Duty of Bankruptcy Commissioner to Keep Debtor’s Documents: Issues of Theory and Practice

Abstract

The article is devoted to consideration of the storage of documents of the debtor with the arbitration manager. Purpose of paper is: to analyze the general procedure for storing the debtor’s documentation by the arbitration manager, the criteria for classifying his actions on its management from the point of view of good faith or bad faith. Research methods applied are: methods of collecting empirical information, methods of generalization, formal-dogmatic (formal-legal), systematic approach. Results: the concept of representative storage, the concept of trust storage, the concept of labor storage, the storage concept of things, the functional storage concept and the concept of delegated public storage were formulated. On the basis of summarizing the conclusions of various theories of arbitration management the following theoretical provisions have been formulated for the storage of the debtor’s documents by the bankruptcy administrator: representation by the bankruptcy administrator of the interests of the debtor, creditors and society; transfer of documents for storage for a specified period, as well as organization of storage in the interests of interested parties; finding the stored documents in the possession of the bankruptcy commissioner; implementation of various functions of the insolvency practitioner for keeping the debtor’s documents in bankruptcy proceedings; vesting by the state of the insolvency practitioner with public functions of organizing the storage of the debtor’s documents. The custody of the debtor’s documents by the bankruptcy administrator means the activities of the bankruptcy administrator to carry out public functions delegated by the state to organize the storage of the debtor’s documents in bankruptcy proceedings within the established time limits in the interests of the debtor, creditors and society. The practical problems of obtaining (reclaiming) the debtor’s documents by the arbitration administrator, ordering the debtor’s archival documents, their personal storage by the administrator, transferring them for storage, destruction of documents, storage periods, and storage costs are analyzed, and ways of solving these problems based on the analysis of law enforcement practice are proposed. Conclusions: insufficient regulation of legal relations for the storage of documentation of the debtor leads to a violation of the rights and interests of various participants in bankruptcy relations: creditors, debtors, society, arbitration managers, which necessitates the improvement of the current legislation in order to ensure a balance of various interests.