Exclusion of Property from the Bankruptcy Estate of an Individual Debtor: Current Problems

 Currently, in legislation and law enforcement, there are increasingly issues related to the protection of the interests of the debtor-citizen by excluding the property necessary for him, which is not subject to collection, from the bankruptcy estate. The list of such property is defined in Art. 446 of the Civil Procedure Code of the Russian Federation (subsistence level, sole housing, etc.), but also this other property that can be excluded from the bankruptcy estate of the debtor in accordance with Federal Law of 26 October 2002 No. 127-FZ “On Insolvency (Bankruptcy)”.

The purpose of this study and related tasks are to develop theoretical provisions on the exclusion of property from the bankruptcy estate of a debtor-citizen in an insolvency (bankruptcy) case, identify problems and propose ways to solve them.

The methodological basis of the study was made up of general scientific and special methods: the system method, the functional method, the formal legal method, the method of legal modeling, the comparative legal method.

In the course of the study, the characteristic of the concept of “competitive mass” is given, the main approaches to understanding this concept in the literature are outlined. It is concluded that the tender mass is an independent object of civil rights, which, in turn, also contains objects of civil rights that are different in nature.

The main conclusions are as follows: the need for approval in the Bankruptcy Law of the procedure for the purchase of replacement housing for the debtor and his family members in the event that the financial manager identifies in the bankruptcy estate of the debtor the only residential premises suitable for the debtor and his family members exceeding the limits of the area of the debtor’s only housing that is not subject to recovery, as well as the approval by the Government of the Russian Federation of these limits. With regard to the debtor’s property necessary for professional activity, it may be excluded from the bankruptcy estate in cases where it serves as the only possible source of income. At the same time, the debtor’s presence of minor children, the good faith of the debtor’s actions, as well as the inadmissibility of violating the balance of creditors’ property interests and the debtor’s personal interests are taken into account.