The mechanism of exemption from obligations in the process of insolvency (bankruptcy) of citizens in Russia and the United States: legal aspects

No non-bankruptcy creditor's claim may be brought.
Let us emphasize that it is the debtor who is obliged in his application to indicate all his creditors, their location, and also describe in detail all the property belonging to him and his debts.
It should be noted that the fact that a citizen is declared bankrupt does not have any negative impact on the credit history of his spouse. However, if the arisen debts are established in relation to both spouses, then the institution of the so-called joint bankruptcy should be applied.
Let us emphasize that in addition to the debtor, the creditors of the latter also have the right to file an application for declaring him bankrupt. At the same time, it is not required that such a statement should come from all creditors without exception: an application for compulsory bankruptcy must be signed by at least three creditors, if the number of creditors in total exceeds twelve. In the event that there are less than twelve creditors, then the application can be submitted by one creditor.
If such a statement is not appealed against within the prescribed time limit by the debtor, then the court decides to initiate proceedings on declaring the debtor bankrupt if the following conditions are met: firstly, the debtor does not pay for current monetary obligations; second, within one hundred and twenty days preceding the date of filing the application with the court, a guardian must be appointed over all or most of the debtor's assets.
With a combination of conditions such as the debtor's reaching a consensus with all creditors, the applicant's petition to terminate the proceedings on declaring the debtor bankrupt, the consent of all creditors, the court has the right, after notifying all creditors and holding hearings, to terminate the proceedings. In this case, it can be stated that an analogous procedure, called a settlement agreement, is also present in Russian legislation on insolvency (bankruptcy).
It is useful to note that the US bankruptcy legislation allows the so-called bankruptcy proceedings to be opened in advance, that is, if there is insufficient property to pay off debts that have not yet matured, but for which the debtor's property will be clearly not enough to pay off when the appropriate period comes.
Let us add that in this case, the burden of proof is imposed on the creditors of the fact that the debtor has committed certain actions that clearly indicate the instability of his financial position. In particular, it is customary to refer to such actions: the sale of a part of the debtor's property at clearly reduced prices; the debtor's activities aimed at concealing his property; public statements by the debtor about possible future insolvency.
The peculiarity of bankruptcy proceedings, which takes place in the American model of insolvency, lies in the functional component: the main purpose of bankruptcy proceedings is the proportionate distribution of the debtor's property among competing creditors. Consequently, if there is only one creditor, then the very idea of ​​a tender is meaningless; therefore, American legislation sets a necessary condition - the presence of several bankruptcy creditors. Moreover, if signs of unfair behavior are found in the applicant's actions, the court may compel the applicant to pay punitive damages as well.
At the request of creditors, the court, in the period after the adoption of the application for recognizing the debtor as bankrupt and before the relevant decision is made, has the right to issue an order establishing the protection regime of the debtor's property and appoint a temporary manager of the property - a curator, who has the right to be any disinterested person.
We believe that the status of a curator in this case resembles that of a financial manager in the Russian system of insolvency (bankruptcy) legislation. The curator is endowed with some powers to manage the debtor's property and ensure the safety of this property, and the debtor is responsible for transferring the balance of his property to the curator. At the same time, everything received during this procedural period by the debtor under the transactions, including those concluded earlier, must be transferred to the curator.
In addition, we emphasize that the debtor has the right to appear in court as a plaintiff, but cannot be a defendant, since during the period of bankruptcy proceedings, no collection can be levied on his property due to the extension of bankruptcy immunity to him.
The conceptual approach of American legislation, focused primarily on protecting the interests of the debtor, can be useful to the Russian legislator with well-known amendments and correlations.
We believe that in the context of the structural socio-economic crisis taking place at the current historical stage of the development of the Russian state, an uncontrolled flow of consumer lending, which parallels with a geometric progression, in the Russian legislation on insolvency (bankruptcy), it would be useful to provide, by analogy with American law, the institution of joint bankruptcy of spouses, which has as its goal, first of all, increasing the responsibility for their financial situation.
A specific feature of the American bankruptcy system is the participation in it of a special entity - a credit counselor, who is appointed in each legal district. Six months before filing an application for bankruptcy, a citizen is obliged to hold a conversation with a credit consultant, and after that to take mandatory paid courses in personal financial management.
The key problem of modern Russian society in improving the quality of life is the lack of a socio-psychological attitude of people to acquire and constantly maintain a high level of professional and general cultural education, without which it is impossible to build a knowledge economy.

Conclusion

Thus, the following conclusions can be drawn.
We believe that the introduction of such a procedure into the Russian legal field - a conversation with a credit consultant - will help to increase the legal literacy of the population and the legal culture of Russian society as a whole, which is an essential prerequisite for the effectiveness of market mechanisms, including the institution of insolvency (bankruptcy) citizen.

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