For several years now, there have been rumors in the construction community that the system of self-regulation we know will soon come to an end. That the heads of self-regulatory organizations are about to fly (and the collected money of the builders will fly with them in an unknown direction). And that everything is about to be completely different. Now it is clear that it was in 2017 that these rumors really became a reality. At […]
The boy shouted "wolves" for a very long time. So, gentlemen: wolves. This is not the first construction self-regulatory organization, which is excluded from the register of Rostekhnadzor on a tip from the National Association. This is not the first time that hundreds of careless construction companies are left without security clearance, thousands of construction workers are out of work, and many thousands of their family members are left without a livelihood (and all […]
The cost of joining an SRO is one of the first indicators of a self-regulatory organization that you should pay attention to. Unless, of course, overpaying for the same things twice or more is not in your rules. However, if it were in your rules, you would hardly become successful businessman, is not it?
How many bloody tears have already been shed about regionalization... But regionalization is not the only rotten apple that lawmakers have treated construction industry in 372-FZ. There is also " single register specialists”… This innovation concerns everyone. Builders moving to regional SROs. Anywhere not moving builders. Designers and surveyors who were not affected by regionalization at all. Requirements for specialists in […]
Everything, gentlemen. All notifications accepted, notifications are no longer accepted. The deadline for their submission was the first of December. What does this mean for those who made it — and for those who didn't? What to do next? Let's figure it out. The first stage of changes related to the transition to regional self-regulatory organizations has been completed. At this stage, the builders were required to decide […]
If you are sure that your rights are being violated by the AC in a bankruptcy case, you do not need to endure it. It does not matter whether you are a creditor or actually bankrupt. Each person or legal entity in the cases under consideration has rights, the violation of which is unacceptable. As soon as such violations have been recorded, it is important to immediately file a complaint against in an attempt to resolve the problematic issue.
AU, despite its key role in some stages of bankruptcy, is only a hired employee who does not have the right to arbitrariness. Naturally, his actions may cause disagreement on the part of the participants in the case, but far from always this dissatisfaction has objective grounds. Let's figure out when it is necessary to write a complaint, and when appealing against the actions of an arbitration manager is useless.
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The role of the arbitration manager
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GRK RF Article 55.14. Consideration by a self-regulatory organization of complaints against the actions of its members and appeals
1. The self-regulatory organization considers complaints about the actions (inaction) of its members and other appeals received by the self-regulatory organization. Complaints against actions (inaction) of members of the self-regulatory organization and other appeals received by the self-regulatory organization are subject to consideration by the self-regulatory organization within thirty calendar days from the date of their receipt, if the legislation Russian Federation no other deadline has been set. The self-regulatory organization, based on the results of consideration of a complaint against the actions (inaction) of its members, as well as an appeal that is not a complaint, but requiring consideration in accordance with the internal documents of the self-regulatory organization, makes an appropriate decision. Specified solution or if a decision is not required, the response to the appeal is sent to the person who filed the complaint or other appeal, through postal item at the postal address indicated in the complaint or other appeal, or in the form electronic document by the address Email specified in the complaint or other appeal.
2. In the event that, as a result of consideration of a complaint against actions (inaction) of a member of a self-regulatory organization or other appeal, a violation by a member of a self-regulatory organization mandatory requirements the self-regulatory organization shall apply disciplinary measures against such member in accordance with Article 55.15 of this Code.
(see text in previous edition)
3. The procedure for considering complaints against actions (inaction) of members of the self-regulatory organization and other appeals received by the self-regulatory organization is approved by the internal documents of the self-regulatory organization, provided for in Article 55.5 of this Code.
(see text in previous edition)
4. When considering a complaint against the actions of a member of a self-regulatory organization, the person who filed such a complaint and the member of the self-regulatory organization against whose actions such a complaint is directed must be invited to a meeting of the relevant body of the self-regulatory organization.
