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Journal articles on the topic 'Insolvency legislation'
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1
Evans, Roger G. "Legislative Exclusions or Exemptions of Property from the Insolvent Estate." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 14, no. 5 (June 8, 2017): 38. http://dx.doi.org/10.17159/1727-3781/2011/v14i5a2598.
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The general policy in South African insolvency law is that assets must be recovered and included in the insolvent estate, and that this action must be to the advantage of the creditors of the insolvent estate. But there are several exceptions to this rule and an asset that is the subject of such an exception may be excluded from the insolvent estate. The Insolvency Act, however, does not expressly distinguish between excluded and exempt assets, thereby resulting in problem areas in the field of exemption law in insolvency in South Africa. It may be argued that the fundamental difference between excluded and exempt assets is that excluded assets should never form part of an insolvent estate and should be beyond the reach of the creditors of the insolvent estate, while exempt assets initially form part of the insolvent estate, but in certain circumstances may be exempted from the estate for the benefit of the insolvent debtor, thereby allowing the debtor to use such excluded or exempt assets to start afresh before or after rehabilitation. Modern society, socio-political developments and human rights requirements have necessitated a broadening of the classes of assets that should be excluded or exempted from insolvent estates. This article considers assets excluded from the insolvent estates of individual debtors by legislation other than the Insolvency Act. It must, however, be understood that these legislative provisions relate to insolvent estates and thus generally overlap in one way or another with some provisions of the Insolvency Act.
2
Madaus, Stephan, and F. Javier Arias. "Emergency COVID-19 Legislation in the Area of Insolvency and Restructuring Law." European Company and Financial Law Review 17, no. 3-4 (September 14, 2020): 318–52. http://dx.doi.org/10.1515/ecfr-2020-0018.
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The appearance of the COVID-19 in Europe has prompted lawmakers to introduce public health measures that inevitably hurt the economy by reducing economic activity and business revenues. The foreseeable risk that the pandemic could be followed immediately by a bankruptcy epidemic led to the adoption of rules related to insolvency and restructuring laws in emergency legislation in most European countries. These rules aim at avoiding businesses to become insolvent either by suspending insolvency tests (see II.) or by providing cash support and debt moratoria (see III.). They may also contain measures that indirectly affect insolvency and restructuring proceedings (see IV.). This paper explains the logic behind emergency legislation and the specific rules adopted in European countries.
3
Keay, Andrew. "THE HARMONIZATION OF THE AVOIDANCE RULES IN EUROPEAN UNION INSOLVENCIES." International and Comparative Law Quarterly 66, no. 1 (November 16, 2016): 79–105. http://dx.doi.org/10.1017/s0020589316000518.
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AbstractCross-border transactions and resultant legal proceedings often cause problems. One major problem is knowing which law should govern the transaction and any legal proceedings. Cross-border insolvencies in the EU are subject to the European Regulation on Insolvency Proceedings (EIR) but this legislation does not determine which substantive insolvency law rules apply in a given insolvency. There are many differences in the insolvency rules applicable in the various EU Member States and this has caused concern in relation to the avoidance of transactions entered into by an insolvent prior to the opening of insolvency proceedings. In light of this, the paper examines options to address divergence between national avoidance rules. One option, harmonization, is analysed as well as its possible benefits and drawbacks.
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Rudenko, L. D., and M. D. Zhitelny. "Grounds for initiating proceedings in the case of insolvency of an individual." Legal horizons, no. 24 (2020): 47–52. http://dx.doi.org/10.21272/legalhorizons.2020.i24.p46.
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The article specifies the grounds for initiating proceedings in the case of insolvency of an individual on the basis of a comprehensive comparative analysis of foreign experience, scientific literature, national legislation and practice of its application. Based on the analysis of the legislation and case law, it is noted that the Bankruptcy Code does not clearly define the term "threat of insolvency". Article 115 of the Code states that the threat of insolvency includes circumstances that confirm that in the near future the debtor will not be able to meet its monetary obligations or make normal current payments. It is argued that the lack of definition of "threat of insolvency" in the Code is a shortcoming of current legislation, and therefore this rule needs to be clarified in terms of confirming the inability of the debtor to meet financial obligations, the terms of default. It is proposed to define "threat of insolvency" as a set of documented legal grounds that indicate the inability of the debtor to meet its own financial obligations or make regular financial payments over the next two months. The expediency of determining in Article 115 of the Bankruptcy Procedure Code an exclusive list of grounds for initiating insolvency proceedings against an individual is argued. Consolidation in Art. 115 of the Code of the inexhaustible list complicates law enforcement as provides a possibility of application of norms of other regulatory legal acts; provides wide discretion to the court, which creates conditions for the abuse of procedural rights for both participants in the bankruptcy proceedings and judges. The peculiarities of initiating proceedings to restore the solvency of an individual are specified: only the debtor himself may apply to the court to declare an individual insolvent. In order to reduce the financial burden on an insolvent individual in the implementation of bankruptcy proceedings, it is proposed to give the creditor the right to initiate legal proceedings for the insolvency of such a person.
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Mabe, Zingapi. "Setting aside Transactions from Pyramid Schemes as Impeachable Dispositions under South African Insolvency Legislation." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 19 (October 21, 2016): 1. http://dx.doi.org/10.17159/1727-3781/2016/v19i0a1236.
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South African courts have experienced a rise in the number of cases involving schemes that promise a return on investment with interest rates which are considerably above the maximum amount allowed by law, or schemes which promise compensation from the active recruitment of participants. These schemes, which are often referred to as pyramid or Ponzi schemes, are unsustainable operations and give rise to problems in the law of insolvency. Investors in these schemes are often left empty-handed upon the scheme’s eventual collapse and insolvency. Investors who received pay-outs from the scheme find themselves in the defence against the trustee’s claims for the return of the pay-outs to the insolvent estate. As the schemes are illegal and the pay-outs are often in terms of void agreements, the question arises whether they can be returned to the insolvent estate. A similar situation arose in Griffiths v Janse van Rensburg 2015 ZASCA 158 (26 October 2015). The point of contention in this case was whether the illegality of the business of the scheme was a relevant consideration in determining whether the pay-outs were made in the ordinary course of business of the scheme.This paper discusses pyramid schemes in the context of impeachable dispositions in terms of the Insolvency Act 24 of 1936.
