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1
Sproge, Daiga. „The Debtor’s Property Selling in the Cross-Border Insolvency Proceedings“. Economics and Culture 13, Nr. 1 (01.06.2016): 76–87. http://dx.doi.org/10.1515/jec-2016-0010.
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Abstract The title of this research is “The debtor’s property selling in the cross-border insolvency proceedings”. The insolvency proceeding gets the cross-border status also in case, if a debtor is an owner of the property outside of the main interests’ centre, namely, in another country. Therefore, there are many problematic cases when insolvency administrator (also called insolvency practitioner) defines the real estate in this other country and has to make a decision concerning the methods of selling the real estate in accordance with the law of the Member State in which territory the insolvency proceedings have been started. At the same time, the administrator shall provide that the property is sold in particular with regard to procedures for the realization of assets defined in the legislation of that country, where such real estate has been located. The article’s aim is to give a view of the features of the sale of the property in the insolvency proceedings and to define the possible lack and improvements in the cross-border insolvency concerning the selling of a debtor’s property. The European Parliament and the Council of the European Union has adopted Regulation (EU) 2015/848 of 20 May 2015 on Insolvency proceedings, which shall apply from 26 June 2017, with some exceptions Despite the regulation of the cross-border insolvency has been improved, the procedure of the property disposal is still incomplete in the cross-border insolvency proceedings. Within the study the following research methods are applied: the analytical method, comparative method, sociological method and descriptive method. The predicted value of the research is theoretical and also practical. The research should be useful for the insolvency proceedings administrators, the companies and the banks, other experts involved in the cross-border insolvency proceedings, as well as for students to improve their theoretical knowledge about the cross-border insolvency.
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Vukelić, Mario. „Zakup i najam nekretnina i stečajni dužnik kao ugovaratelj“. Zbornik Pravnog fakulteta Sveučilišta u Rijeci 38, Nr. 1 (2017): 631–46. http://dx.doi.org/10.30925/zpfsr.38.1.23.
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This paper analyses the legal consequences of initiating insolvency proceedings with respect to entering into, cancellation, termination or withdrawal from a Real Property Lease or Rent Agreement. The position of the insolvency debtor as tenant or lessee, and as landlord or lessor, as well as the right of the insolvency administrator to choose to continue with, to withdraw from, to cancel or terminate such agreements are discussed herein. The provisions of the Insolvency Act and other acts are taken into consideration, since such acts regulate real property lease and rent issues, and which refer to the contractor - insolvency debtor.
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Crhová, Zuzana, Zuzana Fišerová und Marie Paseková. „Corporate Insolvency Proceedings: A Case of Visegrad Four“. Acta Universitatis Agriculturae et Silviculturae Mendelianae Brunensis 64, Nr. 1 (2016): 235–43. http://dx.doi.org/10.11118/actaun201664010235.
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Insolvency proceeding and liquidation of bankrupt companies are important topics in days of economic slowdown which affected all economies after financial crisis. This paper aims to find main differences between insolvency proceedings in the countries of Visegrad four. The main goal is to describe insolvency law in member countries and then to compare it from the poin of view of main actors. This comparison can help to find which changes and ideas could be applied to improve and make more effective the Czech insolvency system. The countries of Visegrad four was selected because of their common history and similar economic development. First of all, the legal background of insolvency proceedings which is possible for legal entities in these countries is examined. Then this paper deals with insolvency proceedings from the point of view of their participants – creditors, debtors and insolvency administrator. We have found that insolvency proceedings in these countries are very similar but there is still some inspiration for the Czech insolvency system.
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Kronis, Ivars. „CRIMINAL LIABILITY FOR DELAYING INSOLVENCY PROCEEDINGS“. Administrative and Criminal Justice 1, Nr. 78 (31.03.2017): 4. http://dx.doi.org/10.17770/acj.v1i78.2800.
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The article analyzes the legal norm, which provides for the criminal liability of the administrator and the representative of the debtor within the framework of legal entity insolvency proceedings or of the insolvent natural person in these proceedings. Up to now the criminal law science of Latvia discussed the issue of criminal aspects of delaying insolvency proceedings, however the authors, who researched them, did not go into details or analyzed them in conjunction with the previous insolvency regulation. This is indicative of the topicality of the theme, the importance of theoretical and practical research in the modern criminal law. By means of his thesis, the author wants to even partially close this gap, examining the most important aspects of the theme. Although the time passed after the effective date of the new Insolvency Law of November 1, 2010 is not enough to form legal practice in the criminal aspects related to delaying insolvency proceedings, it is the right moment to emphasize the urgency of the problem and to thoroughly evaluate the most important issues. Therefore, the purpose of the thesis is, analyzing peculiarities of offence as specified in Article 215 of the Criminal Law, to evaluate theoretical and practical aspects of its application. The empirical base of the research is formed by scientific theses and collections of articles, periodical editions and primary sources, legal acts, statistical data, Internet resources, other information in the public domain. To develop the thesis, the author used analytical, comparative, inductive and deductive methods of research.
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Storme, Matthias E., Brigitta Lurger, Arthur Salomons und Isabel González Pacanowska. „Hof van cassatie van België / Cour de cassation de Belgique, 31 January 2002 - The effect of avoidance in bankruptcy as against a third party acquirer in good faith“. European Review of Private Law 12, Issue 6 (01.12.2004): 789–809. http://dx.doi.org/10.54648/erpl2004045.
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The case decided by the Belgian Hof van cassatie/Cour de cassation on 31 January 2002 concerns the effects of avoidance in bankruptcy of an impeachable transaction by the bankrupt debtor disposing of assets, and especially the conflict with a subsequent acquirer of these assets. The bankrupt debtor (Transport de Koning) had transferred shortly before bankruptcy a trailer in lieu of payment to its creditor Diemotrans. Diemotrans had sold and delivered the trailer shortly after bankruptcy to a subsequent buyer in good faith, the LLC André. The insolvency administrator (Driessen) asked the court for a declaration of ineffectiveness of the transaction vis-à-vis the creditors and a condemnation of LLC Andre to restitute the trailer to the bankrupt estate. The Court decided that the claim of the insolvency administrator fails insofar as the conditions for bona fide acquisition by LLC Andre are met (actual possession and good faith).
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Lepetić, Jelena. „Disputed claims and mediation in Serbian insolvency law: De lege lata and de lege ferenda“. Pravo i privreda 58, Nr. 3 (2020): 156–76. http://dx.doi.org/10.5937/pip2003156l.
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In this paper, the author analyses the Insolvency Act's provisions on mediation. Firstly, the author points out the existence of a special legal regime for mediation of disputes related to the determination of claims, which differs from the general regime of mediation. Afterwards, the provisions on initiating mediation proceedings are analysed, with the special emphasis on the persons authorized to submit proposal for resolving a dispute in the mediation procedure according to the provisions of the Insolvency Act as well as the role of the creditors' committee in this regard. Then, the author analyses the issue of the duration and termination of mediation, pointing out the inconsistencies of the domestic solution. Furthermore, the issue of the costs of mediation proceedings in connection with insolvency proceedings is addressed shortly. In conclusion, the author advocates the abolition of restrictions on active legitimacy for submitting proposals for resolving disputes through mediation, prescribing additional competencies of the creditors' committee at the final stage of the mediation procedure in relation to the disputed claims in which the insolvency administrator participates, and providing a single regime of mediation for disputes regarding insolvency proceedings resolution.
