Moscow University Law Bulletin. 2025. 4.

This article is devoted to the problem of the grounds for recognition and enforcement of foreign insolvency judgments (primarily Russian) in bankruptcy cases, where decisions on bringing controlling persons to secondary liability will serve as an example. As general grounds for recognition and enforcement of foreign insolvency judgments in bankruptcy cases it is necessary to single out procedural and substantive grounds directly related to the nature of secondary liability in a bankruptcy case. The procedural grounds for recognition and enforcement include: (i) the existence of an international treaty, (ii) the existence of the principle of reciprocity, (iii) the absence of sanction status of the major creditor, (iv) compliance by the decision with the public policy of a particular state. In terms of the substantive grounds for recognition and enforcement of a foreign bankruptcy judgement, the sanction contained in the judgement should have a private, rather than public nature. The author has demonstrated that secondary liability in insolvency (bankruptcy) cases has more of a public nature and is characterized as repressive, as there are no mechanisms of exemption from such liability, which is the reason for refusal to recognize and enforce Russian court decisions on bringing to secondary liability in foreign courts.

The article is devoted to the analysis of the legal statuses of the most significant category of persons in bankruptcy cases, which include creditors whose claims are included in the register of claims. These individuals are a key figure in bankruptcy cases. The behavior of registered creditors has a special role and significance in the insolvency relationship both in relation to the debtor and in relation to other creditors. The paper describes a comprehensive system of creditors in bankruptcy cases, consisting of fourteen categories. The substantiation of the process of allocating a new category of creditors in the specified system — paid register creditors for obligations secured by a pledge of the sole residential premises of the bankrupt. The concept of the construction of the moral non-payment of registered creditors and ways to overcome it is formulated. The complexity and variety of tasks and functions currently facing domestic bankruptcy legislation are generating increased attention to registered creditors in bankruptcy cases. It is concluded that the nature of the behavior of registered creditors determines the current state and the general vector of law enforcement practice of applying the norms of legislation on insolvency (bankruptcy).

The article examines the evolution of the judicial doctrine of the "single transaction", which appeared in judicial practice initially in resolution No. 25 of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015, and then further developed in judicial acts of the supreme judicial instance. The conclusion is made about the judicial doctrine as an atypical source of the institution of insolvency (bankruptcy), used to resolve disputes about challenging actions (transactions) in bankruptcy proceedings in order to prevent unfair actions by the debtor and his counterparties using complex and intricate schemes for the withdrawal of assets of the debtor, challenging which without using a single transaction structure is very difficult or impossible. The criteria of interrelation of actions (transactions) are highlighted, which make it possible to qualify a chain of actions (transactions) as a single action or a single transaction. Various types of interrelated transactions are indicated. The article analyzes the current judicial practice of challenging the chain of actions (transactions), revealing the true will of the parties who executed the withdrawal of the debtor's assets as a covered transaction through a series of actions that make it difficult to detect the true will of the subjects. The algorithm of actions of the arbitration manager (creditors) challenging a single transaction, as well as the legal consequences of the invalidity of the covered transaction, is analyzed.

The common interest acts as a basis for cooperation, sufficient to set aside differences and find a compromise. However, solidarity also manifests itself in a situation when interests are competing or even conflicting (opposite), as, for example, in the institution of insolvency (bankruptcy), which is considered in this article as legal means of implementing of constitutional principles of economic and social solidarity, which were enshrined in Article 75.1 as a result of amendments to the Constitution of the Russian Federation in 2020. The analysis of legal regulation of the institute of insolvency (bankruptcy) as one of the central institutions of market economy and business law, which is based on the idea of balance between private and public interests, led the author to the conclusion that the principle of solidarity manifested itself in domestic law long before it was enshrined in the Basic law. The article pays attention to the correlation of the principle of solidarity with the principles of good faith, reasonableness, proportionality and fairness, the realization of which in combination allows to find the necessary consensus in the triad of interaction between the state-society-business in insolvency (bankruptcy) relations.

