Insolvency as a material and legal basis for initiating bankruptcy proceedings against business organizations

Abstract

In this scientific article, the author discloses the definition of insolvency as a substantive legal basis for opening bankruptcy proceedings. It is emphasized that the grounds for initiating bankruptcy proceedings enshrined in the Bankruptcy Procedure Code are not consistent with the concept of insolvency of the debtor, which is enshrined in part one of Article 1 of this Code, as their combined application does not require establishing the debtor's ability to meet its monetary obligations. to creditors after the due date solely through the application of bankruptcy proceedings. It is established that the courts do not establish the facts of the debtor's signs of insolvency, taking into account the concept of insolvency, which is enshrined in law. It is alleged that the postponement of the moment of proving insolvency to the stage of disposition of the debtor's property is the cause of cases of unreasonable application to the debtor of the consequences of bankruptcy proceedings, namely, a moratorium on creditors' claims, restriction of the debtor to decide on his property. It is emphasized that the existing legal position of the Supreme Court on the moment of establishing the solvency of the debtor is unconstructive, as it allows the opening of bankruptcy proceedings against debtors who have no signs of insolvency, but simply perform their obligations in bad faith. It is noted that insolvency is an economic category, requires knowledge of the balance sheet of the enterprise, the economic component of its assets and liabilities, and so on. In order to establish the facts of bankruptcy, fictitious bankruptcy or hidden bankruptcy, it is proposed to conduct a mandatory economic examination of the debtor before initiating bankruptcy proceedings.