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Ershova, Inna Vladimirovna, Tatiana Petrovna Shishmareva, Ekaterina Evgenievna Enkova, Olga Viktorovna Sushkova, and Sergey Sergeevich Galkin. "Reforming Russian legal mechanisms for the rehabilitation of the debtor through the prism of comparative studies." SHS Web of Conferences 118 (2021): 01006. http://dx.doi.org/10.1051/shsconf/202111801006.
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The purpose of this study is to formulate the main elements of the legal model for reforming the Russian insolvency legislation based on the analysis of regulatory decisions of foreign legal orders, where the idea of the sanation of the debtor and its enterprise is successfully implemented. Comparative-legal and sociological methods of scientific cognition were used as a methodological basis. The results of the work were the analysis of the experience of the United States and Germany, the legislation of which contains effective models for resolving the conflict between the debtor and its creditors within the framework of sanation. In addition, the authors formulated and substantiated the conclusion regarding the urgent need to change the Russian concept of insolvency legislation through the transition from the liquidation of insolvent entities, mainly to the sanation of debtors or its enterprises. The authors also proposed key elements of a possible legal model for such reform, including establishing a unified restructuring competitive procedure for debtors – legal entities; preserving the powers of the debtor in the course of this procedure to handle its corporate management; solving the most significant issues of the restructuring procedure mainly by reaching an agreement between the main participants in the procedure – the debtor, the beneficiaries of the debtor and various classes of creditors. The novelty of the work lies in formulating the problem and substantiating the requirement to transform the Russian legal mechanisms for the rehabilitation of the insolvent debtor, taking into account the legal solutions presented, first of all, in American and German insolvency legislation.
7
Mba, Sanford U. "Preventive Debt Restructuring and the Nigerian Draft Insolvency Legislation: Lessons from a Comparative Perspective." African Journal of International and Comparative Law 28, no. 1 (February 2020): 66–84. http://dx.doi.org/10.3366/ajicl.2020.0302.
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Recently, the Nigerian Senate passed the Bankruptcy and Insolvency (Repeal and Re-enactment) Bill. This is no doubt a welcome development following the continued demand by insolvency practitioners, academics and other stakeholders for such legislation. The call has not only been for the enactment of just about any legislation, but (consistent with the economic challenges faced by businesses in the country), one that is favourably disposed to the successful restructuring of financially distressed businesses, allowing them to weather the storm of (impending) insolvency, emerge from it and continue to operate within the economy. This article seeks to situate this draft legislative instrument within the present wave of preventive restructuring ably espoused in the European Union Recommendation on New Approaches to Business Rescue and to Give Entrepreneurs a Second Chance (2014), which itself draws largely from Chapter 11 of the US Bankruptcy Code. The article draws a parallel between the economic crisis that gave rise to the preventive restructuring approach of the Recommendation and the present economic situation in Nigeria; it then examines the chances of such restructuring under the Nigerian draft bankruptcy and insolvency legislation. It argues in the final analysis that the draft legislation does not provide for a prophylactic recourse regime for financially distressed businesses. Consequently, a case is made for such an approach.
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Ovchinnikov, A. V. "The Ways to Correct System Errors in the Insolvency Trustees Training." Vestnik NSUEM, no. 4 (December 29, 2019): 197–207. http://dx.doi.org/10.34020/2073-6495-2019-4-197-207.
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The steady increase in the size of compensation for damage caused by insolvency trustees while they performing professional duties is not only a result of stricting legislation, but may be a direct result of the decline in the professional level of by insolvency trustees. The author analyzes the possible reasons of this phenomenon, and proposes to put the analysis of liability measure applied to insolvency trustees as the basis for the system of training insolvency trustees. The author also points to the fact that the existing system of insolvency trustees training has not changed for more than 10 years, despite the fact that the insolvency (bankruptcy) legislation changes on average 5 times a year.The author points to the need for annual updating of the training program for insolvency trustees.
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Uhlířová, Marta. "Legal aspects of the crimes committed in insolvency proceedings – comparison of Czech and Austrian legislation." Acta Universitatis Agriculturae et Silviculturae Mendelianae Brunensis 61, no. 7 (2013): 2911–16. http://dx.doi.org/10.11118/actaun201361072911.
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The subject of this paper is to compare the Czech and Austrian legislation considering offenses which entrepreneurs and other entities (natural person) may commit within the insolvency proceedings or which are related to the insolvency. Emphasis is placed on the comparison of Czech and Austrian legislation with regard cross-border relationships within the business environment and living between the Czech Republic and Austria.Czech entrepreneurs and natural person in Austria can get into a situation where their debtor is located in Austria and finds himself insolvent or vice versa. Also the Czech entrepreneurs and natural person may do their bussines or live in Austria and may get into such a situation when they are close to the situation which can lead to their decline. This paper would be for them a practical recommendation on how to avoid potential criminal liability.
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Arbekova, A. V. "The Evolution of Liability Measures Applied in Bankruptcy to Creditors’ Property Rights Violators in Russia." Actual Problems of Russian Law 16, no. 5 (June 9, 2021): 84–97. http://dx.doi.org/10.17803/1994-1471.2021.126.5.084-097.
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One of the tasks the modern law in the field of insolvency of legal entities pursues is to ensure the maximum balance of the rules governing the measures of liability applied to managers, participants and other entities controlling the debtor. In this regard, the author applies historical and comparative method of studying the measures of responsibility applied during the development of domestic legal regulation of insolvency and the critical assessment method that forms the basis for the analysis of the current Russian legislation. The paper carries out a retrospective analysis of the form and degree of fault as an element of the offense that traditionally acted as one of the criteria for choosing the type of insolvency, as well as for imposing the measures of responsibility. A comparative analysis of the norms of the Russian bankrupt legislation in historical retrospect allowed raising problematic issues of the current legislation and making proposals aimed at their resolution. Currently, the rules of the current domestic insolvency legislation provide an equal amount of responsibility for both bad faith (intentional) and unreasonable (careless) actions of entities controlling the debtor. The normative consolidation of measures of responsibility dependent on the form of fault, namely, the separate qualification of intentional and careless offenses, will secure coherent application of the principle of justice. Modern Russian law contains the concepts of “insolvency” and “bankruptcy”, which in some cases creates legal uncertainty. Therefore, it is proposed to delineate these concepts by law, eliminate the term “objective bankruptcy” from the application, and shift its semantic burden to the concept of “insolvency”. Thereby, a separate category of insolvency will be included in the current legislation.
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Girgis, Jassmine. "Corporate Directors’ Disqualification: The New Canadian Regime." Alberta Law Review 46, no. 3 (June 1, 2009): 677. http://dx.doi.org/10.29173/alr222.