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Paladii, Andrian, und Carolina Catan. „Disputes regarding the remuneration of authorized directors in insolvency proceedings“. Administrarea Publica, Nr. 4(112) (Dezember 2021): 79–86. http://dx.doi.org/10.52327/1813-8489.2021.4(112).05.
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The authorized administrator, regardless of the way he is appointed, fulfills the function of representative of justice, because he represents and defends not only the interests of the debtor and creditors, but, together with the insolvency court, offers the guarantee of compliance with legal provisions and coordinates, supervises and acts in in order to carry out the procedure.
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McCormack, Gerard. „Control and Corporate Rescue–An Anglo-American Evaluation“. International and Comparative Law Quarterly 56, Nr. 3 (Juli 2007): 515–51. http://dx.doi.org/10.1093/iclq/lei181.
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AbstractThis article compares and contrasts Chapter 11 of the US Bankruptcy Code with the UK administration procedure under the Insolvency and Enterprise Acts. It focuses in particular on who runs a company during the restructuring process—debtor-in-possession or management displacement in favour of an outside administrator. Various reasons have been given to explain the US/UK divergence in this respect including differences in entrepreneurial culture and differences in the lending markets in the two countries. The article suggests that the divergence cannot be reduced to a single factor but instead implicates a complex web of circumstances.
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Poiedynok, V. V., und I. V. Kovalenko. „RESPONSIBILITY OF DIRECTORS IN BANKRUPTCY PROCEDURES UNDER EU LAW AND INDIVIDUAL MEMBER STATES OF EU“. Economics and Law, Nr. 1 (15.04.2021): 48–60. http://dx.doi.org/10.15407/econlaw.2021.01.048.
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The Bankruptcy Proceedings Code of Ukraine provides for the possibility of imposing liability under the obligations of the debtor – a legal person on the founders (stakeholders, shareholders) or other persons who have the right to give mandatory instructions to the debtor or have the opportunity to otherwise determine his actions. As a result, "comfortable" organizational forms of companies, such as LLCs and JSCs, have become risky for investors; managers, who may be employees, bear risk too. The article analyzes the legislation of the EU and some EU member states (Germany, France, Spain, the Netherlands, Latvia, Romania), concerning the liability of individuals in insolvency proceedings. We find that the rules on such liability are not harmonized at the EU level; as for individual countries, their laws do provide for the possibility of holding both de jure and de facto directors, whereas the latter may include the founders (stakeholders, shareholders) of the company, for the debts of the company. At the same time, the legislation of European countries describes in great detail the conditions and procedure for imposing such liability, which makes the risks for the individuals concerned predictable. Moreover, special rules on liability in insolvency proceedings are systematically linked to the provisions of company law, which establish the obligation of directors to act with due diligence in the interests of the company and liability for knowingly making business transactions with the knowledge that the company is insolvent (wrongful trading). In Ukraine, there are absolutely no specific legal provisions on the conditions and procedure for holding even de jure directors to liable in insolvency proceedings, not to mention the founders (stakeholders, shareholders) of companies, which creates a situation of legal uncertainty. To eliminate it, the legislation of Ukraine should define: the range of individuals on whom such liability may be imposed; a specific list of actions, the commission of which may give rise to liability; the need to prove the guilt of such individuals; forms of guilt sufficient to be held liable (only intent or also negligence); procedural rules for establishing guilt, including the issue of the burden of proof; who may lay claim to a director (insolvency administrator, creditor, court); statutes of limitations on the liability of directors, etc.
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Kronis, Ivars. „CREDITOR CLAIMS IN THE INSOLVENCY PROCEEDINGS OF A LEGAL ENTITY“. Administrative and Criminal Justice 3, Nr. 76 (30.09.2016): 44. http://dx.doi.org/10.17770/acj.v3i76.2856.
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The study “Creditor claims in the insolvency proceedings of a legal entity” contains analysis of the legal norms that prescribe the filing and verification of creditor claims, decisions adopted by administrator concerning creditor claims, as well as the procedure for filing of creditor claims and complaints related to the acknowledging, waiver or partial acknowledging of creditor claims. The issue of creditor claims in the insolvency proceedings of legal entities is studied in details on the basis of the legal regulations and conclusions of application theory and practice. The study contains no analysis of the regulations applicable to the insolvency of the participants of finance and capital market whereas they are supervised in accordance with the requirements of regulatory acts by the Financial and Capital Market Commission and their activities are governed by special legal norms. Even though the issue of creditor claims has been earlier discussed in the insolvency law science of Latvia, authors of the relevant studies have discussed them in brief. This leads to conclusion that the issue of creditor claims is topical and that theoretical and practical study thereof is significant for insolvency law of the present day. Empiric base of the study comprises scientist works and article collection materials, periodical materials and sources, legal acts, Internet resources and other publicly available information. The approaches used in exploring the study include analytical, comparative and deductive research methods. The study is developed with the following structure (the questions of study also represent parts of this work): 1) General description of filing creditor claims; Formal legal requirements applicable to creditor claims; 3) Status of creditor and complaints concerning claims.
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KOSTIN, A. A. „DISPUTING TRANSACTIONS IN A RUSSIAN COURT IN THE FRAMEWORK OF FOREIGN BANKRUPTCY“. Civil Law Review 21, Nr. 1 (30.04.2021): 197–218. http://dx.doi.org/10.24031/1992-2043-2021-21-1-197-218.
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The article addresses the special features of avoidance transactions of a foreign insolvent debtor for alienation of property within Russian Federation. The author argues that the power of the foreign insolvency administrator to bring a claim to challenge the transaction stems from the Arts. 1195–1197 and 1202 of the Civil Code of the Russian Federation regarding the law applicable to the legal capacity of a person. On the separate line the article discusses the issue of law applicable to challenging of various categories of transactions of a foreign debtor. Based on the analysis of the doctrine and judicial practice, the author comes to the conclusion that transactions concluded by a foreign debtor after the introduction of a bankruptcy procedure may be challenged in a Russian court on the basis of the limitation of the legal capacity of a foreign person (Arts. 1195–1197 and 1202 of the Civil Code of the Russian Federation). At the same time, foreign bankruptcy legislation cannot be applied to avoidance of real estate transactions concluded before the introduction of bankruptcy procedure against a foreign debtor due to paragraph 2 of Art. 1213 of the Civil Code of the Russian Federation. The article is concluded with an analysis of the issue of jurisdiction of the claim for challenging the transaction of a foreign insolvent debtor.
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Nwafor, Anthony O. „The goal(s) of corporate rescue in company law: A comparative analysis“. Corporate Board role duties and composition 13, Nr. 2 (2017): 20–31. http://dx.doi.org/10.22495/cbv13i2art2.
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The concept of corporate rescue lays emphasis on corporate sustainability than liquidation. This trend in corporate legislation which featured in the United Kingdom Insolvency Act of 1986, Australian Corporations Act 2001, Indian Sick Industrial Companies (Special Provisions) Act of 1985 (as replaced by Companies Act, 2013 and supplanted by the Insolvency and Bankruptcy Code, 2016) has been adopted in the South African Companies Act of 2008. The goal(s) of corporate rescue in some of these jurisdictions are not clearly defined. The paper examines, through a comparative analysis, the relevant statutory provisions in the United Kingdom, India, Australia and South Africa and the attendant judicial interpretations of those provisions with a view to discovering the goal(s) of corporate rescue in those jurisdictions. It is argued that while under the United Kingdom and Australian statutory provisions, the administrator could pursue alternative goals of either rescuing the company or achieving better results for the creditors; the South African and Indian statutory provisions do not provide such alternatives. The seeming ancillary purpose of crafting a fair deal for the stakeholders under the South African Companies Act’s provision is not sustainable if the company as an entity cannot be rescued.
