The ratio of offset against counterclaims with one of the main categories of legal regulation of insolvency (bankruptcy) relations by invalidating contracts and denying the debtor's property actions

Т.М. Чубар

Анотація


The ratio of offset against counterclaims with one of the main categories of legal regulation of insolvency (bankruptcy) relations by invalidating contracts and denying the debtor's property actionsChubar T.N.Annotation. The article is devoted to the study of the legal nature of the offset of counter homogeneous claims, the invalidation of contracts and the refutation of the debtor's property actions, and their relationship among themselves. The analysis of the bases and main features of denial of transactions and property actions in the procedure of bankruptcy. The signs of set-off of counter homogeneous claims as a binding, law-breaking and ancillary transaction. And also the answer to the question is given: is the offset of counter homogeneous claims that is made by the debtor with a separate creditor in accordance with the Civil and Economic Codes of Ukraine, but in a "suspicious" period, one that contradicts or does not contradict the requirements of the Law on Bankruptcy.Keywords: counterclaims of homogeneous claims, invalidation of contracts and denial of property actions of the debtor, discharge of an obligation, Insolvency.

 

Statement of the problem. The provisions of the Law of Ukraine «On Restoring Debtor's Solvency or Declaring it Bankrupt» for the possibility of transfer of counter homogeneous claims in bankruptcy are written as «concise», which almost deprived practical sense.Thus, according to paragraph 8 of Article 45 of the Law on bankruptcy repayment of creditors' claims by offsetting counter homogeneous requirements carried out with the consent of the creditor (creditors) in cases where it does not violate the property rights of other creditors.The lack of detail required elements of law, which in practice leads to a complete ban offsets in bankruptcy, is the need for a comprehensive study of the essence standings, and its relationship with the main categories of legal regulation of relations insolvency (bankruptcy).The aim of this article is to analyze enrollment ratio counter homogeneous requirements of major categories of legal regulation of relations insolvency (bankruptcy) annulment of contracts (agreements) and denial of property of the debtor аction, because most opponents of the use of offsets in bankruptcy motivate their position it spread grounds recognition agreements null and void in bankruptcy on credit, as a result of which at another creditor the debt is repaid in full and without installments, while other creditors will receive, if any, will most likely only partial payment, even late. Presentation of the basic material. Institute invalidate transactions (contracts) and retraction operations of property the debtor in bankruptcy is aimed at eliminating the consequences of fraud property of the debtor to reduce his weight by replenishing residual latter property that has left the possession of the debtor.Based on the content of Article 20 of the Bankruptcy Law are two forms of action refuting the debtor made to the detriment of creditors:form invalidate actions the debtor not covered by the concept of the agreement and, above all, are covered by the term «performance obligation»;form invalidate transactions (transactions) made by the debtor.Since the Test and execution are separate grounds for termination of the commitments research is subject to the circumstances relating to the form invalidate transactions (transactions) made by the debtor.Analyzing the characteristics of offsets as a unilateral transaction, we conclude that the setoff of mutual claims is homogeneous transaction: binding; one that requires the perception of another person; law-breaking and auxiliary.Thus, the only reason for invalidation of the powers that be investigated for the possibility of set-off in bankruptcy is - the debtor to initiate bankruptcy proceedings has undertaken, causing it to become insolvent or execution of its cash obligations to other creditors in full or in part made impossible.However, as noted above, the creditor submitting an application for setoff obliges the debtor to terminate existing between homogenous counterclaims. Statement Test does not create any new obligations, it is aimed solely at ending existing between the creditor and the debtor counter homogeneous requirements.The obligation to terminate existing legal relationship that aims to debtor by creditor filed an application for credit, not economic obligations within the meaning of Article 509 of the Civil Code of Ukraine and Article 173 of the Commercial Code of Ukraine, since commitments are dynamic economic relationships that mediate movement of wealth between economic entities.From the above analysis it appears that the current bankruptcy law does not contain specific grounds of recognition of transactions void of bankruptcy, which would allow to recognize spent on insolvent debtor void test.

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