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An insolvent time in a corporation’s life may compel directors to engage in reckless behaviour and wrongful conduct to hide the state of financial distress from creditors as the directors attempt to trade out of insolvency. Currently, Canadian legislation does little to protect from this type of situation. In this article, the author examines the different schemes in the United Kingdom, specifically directors’ personal liability and the director disqualification scheme, and argues that the disqualification scheme has been successful for protecting creditors. The author then considers the Canadian provisions currently in place that allow for the removal of directors and concludes that the adoption of a disqualification scheme, especially under the federal insolvency power, should be seriously considered.
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Choma, Hlako, Thifulufhelwi Cedric Tshidada, and Tshegofatso Kgarabjang. "The impact of the credit legislation on consumers." Risk Governance and Control: Financial Markets and Institutions 6, no. 4 (2016): 503–9. http://dx.doi.org/10.22495/rgcv6i4siart8.
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The purpose of this paper is to examine two South Africa legislations dealing with over indebtedness of a consumer. It is clear that in terms of the South African law, section 129 (1) and 130 (3) of the National Credit Act provide that a creditor provider who wishes to enforce a debt under a credit agreement must first issue a section 129 (1) (a) notice to the consumer (the purpose of the notice is to notify the consumer of his/her arrears). On the other hand, the South African National Credit Act encourages the consumers to fulfil the financial obligations for which they are responsible. The second legislation to be examined which serve or appear to serve same purpose as the National Credit Act is the Insolvency Act. It therefore, postulated that the compulsory sequestration of a consumer in terms of the Insolvency Act would stand as an alternative remedy for a credit provider before she/he can have recourse mechanisms, such as debt review that are focused on satisfaction of the consumer’s financial obligation , in terms of the provisions of the National Credit Act. The paper determines to what extend these measures comply with the constitutional consumer protection demands. The legislature had been pertinently cognizant of the Insolvency Act when it lately enacted the National Credit Act. This is much apparent from the express amendment of section 84 of the Insolvency Act to the extent set out in schedule 2 of the National Credit Act
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Konopecka, Renata. "AN AMICABLE AGREEMENT OR ANOTHER FORM OF DEBT RESTRUCTURING IN INSOLVENCY PROCEDURE FOR INDIVIDUALS IN LATVIA." CBU International Conference Proceedings 4 (September 19, 2016): 509–14. http://dx.doi.org/10.12955/cbup.v4.805.
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The goal of this article is to explore the features of using insolvency proceedings in Latvia and to elaborate on special proposals for modernizing the laws. In the legislation, there has been no prospect from a legal perspective to restructure an individual’s debts. Namely, individuals have no opportunity to use legal protection within the framework of the insolvency proceedings to reach an amicable agreement with creditors, or create another form of debt restructuring. Eliminating this gap in legislation is therefore necessary.In this article, analytical, comparative, historical and deductive methods are used to explore the legal norms that regulate the insolvency proceedings for an individual. The aim is to identify the distinctive features of the proceedings; to analyze the problematic aspects of laws and develop proposals for modernizing the legislation of Latvia in this field. The novelty of this research pertains to it being the first attempt in Latvia to examine the question of legal regulation of insolvency proceedings in complexity, with a practical proposal to improve Latvian legal norms and avoid bankruptcy problems. The outcome of this study includes a proposal to supplement the Act on Insolvency with the Article “Amicable Agreement”, for deciding upon the state of insolvency. This relates to an agreement between the creditors and the debtor to fulfil obligations before an auction of the debtor’s property.
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Hrynchyshyn, Yaroslav. "Preventive Restructuring as a New Trend of Insolvency Legislation." Accounting and Finance, no. 2(92) (2021): 51–60. http://dx.doi.org/10.33146/2307-9878-2021-2(92)-51-60.
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The need to harmonize corporate insolvency legislation has led to the adoption by the European Union of the relevant regulations – the Recommendation on a New Approach to Business Failure and Insolvency and the Directive 2019/1023 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency). The purpose of the article is to reveal the essence of preventive restructuring, to assess the main differences in the definition of preventive restructuring in accordance with the provisions of the EU Directive and the Code of Ukraine on bankruptcy procedures. In this work, preventive restructuring is considered as the main tool for timely prevention of bankruptcy, the implementation of which in the EU member states has significant differences. An overview of the provisions of EU regulations on preventive restructuring and the process of their implementation in the member states was done. A comparative analysis of the EU directive on the mechanisms of preventive restructuring and certain provisions of the Code of Ukraine on bankruptcy procedures related to reorganization prior to the commencement of bankruptcy proceedings was carried out. It was found that the Code lacks such principles as early appeal, protection of new financing, taking into account the peculiarities of small and medium-sized businesses. Differences in the use of other principles were also identified. Ukrainian legislation encourages debtors to liquidate their business rather than to carry out financial restructuring. Taken into account the European vector of development, today Ukraine has a real chance to improve insolvency legislation based on the provisions of the EU Directive.
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Yyatsenko, А. О. "PROBLEMS OF CHALLENGING DOUBTFUL TRANSACTIONS IN CASE OF INSOLVENCY (BANKRUPTCY) OF CREDIT ORGANIZATIONS." Scientific Notes of V. I. Vernadsky Crimean Federal University. Juridical science 7 (73), no. 1 (2021): 310–15. http://dx.doi.org/10.37279/2413-1733-2021-7-1-310-315.
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In this article, the author examines the problems that arise in connection with challenging dubious transac-tions in the event of insolvency (bankruptcy) of credit institutions.On the basis of the above examples from the judicial practice of arbitration courts, the author comes to the conclusion that gaps in the current legislation governing the invalidation of transactions that were made by a credit institution during the period of specific banking activities or after the arbitration court accepts an application for declaring a credit institution insolvent (bankrupt) , can lead to the impossibility of commensurate satisfaction of creditors’ claims, in connection with which there is a need to modernize the current legislation in the area under study.
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Baliura, Anna. "Peculiarities of court proceedings in insolvency cases under the laws of the Federal Republic of Germany." Law Review of Kyiv University of Law, no. 1 (April 15, 2020): 407–11. http://dx.doi.org/10.36695/2219-5521.1.2020.80.