The formation of the digitalization process and the impact of digital technologies on the optimization of insolvency cases in the Russian Federation and foreign countries shows that practice inevitably turns to platform solutions to the challenges faced. The study of implemented technologies in specific cases and their correlation with legislative solutions in the field of insolvency (bankruptcy) allows us to identify the main effects of Big Data analysis, artificial intelligence, machine learning and neural networks, for the economic stability of companies, as well as to ensure the fairness of the bankruptcy procedure by the participants of the property turnover. The platformization of social relations has found its manifestation in different aspects of bankruptcy, starting with filing a petition with the arbitration court to declare the debtor insolvent (bankrupt) and publishing information on the progress of bankruptcy proceedings in the register of the EBRD, through electronic document flow and holding meetings of creditors with the help of technical means and bidding in electronic form, including the inclusion of digital assets in the bankruptcy estate, taking into account the results of financial condition forecasting and crisis management. At the same time, the creation of digital platforms or ecosystems has become a distinctive feature of the forms of bankruptcy work used in practice and legalized. The streamlining of relations in this sphere will make it possible to ensure cheaper, faster and simpler bankruptcy procedures, transparency of procedures, and, in general, to ensure fair distribution of the bankruptcy estate among creditors, taking into account the request of society.

The article discusses the issues of applying the mechanism of subordination of claims of mortgagees in insolvency (bankruptcy) cases. The mechanism of subordination of creditors' claims secured by the debtor's pledge is differentiated depending on whether the claims of the debtor himself or a third party are secured. The grounds and mechanisms for protecting the rights and interests of creditors and bankruptcy estate are analyzed. The order of satisfaction of the creditor's claims, the obligation to which is secured by collateral, is considered, the order of satisfaction of the obligation secured by collateral is determined, if there are grounds for applying the subordination mechanism. The grounds for challenging the debtor's securing transaction for the obligations of a third party are considered. The consequences of qualifying the securing transaction as void on general grounds and contested on special grounds of the Bankruptcy Law are analyzed.

The article describes the long-term experience of teaching first-year master's students in the program "Legal Regulation of Insolvency (Bankruptcy)" at the Faculty of Law of Lomonosov Moscow State University, focusing on foreign and comparative law blocks. It discusses the tasks given to students for working with original English-language texts, as well as observations, challenges, puzzles, and discoveries encountered during their completion. Teaching materials cover the legislation, soft law, doctrine, and case law of European countries, the United States, and some other countries in their development, allowing comparison of foreign experience with domestic practice, tracing the interconnections between bankruptcy and other legal institutions, as well as social and economic phenomena, understanding stylistic features of foreign legal systems, and acquiring useful skills for working with professional foreign literature.

Accurately valuing a land plot during bankruptcy proceedings requires a comprehensive understanding of its physical and legal characteristics. To determine its true value, the land plot must be analyzed not just as a two-dimensional surface but as a spatial entity. This involves considering not only the legal rights, restrictions, and encumbrances associated with the plot but also any structures on or beneath it, the surrounding territories it intersects, and information not yet recorded in the Unified State Register but subject to registration. By interpreting a land plot through its spatial dimensions, it becomes possible to refine valuation data and more precisely assess its real value — both as a static asset (at a specific point in time) and as a dynamic resource (for future use or development).

The article is devoted to the analysis of the category of legal regime, its place in the mechanism of legal regulation. The author analyzes how this juridical category currently manifests itself in legal doctrine, legislation and judicial practice and gives his assessment to this. The article provides arguments that the legal regime, as an instrument of legal regulation, includes the norms of law, the legal positions of the highest judicial authorities and acts of the application of law, which has a positive informational and psychological impact on participants in civil turnover and provides legal guidance for the law enforcer. The importance of the legal regime is expressed in the fact that with its help it is possible to overcome situations of legal uncertainty and gaps in the law. Special attention is paid to the implementation of legal regimes in bankruptcy law. The author provides examples of imperative and dispositive methods, as well as strict and moderate types of legal regulation of insolvency relations. Legal regimes include both regulatory and protective measures. Based on the provisions of the Bankruptcy Law and judicial practice in insolvency cases, the author confirms his theoretical conclusions. Amendments aimed at improving the current legislation are proposed.

