Features and Problems of Challenging Suspicious Transactions with Unequal Counter-Provision

Abstract

This article discusses one of the types of suspicious transactions of the debtor in the bankruptcy procedure. It is transaction with an unequal counter-provision. The historical aspect of the occurrence of such transactions is touched upon and its concept is given. It reveals its characteristic peculiarity, which consists in the fact that when the debtor sells the property to a third party, the debtor receives in return non-equivalent property or does not receive anything at all. In this case, the bankruptcy estate is reduced, and creditors, accordingly, cannot meet their requirements from this property, since it was dropped from the bankruptcy estate. Thus, the debtor can withdraw the property for the purpose of its further preservation, because such a transaction is suspicious, and is allocated as an independent one in the Federal law «On insolvency (bankruptcy)» (hereinafter – the law on bankruptcy). The article also addresses the problems of imperfection (incompleteness) of the provisions of the bankruptcy Law in relation to such a suspicious transaction, concerning the concepts «of inequality» and «materiality», which are not disclosed and are not interpreted by the legislator in full. We also reviewed the provisions of the resolution of the Plenum of the Supreme Arbitration Court regarding suspicious transactions, which are also imperfect and raise questions. The authors propose ways to eliminate existing problems in the legislation regarding such transactions.