5. If a self-regulatory organization discovers a fact of violation by a member of such a self-regulatory organization of the requirements of technical regulations, project documentation when performing work in the process of construction, reconstruction, overhaul, demolition of a capital construction object, the self-regulatory organization is obliged to notify the federal executive body authorized to exercise state construction supervision in case of detection of these violations during construction, reconstruction, overhaul, demolition of objects specified in
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In the process of recognizing the financial insolvency of legal entities and individuals, if there are violations in the actions of the arbitration manager, the participants in the bankruptcy process may complain about the manager to one of the authorities supervising the work of specialists.
Dear readers! Each case is individual, so check with our lawyers for information.Calls are free.
The role of an arbitration manager in a bankruptcy case
Arbitration managers perform the most important controlling, regulating and supervisory functions in the process of bankruptcy of legal entities and individuals. Managers, as professional participants in bankruptcy cases, are called upon to maintain a balance of interests between creditors and prevent abuses on the part of both parties. Depending on the stage, competitive, external and temporary managers are involved in the process. Depending on the stage, managers are vested with different powers.
The peculiarity of the bankruptcy trustee lies in the wide range of his official powers and tasks performed in the case. He fully takes over the management of the debtor at the stage, must identify and return all the property belonging to him, evaluate it and hold an auction, ensure settlements with the staff.
Quite often, in the course of work, creditors and the debtor come to bankruptcy trustees, who give grounds to these parties to appeal against his actions to in due course.
Grounds for filing a complaint against an arbitration or bankruptcy trustee
A complaint against an arbitration manager is filed in order to protect the legitimate rights and interests of bankruptcy creditors and authorized bodies.
The grounds for filing a complaint against a manager who is involved in a bankruptcy case are:
- Non-observance of the rights and interests of persons participating in the bankruptcy case(for example, if the manager acts only in relation to a certain circle of participants and is, in fact, an interested person).
- In case of non-compliance, which are assigned to the manager by law in Art. 20, 129 127-FZ.
- In case of violation of legal requirements regarding the form and timing, which are listed in paragraph 11 of Art. 26.1, 143 127-FZ.
- In case of non-compliance with the approved procedure of the debtor under Art. 130 127-FZ.
The Supreme Arbitration Court, in its clarifications, divided the misconduct of the bankruptcy manager into two large groups:
- Ignoring their direct duties.
- Managers' failure to comply and requirements to it according to Government Decrees.
The most serious violations in the work of the manager in a bankruptcy case are considered to be:
- Failure to perform direct duties(for example, the manager ignores legal requirements for holding or does not submit reports on time).
- Inaction(for example, on the issue of collecting receivables from debtors of a bankrupt, convening a meeting of creditors or returning and searching for the debtor's property).
- Hiding information from creditors or deliberate misrepresentation.
- Overestimation of the cost of third-party services. The manager has the right to involve independent experts and third-party specialists in the bankruptcy case. Their payment is made from . But the abuse of such a right by an arbitration manager can lead to infringement of the interests of creditors.
- Abuse of the right to refuse to accept creditor claims for inclusion in, challenging the debtor's transactions and other rights.
- Failure to comply with the instructions of the creditors' meeting.
As a criterion that clearly indicates the commission of a misconduct by the manager, is the presence of direct property damage caused by his actions to the parties to the bankruptcy case.
How to write
A complaint against an arbitration manager is a procedural document, but is drawn up in a free format. It must be submitted in a written format.
The structure of the complaint must comply with the provisions of Art. 131 Code of Civil Procedure. It consists of the following parts:
- Introductory part with details and contact details of all parties.
- Descriptive part indicating the essence of the problem and presenting evidence of the events described.
- Operative part indicating the requirements of the applicant.
The document must contain mandatory information and details, in particular:
- Information that allows you to clearly identify the instance to which the document is submitted (SRO, arbitration court, division of Rosreestr, etc.).
- Information about the applicant: his name or full name, details and contact details.
- Bankruptcy number.