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Sealy, L. S. „FLOATING CHARGES—COSSLETTIN THE HOUSE OF LORDS“. Cambridge Law Journal 61, Nr. 2 (24.06.2002): 239–94. http://dx.doi.org/10.1017/s0008197302341606.
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Here we are concerned with two cases involving the same parties. The first is reported as Re Cosslett (Contractors) Ltd. [1997] Ch. 23, [1998] Ch. 495, and was noted in [1997] C.L.J. 257 and [1998] C.L.J. 22. Cosslett, an engineering firm, had brought two large coal-washing machines on to a site belonging to the local council pursuant to a contract to reclaim land on which colliery waste had been dumped. Cosslett ran into financial difficulties and abandoned the work, and was later put into administration. The council, acting under a power conferred by the contract, used the machines to finish the job (employing a second contractor, Burrows). The first action was brought by Cosslett’s administrator under the Insolvency Act 1986, s. 234, demanding summarily that the machines be handed over to him. The Court of Appeal held that the contract did indeed authorise the council to use the machines in this way, and that so long as the work was continuing the administrator’s claim must fail. But there was a second point. Another provision in the contract (Clause 63) gave the council power to sell the abandoned machines and use the proceeds to discharge any debts owed to it by Cosslett. The Court of Appeal held that this clause created a floating charge which, not having been registered under the Companies Act 1986, s. 395, was void in the ensuing administration. However, this did not affect the council’s right to use the machines, and judgment was given in favour of the council.
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Sarnakov, Igor Valerievich, Aleksandra Vadimovna Sarnakova, Igor Valentinovich Matveev, Natalya Alekseevna Matveeva und Ekaterina Sergeevna Yulova. „The problem of insufficient debtor’s property during bankruptcy“. SHS Web of Conferences 118 (2021): 04006. http://dx.doi.org/10.1051/shsconf/202111804006.
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The purpose of the study is to determine the key factors affecting the occurrence of insufficiency of debtors’ property in modern conditions, as well as to formulate the main directions of overcoming them. The methodological basis of the research was the dialectical method of scientific knowledge, general scientific (analysis, synthesis, modeling), and special scientific methods (formal and legal, statistical). The result of the work was the formulation and substantiation of tasks, the setting of which is necessary for further scientific research aimed at increasing the number of satisfied creditors’ claims. In addition, the authors identified the elements of the legislatively enshrined bankruptcy mechanism, which require changes to resolve the indicated problem. In particular, the measures proposed by the authors will make it possible to increase the degree of filling the bankruptcy estate by modernizing the procedure for selling the debtor’s property, stimulating a more active position of the arbitration administrator to challenge the debtor’s transactions, and bringing his controlling persons to subsidiary liability. The novelty of the work lies in the identification of key factors influencing in modern conditions the appearance of signs of insolvency, the quality, and quantity of debtors’ assets, the insufficiency of their bankruptcy estate. Among them, objective economic reasons, imperfection of bankruptcy legislation, dishonesty of key participants in legal relations related to bankruptcy (debtor, bankruptcy administrator, majority creditors), unwillingness to use the institution of bankruptcy rehabilitation mechanisms, and the epidemiological situation are highlighted.
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Telyukina, Marina V., und K. B. Shukurova. „Competition Status of a Unitary Enterprise: Some Problems“. Cuestiones Políticas 39, Nr. 68 (07.03.2021): 777–86. http://dx.doi.org/10.46398/cuestpol.3968.50.
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Problems arising from the insolvency (bankruptcy) procedures of a unitary undertaking are currently very relevant, since, in the context of competition relations, the redistribution of ownership may also take place outside the framework of privatization legislation. This article is dedicated to the analysis of both theoretical and practical problems of the competitiveness of a unitary company. The authors of the paper point out that the lack of a special term for the designation of unitary enterprises on the right to economic management is one of the systemic shortcomings of Russian doctrine of civil law. The study methodology includes a group of general scientific methods (analysis, synthesis, deduction, induction), as well as a group of special methods: analysis of the content of scientific literature and analysis of the regulatory framework. It is concluded that Russian law should create a legal model that excludes the operation of non-proprietary entities alongside legal conditions that prevent abuse of their competitive status, both by the arbitration administrator and by the public legal entity that owns the debtor unitary enterprise.
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Fritz, Carika, und Thabo Legwaila. „The intersection between taxation and insolvency — The South African Revenue Service’s preference“. South African Law Journal 138, Nr. 4 (2021): 799–817. http://dx.doi.org/10.47348/salj/v138/i4a6.
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When a debtor’s estate is sequestrated or an insolvent company is wound up, insolvency and taxation intersect whenever the debtor or company has an outstanding tax debt. This article considers whether the South African Revenue Service should, or could, be provided with a better standing in cases of insolvency. From a comparison of the situations in South Africa, Mauritius, Australia and the United Kingdom, it is clear that South Africa’s approach of determining the order of distribution in relation to tax claims based on the type of tax is in line with the approaches of Mauritius and the United Kingdom. However, s 179 of the Tax Administration Act and ss 114 and 147(1) of the Customs and Excise Act may have an impact on a claim by the South African Revenue Service in the event of insolvency. In this respect, we argue that, in instances where a taxpayer is sequestrated or wound up due to insolvency, the Insolvency Act and the Companies Act should take precedence. Since the Insolvency Act provides for a clear order of distribution both in respect of the insolvent estates of natural persons and when an insolvent company is wound up, tax legislation in South Africa should not be used to deviate from this order of distribution.
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Nola, Luthvi Febryka. „KEDUDUKAN KONSUMEN DALAM KEPAILITAN (THE POSITION OF CONSUMER IN BANKRUPTCY)“. Negara Hukum: Membangun Hukum untuk Keadilan dan Kesejahteraan 8, Nr. 2 (01.11.2017): 255–70. http://dx.doi.org/10.22212/jnh.v8i2.1069.