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The present article represents the results of the analysis of the German model of court proceedings in insolvency cases. In particular, within the framework of our research we have analysed specific aspects of the use of terminological apparatus, inter alia, we have traced the differences of the use of terms ‘insolvency’ and ‘bankruptcy’ under the laws of Germany. Besides, the article covers jurisdiction rules in insolvency cases and provides key characteristics of enforcement proceedings in respective cases. The present article contains in-depth analysis of criteria for recognition the debtor’s insolvency, namely, inability to pay, threatening inability to pay and over-indebtedness. During our research we have also identified and analysed legislative grounds for rejection of the debtor’s or creditors’ application initiating insolvency proceedings.
Further, the article clearly indicates the functions and powers of the court, as well as the rights and obligations of the parties at each stage of court proceedings in insolvency cases, notably, imposition by the court of security measures, namely, appointment of insolvency practitioner and restriction of the right to dispose of the debtor’s property, adoption or rejection by the court of insolvency recovery plan submitted by the debtor or appointed insolvency practitioner. This article also highlights time frames for realization of the above-mentioned rights and obligations and for the entire insolvency proceedings itself.
The article reflects evolution of German court’s approach to foreign proceedings in insolvency cases, as well as to decisions of foreign courts in case of this category from total non-recognition to recognition and incorporation of respective rules into the legislation of Germany on cross-border insolvency. The evolution in question is sustained by glaring court practice in this regard.
The present article provides quantitative conclusions on peculiarities of the entire insolvency system of Germany and, particularly, of German model of court proceedings in insolvency cases.
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Sugiyama, Etsuko. "Prospects for international bankruptcy legislation and new challenges." Impact 2021, no. 4 (May 11, 2021): 32–34. http://dx.doi.org/10.21820/23987073.2021.4.32.
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In our increasingly globalised world, businesses may operate in more than one country. If this is the case for a business and the business is forced to declare bankruptcy, multiple legal issues can arise. This is due to the lack of a single law relating to international insolvency, with most legal systems across the world having been developed on a territorial basis. Although there have been attempts to develop a unified framework for international insolvency, there is a need for improved harmonisation and modernisation of international business rules. Professor Etsuko Sugiyama, Graduate School of Law, Hitotsubashi University, Japan, is working to develop and implement measures that will facilitate cross-border cooperation when it comes to international bankruptcy. In one line of investigation, she is exploring whether existing systems in Japan are sufficient to deal with issues associated with international bankruptcy. In addition, Sugiyama is part of the United Nations Commission on International Trade Law (UNCITRAL) working group five, which works to facilitate a harmonisation of the rules surrounding domestic and cross-border insolvency. However, the group's rules and recommendations are yet to be adopted by all countries, necessitating more work to encourage uptake. This involves providing information on legislation and promoting the benefits.
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Tee, Louise. "Ossa Upon Pelion? Severance and the Insolvency Legislation." Cambridge Law Journal 54, no. 1 (March 1995): 52–59. http://dx.doi.org/10.1017/s0008197300083148.
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It has long been established that the (involuntary) alienation which occurs when a bankrupt's estate vests in his trustee severs any beneficial joint tenancy, with the effect that the trustee holds the co-owned property as a beneficial tenant in common.1 The timing of such severance is of vital interest to unsecured creditors and the other coowners alike. If a beneficial joint tenant dies before severance is deemed to have taken place, his unsecured creditors are unable to claim against any share of the property, for it is an essential characteristic of joint tenancy that each joint tenant is entitled to the whole interest or estate, but only for his lifetime: upon the death of a joint tenant, his potential “share” accrues to those remaining in accordance with the right of survivorship. If, however, a co-owner dies after his interest has been severed, his share of the property is available for distribution among his creditors. Where a jointly-owned home is the debtor's only substantial asset, the distinction is crucial.
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Ferran, Ellis. "Timing Requirements of the Companies and Insolvency Legislation." Cambridge Law Journal 53, no. 1 (March 1994): 37–39. http://dx.doi.org/10.1017/s0008197300096835.
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van Dijck, Gijs, Ruben Hollemans, Monika Maśnicka, Catarina Frade, Lorenzo Benedetti, Lucilla Galanti, Paula Fernando, et al. "Insolvency judges meet strategic behaviour: A comparative empirical study." Maastricht Journal of European and Comparative Law 27, no. 2 (March 30, 2020): 158–77. http://dx.doi.org/10.1177/1023263x20906669.
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This article reports the results of a comparative empirical legal study that analyzed (1) strategic behaviour by actors in insolvencies that is salient to insolvency judges and (2) how insolvency judges respond to such behaviour. After examining four different European countries, namely Italy, the Netherlands, Poland, and Portugal, the study reveals how differences regarding case allocation, judge – insolvency practitioner (IP) interaction, and remuneration and case financing can result in strategic behaviour on both the side of the judges and the IPs. From this, it follows that improving the efficiency and effectiveness is not merely a matter of implementing legislation and case law, but that it also requires a look into the dynamics between insolvency judges, IPs, and other actors in the insolvency process.
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Poiedynok, V. V., and I. V. Kovalenko. "RESPONSIBILITY OF DIRECTORS IN BANKRUPTCY PROCEDURES UNDER EU LAW AND INDIVIDUAL MEMBER STATES OF EU." Economics and Law, no. 1 (April 15, 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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Nishimura, Douglas S. "The Companies' Creditors Arrangement Act and the Petroleum Industry: The Blue Range Resource Corporation Proceedings." Alberta Law Review 39, no. 1 (August 1, 2001): 35. http://dx.doi.org/10.29173/alr508.
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This article provides an analysis of s. II of the Companies' Creditors Arrangement Act and the decisions arising out of the Blue Range litigation. While comparing the CCAA legislation with the Bankruptcy and Insolvency Act and the United States Bankruptcy Code the author analyzes the impact of the Blue Range Decisions on insolvency law and the petroleum industry.
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Nauta, Marie-Louise, and Frederiek Bulten. "Introduction to Spanish cross-border insolvency law-an adequate connection with existing international insolvency legislation." International Insolvency Review 18, no. 1 (December 2009): 59–76. http://dx.doi.org/10.1002/iir.168.
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Boltenkova, Yuliya V., Vladimir S. Sinenko, Sergey A. Rubanov, Oksana S. Lilikova, and Aleksey Yu Gordeev. "Bankruptcy Procedure for Individuals in Russia and the USA: Comparative Legal Analysis." Cuestiones Políticas 37, no. 64 (May 14, 2020): 92–100. http://dx.doi.org/10.46398/cuestpol.3764.07.
