Are Insolvency Officers Subject to Inspection?

Abstract

Panov Alexey - Research Fellow, National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: alex@panov.in.

The paper examines the problem of holding a trustee in bankruptcy administratively liable under art. 14.13 of the RF Code of Administrative Offences (hereafter KoAP RF) on the basis of the complaint of the receiver. In particular, the author shows that the activity of trustees in bankruptcy has its own special features based on the law On Bankruptcy. The controlling body may carry out an inspection only of self-regulating organizations of trustees. As to the powers to bring an administrative case, the legislator specifies the right of the department as to a self-regulating organization of trustees in bankruptcy and a specific trustee in bankruptcy. It is concluded that the legislator does not identify the concept of a self-regulating organization to its members (art. 23.1 FZ On Bankruptcy). On the materials of legal practice, the author focuses on the most interesting judgements of the RF Supreme Arbitration Court as these judgements served as a ground to address the RF Constitutional Court to interpret the applicable legislation concerning the legality of inspections against trustees in bankruptcy. The author makes the following conclusions. First, under FZ On Insolvency (Bankruptcy), the controlling body may carry out inspections only of self-regulating organizations of trustees in bankruptcy. Second, the administrative body does not have the power to inspect trustees in bankruptcy. Thirdly, as part of the case-study, the author finds that the court of the first instance committed a mistake as it did not check the powers of the administrative body which should have been done under part 6 of article 205 of the RF Arbitration Procedure Code. Judicial practice against the applicable law admits the right of the administrative body to inspect trustees in bankruptcy. The court of appeal applied art. 28.1 of the RF KoAP equaling the information on the wrongdoing from the complaint to the wrongdoing of an official of the organization. The article includes other conclusions of the author.