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Bankruptcy and suspension of obligation for debt repayment is one of dispute resolution mechanisms that can be chosen by parties with an aim of solving the problem in an economical and transparent manner. This mechanism is regulated in Law No. 37 of 2004 of Bankruptcy and Suspension of Obligation for Debt Repayment (Insolvency Law). However, the Law has faced many problems in its implementation mainly related to consumer protection. This paper will discuss consumer position related to bankruptcy and its implementation. The author finds that consumer position in bankruptcy is not only govern by Insolvency Law but also by the Civil Code, Law No. 8 of 1999 on Consumer Protection, and Law No. 40 of 2014 on Insurance. The guidelines on those regulations have several problems, namely the lack of clarity and provision as well as violations of the principles of legislation. As a result consumer has a very weak position. Consumer is often categorized as concurrent creditor who will receive compensation only after separatist and preferential creditor. In contrast, the positions of the curator, the administrator, the supervisory judge are too strong that it allows for irregularities such as mafia practices in bankruptcy cases that harm the consumer. With regard to legal culture, law enforcement has acknowledged the position of consumer as a creditor in bankruptcy, but conversely judge’s verdict has not favored the consumer. This makes people prefer to resolve the dispute through ways other than bankruptcy. Therefore, the Insolvency Law needs to regulate the consumer position clearly; while regulation on its supervision also needs to be strengthened; and heavy sanctions should also be ordered against any misconduct by law enforcement authorities. Concurrently other laws need to adjust their rules with Insolvency Law for effective implementation. AbstrakKepailitan dan penundaan kewajiban pembayaran utang merupakan salah satu mekanisme penyelesaian sengketa yang dapat dipilih oleh para pihak dengan tujuan menyelesaikan masalah secara singkat murah dan transparan. Mekanisme kepailitan diatur dalam UU No. 37 Tahun 2004 tentang Kepailitan dan Penundaan Kewajiban Pembayaran Utang (UU Kepailitan). Namun dalam praktiknya UU Kepailitan memiliki banyak permasalahan terutama berkaitan dengan perlindungan konsumen. Tulisan ini akan membahas pengaturan kedudukan konsumen terkait kepailitan dan implementasinya. Penulis menemukan bahwa yang mengatur kedudukan konsumen dalam kepailitan tidak hanya UU Kepailitan akan tetapi juga KUHPerdata, UU No. 8 Tahun 1999 tentang Perlindungan Konsumen, dan UU No. 40 Tahun 2014 tentang Perasuransian. Pengaturan tersebut memiliki beberapa permasalah yaitu adanya ketidakjelasan dan ketidaksingkronan pengaturan serta pelanggaran asas peraturan perundang-undangan. Akibatnya dalam pelaksanaanya kedudukan konsumen menjadi sangat lemah. Konsumen kerap dikategorikan sebagai kreditor konkuren yang akan menerima ganti kerugian setelah kreditor separatis dan preferen. Sebaliknya, kedudukan kurator, pengurus, hakim pengawas sangat kuat sehingga memungkinkan terjadi penyimpangan seperti praktik mafia kepailitan yang merugikan konsumen. Berkaitan dengan budaya hukum, penegak hukum telah mengakui kedudukan konsumen sebagai kreditor dalam kepailitan hanya saja putusan hakim belum berpihak terhadap konsumen. Hal ini membuat masyarakat lebih memilih menyelesaikan sengketa melalui cara di luar kepailitan. Oleh sebab itu UU Kepailitan perlu mengatur kedudukan konsumen secara jelas; aturan tentang pengawasan juga perlu diperketat; dan sanksi yang tegas terhadap penegak hukum yang melanggar juga perlu diatur. Sedangkan UU lain perlu menyesuaikan aturan dengan UU Kepailitan supaya dapat dilaksanakan.
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Dinis, Ana Cristina dos Santos Arromba, Cidália Maria da Mota Lopes, Alexandre Miguel Fernandes Gomes da Silva und Pedro Miguel de Jesus Marcelino. „Taxation of Insolvent Companies: Empirical Evidence in Portugal“. Revista Contabilidade & Finanças 27, Nr. 70 (01.03.2016): 43–54. http://dx.doi.org/10.1590/1808-057x201500020.
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This article discusses the issue of taxation of insolvent companies in Portugal, particularly regarding the Portuguese tax on revenue of legal entities (IRC). For this purpose, first, some considerations on the legal framework of insolvent companies are woven and, second, their tax regime is analyzed. Then, a brief review of the main studies that, in the international context, analyze and debate major issues derived from the tax regime of insolvent companies is conducted, particularly in Brazil, Spain, United States, and Italy. Finally, there are the results of an empirical study conducted in Portugal, in 2013, which evaluates and compares the opinions of insolvency administrators (IA), the tax and customs authority (TA), and court magistrates (CM), in order to contribute to a better solution concerning business taxation under this regime. Respondents (IA, TA, CM) demonstrate objective thinking about the fact they believe it is very important that the Portuguese Code of Insolvency and Business Recovery (CIRE) and the Portuguese Code of Tax on Revenue of Legal Entities (CIRC) are modified, now to make clear whether the settlement of property ownership of an insolvent estate is liable to the IRC, then to assign a chapter specifically devoted to the subject of taxation on insolvency in Portugal.
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Ellice, Sebastian. „Is Voluntary Administration Failing Companies? An Investigation into the Operation of Voluntary Administration in New Zealand from Inception to 2019“. Victoria University of Wellington Law Review 52, Nr. 1 (27.06.2021): 29–58. http://dx.doi.org/10.26686/vuwlr.v52i1.6844.
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This article investigates the operation of voluntary administration in New Zealand from inception in 2007 to 2019. Voluntary administration is a formal insolvency procedure that is intended to maximise an insolvent company's chances of rehabilitation. Research undertaken for this article suggests that voluntary administration is not operating as was intended. It appears to have been underused and largely ineffective as a business rehabilitation mechanism. This article suggests that contributing reasons for the findings of the research include cost barriers for small businesses, a lack of confidence on behalf of creditors, and a misuse of voluntary administration by company directors. It proposes that useful reforms would be to reduce cost barriers and place limitations on when and how the procedure can be used.
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Stander, AL. „Die Vrugte van Beswaarde Bates by die Bereddering van ‘n Insolvente Boedel“. Stellenbosch Law Review 2021, Nr. 3 (2021): 543–58. http://dx.doi.org/10.47348/slr/2021/i3a9.
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If the executor of a deceased estate finds that the estate is insolvent and the creditors of the deceased estate have not instructed him to sequestrate the estate in terms of the Insolvency Act 24 of 1936, he may choose to administer the estate as an insolvent deceased estate in terms of section 34 of the Administration of Estates Act 66 of 1965. Section 34(7) of this Act requires an executor to submit liquidation and distribution accounts of the estate to the Master within certain specified periods of time and section 34(7)(b) prescribes that these accounts must provide for the distribution of the proceeds according to the preferred order prescribed by the Insolvency Act. Section 95(1) of the Insolvency Act provides that “the proceeds of any property which was subject to a special mortgage, landlord’s legal hypothec, pledge or right of retention, after deduction therefrom of the costs mentioned in subsection (1) of section 89, shall be applied in satisfying the claims secured by the said property”. The question that this contribution seeks to answer is whether “the proceeds of any property” in section 95(1) includes the amount(s) paid by a tenant as rent after the date of sequestration, but before the property was sold by the trustee or liquidator? According to Singer NO v The Master 1996 2 SA 133 (A), this phrase includes interest derived from the deposit of the purchase price of the property. However, the Appellate Division also accepted that “the proceeds of any property” were not limited to the purchase price of the property, but included fruits derived after the date of sequestration such as rent paid by a tenant before the property was sold or interest paid by the purchaser. It is recommended in this contribution that rental income that accrues prior to the realisation of the secured property should not be treated in the same way as, for example, rental income and occupational interest that accrues after realisation of the property. This recommendation is based on the interpretation of section 95(1) of the Insolvency Act, in conjunction with section 83 and section 95(2).
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Walters, Robert. „Insolvency and Data Protection“. Business Law Review 42, Issue 1 (01.01.2021): 2–12. http://dx.doi.org/10.54648/bula2021001.
