Unpaid share in the authorised capital arising from a person's exit from the company's participants is not a monetary claim against the debtor and is not subject to inclusion in the creditors' register – SC CommCC

The claim of a former participant in a company for payment of his or her share in the authorised capital of the debtor cannot be regarded either as a bankruptcy claim or as a current claim within the meaning of Articles 1, 45, 47 and 64 of the Code of Ukraine on Bankruptcy Procedures. In substance, it constitutes a corporate property claim of the former participant against the debtor's assets that may remain after the full satisfaction of the monetary claims of all creditors, and it is not subject to inclusion in the creditors' register in the context of the debtor's bankruptcy proceedings.

This conclusion was reached by the panel of judges of the Commercial Cassation Court within the Supreme Court.

Following the opening of bankruptcy proceedings in respect of the company, an individual applied to the commercial court for recognition of monetary claims against the debtor, consisting of the unpaid share in the company's authorised capital arising from his or her exit from the company's participants.

The commercial court of first instance left the said claims without consideration. The appellate commercial court agreed with the first-instance court's finding that they were current claims, but set aside the ruling leaving those claims without consideration and adopted a new decision rejecting them, on the basis that, following consideration of creditors' claims, the commercial court may take only two actions: issue a ruling recognising them or reject them (in whole or in part). 

The Commercial Cassation Court of the Supreme Court dismissed the individual's cassation appeal, amended the reasoning part of the appellate court's ruling and set out the following legal conclusions.

The former participant's right to payment of the value of his or her share is a form of exercise of corporate rights and, in its function, is similar to the right to a liquidation quota – a share in the company's net assets. Although such a claim has a monetary expression, it is not equivalent to a monetary obligation of the debtor arising from a civil‑law contract or other ground expressly provided for in Article 1 of the Code of Ukraine on Bankruptcy Procedures, and it is not a claim of a creditor in bankruptcy proceedings.

From the moment bankruptcy proceedings are opened in respect of the debtor's property, the special regime under the Code of Ukraine on Bankruptcy Procedures comes into effect. Under this regime, all of the debtor's property – including its own capital (in particular, the authorised capital and other components of net assets) – forms the liquidation estate, which is primarily intended for the satisfaction of creditors' monetary claims (Articles 39, 44 and 47 of the Code). Participants in the company – both current and former – may claim only such property as remains after the satisfaction of all creditors' monetary claims.

Point 14 of Article 39 of the Code expressly distinguishes claims by founders (participants) for the return of contributions, payment of the value of shares, distribution of profit or property of the debtor from creditors' claims: such claims may be satisfied only from property remaining after the satisfaction of creditors' monetary claims and do not constitute either bankruptcy indebtedness or current indebtedness of the debtor.

In this statutory context, the right of a person to payment of the value of his or her share, arising from exit from the company's participants, is the right of a former participant to a share in the company's net assets, and not a creditor's claim against the debtor for repayment of a monetary debt. The opening of bankruptcy proceedings changes the manner in which this right may be exercised: it is transformed into a right to a share in any possible liquidation surplus after completion of settlements with all the debtor's creditors, and it cannot be realised by including the relevant claim in the creditors' register.

Resolution of the Commercial Cassation Court of the Supreme Court dated 18 December 2025 in case No. 902/25/24 – https://reyestr.court.gov.ua/Review/132745966.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua/.