- Legal rules on which the applicant bases his claims: what procedural rules were violated by the manager, what provisions of substantive law were violated, etc.
- Claims of the applicant to the court or other instance. For example, remove the manager from work, cancel the decision he made or bring him to property liability.
A sample complaint against an arbitration manager can be downloaded. The persons who file the complaint, or their representatives, if a power of attorney is issued to them, must sign the complaint. The power of attorney must be notarized and delegate the obligation to sign such documents.
If the complaint is referred to the arbitration court, then it must comply with the rules of the APC.
Who can apply
It should be borne in mind that the list of persons who can file a complaint against the manager is legally limited. Only direct participants in the bankruptcy case are entitled to appeal against the actions of the administrator:
- Debtor whose property is managed by the manager.
- Creditor, which is aimed at the fullest recovery in its favor.
If a citizen or company is only indirectly connected with the bankruptcy procedure, then they cannot complain about the arbitration manager. Their complaint will be dismissed.
Where and how to file a complaint
Interested persons whose rights were violated during the bankruptcy process may complain to the arbitration manager:
- To Rosreestr.
- SRO managers.
- Federal Tax Service.
- Court of Arbitration.
- Other authorities.
These institutions differ in terms of competence and the range of issues they consider, as well as the measures available to them to influence the manager.
A complaint against an arbitration manager should be filed within the established time limits: within 30 days after receipt of information about the violation of the rights of a certain party to the bankruptcy process.
Complaints can be filed in one of the following ways:
- Personally.
- By registered mail.
- Through electronic services if they are developed in the department.
Rosreestr
Rosreestr performs the duties of accounting for SROs and monitoring their work. You can also apply here to appeal against the actions of SRO managers.
In part 3 of Art. 14.13 of the Code of Administrative Offenses states that the committed violations or inaction of the manager are an administrative offense. To hold the manager liable in accordance with the norms of the Code of Administrative Offenses, you can complain about him to the territorial division of Rosreestr.
If the complaint is sent to the central office of the department, then it will not be considered or it will take more time to consider it than expected.
Based on the results of the consideration of the complaint, Rosreestr may hold the manager liable or petition for his removal from office.
SRO
You can complain about the non-compliance of the managers with their tasks and low professionalism in the SRO. She has to watch professional level its members. Upon receipt of a complaint to the SRO, a special disciplinary commission will be convened, which will determine further fate manager.
Based on the results of consideration of the complaint in the SRO, the organization may decide to impose a penalty on the manager or to disqualify him.
The Federal Tax Service
The Federal Tax Service should also control bankruptcy cases of legal entities. This can be addressed, in particular, when revealing financial fraud committed by the manager, or in the actual raider seizure of the enterprise, the property of the debtor.
It is worth sending a complaint to the Federal Tax Service for serious misconduct. As a result of the appeal, the manager may face criminal penalties. If found guilty, he will face disqualification.
Also, the manager can be removed from the case and brought to punishment in the form of a fine in the amount of 25 thousand rubles.
Appeal to the Arbitration Court
The procedure for considering complaints against the manager is considered in separate provisions of 127-FZ. In particular, Art. 60 127-FZ. - this is the first instance where participants in a bankruptcy case should apply to protect their interests. After all, it is the court that is called upon to control the activities of appointed arbitration managers. He also has the exclusive prerogative to remove the manager from the case and recover property damage from him. Also, the court can cancel individual decisions of the administrator in the bankruptcy case.
Based on Part 1 of Art. 60 FZ-127 of 2002, complaints of creditors in a bankruptcy case for violation of rights and legitimate interests are considered in arbitration courts no later than one month from the date of receipt. The complaint is considered by the arbitrator alone.
Based on the results of consideration of the complaint in the arbitration court, a ruling is issued. It can be appealed in accordance with the procedure established in FZ-127.
