Volume 03 Issue 02-2023
1
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
SSUE
02
Pages:
01-05
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
The article analyzes the procedural order of concluding an amicable agreement in insolvency cases. Taking into
account the procedural norms of the economic procedural legislation of the Republic of Uzbekistan, also taking into
account the features established by the Law of the Republic of Uzbekistan “On Insolvency”, some procedural features
of concluding an amicable agreement in insolvency cases have been identified.
KEYWORDS
Conclusion, amicable agreement, insolvency, debtor, creditor, third party, terms of amicable agreement, court,
definitions.
INTRODUCTION
The amicable agreement is an agreement between the
parties to end the litigation on the basis of mutual
concessions. Its essence is to end the process by
peaceful settlement of the dispute, achieving certainty
in relations between the parties on the basis of the free
will of the parties themselves. The amicable agreement
is an agreement between the parties to terminate the
dispute on the basis of the voluntary settlement of
mutual claims and the approval of mutual concessions,
which is one of the procedural means of protecting
subjective rights. An amicable agreement is the most
cost-effective way to prevent the bankruptcy of a
debtor, restore its solvency, and settle property
disputes with creditors. [1].
Research Article
SOME PROCEDURAL FEATURES OF THE CONCLUSION OF A AMICABLE
AGREEMENT IN INSOLVENCY CASES
Submission Date:
February 01, 2023,
Accepted Date:
February 05, 2023,
Published Date:
February 10, 2023
Crossref doi:
https://doi.org/10.37547/ijlc/Volume03Issue02-01
Salimova Iroda Mamayusufovna
Phd In Law, Acting Associate Professor, Department Of Civil Procedural And Economic Procedural Law,
Tashkent State University Of Law, Tashkent, Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 03 Issue 02-2023
2
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
SSUE
02
Pages:
01-05
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
According to Kabanov O.Yu. “An amicable agreement
is not just a way to resolve a dispute, but actually a
restorative procedure. In this category of cases, it is
used for the purpose of preserving the debtor,
restoring its solvency and maintaining it as an
independent economic entity” [2].
The procedure for concluding an amicable agreement
in insolvency cases is regulated by the general rules of
the Economic Procedure Code of the Republic of
Uzbekistan[3].
and
Chapter
12
(Settlement
Agreement) of the Law “On Insolvency” of the
Republic of Uzbekistan[4]. Based on the Insolvency
Law, an amicable agreement means an agreement
between the parties to terminate the insolvency
proceedings on the basis of mutual concessions.
In accordance with Art. 161 The Law “On Insolvency” of
the Republic of Uzbekistan at any stage of the court's
consideration of an insolvency case, the debtor and
creditors have the right to conclude an amicable
agreement. Thus, an amicable agreement can be
concluded on behalf of creditors or debtors.
The decision to conclude an amicable agreement on
behalf of the creditors is taken by the meeting of
creditors. The decision of the meeting of creditors to
conclude an amicable agreement is adopted by a
majority vote of the creditors of the first, second and
third groups and is considered adopted provided that
all creditors on obligations secured by the pledge of
the debtor's property voted for it. The powers of the
representative of the creditor to vote on the issue of
concluding an amicable agreement must be specifically
provided for in his power of attorney.
Creditors who will participate in the amicable
agreement should be familiarized with the rationale for
the terms of the amicable agreement in advance,
before the meeting, in order to assess the possibility of
restoring the debtor's solvency on the conditions
presented. Otherwise, creditors may simply not vote
for the conclusion of a settlement agreement[4].
On behalf of the debtor, an amicable agreement may
be concluded:
•
An individual entrepreneur;
•
The head of the debtor;
•
External manager;
•
Liquidation manager;
•
Financial manager.
The decision to conclude an amicable agreement on
the part of the debtor is made during the procedures
of supervision and judicial sanitation by the head of the
debtor, and in the event of his removal from the
performance of his duties, by the court manager.
If the amicable agreement is a transaction for the
debtor, which, in accordance with the legislation or the
debtor's constituent documents, is made by decision
(approval) of the debtor's management bodies, the
decision to conclude an amicable agreement on behalf
of the debtor may be taken after the appropriate
decision (approval). When concluding an amicable
agreement in the procedures of external management
and liquidation proceedings, such a decision (approval)
is not required.
It is also allowed to participate in the amicable
agreement of third parties who assume the rights and
obligations provided for by the amicable agreement.
Third parties have the right to provide guarantees or
guarantees that the debtor will fulfill monetary
obligations and (or) the obligation to pay taxes and
fees under an amicable agreement, as well as
otherwise ensure its proper fulfillment. If the condition
Volume 03 Issue 02-2023
3
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
SSUE
02
Pages:
01-05
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
of the amicable agreement is the alienation of the
debtor's property in favor of a third party, then it can
be concluded only on the condition that the said
property is provided by the third party as a pledge that
ensures the repayment of creditors' claims.
When concluding an amicable agreement with the
participation of third parties who are interested in
relation to the debtor, the court administrator or the
creditor, the amicable agreement must contain
information that it is a transaction in which there is an
interest, indicating the nature of such interest. The
amicable agreement extends to the claims of creditors,
the due date for which has come on the date of the
introduction of the relevant insolvency procedure,
with the exception of obligations that have arisen after
the initiation of an insolvency case.
The amicable agreement is subject to approval by the
court, as a result of which a ruling is issued, which
indicates the termination of the proceedings on the
insolvency case. If an amicable agreement is concluded
in the course of liquidation proceedings, the court
issues a ruling approving the amicable agreement,
which indicates that the decision to declare the debtor
bankrupt and commence liquidation proceedings is not
subject to execution.