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This article examines the interrelationship between crossborder insolvency, insolvency in general and data protection. Prior to the outbreak of the coronavirus, the world had already been facing significant geopolitical and economic challenges. It examines Australia, the European Union, the United Kingdom (BREXIT), and the United States data protection and privacy laws. What has emerged from the recent adoption of data protection and privacy law, is a highly fragmented approach. States and in the case of the European Union have largely gone it alone. This poses significant challenges to entities that are experiencing financial stress and either going through insolvency (including cross border insolvency), restructuring or a merger or acquisition. Insolvency and legal practitioners will need to be aware of the varied approach taken by jurisdictions in defining personal data, the concept of consent and regulatory requirement(s) to appoint a controller or processor. This article argues that increasingly administrators and liquidators will need to consider the various data protection laws, when proceeding with cross-border insolvency. Cross-border insolvency, insolvency in general and data protection, Australia, the European Union, the United Kingdom (BREXIT), and the United States data protection and privacy laws
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Anderson, Helen. „Insolvency—It's all about the Money“. Federal Law Review 46, Nr. 2 (Juni 2018): 287–312. http://dx.doi.org/10.1177/0067205x1804600205.
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The most desirable outcome from corporate insolvency is one that achieves the greatest return for all creditors including revenue authorities; minimises the cost of administering the system so that money is not pointlessly consumed; lessens reliance on government safety nets; and deters and punishes those who would use insolvency to their own advantage. This paper explores these intersecting priorities and argues for a new approach to insolvency administration that achieves these objectives.
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Wardrop, Ann. „Systemic Privatizations and the Failure to ‘Shrink the State’: The Regulation of Insolvent Essential Services in the United Kingdom and Australia“. Common Law World Review 34, Nr. 4 (November 2005): 336–62. http://dx.doi.org/10.1350/clwr.2005.34.4.336.
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Utilizing Feigenbaum, Henig and Hammett's typology, privatizations in the UK and Australia may be described as ‘systemic’ in the sense that their aim has been in part to ‘shrink the state’. Privatizations of essential services such as water, rail and energy in both countries appear to have failed in this endeavour. One example of this failure in the UK is the proliferation of special administration regimes which are initiated by the state and regulate the resolution of essential service insolvency. The recent introduction of an energy administration procedure in the Energy Act 2004 (UK) is yet another example of this process. Regulation of infrastructure insolvency appears on its face to have taken a different course in Australia, relying, for the most part on the usual insolvency regimes. However, the utilization of a contractual model for state oversight in the case of railway company insolvency and the willingness of the state to intervene in the financial distress of electricity generators suggest the Australian approach has also resulted in maintenance of the state's role following privatization. This paper reviews the experience of the State of Victoria in the failure of a rail company and electricity generator and considers to what extent the non-statutory processes utilized by the state reflects its continuing role post privatization. In so doing, the paper evaluates the device of the UK special administration regime and in particular discusses the energy administration provisions of the Energy Act 2004 (UK).
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Flores, Marta. „The Recognition and Enforcement of UK Insolvency Proceedings in Spain After a Hard-Brexit. Special Reference to Schemes of Arrangement“. European Company and Financial Law Review 18, Nr. 3 (01.06.2021): 377–97. http://dx.doi.org/10.1515/ecfr-2021-0017.
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Abstract After Brexit, the United Kingdom will become a third State to all effects. As far as insolvency is related, this will imply substantial changes regarding the recognition and enforcement of the UK insolvency proceedings. This paper purports to analyze the consequences a Hard-Brexit will have on insolvency-related matters, by describing the effects that should be expected with regard to the recognition in Spain of each of the proceedings that the UK legislation foresees for financially distressed debtors, namely administration, winding-up, voluntary agreements, bankruptcy and schemes of arrangement (which are dealt with separately due to their hybrid nature).
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Osmanov, O. A. „TEMPORARY ADMINISTRATION IN THE LEGISLATION ON INSOLABILITY OF FINANCIAL ORGANIZATIONS“. Law Нerald of Dagestan State University 35, Nr. 3 (2020): 82–85. http://dx.doi.org/10.21779/2224-0241-2020-35-3-82-85.
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This article is devoted to the analysis of the legislation on insolvency (bankruptcy) of financial organizations. The main methods for achieving results are formal legal, systemic, comparative legal, separate logical techniques, methods of interpretation of regulatory documents. The article is of a scientific and practical nature and explores certain aspects of the legal status of the provisional administration in cases of insolvency of financial organizations. The bankruptcy of the latter is endowed by the legislator with very significant features. The author made an attempt to investigate the grounds of appointment, rights and obligations, responsibility of the interim administration. The role of the Bank of Russia in this procedure is highlighted. The main conclusions were assessments of the effectiveness and practical significance of the norms of the legislation on bankruptcy of financial organizations.
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Mabe, Zingaphi. „Alternatives to Bankruptcy in South Africa that Provides for a Discharge of Debts: Lessons from Kenya“. Potchefstroom Electronic Law Journal 22 (12.03.2019): 1–34. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a5364.
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The problems faced by debtors in South Africa is not that there are no alternatives to insolvency proceedings, but that the available alternatives do not provide for a discharge of debt as with a sequestration order, which is ultimately what the debtor seeks to achieve. Debtors in South Africa can make use of debt review in terms of the National Credit Act 34 of 2005 or administration orders in terms of the Magistrates' Court Act 32 of 1944 to circumvent the sequestration process. However, both debt review and administration orders do not provide for a discharge of debt and provide for debt-restructuring only, in order to eventually satisfy the creditor's claims. Attention is given to the sequestration process and the alternatives to sequestration as they relate specifically to the discharge or lack of a discharge of a debtor's debts. The South African law is compared to Kenyan Law. This article seeks to analyse the alternatives to the bankruptcy provisions of the newly enacted Kenyan Insolvency Act 18 of 2015 in order to influence the possible reform of insolvency law in South Africa. Like the South African Insolvency Act, the old Kenyan Bankruptcy Act (Cap 53 of the Laws of Kenya) also did not have alternatives to bankruptcy. The old Kenyan Bankruptcy Act, however, contained a provision on schemes of arrangement and compositions. The Kenyan Insolvency Act now caters for alternatives to bankruptcy and provides a wide range of alternatives to bankruptcy, some of which allow debtors in different financial positions to obtain a discharge.
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Routledge, James, und David Morrison. „Insolvency administration as a strategic response to financial distress“. Australian Journal of Management 37, Nr. 3 (05.04.2012): 441–59. http://dx.doi.org/10.1177/0312896211428494.
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Gant, Jennifer L. L., und Jenny Buchan. „Moral Hazard, Path Dependency and Failing Franchisors: Mitigating Franchisee Risk Through Participation“. Federal Law Review 47, Nr. 2 (01.04.2019): 261–87. http://dx.doi.org/10.1177/0067205x19831841.
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Employment relations are well understood. Business format franchising is a newer and rapidly evolving business expansion formula, also providing employment. This article compares the fates of employees and franchisees in their employer/franchisor insolvency. Whereas employees enjoy protection, franchisees continue to operate in conditions that have been described as Feudal. We identify the inherence of moral hazard, path dependency and optimism bias as reasons for the failure of policies and corporations laws, globally, to adapt to the franchise relationship. This failure comes into sharp focus during a franchisor’s insolvency. We demonstrate that the models of participation available to employees in the United States, Australia and the United Kingdom could be used to inform a re-balancing of the franchisees’ relationship with administrators and liquidators during the insolvency of their franchisor, providing franchisees with rights and restoring their dignity.