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Bankruptcy is the legitimate procedure by which monetarily troubled firms, people, and sporadically governments settle their obligations. The insolvency procedure for firms assumes a focal job in financial aspects, since rivalry drives the most wasteful firms bankrupt, subsequently raising the normal proficiency level of those remaining. This study provides a comparative analysis of the most significant aspects of bankruptcy for individuals in Russia and the United States. The objective of the study was to determine the conditions involved in declaring a citizen insolvent in US and Russian law, for which we studied the ways of filing applications in these countries, as well as some methods of abuse by creditors that reduce the effectiveness of the bankruptcy institu-tion, and the ways to minimize them. Based on the results of the analysis, proposals were made to improve the legislation that governs people's bankruptcy. These proposals are based on the positive experience of the United States in the field of legal regulation of insolvency institutions.
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Osmanov, O. A. "TEMPORARY ADMINISTRATION IN THE LEGISLATION ON INSOLABILITY OF FINANCIAL ORGANIZATIONS." Law Нerald of Dagestan State University 35, no. 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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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, no. 3 (June 1, 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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Nauta, Marie-Louise, and Frederiek Bulten. "Introduction to Spanish cross-border insolvency law-an adequate connection with existing international insolvency legislation: Annex." International Insolvency Review 18, no. 1 (December 2009): 77–84. http://dx.doi.org/10.1002/iir.169.
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Klementyev, Aleksey P. "Close-out netting in the European Union: contract practice and unification of legal regulation." RUDN Journal of Law 25, no. 3 (August 23, 2021): 634–53. http://dx.doi.org/10.22363/2313-2337-2021-25-3-634-653.
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The article focuses on the general characteristics of the European Union legal framework pertaining to close-out netting; it offers analysis of standard documentation provisions used within European Union for netting. Close-out netting is the process of termination of financial transactions by the parties in case of violation of obligations under master agreements, often with participation of banks and other financial institutions. Currently, EU legislation on netting consists of two major parts (regulatory regimes): the prudential regime and the insolvency regime. The former addresses banks and financial institutions regulating requirements for financial ratios and capital adequacy of these organizations. The insolvency framework is the most complex of the said legal regimes as it is comprised of various directives and regulations affecting performance of netting in the course of bankruptcy procedures. In recent years, the insolvency regime has undergone immense change marking the transition from unconditional legislative support of netting without any exemptions to a more balanced approach aimed at limiting close-out netting possibilities with respect to systematically important financial organizations.
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Popov, Denis. "Public danger of bankruptcy offenses in modern Russia." LAPLAGE EM REVISTA 7, no. 3B (September 23, 2021): 389–96. http://dx.doi.org/10.24115/s2446-6220202173b1564p.389-396.
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The article aims at studying the Russian criminal legislation on the insolvency (bankruptcy) procedure over the past 15 years. An important indicator of the deterioration of bankruptcy cases is the judicial practice discussed in the article. The main method for studying the issue in question was the statistical method which allows to consider some court cases indicative for Russia and draw certain conclusions about prospects for the development of the Russian legislation on criminal liability for bankruptcy (insolvency) offenses in modern Russia. This scientific article also uses the method of system analysis, the historical method, deduction, induction, etc. The article concludes that bankruptcy abuse is a dynamic and rapidly changing environment due to the constant emergence of new forms of such abuse by the subjects of these legal relations. Therefore, the current legislation is not always able to resolve emerging issues in this area.
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Korolev, Yury Y. "DOING BUSINESS’2020 RESULTS: PROBLEMS AND PERSPECTIVES OF IMPROVEMENT OF THE ECONOMIC AND LEGAL INSTITUTE OF INSOLVENCY (BANKRUPTCY)." Russian Journal of Water Transport, no. 62 (March 10, 2020): 111–22. http://dx.doi.org/10.37890/jwt.vi62.42.
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The article analyzes the results of the Doing Business international rating for 2020 for the Republic of Belarus and the Russian Federation. Based on the actual rating data for two countries, the author investigated the methodology of the Resolving insolvency indicator, which is one of ten equilibrium components of the final Doing Business indicator and assesses the level of development of national economic and legal institutions of insolvency (bankruptcy). Some factors determining the lag of the Republic of Belarus and the Russian Federation from other countries, primarily the countries of the former USSR, are identified. On the example of India, the results of reforming the national legislation on economic insolvency (bankruptcy) and the transition to effective rehabilitation procedures of the debtor are evaluated. It is concluded that it is possible to use approaches and methods of calculating the Resolving insolvency indicator to develop areas for reforming national economic and legal institutions of insolvency (bankruptcy).
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Solodova, Svetlana, and Yaroslava Yazynina. "Recognition Specifics of Public Sector Organizations’ Financial Insolvency." Regionalnaya ekonomika. Yug Rossii, no. 2 (August 2021): 121–30. http://dx.doi.org/10.15688/re.volsu.2021.2.12.
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The current state of the Russian economy is characterized by the economic entities’ unstable financial position. Under the influence of various internal and external factors, an entity may not have the opportunities to repay its current payables, i.e. to be financially insolvent. In recent years, it has become increasingly obvious that insolvency can be found not only in commercial organizations, but also institutions operating in the public sector of the economy, and seemingly protected by fairly stable sources of financing. The purpose of the work is to study the manifestation specifics of the public sector organizations’ financial insolvency. The paper uses the methods of theoretical research (abstraction, analysis and synthesis, mental modeling), as well as the methods of empirical research (observation, comparison, measurement). Based on the study of scientific papers published by Russian economists, alternative approaches to the concept of “bankruptcy” that take place in Russian science are analyzed; the nature of this phenomenon is studied. The article describes the types of bankruptcy of the organization, as provided by the system of normative regulation of the state, and defined by the researchers of bankruptcy as an economic phenomenon. The authors carried out a comparative analysis of the economic conditions of bankruptcy procedures of financial insolvency recognition for commercial organizations and public sector organizations. The relationship between the concepts of “financial insolvency” and “inefficiency” of a public (municipal) institution is revealed. The influence of the legal status of the institution (state, budget, autonomous) on the decision-making procedure for its liquidation is revealed. Possible reasons for initiation of a public (municipal) institution liquidation by state bodies are indicated. The main (key) stages of the public (municipal) institution liquidation procedure are determined. The current problems of legislation application on insolvency (bankruptcy) in relation to public (municipal) institutions are revealed. The measures for their elimination are suggested.
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De ruysscher, Dave. "Designing the limits of creditworthiness Insolvency in Antwerp bankruptcy legislation and practice (16th–17th centuries)." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 76, no. 3-4 (2008): 307–27. http://dx.doi.org/10.1163/157181908x336891.