According to Part 2, 3 Art. 60 127-FZ of 2002, the following categories of complaints must be considered within thirty days:
- in relation to disagreements between the administrator and the citizens in favor of which an act was issued on the recovery of damage caused to life and health;
- between the manager and representatives of the employees of the debtor according to the situations specified in paragraph 11 of Art. 16 127-FZ (disagreements that are related to the priority, the amount of requirements for payment of severance pay and wages);
- on the actions of the arbitration manager that violate the interests of persons participating in the process.
In paragraph 4 of Art. 60 127-FZ stipulates that applications submitted by persons who do not have the right to appeal (those who are not participants in the bankruptcy case and whose rights have not been violated), or with violations, are returned to the applicant.
Other authorities
In addition to the instances listed above, a complaint against the manager can be filed with the prosecutor's office, the Ministry of Finance or the Ministry of Internal Affairs.
Thus, the participants in the bankruptcy case are entitled to appeal against the actions or inaction of the arbitration manager, as a result of which they suffered property damage. A complaint can be filed with the arbitration court, Rosreestr, the Federal Tax Service or the SRO of managers.
1.1. This document defines the policy of the Company with limited liability" " (hereinafter - the Company) in relation to the processing of personal data.
1.2 This Policy has been developed in accordance with the current legislation of the Russian Federation on personal data.
1.3 This Policy applies to all processes for the collection, recording, systematization, accumulation, storage, clarification, extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data, carried out using automation tools and without the use of such funds.
1.4. The policy is strictly followed by the Company's employees.
- Definitions
personal data- any information relating directly or indirectly to a specific or identifiable natural person (subject of personal data);
operator - government agency, municipal authority, legal or individual, independently or jointly with other persons organizing and (or) carrying out the processing of personal data, as well as determining the purposes of processing personal data, the composition of personal data to be processed, actions (operations) performed with personal data;
processing of personal data- any action (operation) or a set of actions (operations) performed using automation tools or without using such tools with personal data, including collection, recording, systematization, accumulation, storage, clarification (updating, changing), extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data;
automated processing of personal data- processing of personal data using computer technology;
dissemination of personal data- actions aimed at disclosing personal data to an indefinite circle of persons;
provision of personal data- actions aimed at disclosing personal data to a certain person or a certain circle of persons;
blocking of personal data- temporary suspension of the processing of personal data (unless the processing is necessary to clarify personal data);
destruction of personal data- actions, as a result of which it becomes impossible to restore the content of personal data in the personal data information system and (or) as a result of which material carriers of personal data are destroyed;
depersonalization of personal data- actions, as a result of which it becomes impossible without the use of additional information determine the ownership of personal data by a specific subject of personal data;
personal data information system- a set of personal data contained in databases and providing their processing information technologies and technical means.
- Principles and conditions for the processing of personal data
3.1. The processing of personal data is carried out on the basis of the following principles:
1) The processing of personal data is carried out on a legal and fair basis;
2) The processing of personal data is limited to the achievement of specific, predetermined and legitimate purposes. It is not allowed to process personal data that is incompatible with the purposes of collecting personal data;
3) It is not allowed to combine databases containing personal data, the processing of which is carried out for purposes that are incompatible with each other;
4) Only those personal data that meet the purposes of their processing are subject to processing;
6) When processing personal data, the accuracy of personal data, their sufficiency, and, if necessary, their relevance in relation to the stated purposes of their processing, are ensured.
7) The storage of personal data is carried out in a form that allows determining the subject of personal data no longer than required by the purposes of processing personal data, if the period for storing personal data is not established by federal law, an agreement to which the subject of personal data is a party, beneficiary or guarantor. Processed personal data is subject to destruction or depersonalization upon achievement of the purposes of processing or in case of loss of the need to achieve these purposes, unless otherwise provided by federal law.
8) The Company in its activities proceeds from the fact that the subject of personal data provides accurate and reliable information during interaction with the Company and notifies the Company's representatives about changes in their personal data.