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Podviezko, Kurschus und Lapinskiene. „Eliciting Weights of Significance of Criteria for a Monitoring Model of Performance of SMEs for Successful Insolvency Administrator’s Intervention“. Sustainability 11, Nr. 20 (14.10.2019): 5667. http://dx.doi.org/10.3390/su11205667.
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Small and medium-sized enterprises (SMEs) are accounted for as a major part of the economy of the EU in terms of part of the population employed, turnover, value-added, etc. Causes of insolvency of SMEs can be different; they are categorized in the paper. A considerable shift from resolving cases of bankruptcy with the sole aim to satisfy creditors’ rights to augmenting and enhancing liquidation and reorganization procedures evolved interest of the authors in creating efficient bankruptcy prediction models and, in particular, methodologies for evaluation and monitoring of the performance of SMEs. In the paper, we reviewed several initiatives and instruments created by the EU for supporting SMEs. The paper laid a foundation for creating a more comprehensive methodology for evaluation of the state of a firm undergoing the process of reorganization. A hierarchy structure of criteria for the evaluation of SMEs was used in the paper; methodologies for eliciting weights of importance of criteria from experts and gauging the level of concordance of opinions of experts were applied. Resulting weights of criteria of performance of an insolvent SME were obtained; the importance of the managerial category of criteria was revealed. Prominent features of hierarchy structures and methodology of using the structure for calculating ultimate weights were described and demonstrated. Gauging concordance of opinions of experts revealed a satisfactory level of concordance of opinions of experts; this allowed to prepare the ultimate weights of criteria for multiple criteria evaluation of SMEs for further research.
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Čulinović-Herc, Edita, Antonija Zubović und Mihaela Braut Filipović. „The preventive restructuring of companies in difficulties“. Zbornik Pravnog fakulteta Sveučilišta u Rijeci 39, Nr. 4 (2019): 1447–78. http://dx.doi.org/10.30925/zpfsr.39.4.1.
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The Republic of Croatia is facing the biggest restructuring of companies in difficulties with substantial involvement of international financial investors. Restructuring is implemented according to a newly adopted Act on extraordinary administration proceeding in companies of systemic significance for the Republic of Croatia. The latter Act was adopted in the aftermath of the business failure of the major retailer i.e. the Agrokor group. The restructuring of the group has soon become a very sensitive political issue and a topic of heated public discussions. The Act has been heavily criticized both by legal scholarship and by the public for being designed for a single group of companies in Croatia, as well as for being incoherent with constitutional principles and existing insolvency legislation. It created a type of debtor-not-in-possession in-court extraordinary administration designed for systemic significant (group of) companies in state of insolvency or pre-insolvency. Departing from this background, this paper aims to provide a wider restructuring picture by comparing three different legal models of preventive corporate restructurings for firms in difficulties: the German protective shield proceedings, the English schemes of arrangment and the Italian extraordinary administration. The authors attempt to evaluate each model’s effectiveness on the basis of relevant studies which indicate their success rate. As far as the Croatian Act is concerned, the paper provides an overview of the development of the preventive restructuring law, while questioning certain aspect of the Act, especially the concept of the company of systemic significance.
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McCormack, Gerard. „US exceptionalism and UK localism? Cross-border insolvency law in comparative perspective“. Legal Studies 36, Nr. 1 (März 2016): 136–62. http://dx.doi.org/10.1111/lest.12096.
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This paper addresses how the UNCITRAL Model Law on Cross-Border Insolvency has been implemented and interpreted in the US and the UK. The Model Law has attained a measure of international acceptance and is intended to achieve greater efficiencies in the administration of insolvency cases with transnational dimensions. But different manners of implementation in different countries and differing interpretations may hinder the prospects for harmonisation and coordination of laws. The paper will address in particular whether US interpretations differ from those in the UK and whether the US decisions are so infused with ‘American exceptionalism’ that they cannot be relied upon as sure guides in other countries.
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Tamošiūnienė, Egidija, Vigintas Višinskis, Mykolas Kirkutis und Remigijus Jokubauskas. „Problems of Determination and Payment of Bankruptcy Administration Costs“. Teisė 120 (30.09.2021): 21–35. http://dx.doi.org/10.15388/teise.2021.120.2.
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This article continues the research of peculiarities seen in the insolvency proceedings of legal entities and examines the problems of determination and payment of administrative costs of the bankruptcy proceedings of legal entities. The authors analyze the features of these costs in bankruptcy proceedings and how they can be identified. It also assesses the order in which administrative expenses must be paid in cases where the expenses do not exceed the estimate of administrative expenses, exceed it, or if assets of the legal person are insufficient to reimburse these costs.
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Aliaj, Erjola. „The main roles of bankruptcy administrator in Albanian Bankruptcy Law“. European Journal of Social Sciences Education and Research 3, Nr. 1 (30.04.2015): 127. http://dx.doi.org/10.26417/ejser.v3i1.p127-131.
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The bankruptcy procedure in Albania is governed by Bankruptcy Law No.8901 dated 23 May 2002, as amended. This law establishes non-discriminatory and mandatory rules for the repayment of the obligations by debtors in a bankruptcy procedure and ensures an adequate, reliable and effective mechanism for the reorganization or liquidation of a commercial company that is facing financial difficulties. Moreover, this law intervenes not only in the procedural rights of creditors towards insolvent debtors, but also in the material contractual and property rights of the persons, who had a legal relation with the insolvent debtor before and or/after the bankruptcy procedure has started. The administrator plays a fundamental role in the bankruptcy procedure. The latter is given heuristic, determined, regulatory and managerial powers in Albanian Bankruptcy Law. This paper provides an analysis of the main roles of bankruptcy administrator in Albanian Bankruptcy Law, such as control and distribution of bankruptcy estate, use or disposal of property, role in executor contracts, and contest of transactions.etc.
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Pond, Keith. „Administration of recoveries in individual insolvency: case studies of two UK banks“. European Journal of Finance 8, Nr. 2 (Juni 2002): 206–21. http://dx.doi.org/10.1080/13518470110071191.
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Ng, Christina Y. M. „“One country, two systems” – insolvency administration in the People’s Republic of China“. Managerial Auditing Journal 17, Nr. 7 (Oktober 2002): 363–73. http://dx.doi.org/10.1108/02686900210437462.
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Bruni�, Gian Bruno. „The New Italian Law on Extraordinary Administration of Large Enterprises in Insolvency“. International Insolvency Review 9, Nr. 2 (2000): 137–46. http://dx.doi.org/10.1002/1099-1107(200022)9:2<137::aid-iir69>3.0.co;2-l.
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Krivchanskaya, A. V. „FINANCIAL MECHANISMS AND INSTRUMENTS OF SOLVING THE PROBLEM OF THE INSOLVENCY OF MUNICIPALITIES: RUSSIAN PRACTICE AND FOREIGN EXPERIENCE“. Business Strategies, Nr. 2 (11.03.2019): 03–11. http://dx.doi.org/10.17747/2311-7184-2019-2-03-11.