The application of subsidiary liability of controlling persons in the bankruptcy of organizations is associated with the need to determine the list of the mentioned persons, as well as to assess their activities from the point of view of identifying the harmfulness of the consequences, the qualitative characteristics of the behavior of the subjects and determining the grounds for bringing to liability. In this case, a mass of evaluative categories are used that relate to the activities of controlling persons, which do not have meaningful formal consolidation in legislation, which forces law enforcement officials to strive to form a uniform practice. Evaluation categories in the area of application of subsidiary liability of controlling persons must be distinguished from evaluative concepts and legal principles that are applied on a borderline basis in private and public law. When conducting a comparative analysis of the doctrine and established judicial practice within the framework of civil, corporate and bankruptcy law, it can be concluded that it is necessary to form a unified approach to law enforcement in terms of identifying the proper subjects of subsidiary liability (actually controlling persons), as well as criteria for assessing their actions in the context of ordinary entrepreneurial risk, taking into account the economic feasibility of their decisions. This will allow for a more fair distribution of the risks of negative consequences of bankruptcy between creditors and persons liable on behalf of the debtor.

There is no single consistent concept of the procedural form in bankruptcy cases in Russian scientific and judicial doctrines. The author proves that the procedural aspect of the phenomenon of insolvency determines the quality of the mechanism of legal regulation. Specific theoretical and practical issues are highlighted, the resolution of which is possible exclusively by procedural legal means: the place and role of the court in bankruptcy cases, the validity of procedural differentiation, the breadth of the circle of persons involved in bankruptcy and bankruptcy proceedings, the degree of socialization of the competitive process, etc. Noting that the development of a coherent concept of the procedural form depends on the correct choice of scientific research methods, the author suggests using system-structural, instrumental methods, as well as methods of abstraction and concretization. It is proved that the essential characteristics of the procedural form in bankruptcy cases are distributed in three projections: civil or investigative in nature; private or public law principles; liberal or social elements of development. A step-by-step methodology for further research is proposed.

The article discusses the problems of distinguishing creditor and corporate losses in order to determine the appropriate mechanism for exercising the right to receive damages when controlling persons are held accountable in the bankruptcy process. For this purpose, the similarities and differences between the compensation of losses caused to the debtor by controlling persons in the order of bringing to subsidiary liability under Articles 16.11 and 61.20 of the Federal Law "On Insolvency (Bankruptcy)" are considered. The grounds of responsibility and individual conditions of responsibility, in particular, guilt, are considered. Conclusions are drawn about the legal consequences of qualifying these types of losses and their impact on satisfying creditors' claims in the bankruptcy process.

Charitable donation as a legal term is not enshrined in Russian legislation, therefore the article provides a detailed analysis of the legal nature of a charitable donation and its difference from a simple donation. When challenging charitable donations, of particular importance is proving such circumstances as the reality of the transaction and the actual transfer of property, compliance of the purpose of the donation with the criteria of charity, the presence or absence of intent to harm creditors, the amount of damage caused by the transaction, as well as the time of the transaction relative to the onset of bankruptcy. Accordingly, of particular importance in this case is the clear qualification of charitable activity and the target nature of the donation, which entail the impossibility of applying a formal approach, which is confirmed, among other things, by examples of challenging such a donation in bankruptcy cases. A comprehensive mutual verification of the parties to the transaction and proper execution of documents, including during the reporting period on the use of the donation, will help minimize the risks of recognizing the transaction as invalid.

In this article the author considers models of coordination of claims against debtors from different grounds in bankruptcy. The author's attention is focused on comparing the model of joint and several joint obligations and the model of shared obligations in the context of insolvency (bankruptcy) relations. Based on the analysis of a number of foreign legal orders (France, Germany, Quebec, Louisiana, the Netherlands), as well as on the Russian legal experience, the author has proved the necessity of using the model of shared obligations in bankruptcy, because another solution risks to violate the balance of rights and legitimate interests of the participants of bankruptcy proceedings, mainly creditors on security claims. The author proposes the allocation of 3 criteria on the basis of which it is possible to determine the nature of coordination of claims in bankruptcy: (1) the criterion of fairness, (2) the criterion of judicial discretion and (3) the criterion of the substance of the obligation. The necessity to determine the model of coordination of claims against debtors from different grounds in bankruptcy is actualized in the context of an isolated assignment, when a creditor on a tort claim is not entitled to acquire unreasonable advantages from a presumably solidary connection between the obligations, just as in the case of assignment of a claim under a contract such assignment should not be recognized as invalid.

