Сравнительный анализ законодательства о банкротстве физических лиц России и США

Журнал зарубежного законодательства и сравнительного правоведения. 2018. № 5. С. 80–87.

Sizemova O., Pchelkin A., Мамаков А. М.

The article gives a comparative analysis of some aspects of the current legislation on bankruptcy of individuals and the practice of its application in Russia and the United States. As a result of this research an approach has been developed, according to which insolvent individuals (bankrupts) must be differentiated on the basis of the reasons for their insolvency. In particular, in case of financial services consumers’ bankruptcy it is necessary to take into account not only the fact of a debt to a financial institution (bank, microfinance organization, etc.), but also the circumstances of its origin, for the purpose of revealing dishonest creditors. Based on the concept of a differentiated approach to insolvent citizens, the authors have made some suggestions on the implementation and adaptation of certain material and procedural rules of US law, when improving the current Russian legislation regulating the bankruptcy of individuals. The proposals of the authors, in particular, are aimed at improving: procedures for selecting a candidate for the position of a financial manager and establishing his/her powers with a purpose of increasing transparency, and eliminating possible abuses of both creditors and debtors; procedures for collecting, drafting and filing documents to the court, clarifying the participants of this procedure, the grounds for attracting and the measures of responsibility of these persons. In addition, the authors proposed a mechanism for adapting to the Russian realities the so-called conversion institution used in the United States, which involves all features of the debtor’s property position when establishing a debt restructuring procedure or bankruptcy procedure.

Keywords: financial services, несостоятельность (банкротство), физическое лицо, financial manager, insolvency (bankruptcy), Debt restructuring, реструктуризация долгов, финансовый управляющий, natural person, conduct supervision, потребительский надзор, финансовая услуга