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Currently, the problem of fiscal insolvency is relevant for the majority of municipalities of the Russian Federation, whose poor condition is indicated by the low share of own revenues and significant amounts of debt obligations of municipal budgets. On the basis of the analysis of the legal and regulatory framework, the work of specialists skilled in the art, as well as the author’s personal research on the practice of applying temporary financial administration, the most significant causes of this state are highlighted: the insufficiency of municipal financial resources to ensure their expenditure powers; low efficiency of financial management in the municipal budgetary sector; the existence of gaps in the actual institutional environment. The assessment of the foreign experience of the crisis management of municipalities was carried out to identify tools and methods that can be used in the Russian context. Special attention is paid to the mechanism of municipal bankruptcy. As a result, preventive measures have been identified as the most promising tools for resolving the problem of insolvency of municipalities of the Russian Federation. These measures include limiting the volume of short-term borrowings of municipalities and the need to obtain permission from higher authorities to borrow. A number of proposals to improve the effectiveness of temporary financial administration the solvency of municipalities was also offered.
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Filip, Petru, und Bogdan Radu. „Insolvency of the Romanian Administrative - Territorial Units. Novelty and Challenge for the Public Administration“. Procedia Economics and Finance 22 (2015): 26–35. http://dx.doi.org/10.1016/s2212-5671(15)00223-3.
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Frieden, Matthias, und Stefan Wielenberg. „Insolvency administrator’s incentives and the tradeoff between creditor satisfaction and efficiency in bankruptcy procedures“. Business Research 10, Nr. 2 (03.06.2017): 159–87. http://dx.doi.org/10.1007/s40685-017-0047-x.
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Kelmere, Laila, und Ingrīda Jakušonoka. „THE COMPANY'S INSOLVENCY IMPACT ON TAX COLLECTION PROCESS“. Science and Studies of Accounting and Finance: Problems and Perspectives 9, Nr. 1 (25.11.2014): 52–64. http://dx.doi.org/10.15544/ssaf.2014.06.
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Tax revenues are the key source of finance for the government’s budget. The state administration redistributes and allocates tax revenues for performing the state’s basic functions in order to ensure the overall development of the country and its population’s wellbeing. The availability of credit resources declined owing to the global crisis 2007-2009, which negatively affected the growth of Latvia’s national economy, and the total tax revenue decreased by 26.80% in 2009 compared with 2008. Latvia’s government, to secure the financing of its budget, stabilise Latvia’s financial system, raise the country’s competitiveness, borrowed in foreign financial markets EUR 4.5 billion. The present research examined Latvia’s economic development and tax collection dynamics after Latvia’s restoration of independence and its accession to the European Union and assessed the effects of the global crisis on the solvency of enterprises and tax revenues and how Latvia contributed to the foundation of new enterprises and the improvement of the business environment. Research methods employed: the monographic method was used to examine, assess and analyse literatures and legal acts, describing findings and interpretations; statistical observation, compilation and grouping of information, calculation of statistical data, analysis of causal relationships and data generalisation; logical analysis and synthesis. The graphic method was employed to show the relationships identified and their nature and form. The logical and constructive methods were used in analysing results and making judgements. The present research found that the insolvency of companies significantly affects the tax collection process and reduces total tax revenues. In 2013, a tax debt of EUR 267.59 mln was written off in Latvia because tax payers were liquidated, while in 2014 taxes totalling EUR 1 263.63 will not be potentially collected. The authors presume that research on the effects of company insolvency on tax revenues has to be continued in order to improve tax collection and design tax policy instruments aimed at restoring the solvency of enterprises facing problems.
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God`stime Osariyekemwen, Igiebor. „Impact of Global Capitalism on the Environment of Developing Economies: The Case of Nigeria“. Korean Journal of Policy Studies 29, Nr. 3 (31.12.2014): 79–100. http://dx.doi.org/10.52372/kjps29304.
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Globalization may have generated gains in some countries of the world; it is nevertheless associated with increased insolvency, inequalities, work insecurities, weak institutions, and corrosion of established values. Against this backdrop, the paper takes a cursory look at the global flow of capital and how it has impacted the Nigerian economy. It posit that the system of global governance is not consistent with the objective of the domestic economy given that globalization results in the weakening of state capacity through dominance of the transnational flow of capital and investment. Hence, the transnational network of production and services is orchestrated beyond the regulation of policies of domestic countries. Consequently this paper offers recommendations on how the Nigerian economy should develop in order to keep pace with globalization. These include developing local technology, promoting domestic industry and manufacture of goods for exports as well as managing domestic affairs free from extraneous foreign intrusion.
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Nosan, N. „The role of banks’ financial recovery in the context of increasing public confidence in banking system of Ukraine“. Galic'kij ekonomičnij visnik 66, Nr. 5 (2020): 113–19. http://dx.doi.org/10.33108/galicianvisnyk_tntu2020.05.113.
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The role of reorganization measures in improving the financial condition of troubled banks in Ukraine in order to increase public confidence in banking system is investigated in this paper. It is noted that instability of the banking system of Ukraine reduces the liquidity of banking institutions, can result in bankruptcy. The application of ineffective rehabilitation tools can lead to the institution dissolution. It reduces the level of public confidence in banking system of Ukraine. Five main factors of the low level of public confidence in banking system of Ukraine (massive bank closing, low financial literacy of the significant part of people, «shadowing» of the national economy, lack of effective rehabilitation mechanisms due to absence of comprehensive management policy, macroeconomic instability) are presented.The peculiarities of the bank's bankruptcy, the reasons for the deterioration of solvency in comparison with other business structures are considered. The main methods of financial recovery of commercial banks in order to prevent loss of solvency and bankruptcy in Ukraine are considered. It is noted that the bank's reorganization mechanism should provide not only direct reorganization measures, but also comprehensive diagnosis of insolvency and bankruptcy, timely detection of insolvency risk. The main disadvantages of the current practice of reorganization, particularly, the peculiarities of meeting the needs of the bank's clients since the recognition of its financial insolvency are considered. The main measures for the improvement of financial mechanism of bank rehabilitation increasing confidence in the banking system of Ukraine as a whole (formation of banking consortia, improvement of competence and skills of the bank temporary administration, detailed development of the legal mechanism of practical rehabilitation measures implementation, involvement of the representatives of the Deposit Guarantee Fund into the process of troubled banks search and carrying out reorganization measures, development of the program of informing the population about actions in emergency situations by the Deposit Guarantee Fund) are proposed.
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Suvorov, E. D. „On the Issue of the Concept of Bankruptcy“. Lex Russica, Nr. 11 (15.11.2020): 21–34. http://dx.doi.org/10.17803/1729-5920.2020.168.11.021-034.
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The paper justifies the statement concerning the multiplicity of the concept of “bankruptcy”, and interpretes the relevant meanings. The author states that bankruptcy can be considered as: 1. an economic condition, failure to satisfy creditors’ claims, including the failure recognized by the court; 2. a procedure; 3. an objection on behalf of the debtor; 4. a basis for a special settlement regime with creditors and such a special settlement regime itself; 5. a type of enforcement proceedings; 6. a way of authorizing insolvency; 7. a model of administration; 8. a basis and order of liquidation of a legal entity. A preliminary agreement concerning the meaning of the term “bankruptcy” is necessary at all stages of the life of law: when a rule of law is created, applied and when it is being subjected to doctrinal debates aimed at identifying its meaning. Particular attention in the paper is paid to the concepts of insolvency and property insufficiency. The author argues that it is necessary to distinguish the signs of bankruptcy from insolvency, and the former from the grounds for initiating proceedings. In author’s opinion, the introduction of the category of insufficiency of property in 2009 as grounds for mandatory filing for bankruptcy by the debtor’s principal was a step backwards and does not meet the needs of the modern economy. To remedy the situation, the Supreme Court of the Russian Federation introduced the category of objective bankruptcy that is also ambiguous. The paper also focuses on bankruptcy as a special settlement regime with creditors based on the application of the principle of equality of creditors (pari passu). It is stated that this principle is the reason for the emergence, along with the executive proceedings, of a special regime, namely: bankruptcy.