The subject of research in this article is issues related to the powers of antimonopoly authorities to consider complaints about auctions conducted in bankruptcy proceedings. The article provides a law enforcement interpretation of the concept of mandatory bidding, analyzes the practice of the Supreme Court of the Russian Federation, including the recognition of non-valid letters from the FAS of Russia, which have regulatory properties. The author examines the relationship between the legal mechanism for canceling auctions, applied by antimonopoly authorities based on the results of complaints, and the institution of invalidation of auctions, enshrined in the norms of Article 449 of the Civil Code of the Russian Federation and applied as part of judicial control over auctions conducted in bankruptcy proceedings. The author concludes that the procedure for reviewing complaints by antimonopoly authorities, provided for in Article 18.1 of the Law on Protection of Competition, is not an independent instrument of antimonopoly control, but acts as one of the legal mechanisms for exercising the powers of the FAS, enshrined in Article 17 of the Law on Protection of Competition. Based on the law enforcement approach of the Supreme Court of the Russian Federation, the conclusion is substantiated that auctions conducted in bankruptcy proceedings are not subject to antimonopoly control in terms of the goals and objectives of the Law on Protection of Competition.

This article is devoted to the legal issues of preventing the restriction of competition in bankruptcy bidding. The author notes that the correlation between bankruptcy and competition protection legislation is a "gray zone" of Russian bankruptcy law, which at the theoretical level very rarely refers to the mechanisms of antitrust control. As a result of the conducted research, the author comes to the opinion that antitrust control in bankruptcy bidding may be a necessary element of public control over the sale of property, if such sale may affect the state of competition in the commodity market; at the same time, antitrust control in bankruptcy bidding is carried out ad hoc. Based on the analysis of judicial practice, the author identifies the following conditions imposed by the current legislation on protection of competition on the conduct of bankruptcy auctions: (i) stage-by-stage realization of the debtor's property in bankruptcy proceedings; (ii) inadmissibility of restriction of competition in the course of auctions (inadmissibility of concerted actions, inadmissibility of creating obstacles to participation in auctions, entering false information about the subject of the auction); (iii) compliance with the procedural requirements for the realization of the debtor's property (compliance with the following requirements).

The focus of the mechanisms of legal regulation of insolvency and bankruptcy on proportional and commensurate repayment of the debtor's creditors' claims, the interdependent relations between business entities that preceded the initiation of the debtor's bankruptcy case, as well as the intention of persons associated with the debtor to influence the course of the bankruptcy case raises the question of the fairness of the legal regulation of the equality of the debtor's creditors within one queue. Subordination of creditors' claims in bankruptcy cases of legal entities is considered as a measure of liability for actions that influenced the emergence of signs of insolvency or objective bankruptcy of the debtor, however, at present, the possibility and basis for extending the same procedural mechanism that could be applied to creditors in bankruptcy cases of an individual have not been disclosed, in connection with which this article attempts to analyze such a possibility and basis for leveling the negative property effect of independent creditors.

A license for subsoil use is an extraordinary asset, and its realization within the framework of bankruptcy proceedings requires consideration of its specific properties. Adhering to certain procedural rules by the insolvency practitioner will allow them to optimize the process of selling the license and beneficially replenish the bankruptcy estate. In particular, the article emphasizes the necessity of thorough monitoring of the legal entity regarding the presence of licenses and, in the event of discovery, the requirement to sell this intangible asset only as part of the property complex (otherwise, the sale of equipment without a license is considered a violation of the property rights of creditors). Additionally, when publishing a notice about the auction, the insolvency practitioner should include significant information related to the license (requirements for the buyer's status, license duration) to fully inform potential buyers and mitigate the risk of the auction being deemed invalid. The article also proposes a preferred legal fate for the sold license — its "cleansing" from violations by the previous licensee (the bankrupt) to enhance its attractiveness for buyers and, as a result, maximize the replenishment of the bankruptcy estate.

This article examines current issues related to improving legal training in Russia. The author notes that modern lawyers often become narrowly focused on instrumental approaches, losing a fundamental understanding of law as a social and cultural phenomenon. The article criticizes the overemphasis on "practical orientation" in the development of legal education, the market-service (marketing) approach, the reduction of fundamental disciplines, and the lack of a unified ideological framework. A solution is proposed: developing a nationally oriented, fundamental legal thinking based on a civilizational approach and the uniqueness of the Russian legal system. The possibility of dividing training into two sectors is considered: fundamental training at specialized universities and specialized training at industry-specific universities. Particular attention is paid to improving the quality of academic staff by aligning research with state priorities and introducing a mentoring system.