3.2. The company processes personal data only in the following cases:
- the processing of personal data is carried out with the consent of the subject of personal data to the processing of his personal data;
- the processing of personal data is carried out in connection with the participation of a person in constitutional, civil, administrative, criminal proceedings, proceedings in arbitration courts;
- the processing of personal data is necessary for the execution of a judicial act, an act of another body or official subject to execution in accordance with the legislation of the Russian Federation on enforcement proceedings (hereinafter referred to as the execution of a judicial act);
- the processing of personal data is necessary for the performance of an agreement to which the subject of personal data is a party or beneficiary or guarantor, as well as to conclude an agreement on the initiative of the subject of personal data or an agreement under which the subject of personal data will be the beneficiary or guarantor;
- the processing of personal data is necessary to protect the life, health or other vital interests of the subject of personal data, if obtaining the consent of the subject of personal data is impossible;
3.4. The Company has the right to entrust the processing of personal data of citizens to third parties, on the basis of an agreement concluded with these persons.
Persons processing personal data on behalf of LLC Law Firm"Start", undertake to comply with the principles and rules for the processing and protection of personal data provided for by Federal Law No. 152-FZ "On Personal Data". For each person, a list of actions (operations) with personal data that will be performed legal entity processing personal data, the purposes of processing, the obligation of such a person to maintain confidentiality and ensure the security of personal data during their processing is established, as well as the requirements for the protection of personal data being processed.
3.5. If the Company entrusts the processing of personal data to another person, the Company shall be liable to the subject of personal data for the actions of the said person. The person who processes personal data on behalf of the Company is liable to the Company.
3.6. The Company does not make decisions on the basis of exclusively automated processing of personal data that give rise to legal consequences in relation to the subject of personal data or otherwise affect his rights and legitimate interests.
3.7. The Company destroys or depersonalizes personal data upon reaching the purposes of processing or in case of loss of the need to achieve the purpose of processing.
- Subjects of personal data
4.1. The company processes personal data of the following persons:
- employees of the Company, as well as entities with whom contracts of a civil law nature have been concluded;
- replacement candidates vacancies in company;
- clients of LLC Legal company "Start";
- users of the website of LLC Legal Company "Start";
4.2. In some cases, the Company may also process personal data of representatives of the above personal data subjects authorized on the basis of a power of attorney.
- Rights of personal data subjects
5.1. The subject of personal data whose data is processed by the Company has the right to:
5.1.1. Receive the following information from the Company within the terms provided by the Law:
- confirmation of the fact of personal data processing by Start Legal Company LLC;
- on the legal grounds and purposes of processing personal data;
- on the methods used by the Company to process personal data;
- the name and location of the Company;
- about persons who have access to personal data or to whom personal data may be disclosed on the basis of an agreement with Start Law Company LLC or on the basis of federal law;
- a list of processed personal data relating to the citizen from whom the request was received and the source of their receipt, unless a different procedure for providing such data is provided by federal law;
- on the terms of processing personal data, including the terms of their storage;
- on the procedure for the exercise by a citizen of the rights provided for by the Federal Law "On Personal Data" No. 152-FZ;
- name and address of the person who processes personal data on behalf of the Company;
- other information provided for by the Federal Law "On Personal Data" No. 152-FZ or other federal laws.
5.1.2. Require clarification of their personal data, their blocking or destruction if personal data is incomplete, outdated, inaccurate, illegally obtained or not necessary for the stated purpose of processing.
5.1.3. Withdraw your consent to the processing of personal data.
5.1.4. Demand the elimination of illegal actions of the Company in relation to his personal data.
5.1.5. Complain about the actions or omissions of the Company in Federal Service on supervision in the field of communications, information technology and mass communications or in judicial order in the event that a citizen believes that Start Law Company LLC processes his personal data in violation of the requirements of Federal Law No. 152-FZ “On Personal Data” or otherwise violates his rights and freedoms.
5.1.6. To protect their rights and legitimate interests, including compensation for losses and / or compensation for moral damage in court.