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Brotchie, James, und David Morrison. „Insolvent trading and voluntary administration in Australia: economic winners and losers?“ Accounting & Finance 60, Nr. 1 (14.12.2017): 409–34. http://dx.doi.org/10.1111/acfi.12319.
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Dukić-Mijatović, Marijana, und Ozren Uzelac. „Origin and legal regulation of the second chance for entrepreneurs in the European Union“. Strani pravni zivot, Nr. 1 (2021): 91–104. http://dx.doi.org/10.5937/spz65-28236.
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In the history of human civilization, there has always been the problem of overindebtedness and personal bankruptcy, as well as the tendency to protect such persons to some extent from excessive sanctions or the consequences of their insolvency. Benevolence towards the debtor is limited by the existence of conditions of conscientiousness and honesty of the debtor in all legal systems, while the amount of debt forgiveness is different. Debt relief and providing a new chance to the entrepreneur is a kind of systemic social measure that should ensure the employment of the individual and his family, but also to ensure the continuity of the capitalist system. It is noticeable that benevolence towards the debtor through debt relief was a characteristic of the Anglo-Saxon jurisdictions, while the regulations of the states of legal systems based on Roman law were traditionally oriented in the opposite direction. Although the Republic of Serbia has regulated the matter of bankruptcy and reorganization, in many parts under the EU Directive on reorganization and bankruptcy from June 2019, it has not been the case with the area of the second chance for the entrepreneur and the possibility of debt release, so it will be necessary to adjust national regulations of bankruptcy. In this paper, the authors analyze the origin of debt forgiveness in case of entrepreneur bankruptcy through history and theories, and select the comparative law and provisions of the EU Directive on reorganization and bankruptcy which regulate the second chance for entrepreneurs, as well as the purpose and measures that preceded the adoption of this Directive. Another important possibility for insolvent entrepreneurs is their personal administration with bankruptcy estate during the process of reorganization. Entrepreneurs' personal administration is regulated by bankruptcy legislation in various ways in comparative legal systems, and in Serbian law, it had been regulated for the first time by the Bankruptcy Procedure Act of 2004, but repealed by the Bankruptcy Act in 2009. Taking into account its importance for the national bankruptcy law, Serbian legal theory has already given the reasons due to which it is necessary to reintroduce the institute of personal administration of debtors into domestic bankruptcy law. On the other hand, sole debt release in Serbian law comes into effect at the moment the creditor declares to the debtor that he will not ask for the fulfillment of the debt and the debtor agrees with that, and such an agreement is made in writing. Debt release is a possibility provided in the Agreed Financial Restructuring Act 2015 that creditor and debtor may use during the process of reorganization, provided they reach an agreement to that end.
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BARTH, JAMES R., R. DAN BRUMBAUGH, JR., DANIEL SAUERHAFT und GEORGE H. K. WANG. „INSOLVENCY AND RISK-TAKING IN THE THRIFT INDUSTRY: IMPLICATIONS FOR THE FUTURE“. Contemporary Economic Policy 3, Nr. 5 (September 1985): 1–32. http://dx.doi.org/10.1111/j.1465-7287.1985.tb00818.x.
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Briggs, Aidan. „Scope creep: deleting beneficiaries’ interests in the name of cost-efficiency?“ Trusts & Trustees 25, Nr. 8 (09.09.2019): 830–34. http://dx.doi.org/10.1093/tandt/ttz071.
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Abstract The Re Benjamin jurisdiction has been given a new and unexpected lease of life by recent developments in the administration of insolvent financial institutions following Lehman Brothers. But are such developments based on sound principles, or does the practice of the court provide adequate protection for the interests of beneficiaries?
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Roth, Reuben. „The Shock Doctrine Comes to Canada: Laurentian University’s Insolvency Claim and the Neoliberal Tide“. Critical Sociology 47, Nr. 7-8 (27.09.2021): 1147–57. http://dx.doi.org/10.1177/08969205211046656.
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During the depths of COVID-19, Laurentian University, a small Canadian postsecondary institution located in the mid-sized city of Sudbury Canada, declared that it was insolvent and was legally allowed to terminate one-third of its faculty and cut almost one-half of its academic programmes. This historically unprecedented attack on a Canadian public institution utilized a Federal corporate court process, the Companies’ Creditors Arrangement Act (CCAA), a piece of legislation akin to the US Chapter 11 process. The result of the still-ongoing process saw the university Administration and Board of Governors working against the interests of the community, targeting the arts, Indigenous, Francophone and working-class communities. This article poses the question ‘to whom do universities belong, and at what point does a publicly funded university stop being a collective “social good” – responsible to the society that spawned it – and start being a stand-alone organization that serves private interests?’
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Camska, Dagmar, Jiri Klecka und Hana Scholleova. „Influence of age on selected parameters of insolvent companies“. Problems and Perspectives in Management 19, Nr. 2 (06.05.2021): 77–90. http://dx.doi.org/10.21511/ppm.19(2).2021.07.
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It is natural for the market economy that companies are forced to leave the market when they are not able to survive anymore. This paper is focused on the age structure of the companies in default. The age is considered a period between corporate establishment and insolvency declaration. The paper analyzes whether companies, which report financial accounting statements, have different age structure than non-reporting entities. Data sample consists of 212 companies (147 reporting and 65 non-reporting entities). Moreover, the analysis points out if corporate financial standing differ according to the age structure observed. Using descriptive statistics tools, the observed relationship between the company age and the frequency of insolvency cases is expressed. The evaluation of the financial standing is based on a ratio analysis. Indicators such as return on assets, return on sales, debt ratio, cash and non-cash liquidity, and asset turnover are applied. The results show there are not significant differences in the age structure between the reporting and non-reporting enterprises. Values of financial indicators seem to be independent on the age structure. The paper provides explanations and brings a classification of specific differences observed such as a distinction between reasons due to sector specificities and partly due to the specifics of the current business environment in the Czech Republic (monitored period 2014 – first quarter 2019). AcknowledgmentsThe authors are thankful to the Grant Agency of Academic Alliance (renamed the Grant Agency Academia Aurea) No. GAAA 10/2018 “Financial characteristics of enterprise in bankruptcy” for financial support to carry out this research.
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Kutasi, Gábor. „Banking contagion under different exchange rate regimes in CEE“. Society and Economy 37, Nr. 1 (01.03.2015): 109–27. http://dx.doi.org/10.1556/socec.37.2015.1.6.
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The global crisis of 2008 caused both liquidity shortage and increasing insolvency in the banking system. The study focuses on credit default contagion in the Central and Eastern European (CEE) region, which originated in bank runs generated by non-performing loans granted to non-financial clients. In terms of methodology, the paper relies on the one hand on review of the literature, and on the other hand on a data survey with comparative and regression analysis. To uncover credit default contagion, the research focuses on the combined impact of foreign exchange rates and foreign private indebtedness.