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AbstractIn 1516 and 1518, the Antwerp City Council introduced a collective system of debt recovery, which broke with the tradition of priority for the first seizing claimant. This view resulted in a legal framework, which was based on the concept of publicly known insolvency. Because of the vague legal definitions in the 1582 and 1608 customary law compilations, the position of pursuing creditors was strengthened. Although these rules weren't successful, they demonstrate an early intention to draw the line between criminal bankruptcy, persisting insolvency and temporary payment problems.
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Izuymov, I. V. "ECONOMIC AND LEGAL REVIEW OF PRETRIAL INSOLVENCY IN FOREIGN LEGISLATION." Sociologie člověka 2, no. 3 (October 16, 2017): 38–51. http://dx.doi.org/10.24045/sc.2017.3.5.
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Sproge, Daiga. "The Debtor’s Property Selling in the Cross-Border Insolvency Proceedings." Economics and Culture 13, no. 1 (June 1, 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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Hager, Liesl. "The Insolvency Act’s deviation from the common law: Juristic ghost or aggregate approach?" South African Law Journal 138, no. 1 (2021): 152–70. http://dx.doi.org/10.47348/salj/v138/i1a7.
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In this article I engage with the provisions of the Insolvency Act 24 of 1936 regulating the dissolution of the universal partnership upon insolvency. Our common law prefers an aggregate approach to partnerships, meaning that a partnership enjoys no separate legal personality distinct from its composing partners. The lack of separate legal personality of a partnership is described by some academics as a ‘remarkable defect’. The Insolvency Act however creates an exception to this general rule by deeming a partnership to be a separate legal entity. The Insolvency Act’s deviation from the common-law rule and creation of a ‘juristic ghost’ is explored in this article. The ‘dual priorities’ rule, the aggregate theory and the entity theory are explained in this article. Furthermore, the judicial debates about the Act’s deviation are discussed. In conclusion, it is suggested that the presumption that legislation does not intend to change existing law should not apply when dealing with the Insolvency Act, as the legislature has expressly deviated from the common-law aggregate approach.
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ZHIL'TSOVA, Yuliya V., and Vladimir A. STRAKHOV. "Formulating a stand-alone paradigm of the concepts Bankruptcy and Insolvency of legal entities." International Accounting 22, no. 7 (July 15, 2021): 826–44. http://dx.doi.org/10.24891/ia.24.7.826.
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Subject. The terms, such as Bankruptcy and Insolvency, are used in various regulatory documents of the Russian Federation. The protracted economic crisis due to the pandemic urges to solve disputable issues and improve the legal framework of the business bankruptcy procedure. Objectives. The study provides a rationale for formulating standalone paradigms for bankruptcy and insolvency for scientific and practical purposes, aligning development phases of the national institution of bankruptcy. Methods. The study relies upon general and partial methods of research. Based on the retrospective analysis, we sorted evolutionary phases of bankruptcy as a national institution. Conducting a comparative analysis, we inferred the inequality of the two synonymous concepts. Results. Based on the comprehensive approach to dealing with disputable issues, we provided a rationale for diverging bankruptcy and insolvency. We believe that the reconstruction should start with the renaming of the respective federal regulation, being followed by developing its content. We analyzed various approaches to comparing insolvency and bankruptcy, spotlighted development milestones of the national legislation and presented our own vision of the origination of bankruptcy as a national institution, pointing out five phases and naming each of them. Conclusions and Relevance. The term Bankrupt is of European origin and came to Russia during the reign of Peter the Great. Currently, the terms Bankruptcy and Insolvency permeate not only the lexicon of the professional community of economists and lawyers, but also ordinary people. We conclude it would be reasonable to diverge bankruptcy and insolvency at the paradigmatic level, which will contribute to the improvement and development of modern scientific views and practices of professionals in economics and law. The system of the bankruptcy development as a national institution is intended to sort out scientific ideas of its historical process. The ideas herein are designated to set up a modern paradigm of bankruptcy and insolvency, and improve the legislative framework. Therefore, the conclusions and suggestions can be of scientific and practical use in economics and law, as well as in higher education.
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Bibikov, S. E. "Collisional legal regulation of the responsibility of the controlling debtor in respect of cross-border insolvency." Courier of Kutafin Moscow State Law University (MSAL)), no. 3 (June 14, 2021): 212–18. http://dx.doi.org/10.17803/2311-5998.2021.79.3.212-218.
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This study highlights the problem of establishing the applicable law for cross-border insolvency relations of a legal entity. The author examines various approaches to the choice of the applicable law to the liability of controlling persons, provides foreign experience and reveals the main trends in resolving conflict issues. It is noted that the lack of legal regulation of cross-border insolvency relations, including conflict of laws rules, does not allow creditors to fully recover losses from controlling persons whose assets are in foreign jurisdiction. In order to eliminate contradictions in practice, it is proposed to consolidate in civil legislation an independent conflict of laws rule on the liability of controlling persons in relations of cross-border insolvency of a legal entity. It is concluded that the conflict-of-law choice of the applicable law to disputed legal relations directly depends on the jurisdiction of the state in which the proceedings on the cross-border insolvency of a legal entity are initiated.
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Kuijl, Hans, and Jan Adriaanse. "Resolving Financial Distress: Informal Reorganization in The Netherlands as a Beacon for Policy Makers in the CIS and CEE/SEE Regions?" Review of Central and East European Law 31, no. 2 (2006): 135–54. http://dx.doi.org/10.1163/157303506x129350.
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AbstractIn times of economic decline, increased attention is devoted to companies in financial difficulties. Partly as a result of this basic fact, many countries are currently working (under pressure) to improve existing insolvency legislation. This seems to be largely fuelled—as is the case in The Netherlands—by a strong desire to prevent bankruptcies as much as possible.Statutory legislation aimed at the deferment (or remission) of debt payments is introduced or relaxed in order to provide a fresh start for insolvent companies. An alternative possibility—in the form of informal reorganization—seems often to have been overlooked by legislators. This type of reorganization, therefore, is the focal point in this article.As far as the stimulation of rescue operations is concerned, the authors conclude that legislators must particularly focus their attention on informal reorganization. The thought is that such a policy focus for (member states in) the EU may also be of relevance (in whole or in part) for countries in the CIS/CEE/SEE regions.
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ARTAMONOVA, Nataliia. "Economic and legal support for the process of bankruptcy prevention and liquidation of business entities." Economics. Finances. Law, no. 2/1 (February 26, 2021): 9–12. http://dx.doi.org/10.37634/efp.2021.2(1).2.