- Company Responsibilities
6.1. In accordance with the requirements of Federal Law No. 152-FZ “On Personal Data”, the Company is obliged to:
- Provide the subject of personal data, at his request, with information regarding the processing of his personal data, or on legal grounds provide a reasoned refusal containing a reference to the provisions of the Federal Law.
- At the request of the subject of personal data, clarify the processed personal data, block or delete if the personal data is incomplete, outdated, inaccurate, illegally obtained or not necessary for the stated purpose of processing.
- Maintain a Register of Personal Data Subjects’ Applications, which should record the requests of personal data subjects for obtaining personal data, as well as the facts of providing personal data on these requests.
- Notify the subject of personal data about the processing of personal data in the event that personal data was not received from the subject of personal data.
The following cases are an exception:
The subject of personal data is notified of the processing of his personal data by the relevant operator;
Personal data is obtained by the Company on the basis of federal law or in connection with the execution of an agreement to which the subject is a party or beneficiary or guarantor.
Personal data obtained from a public source;
Providing the subject of personal data with the information contained in the Notice on the processing of personal data violates the rights and legitimate interests of third parties.
6.2. If the purpose of processing personal data is achieved, the Company is obliged to immediately stop processing personal data and destroy the relevant personal data within a period not exceeding thirty days from the date of achieving the purpose of processing personal data, unless otherwise provided by the contract, the party to which, the beneficiary or the guarantor of which is the subject personal data, another agreement between the Company and the subject of personal data, or if the Company is not entitled to process personal data without the consent of the subject of personal data on the grounds provided for by No. 152-FZ "On Personal Data" or other federal laws.
6.3. In the event that the subject of personal data withdraws consent to the processing of his personal data, the Company is obliged to stop processing personal data and destroy personal data within a period not exceeding thirty days from the date of receipt of the said withdrawal, unless otherwise provided by an agreement between the Company and the subject of personal data. The Company is obliged to notify the subject of personal data about the destruction of personal data.
6.4. In the event of a request from the subject to stop processing personal data in order to promote goods, works, services on the market, the Company is obliged to immediately stop processing personal data.
6.5. The Company is obliged to process personal data only with the consent in writing of the subject of personal data, in cases provided for by the Federal Law.
6.7. The Company is obliged to explain to the subject of personal data the legal consequences of the refusal to provide his personal data, if the provision of personal data is mandatory in accordance with the Federal Law.
6.8. Notify the personal data subject or his representative of all changes regarding the relevant personal data subject.
- Information about the implemented measures for the protection of personal data
7.1. When processing personal data, the Company takes the necessary legal, organizational and technical measures to protect personal data from unauthorized or accidental access to them, destruction, modification, blocking, copying, provision, distribution of personal data, as well as from other illegal actions in relation to personal data.
7.2. Ensuring the security of personal data is achieved, in particular:
- determination of threats to the security of personal data during their processing in information systems ah personal data;
- application of organizational and technical measures to ensure the security of personal data during their processing in personal data information systems necessary to meet the requirements for the protection of personal data, the implementation of which ensures the levels of personal data protection established by the Government of the Russian Federation;
- the use of information security tools that have passed the conformity assessment procedure in the prescribed manner;
- evaluating the effectiveness of the measures taken to ensure the security of personal data prior to the commissioning of the personal data information system;
- taking into account machine carriers of personal data;
- detecting facts of unauthorized access to personal data and taking measures;
- recovery of personal data modified or destroyed due to unauthorized access to them;
- establishing rules for access to personal data processed in the personal data information system, as well as ensuring the registration and accounting of all actions performed with personal data in the personal data information system;
- control over the measures taken to ensure the security of personal data and the level of security of personal data information systems.
- an assessment of the harm that may be caused to personal data subjects in the event of a violation of the legislation of the Russian Federation in the field of personal data, the ratio of the said harm and the measures taken to ensure the implementation of the legislation of the Russian Federation in the field of personal data.