The amicable agreement enters into force for the
debtor, creditors, as well as third parties participating
in the amicable agreement, from the date of its
approval by the court and is binding on them. A
unilateral refusal to execute an amicable agreement
that has entered into force is not allowed.
The creditor who voted for the conclusion of the
amicable agreement, the founders (participants) or
the owner of the debtor's property shall have the right
to fulfill the debtor's monetary obligations and (or) tax
and duty obligations to the creditors who voted
against the conclusion of the amicable agreement or
did not take part in the voting. In this case, the creditor
is obliged to accept the performance offered for the
debtor, and the person who performed the obligations
of the debtor is transferred the rights of the creditor's
claim under the obligation.
The amicable agreement is concluded in writing.
On behalf of the debtor, the amicable agreement is
signed by the debtor - an individual entrepreneur, the
head of the debtor or the court administrator,
respectively. On behalf of the creditors, the amicable
agreement is signed by a person authorized by the
meeting of creditors.
If third parties participate in the amicable agreement,
on their behalf the amicable agreement is signed by
these persons or their representatives.
The amicable agreement must contain provisions on
the amount, procedure and terms for the fulfillment of
the debtor's monetary obligations and (or) on the
termination of the debtor's monetary obligations by
providing a compensation in return, novation of the
obligation, by forgiveness of the debt or by other
means provided for by law.
The amicable agreement may contain the following
conditions:
•
On the postponement or installment plan of the
fulfillment of monetary obligations;
•
On the assignment of the rights of the debtor's
claim in favor of another;
•
On the fulfillment of the debtor's monetary
obligations by third parties;
•
About a discount from a debt;
Volume 03 Issue 02-2023
4
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
SSUE
02
Pages:
01-05
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
•
On changing the terms and procedure for paying
taxes and fees;
•
On satisfaction of creditors' claims in other ways
that do not contradict the law.
The conditions of an amicable agreement for creditors
who did not take part in voting on the issue of
concluding a settlement agreement, as well as those
who voted against its conclusion, cannot be worse
than for creditors of the same order who voted for its
conclusion.
Unless otherwise provided by the amicable agreement,
the pledge of the debtor's property, which ensures the
fulfillment by the debtor of the obligations assumed,
shall be preserved.
The amicable agreement can be approved by the court
only after the following expenses have been paid and
the requirements have been satisfied:
•
Court expenses;
•
Expenses related to the payment of remuneration
to court administrators;
•
Current utility and operating payments;
•
Expenses for insurance of the debtor's property;
•
Claims for the debtor's obligations arising after
initiation of insolvency proceedings;
•
Claims of citizens to whom the debtor is liable for
causing harm to life or health in accordance with
the law.
In addition, the amicable agreement can be approved
by the court only after the repayment of claims on
payment documents providing for the issuance of
funds for the payment of wages.
An exception is the claims of creditors filed after the
deadline set in the publication for the commencement
of liquidation proceedings for filing creditors' claims, as
well as claims for taxes and fees that arose after the
commencement of liquidation proceedings. These
claims, irrespective of the period of their presentation,
are satisfied after the satisfaction of the above listed
creditors' claims.
Based on the foregoing, the conclusion can list the
following procedural features of the conclusion of an
amicable agreement in insolvency cases:
•
the conclusion of an amicable agreement is
allowed at any stage of the consideration of the
case;
•
the parties to the amicable agreement are the
debtor and the creditor;
•
on behalf of the debtor, an amicable agreement
may be concluded by an individual entrepreneur;
the head of the debtor; external manager;
liquidation manager; financial manager;
•
participation of third parties in the conclusion of an
amicable agreement is allowed;
•
the amicable agreement can be approved by the
court only after the repayment of the expenses
determined by law and the satisfaction of claims;
•
the amicable agreement may contain conditions
related to legal costs, satisfaction of claims, debts,
etc.
•
the amicable agreement is concluded in writing;
•
the amicable agreement is approved by the court
with the issuance of a ruling.
REFERENCES
1.
Epshtein S. M. The procedure for concluding
and approving an amicable agreement in cases
of insolvency (bankruptcy) // №6, 2011.
https://cyberleninka.ru/article/n/protsedura-
zaklyucheniya-i-utverzhdeniya-mirovogo-
Volume 03 Issue 02-2023
5
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
SSUE
02
Pages:
01-05
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
soglasheniya-v-delah-o-nesostoyatelnosti-
bankrotstve
2.
Kabanova O.Yu. Problems of settlement of
amicable agreement in the case of insolvency
(bankruptcy) // European science № 7(29)
https://cyberleninka.ru/article/n/problemy-
zaklyucheniya-mirovogo-soglasheniya-v-dele-
o-nesostoyatelnosti-bankrotstve
3.
Economic Procedural Code of the Republic of
Uzbekistan // National Database of Legislation,
01/25/2018, No. 02/18/EPC/0623.
4.
Law of the Republic of Uzbekistan dated April
12, 2020 No. LRU-
763 “On Insolvency” //
National Database of Legislation, April 13,
2022, No. 03/22/763/0306
5.
Dolgikh S.S., Gurunyan T.V. Settlement
agreement as an alternative bankruptcy
procedure
//
https://cyberleninka.ru/article/n/mirovoe-
soglashenie-kak-alternativnaya-protsedura-
bankrotstva