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Introduction. One of the most important indicators of the country's economic development is the level of growth in the number of financially insolvent, bankrupt and liquidated enterprises, because the interests of the state, business and the individual are in the zone of influence and attention. The purpose of the paper is to assess the legal changes in the legislation of Ukraine on the application of bankruptcy procedures and presents the economic justification and methodical implementation of a set of tools for timely detection of insolvency, their current and future assessment to prevent bankruptcy and liquidation of business entities. Results. The data of the State Statistics Service on the increase in the number of insolvent enterprises in 2020 are presented. The systematization of methods and tools for timely detection of insolvency in the context of legal innovations is proposed, thanks to the introduction of tools for testing, labeling, ranking. The testing program for early diagnosis of bankruptcy provides for the calculation of indicators to assess the structure of the balance sheet; opportunities to restore solvency and the ability to neutralize the threat of bankruptcy due to the internal potential of the enterprise. The system of markers and indicators is used to determine the creditworthiness of the enterprise and for self-analysis, when considering alternative sources of financing to avoid the threat of bankruptcy. Rating is used to definitively determine the level of financial stability or insolvency of the enterprise. Conclusion. This tools should be used at different stages: both at the pre-crisis stage, to prevent the possibility of financial deterioration, and at the crisis and post-crisis stages, to assess the effectiveness of the enterprise and the likelihood of early detection of bankruptcy.
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Ryahovskaya, A. N., M. A. Fedotova, and I. F. Vetrova. "SELF-REGULATING ISSUES IN RUSSIA." Strategic decisions and risk management, no. 4 (February 19, 2015): 38–45. http://dx.doi.org/10.17747/2078-8886-2010-4-38-45.
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The article discusses topics connected with self-regulating issues in Russia. The legislation regulating activity of self-regulating organizations of insolvency officers, surveyors and auditors has been examined. Ways for improving legal regulation of reviewed fields of entrepreneurial activity are suggested.
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Kurkin, P. D. "Liability for debtor’s insolvency (bankruptcy) in Russia from 18th to 21st centuries." Actual Problems of Russian Law, no. 8 (September 20, 2019): 34–40. http://dx.doi.org/10.17803/1994-1471.2019.105.8.034-040.
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The article is devoted to the examination of legal liability in the sphere of insolvency (bankruptcy) in Russia during the period from 18th to 19th centuries. Within the framework of the study, the author has analyzed peculiarities of the design of the legal norms of Tsarist Russia regulating liability in the sphere of bankruptcy and considered the categories of debtors. The author examines the current legislation dividing debtor’s liability for insolvency (bankruptcy) into liability under criminal, administrative and civil law, highlights the correlation between the types of liability in question. In addition, the author has carried out a comparative study of legal liability in the sphere of bankruptcy with the help of historical method, identified causes and gaps of the legal regulation of liability issues for debtor’s insolvency (bankruptcy).
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Burdette, David A. "Unified insolvency legislation: a South African perspective for the new millennium." International Insolvency Review 8, no. 3 (1999): 153–70. http://dx.doi.org/10.1002/(sici)1099-1107(199924)8:3<153::aid-iir59>3.0.co;2-d.
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Beshtoyev, M. I. "MOVE FROM REPRESSION TO PROTECTION OF DEBTOR, FROM PUNISHMENT TO REHABILITATION." Strategic decisions and risk management, no. 5 (December 29, 2015): 62–75. http://dx.doi.org/10.17747/2078-8886-2015-5-62-75.
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This article considers features of bankruptcy regime of Russia, whether it is pro-debtor or pro-creditor. It also considers common factors that have an impact on implementation of Russian legislation in the field of insolvency (bankruptcy). The article explores possible ways of reform of the legislation to provide more complete balance of interests in the bankruptcy cases and prevent the liquidation of potentially solvent debtors that are suffering temporary financial distress.
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STEELE, Stacey, Meng Seng WEE, and Ian RAMSAY. "Remunerating Corporate Insolvency Practitioners in the United Kingdom, Australia, and Singapore: The Roles of Courts." Asian Journal of Comparative Law 13, no. 1 (December 18, 2017): 141–72. http://dx.doi.org/10.1017/asjcl.2017.20.
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AbstractInsolvency practitioner remuneration is a vexed topic globally and the role of courts in fixing and reviewing remuneration is controversial. This article compares the approaches adopted by the courts in the United Kingdom, Australia and Singapore to the issue of fixing and reviewing corporate insolvency practitioners’ remuneration. The analysis considers the factors that the courts in the three jurisdictions consider in deciding remuneration claims including reasonableness, proportionality and the need for insolvency practitioners to justify their claims. Measures taken in each of the jurisdictions to facilitate predictability in time-based remuneration, whether through legislation, professional codes or judicial development, are examined. Various initiatives towards greater participation of external experts in deciding remuneration claims are also considered. The analysis finds that the three jurisdictions share some similarities despite jurisdictional differences but also differ in some important aspects. The article argues that courts have taken the initiative in each jurisdiction to fill a perceived regulatory gap where legislation provides little or ambiguous guidance, or where the judiciary believes that legislation and regulation have not kept up with community expectations. The results also highlight the cross-pollination of ideas in these jurisdictions.
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Bachvarova, Margarita S. "Legislative Approaches for Regulation of the Bankruptcy: State and Prospects." Business and Management Studies 2, no. 3 (August 15, 2016): 21. http://dx.doi.org/10.11114/bms.v2i3.1807.
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The present article is a comprehensive research focused on the issue of legislative approaches for regulation of bankruptcy in individual countries. The occurrence of economic crises and the globalization in international relations put forward the issue of preserving viable enterprises regardless of any financial hardships arisen and any risk of initiating a court procedure of bankruptcy. The establishment of updated legislation is inextricably bound up with the building up of a theoretical concept of insolvency based on the contemporary doctrinal achievements and practice. The comparative legal analysis of regulations shows the efforts put in science for the creation of a common concept and approach to bankruptcy issues. In this relation, the subject of scientific and research interest are the characteristic features of the legal regulations for handling insolvency in individual countries, determined by their belonging to the two main legal systems: the system of common law and the continental legal system (civil law). The scientific thesis in the present study is that regardless of the specific features of the historical and legal regulation of the bankruptcy concept, currently, a process of introducing rehabilitation procedures of the US legislation (Chapter 11 of Bankruptcy Code) into the individual legal systems of a number of countries in Europe is going on. In this sense, a trend is arising of applying a single legislative approach related to the concept of fresh start of conscientious entrepreneurs and an opportunity of sanitation of their enterprises before the initiation of formal judicial proceedings of bankruptcy on the basis of mutual concessions and compromises made by the creditors.
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Zakirova, M. A. "BANKRUPTCY REHABILITATION PROCEDURES: IMPORTANCE AND FORMS OF IMPLEMENTATION IN THE RUSSIAN AND FOREIGN LEGISLATION ON INSOLATABILITY." Business Strategies, no. 11 (November 23, 2019): 03–07. http://dx.doi.org/10.17747/2311-7184-2019-11-03-07.
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The article is devoted to the study of problems associated with the application of bankruptcy rehabilitation procedures in Russia. The Russian and foreign legislation on insolvency is analyzed, and possible ways to improve the regulatory framework governing the use of bankruptcy rehabilitation procedures in Russian practice are
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Kareva, Tatiana, and Vadim Sonin. "The problems of cross-border personal bankruptcy in russian and chinese legislation and practice." Law Enforcement Review 1, no. 3 (October 3, 2017): 160–67. http://dx.doi.org/10.24147/2542-1514.2017.1(3).160-167.
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The subject of the article is the legal and practical problems of cross-border personal bankruptcyin Russia and China.The main goal of this work is to analyze the major issues and obstacles in recognition andenforcement of Russian individual bankruptcy decisions in China and introduce it to Russianscholars and legal professionals.The methodological basis is analysis of the Russian and Chinese legislation, judicial practiceand special literatureThe results, scope of application. This article discusses the possibility of applying the provisionsof the Federal Law On Insolvency (Bankruptcy) to the Chinese nationals registered asindividual entrepreneurs in Russia. The article also reviews the Chinese legal regulation andoffers recommendations on execution of the court judgments on bankruptcy and collectionof debts from the PRC nationals. Existing Russian legislation allows to recognize the foreignnationals as bankrupts. The provisions on the cross-border insolvency also apply to them.The bankruptcy in China is not applied currently to the individuals, although theoretically itmay affect their property sphere during the bankruptcy of an individual private enterprise.Conclusions. The cross-border insolvency of the Chinese nationals encounters obstacles on threelevels. Firstly, the awards of the Russian arbitration courts have not been practically enforced inPRC due to inadequate notification of the Chinese party in the case. Secondly, Chinese courts inprinciple are extremely reluctant in recognizing foreign judgments on bankruptcy, such cases areexceptional. Thirdly, there is no personal bankruptcy institution in the PRC, while similar procedureslike bankruptcy of individual private enterprises are not applied in reality, and there are nolegislative prospects for the personal bankruptcy in the nearest future. Therefore, when conductingthe bankruptcy procedure for the Chinese nationals on the Russian territory, one can onlycount on their property located on this side of the border.
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Liodorova, J., K. Mamikonyan, and O. Markina. "COMPARATIVE ANALYSIS OF THE METHODS OF FINANCIAL AND ECONOMIC EXAMINATIONS TO DETERMINE INSOLVENCY." Theory and Practice of Forensic Science and Criminalistics 20, no. 2 (December 4, 2019): 351–66. http://dx.doi.org/10.32353/khrife.2.2019.27.
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The article describes the methods of financial and economic examinations to determine the insolvency of a company in the Baltic countries, Republic of Armenia, Ukraine, Republic of Belarus, the Russian Federation and Republic of Kazakhstan. The signs of insolvency regulated in legislation of the countries, and international requirements for the validation of expert methods are presented in the article. The authors present the results of a comparative analysis of the considered methods for assessing insolvency and results of testing methods based on data of annual reports of focus group of five Latvian bankrupt companies.
The research has shown that the expert methods of all eight countries are based on a normative approach — comparing the calculated financial ratios with their normative value. In Ukraine, Republic of Belarus, the Russian Federation and Republic of Kazakhstan, the financial ratios and their normative values are approved in the legislation of the countries. In the Baltic countries and Republic of Armenia, these ratios and their values are developed in approved expert methodologies. The method of «net assets» is also used to assess the solvency of large companies.
The test results showed that the methods of the countries reviewed are applicable in practice and give a similar assessment of the solvency of companies as a whole. More similar results present the methods of the Baltic countries, Ukraine and Republic of Belarus. The results of the methods of Republic of Armenia, Kazakhstan and the Russian Federation are more similar to each other, but slightly differ from the previously listed group of countries.
The authors demonstrated the ability to validate the expert methods, which is necessary to use an expert conclusion on the assessment of insolvency as an evidence base in another country.
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Sharonov, Viktor Aleksandrovich. "The peculiarities of exclusion of property necessary for professional activity of an insolvent individual from the bankruptcy estate." Право и политика, no. 4 (April 2021): 50–62. http://dx.doi.org/10.7256/2454-0706.2021.4.35258.
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The subject of this research is the legal norms on the procedure for excluding the property necessary for debtor’s professional activity from the bankruptcy estate. The article covers the question on the possibility of excluding property necessary for the debtor to conduct professional activity, the value of which is 10,000 rubles or higher, from the bankruptcy estate. The goal of this works consists in consideration of a broader interpretation of provisions of the Paragraph 5 of the Part 1 of the Article 446 of the Civil Procedure Code of the Russian Federation jointly with clarifications of the Paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 25, 2018 No. 48 “On Certain Questions related to the Peculiarities of Formation and Distribution of the Bankruptcy Estate in Cases of Bankruptcy of Citizens” applicable to property of the debtor within the framework of insolvency (bankruptcy) procedure. The author analyzes the relevant civil legislation and insolvency (bankruptcy) law, as well as case law on topic. This article is one of the first attempts to systematize the relevant case law on the subject of exclusion of property necessary for debtor to conduct professional activity from the bankruptcy estate. Based on the results of analysis of the case law, national civil legislation and insolvency (bankruptcy)l law, the conclusion is made on impossibility of exclusion of property used by the debtor for professional activity, the value of which exceeds 10,000 rubles, from the bankruptcy estate in view of the failure of the economic model used by the citizen to ensure a normal life. The author questions the need to extend executive privilege onto the debtor’s property, which is required to conduct professional activity under the insolvency (bankruptcy) law.
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Hoffmann, Thomas. "The Phenomenon of “Consumer Insolvency Tourism” and its Challenges to European Legislation." Journal of Consumer Policy 35, no. 4 (July 22, 2012): 461–75. http://dx.doi.org/10.1007/s10603-012-9207-8.
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