applied in such situations do not preclude the mortgagor from exercising his right to satisfaction from the subject of the pledge.
If until 17.06.2016, when the RA Civil Code was amended by the mentioned article, the mentioned restrictions could be an obstacle for the realization of the pledgee’s right to receive satisfaction from the subject of the pledge, then after its entry into force the legislator completely solved that problem, but in practice it was not considered solved. This is possible because both the Judicial Acts Compulsory Enforcement Service of the RA Ministry of Justice and the RA State Committee of the Real Estate Cadastre do not apply the mentioned norm and do not carry out the actions to be taken within the scope of their authority over the subject of pledge. In particular: