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1
Chitnomrath, Thanida. "Determinants of post-bankruptcy performance : an empirical study of insolvent companies in Thailand." Curtin University of Technology, Graduate School of Business, 2007. http://espace.library.curtin.edu.au:80/R/?func=dbin-jump-full&object_id=21411.
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This thesis examines determinants of post-bankruptcy performance by using insolvent firms under the bankruptcy reorganization proceedings of the 1940 Thai Bankruptcy Act. The purpose of the study is to investigate whether the key governance mechanisms within this process are factors which may contribute to successful reorganization and how they affect a firm's post-bankruptcy performance. Using agency theory, a sample of III filing companies whose plans have been confirmed by the Thai Central Bankruptcy Court during 1999-2002 provide the data of the study. Descriptive statistics and ordinary least squares regression analysis are employed for data analysis. The results indicate that among three types of governance mechanisms in the bankruptcy reorganization process, namely, monitoring, incentive and restructuring mechanisms, monitoring and incentive mechanisms are significant determinants of a firm's post-bankruptcy performance. The key monitoring mechanism is ownership concentration of common shares held by the largest shareholder, whereas the critical incentive mechanisms are cash compensation for the plan administrator and percentage of common shares held by the plan administrator. Asset restructuring is statistically insignificant but positively links to post-bankruptcy performance. The results indicate that these mechanisms can mitigate agency problems of insolvent companies and increase post-bankruptcy performance over a three year period.
2
Bikkiová, Lea. "Komparácia riešenia úpadku v Českej a Slovenskej republike." Master's thesis, Vysoká škola ekonomická v Praze, 2011. http://www.nusl.cz/ntk/nusl-113152.
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The Master thesis provides a comparison of the solution of the bankruptcy in the Czech Republic and in Slovakia. The Insolvency Act and the Act of bankruptcy and restructuralization represent the current legal acts governing the relationship between the creditor, the debtor and the other interested persons. The aim of the thesis is to analyze the insolvency environment and ways of the solution of the bankruptcy in both states (to identify disadvantages and advantages of the particular cases). Furthermore, it aims to analyze the key and critical factors influencing the whole recovery process in the company on the practical examples.
3
Linert, Jiří. "Reorganizace." Master's thesis, Vysoká škola ekonomická v Praze, 2014. http://www.nusl.cz/ntk/nusl-193407.
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Thesis deals with reorganization. The goal is to identify its weaknesess as a form of bankrupcy solution, factors impending wider usage and suggest improvements. The first chapter is devoted to the legislation of reorganization effective from the 1st January of 2014 with reference to the changes brought by it. The second chapter aims to map existing practice. Thus, what is the position of reorganization as a form of bankrupcy solution. The initial impact of the amendment to the Insolvency Act will be evaluated on a basis of available statistics. The most important findings are summarized in the conclusion.
4
Revaj, Eduard. "Restrukturalizace podniku." Master's thesis, Vysoká škola ekonomická v Praze, 2015. http://www.nusl.cz/ntk/nusl-264381.
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This thesis deals with the development of the bankruptcy laws in the Czech lands. Thesis discusses the post-revolutionary period, in which centrally planned economy in the Czech Republic returned to market economy. It is discussing critique, shortcomings and amendments of bankruptcy law formed in 1991 by law on the Bankruptcy and Arrangements. The complete change of imperfect legislation followed in a form of Czech Insolvency Act. It addressed critique from the professional community and international institutions led by European Central Bank. Thesis approaches and clarifies issues surrounding new Insolvency Act. It brought a remediation solutions for bankruptcy, especially restructuring, that was lacking in Czech legislation until then. The concrete case of enterprise restructuring of company CP Praha, s.r.o. is discussed in practical part. It evaluates the procedure, satisfaction of creditors and overall assessment of the whole process.
5
Košut, David. "Reorganizace jako způsob řešení úpadku a jeho ekonomické a právní souvislosti." Master's thesis, Vysoká škola ekonomická v Praze, 2011. http://www.nusl.cz/ntk/nusl-114232.
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The aim of this thesis is to analyze both legislation relating to reorganization pursuant to Act No. 182/2006 Coll., Bankruptcy and Settlement (Insolvency Act), as amended, and reorganization from the economic perspective (e.g. the time needed to reorganize, the yield for the creditors compared to bankruptcy). The thesis also gives an analysis of the companies which were allowed reorganization by the court between 2008 and 2011. In the analysis the length of reorganization is identified, the size of turnover and number of employees are discovered, etc. The methods used in the thesis are mainly the descriptive analytical method, evaluation and comparison method. The main source of information was the data of the reorganized companies published in the insolvency register. The results of the analysis can lead to the conclusion that reorganization is better than bankruptcy for creditors, mainly because of its speed and the size of the yield, however, creditors must take some risks, which they should try to eliminate.
6
Valenta, Petr. "Reorganizace - nový způsob řešení úpadku." Master's thesis, Vysoká škola ekonomická v Praze, 2008. http://www.nusl.cz/ntk/nusl-9386.
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The thesis summarizes the legislation of reorganization as a method of bankruptcy resolution. First of all, the historical development of bankruptcy law in our country is described, as well as the current legislation, established primarily by the Insolvency Act and other regulations. The economic reasons for reorganization implementation are analyzed subsequently and the very principles of the reorganization process are thoroughly examined. Various methods of unliquidated bankruptcy resolution in selected countries are briefly covered in the next section of the paper. Conclusion of the thesis highlights the most relevant information about reorganization and points out problematic situations, which may occur in connection with it.
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Lukšo, Stanislav. "Komparace české a slovenské právní úpravy úpadkového práva." Master's thesis, Vysoká škola ekonomická v Praze, 2015. http://www.nusl.cz/ntk/nusl-193047.
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After the split of Czechoslovakia, the bankruptcy law in both countries evolved their own way. The original Act No. 328/1991 Coll. Bankruptcy and Settlement in the Czech Republic and its equivalent form in the Slovak Republic was necessary due to changing economic and political situation to change with new regulations. In the Slovak Republic in 2006, the Act no. 7/2005 Coll. Bankruptcy and Restructuring and two years later, in the Czech Republic Act No. 182/2006 Coll. Bankruptcy and Settlement came into force. The aim of this thesis is the comparison of the bankruptcy law in the Czech Republic and Slovakia. It compares individual legal adjustments with regard to their pros and cons. The Master thesis is based on statistical data on bankruptcy proceedings, explaining the reasons for the different developments in individual countries. The main focus of thesis is in reorganization and debt relief. The difference in debt relief of each country is explained in case study. Part of the work is also a practical example of the reorganization of the selected company.
8
Massaga, Salome. "The general anti-avoidance section: a comparative analysis of Section 80a of the South African Tncome Tax Act no. 58 of 1962 and Section 35 of the Tanzanian Income Tax Act no. 11 of 2004." Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/15177.
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The study will be based on a comparative analysis of the general antiavoidance section of the South African Income Tax Act no. 58 of 1962 and the Tanzanian Income Tax Act no. 11 of 2004. The focus is on how the two provisions are interpreted by showing the similarities and differences. The approach will be analytical and comparative, starting by showing the concept of tax avoidance and historical backgrounds of the two provisions.
9
Erlitz, Jakub. "Problematika úpadkového práva v českém prostředí." Master's thesis, Vysoká škola ekonomická v Praze, 2012. http://www.nusl.cz/ntk/nusl-125191.
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The main goal of this master's thesis is the analysis of benefits of the new legislation Insolveny Act with a focus fulfilling of planned effects and future development. The first chapters of this thesis are focused on the theoretical definition of resolving insolvency in the Insolvency act. The following chapters through analysis of statistical informations approaches the carrying capacity of the insolvency courts during development of bankruptcy law, including the interactions between the variables of the current insolvency proceedings. The last part of thesis assesses the content of the expected effects of Insolvency Act for the period of its effectiveness, pointing to deficiencies incurred and the actual conclusion suggests some recommendations and suggestions for future development.
10
Bejček, Martin. "Aspekty krizového řízení při sanaci podniku MSV Metal Studénka, a.s." Master's thesis, Vysoká škola ekonomická v Praze, 2013. http://www.nusl.cz/ntk/nusl-197827.
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The thesis focuses on the insolvency proceedings, which were performed in the company MSV Metal Studénka, as a traditional Czech manufacturing company, which is engaged in the manufacturing of products for the railway, construction and automotive industries. The company got into insolvency in response to the economic crisis that hit the entire Euro-Atlantic region in 2008. Moreover, in 2008, the new Insolvency Act entered into force, it introduced new options how to solve bankruptcy in the Czech law, including a company reorganization controlled by its creditors. The thesis identifies and analyzes the main steps in the restoration process made by the crisis management, examines whether insolvency could be predicted even before the crisis, and compares the satisfaction of creditor groups in insolvency proceedings with the market average.
11
Prinz, Udo. "Umstrukturierung durch "Schemes of Arrangement" mit Gesellschaftern im englischen Recht : ein Vorbild? /." Frankfurt am Main [u.a.] : Lang, 2004. http://www.gbv.de/dms/spk/sbb/recht/toc/378646125.pdf.
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Pařezová, Kateřina. "Insolvenční řízení z pohledu povinností insolvenčního správce." Master's thesis, Vysoká škola ekonomická v Praze, 2011. http://www.nusl.cz/ntk/nusl-85771.
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This diploma thesis deals with the insolvency administrator. The objects of this work are mainly are the duties that insolvency administrator has to execute during the insolvency proceeding and the necessary requirements for the performance of the insolvency administrator's function. The objective of this work is to clarify the role of insolvency administrator in the particular phases of insolvency proceedings in general terms and the definition of his position and responsibilities in different types of insolvency proceedings. The aim of this work is also to analyze the assumptions that insolvency administrator must meet in order to obtain permission to perform the function of the insolvency administrator.
13
Ventajar, Danilo. "Human Rights Perspectives in Insolvency." Thesis, Malmö högskola, Fakulteten för kultur och samhälle (KS), 2010. http://urn.kb.se/resolve?urn=urn:nbn:se:mau:diva-23241.
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What human rights or fundamental rights of stakeholders do insolvency norms and laws affect? Will a human rights perspective help in striking a balance between the affected stakeholders? These are the primary questions addressed in this thesis. The idea that human rights values are relevant to he theoretical discussion about insolvency policy is relatively novel. Insolvency after all conjures images of banks and other creditors who are simply attempting to recover their investment. A thorough examination of the dynamics of insolvency however reveals that insolvency is not just about debt collection. It is a complex process that also implicates interests and stakes beyond the interest of banks and other creditors. Globalization further exacerbates this complexity, more so under circumstances of economic decline in the world economy. Using literature review and interdisciplinary or critical legal analysis as methods, the thesis analyzes the axiology of corporate insolvency. While “law and economics” has been identified as an influential value in policy formulation, normative values like human rights were identified to be equally relevant. The thesis draws upon stakeholder theory and corporate responsibility vis-à-vis human rights law to lay the foundation for stakeholder conflict analysis in the context of corporate insolvencies. Concluding that the likely conflict situations in corporate insolvency involve human rights, the thesis suggests the use of the proportionality principle as a balancing tool. In the functional part of the thesis, the author analyzes the relevant provisions of the Philippine insolvency law and singles out the conceptual disconnect of the law with mainstream stakeholder theory in the way it defines the term “stakeholder.”
14
Valíček, Jan. "Úpadkové trestné činy." Master's thesis, Vysoká škola ekonomická v Praze, 2011. http://www.nusl.cz/ntk/nusl-150140.
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This thesis deals with the special category of crimes related to the bankruptcy of the debtor and to the insolvency proceedings. The first and second parts of the thesis are devoted to the general introduction into the both law branches, i. e. into the insolvency law and criminal law. The third part of the thesis focuses on interconnection of the mentioned law branches reflected in the category designed as insolvency crimes. The thesis analyses particular crimes utilizing the legal acts, technical literature and judicature. The fourth part handles the available statistical data regarding the insolvency criminality provided by the Czech Police. At last the thesis evaluates the social harmfulness of the insolvency crimes, its legal regulation and the protection against it.
15
Fourie, Etienne Gerhard. "'n Vergelyking van die oorgrens-insolvensiewetgewing van Suid-Afrika met die van die Verenigde State van Amerika / Etienne Gerhard Fourie." Thesis, North-West University, 2012. http://hdl.handle.net/10394/8696.
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Due to economic globalisation and integration, as well as the global economic downturn since 2008, the appearance of cross-border insolvencies have increased dramatically. This increase in cross-border insolvencies has led to a demand for a general and fair system to administer cross-border insolvencies globally. In 1997 United Nations Commission on International Trade Law (UNCITRAL) promulgated the Model Law on Cross-Border Insolvency to act as an aide to countries in globally administering cross-border insolvencies in a uniform way. South Africa, and the United States of America (USA), subsequently accepted this Model Law approach into their respective national legislation. South Africa did this through the Cross-Border Insolvency Act 42 of 2000 (CBIA) and the USA by way of Chapter 15 of the United States Bankruptcy Code. The CBIA is, however, not currently in operation as the Minister of Justice has not yet designated countries to which the CBIA will apply. Chapter 15 is, however, effective and operational in the USA.
The two theories that underlie cross-border insolvencies – universalism and territorialism – have been further refined in the theories of modern universalism and modern territorialism. Supporters of modern universalism hailed the acceptance of the Model Law into the national legislation of countries as a victory over modern territorialism as the characteristics of modern universalism can be found throughout the Model Law. Modern universalism is, however, seen as theory which endangers the interests of local creditors as it favours universal administration of assets. However, modern territorialism is, on the other hand, acknowledged to protect the interests of local creditors. Therefore an investigation into the application of Chapter 15 by the courts of the USA will indicate if the interests of local creditors are sufficiently protected under this so-called modern universalistic approach and, if indeed so, how this is achieved. As the CBIA is neither operational nor effective in South Africa, cross-border insolvencies are governed by the common law and the precedents set down in case law. Writers and case law indicate that South Africa uses a system that can be described as between pure territorialism and modern territorialism. It can therefore be accepted that South Africa currently protects the interests of its local creditors sufficiently. The question then arises if, when South Africa made the CBIA effective and operational, would local creditors‟ interests still be sufficiently protected? As the CBIA and Chapter 15 are both based on the Model Law, they are basically identical in most aspects. Therefore an investigation into the application of Chapter 15 will also indicate if the CBIA will sufficiently protect the interests of local creditors.
This dissertation thus attempts, through an investigation of the applications lodged under Chapter 15, to indicate that the USA still succeeds in protecting the interests of its local creditors. The USA achieves this through utilising mechanisms made available through Chapter 15 itself. Consequently this dissertation shows that South Africa can make the CBIA operational, while still sufficiently protecting the interests of its local creditors.Thesis (LLM (Import and Export Law))--North-West University, Potchefstroom Campus, 2013
16
Sayas, Ferrer José. "Las acciones del art.1843 y su relación con el art.1852 del Código Civil." Doctoral thesis, Universitat Pompeu Fabra, 2009. http://hdl.handle.net/10803/7309.
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La tesi doctoral "Les accions de l'art. 1843 i la seva relació amb l'art. 1852 del Codi civil" analitza les accions que corresponen al fiador abans del pagament davant al deutor. S'examina, en primer lloc, els antecedents històrics de les accions contingudes en l'art. 1843 Cc; també com és regulada la qüestió pel Dret comparat. En segon lloc, s'estudia la relació existent entre l'art. 1843 i 1852 Cc, en el sentit de resoldre si és preceptiu l'exercici de les accions de rellevament de la fiança per a poder oposar les accions protectores de la subrogació.
Les conclusions bàsiques de la tesi es dirigeixen a què no sembla defensable la commixtió entre l'art. 1843 i 1852 Cc. Així mateix, es proposen una sèrie de mesures que pot utilitzar el fiador a l'empara de la nova Llei Concursal i que el concepte d'insolvència que sembla acollir l'art. 1843 Cc és el corresponent al perjudici del dret de crèdit.
La tesis doctoral "Las acciones del art. 1843 y su relación con el art. 1852 del Código civil" analiza las acciones que corresponden al fiador antes del pago frente al deudor.
Se examina, en primer lugar, los antecedentes históricos de las acciones contenidas en el art. 1843 Cc; también como es regulada la cuestión por el Derecho comparado. En segundo lugar, se estudia la relación existente entre el art. 1843 y 1852 Cc, en el sentido de discernir si es preceptivo el ejercicio de las acciones de relevación de la fianza para poder oponer las acciones protectoras de la subrogación.
Las conclusiones básicas de la tesis apuntan a que no parece defendible la conmixtión entre el art. 1843 y 1852 Cc. Asimismo, se proponen una serie de medidas que puede utilizar el fiador al amparo de la nueva Ley Concursal y que el concepto de insolvencia que parece acoger el art. 1843 Cc es el correspondiente al perjuicio del derecho de crédito.
The doctoral thesis "The actions of art. 1843 and its relation to art. 1852 Civil Code "examines the actions of the guarantors before payment against the debtor.
The tesis examines, first, the historical background of actions contained in art. 1843 cc, as well as the matter is regulated by the comparative law. Secondly, it studies the relationship between art. 1843 and 1852 cc, and if necessary the exercise of the shares the relief of the bail to exercising the protective actions of the subrogación.
The basic conclusions of the thesis suggests that it does not seem defensible conmixtión between the art. 1843 and 1852 of the Civil Code. It also proposes a series of measures that can use the guarantor under the new Bankruptcy Act and that the concept of insolvency seems that hosting the art. 1843 cc is the corresponding prejudice to the right of credit.
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Maghembe, N. J. (Ngwaru Jumanne). "A Proposed discharge dispensation for consumer debtors in Tanzania." Thesis, 2013. http://hdl.handle.net/2263/32961.
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The Tanzanian private sector is growing, partly due to the state’s efforts to conform to the global economy. As the economy expands and the National Microfinance Policy of 2001 is realised, more and more credit has been made available to consumers. As a direct consequence of the increase of credit, the number of over- indebted consumers in Tanzania is on the rise. The current debt relief system is regulated by the Tanzanian Bankruptcy Act no. 9 of 1930, a piece of colonial legislation. Unfortunately this law is ineffective, costly and outdated. Some of the problems identified in this study with this debt relief regime include the lack of a cost- effective alternative to bankruptcy and its total reliance on the judiciary, an institution that is itself overburdened and requires reform. The purpose of this study is to make recommendations for the reform of the current debt relief system and propose a debt relief dispensation for consumer debtors in Tanzania that will efficiently cure over- indebtedness.
A wide comparative investigation was undertaken in this study of selected common law, civil and mixed legal systems that have substantial experience with the boom in over-indebted consumers now facing Tanzania. A number of solutions were borrowed from these systems that may potentially solve Tanzania’s debt relief problem. One of the main findings of this thesis is that, over time, developed jurisdictions that rely on credit in the private sector appear to be converging on the same type of procedures and moderate philosophies for consumer debt relief. These include less judicial supervision for debt relief procedures, less freedom of choice for over-indebted consumers when it comes to the type of procedures available, and mandatory surplus income repayments for debtors who can afford it.
In order to address the problems of the Tanzanian debt relief system, this thesis proposes a complete overhaul of the administration of debt relief procedures in Tanzania and the introduction of a combined alternative to bankruptcy that consists of three joint procedures. A number of amendments are also proposed for the Bankruptcy Act no.9 of 1930.
This thesis states the status of legal developments as they were in the selected jurisdictions on 31 December 2012.Thesis (LLD)--University of Pretoria, 2013.
gm2013
Mercantile Law
unrestricted
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Dear, Amiri. "Copying Canada - A Critical Analysis of the Barbados Bankruptcy And Insolvency Act." Thesis, 2013. http://hdl.handle.net/1807/42810.
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Barbados enacted the Bankruptcy and Insolvency Act in the year 2001. This Act is based entirely on the Canadian Bankruptcy and Insolvency Act. Barbados reformed its bankruptcy and insolvency laws in order to offer greater protection to debtors while simultaneously protecting creditors from fraud. Additionally, the new reforms were designed to remove the stigma that attaches to insolvent and bankrupt individuals and businesses and to make Barbados a more attractive destination for the creation of and investment in new businesses. Despite the existence of a legislative framework designed to assist debtors and creditors only five matters have been initiated under the Barbados Act. In this thesis I examine why there has been reluctance to rely on the Act. Ultimately, I conclude that the bankruptcy and insolvency regime that exists in Barbados is ineffective and lacks many of the features that are necessary for the efficient administration of bankruptcies and insolvencies.
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Lo, Lan, and 羅嵐. "Employee's wage claims in bankruptcy Act and comparing with the Bankruptcy Laws in Taiwan and in the United States, Japan and Germany." Thesis, 2018. http://ndltd.ncl.edu.tw/handle/eue6fy.
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碩士國立中央大學
產業經濟研究所
106
Since the industrial revolution has begun in the 18th century, the concept of the capitalists and the labors emerged. The capitalists are dominant in labor relations, because of wealth and production tools. After the rise of labor consciousness in the 19th century, countries began to protect their labor’s rights by legislation, social insurance, and other methods. Taiwan has also followed the trend and formulated relevant legislation and policies, and Labor Standards Act is the most important of all. However, in recent years, due to the economic downturn, the companies have experienced mismanagement or even forced into bankruptcy. Most companies have some mortgages, and when the debtor paid off mortgages and procedural fees, there was very little left, and it was almost impossible to pay all the overdue wage claims and other debts, that was the reason why many labors want to protest themselves. Considering the protection of the rights of labor by the Constitution, most scholars advocate that priority should be given to the labor wage claims. Consider the long-term economic development, if wage claims were given priority over mortgages, it will reduce banks’ willingness to lend money to other companies or persons, blocking the financing channels and ceasing the economic development. Compared to International legislation, Taiwan’s labor protection policy is overprotected. Other than that, the policy is also insufficient. So there is room for improvement; we should protect employees by providing related statutes in Labor Standards Act and Bankruptcy Act simultaneously. In the case of the sequences between wage claims and mortgages, there are three suggestions worthy considering to carry out. First, the method of classifying wage claims from different types of labors. Second, reducing the excessive protection of labor wage claim step by step. Third, the government should supply other complete social insurance or social policies to truly ensure that the labors can be passed on to the relevant risks and to obtain the overdue wage as much as possible he or she can. From all of these suggestions, I think the labor will be protected more properly.
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Chaput, Nicolas. "Environmental Clean-up in Bankruptcy and Insolvency: What Priority for the Environment?" Thesis, 2012. http://hdl.handle.net/1807/33370.
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The lack of clarity of Canadian insolvency legislation with respect to the treatment of environmental claims has left Canadian courts wondering whether they should advance the public order policies embodied in the environmental legislation or promote creditors' interests and the private relief afforded by bankruptcy. This thesis examines the state of the law on the question and provides a critical assessment of the legislation and the relevant case law. The author points to the flaws of the legislation and its judicial interpretation, while uncovering the underlying reasons for the existence of such a confused body of jurisprudence. Building on these findings, the author proposes a reform of the insolvency legislation that would uphold the protection of the environment as a fundamental value in Canadian society.
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Rampersad, Kereen. "The interface between the Insolvency Act 24 of 1936 and the National Credit Act 34 of 2005." Thesis, 2013. http://hdl.handle.net/10413/9771.
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The Insolvency Act 24 of 1936 regulates the debtor’s estate when sequestrated for the
benefit of creditors. The debtor must prove that sequestration will be to the advantage
creditors and as such creates a stumbling block in the way of the debtor when
applying for the voluntary surrender of his estate. Sequestration is viewed as a drastic
measure due to the consequences attached to it. The sequestration procedure is often
used by debtors as a form of debt relief as, subsequent to the sequestration procedure,
the debtor may become rehabilitated. The effect of rehabilitation is that it discharges
the debtor of all pre-existing debts and disabilities resulting from sequestration.
Compulsory sequestration is often used as a debt relief measure by the debtor in the
form of the so-called ‘friendly sequestration’. One of the reasons for this is that the
onus of proof is much less burdensome as compared to the onus required in voluntary
surrender by the debtor of his estate. South African law provides for alternative debt relief measures falling outside the
scope of the Insolvency Act, including debt rearrangement in terms of section
86(7)(b) or debt restructuring in terms of section 86(7)(c) as a result of debt review in
terms of the National Credit Act 34 of 2005 (NCA). However this procedure does not
offer the debtor the opportunity of any discharge from his debts as the order expires
only after the administration costs and all of the listed creditors have been paid in full.
Further the NCA does not mention the Insolvency Act and this has led to problems in
the application of both Acts and inconsistencies between them. An application for
debt review by the debtor has been held to constitute an act of insolvency. Thus the
creditor can use this very act of the debtor to have the debtor’s estate sequestrated.
This is possible as an application for the sequestration of the debtor’s estate is not
considered to be an enforcement of a debt by legal proceedings for the purposes of
section 88(3) of the NCA and such actions by the creditor are not prohibited by the
NCA. This was stated in Investec Bank Ltd v Mutemeri 2010 (1) SA 265 (GSJ) and
was subsequently confirmed by Naidoo v ABSA Bank 2010 (4) SA 597. The
consequence of this is that a debtor’s estate may be sequestrated even where he has
applied for debt review. Currently, as stated by Van Heerden and Boraine, there is no
explicit regulation by the legislature of the interaction between the provisions of theInsolvency Act and the NCA. In terms of FirstRand Bank v Evans 2011 (4) SA 597 (KZD) a debtor’s estate may be sequestrated even after a debt rearrangement order
has been confirmed by a court in terms of the NCA. This clearly operates to the
disadvantage of a debtor.
Comparing the position with that in foreign jurisdictions such as the United States of
America and England and Wales shows a lack of balance between the interests of the
creditor and the debtor. South African insolvency law is not aligned with
internationally acceptable standards because it is too creditor orientated and debtors
are not provided with effective remedies to deal with their financial difficulties. This research paper will focus on reform in South African law to assist debtors in
need of debt relief. There is a need for a system to be put into place to regulate
application for debt review by a debtor and the application for the sequestration of the
debtor’s estate by the creditor. In addition there is a need for the introduction of new
legislation or amendment to the NCA which could be effective in redressing the
current situation.Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2013.
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Searle, Russell. "Will there be a need for informal loan workouts? A question from Chapter 6 of the new Companies Act." Thesis, 2013. http://hdl.handle.net/10539/12912.
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Thesis (M.M. (Finance & Investment))--University of the Witwatersrand, Faculty of Commerce, Law and Management, Graduate School of Business Administration, 2013.South Africa has recently introduced into law a new Companies Act that has, amongst other changes, a segment dubbed „Chapter 6‟, which specifically focuses on distressed companies and their rescue/resolution. While past Acts in South Africa have had sections on distressed companies, none has positioned financial distress resolution as prominently within the Act as Chapter 6 has done. This hitherto lack of formalized focus of on business rescue in past Acts, made informal loan workouts the de facto mainstay for distressed business resolution in South Africa. It is therefore considered worthwhile that an investigation be undertaken to ascertain whether or not the newly legislated formal processes for rescuing distressed businesses will change the culture and/or overall view on the effectiveness of rescuing distressed businesses in South Africa. An online questionnaire of 17 questions sent to 5 different occupation categories generated 61 responses, which were around four coherent themes. From the analysis of the responses it was found that the inclusion of Chapter 6 (formalized business rescue legislation) in the new Companies Act was a welcome legislation with clear value-additions to company law in South Africa. The results also indicated that there is a level of uncertainty with regard to this legislation; thus, suggesting it is likely that informal loan workouts will remain a real option for some businesses in distress.
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Prasková, Zuzana. "Návrh úpravy insolvenčního zákona s cílem zrovnoprávnění postavení věřitele při řešení úpadku oddlužením." Master's thesis, 2012. http://www.nusl.cz/ntk/nusl-309011.
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Title: Proposal for Insolvency Act amendments in order to establish equality status of creditors in the process od personal bankruptcy through debts charge off Thesis summary: The purpose of my thesis is to describe the new form of personal bankruptcy through debts charge off and point out some weaknesses of the current legislation together with some proposals how to deal with them. The reasons that led me to choose this topic are i) new legislation of Insolvency Act which is effective from January 1st 2008, and ii) my practical experience with insolvency proceedings. The thesis composes from eleven chapters where each of them deals with particular phase of the process. Prior to the chapters there is an Introduction which describes the aim of the thesis, reasons for this specific topic and explanations of basic legislation related to personal bankruptcy. Chapter One focuses on origination of the insolvency law in the territory of The Czech Republic and is divided into three subchapters. The first subchapter focuses on the development of insolvency law before the origination of Czechoslovakia, the second subchapter describes changes in the insolvency law from 1918 and the last subchapter deals with the former Bankruptcy Act. Chapter Two clarifies basic changes that were introduced by the Insolvency Act and...
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Beránková, Jana. "Majetková podstata." Master's thesis, 2012. http://www.nusl.cz/ntk/nusl-313797.
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Thesis, theme: Assets Author: Jana Beránková English Summary Assets in the insolvency proceedings is the subject of the submitted thesis. Assets is one of the fundamental legal institutions in insolvency proceeding, which forms the basis of the solution of the bankruptcy. Thanks to the precise definition of assets, accurately defined inventory of assets, and its breakdown (in relation to the debtor, creditors, and other persons), there is a fundamental and qualitative change as opposed to the legislation of the law on bankruptcy and settlement. This significant change occurred on the day of January the first 2008, when the Czech law of insolvency entered a new phase. The new insolvency act was passed, and at the same time the law on bankruptcy and settlement was invalidated. The new legislation does not solve bankruptcy only of the bankruptcy and composition, it uses the general concept of defaults that suggests this is a completely different solution concept. The insolvency area is understood much more comprehensively. The bankruptcy act use not the term "bankruptcy", but the assets. It's completely new term and new defininition of contents, not just the change of the name. In the original treatment the term bankruptcy applies onl y to the bankruptcy proceedings. On the contrary, the bankruptcy act defines...
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Nel, Imo-Rhesa. "The impact of the National Credit Act 34 of 2005 on insolvency proceedings." Thesis, 2014. http://hdl.handle.net/10210/12643.
Full textAbstract:
LL.M. (Commercial Law)When a debtor runs into financial problems and starts neglecting to satisfy his financial obligations as and when they fall due, there are various statutory procedures or remedies available to both the debtor and his creditor(s). The first and most obvious remedy available to the creditor is to demand the satisfaction of the outstanding claim by the issuance of a letter of demand, followed by a summons and subsequent court proceedings in which the creditor will claim what is due to him. If the debtor still neglects to satisfy the judgement debt, the creditor may proceed to have the judgement enforced by means of a warrant of execution in terms of which the debtor’s property will be attached and be sold at a public auction. Another procedure that is available is for either party to apply for a sequestration order in terms of the Insolvency Act.3 The Insolvency Act provides for two ways in which a debtor’s estate may be sequestrated. These two ways have their own separate requirements. The two ways are: 1. Voluntary surrender; and 2. Compulsory sequestration.
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Fuksa, Jan. "Majetková podstata v insolvenčním řízení." Master's thesis, 2020. http://www.nusl.cz/ntk/nusl-434642.
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English abstract This diploma thesis is concerned with the institution of the estate in insolvency proceedings. The insolvency estate is a key concept in insolvency law, as the successful consummation of the very goal of insolvency proceedings depends on the substance of this term. The goal of insolvency proceedings is the highest possible, properly prorated satisfaction of the debtor's creditors. The present thesis does not attempt to cover the concept of the insolvency estate in its entire breadth with respect to the various methods for resolving the debtor's insolvency, but instead focuses on the general delineation of the insolvency estate and on certain specific aspects related to bankruptcy discharge. The thesis also discusses some of the most recent changes to the law which were introduced in particular by the bankruptcy discharge amendment effective as of 1 June 2019 - an amendment which has fundamentally changed the previous legal framework for bankruptcy discharge and which has had a not insignificant impact also on the way in which the insolvency estate as a legal concept is shaped. The main objective pursued by this diploma thesis is to assess the current legal framework governing the insolvency estate as well as the institutions which build upon the insolvency estate, in terms of how they hold...
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Cassim, Raeesa. "Regulation of insolvency law in South Africa : the need for reform." Thesis, 2014. http://hdl.handle.net/10413/10934.
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Regulatory bodies must function properly in order for their duties to be performed. The
performance of the regulatory body impacts the entire insolvency system. Academics have
noted that the Master does not meet the standards of what is expected of an insolvency
regulator. The Constitution requires that the power of the state be defined and regulated by
the law to ensure the protection of the interests of society. State regulation must comply with
the underlying values of the Constitution which also includes the protection of the interests of
society. The state has a constitutional duty to protect societal interests, ensure that justice is
promoted and ensure that just administrative action is achieved. The Master also has the
requisite duty to protect societal interests. Academics have found that the objectives and
outcomes of the regulation of insolvency law are still not in line with the Constitution and the
values and principles it enshrines.
Criticisms of the Master’s office include the lack of resources and institutional capacity, the
lack of sufficient investigative powers and insufficient guidelines for the Master when
applying their administrative discretion when appointing provisional insolvency practitioners.
The lack of regulation of insolvency practitioners in South Africa has also been criticised
which has a negative impact on the performance of the insolvency industry. Academics have
proposed suggestions to reform the regulation of insolvency law in South Africa. However,
none of these suggested proposals have been implemented as yet.
The most recent development is the draft policy on the regulation of insolvency practitioners
that has been submitted to NEDLAC in 2012. The policy aims to provide guidelines relating
to the appointment of provisional insolvency practitioners. The policy also includes a code of
conduct which insolvency practitioners must adhere to in order to be appointed as a
provisional insolvency practitioner. The policy has the potential to provide sufficient
guidelines to the Master when appointing insolvency practitioners. The precise guidelines in
the policy reflect the need for transformation of the industry and the need for administratively
fair decision making. Thus, the provisions of the proposed policy will be effective in
countering the criticisms and transforming the insolvency industry and profession.
Foreign jurisdictions have also encountered the problem of lack of regulation of insolvency
practitioners. To circumvent this problem some foreign jurisdictions have made the recent
development of adopting (or considered adopting) self-regulation or co-regulation of
insolvency practitioners. In comparison to South Africa, they have made more progress
towards improving the regulation of insolvency practitioners. The result of this is that South
Africa is out of step with foreign jurisdictions. It is imperative that South Africa adopts
reform initiatives to strengthen the regulation of insolvency law.Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2014.
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Sher, Lara-Jade. "The appropriateness of business rescue as opposed to liquidation : a critical analysis of the requirements for a successful business rescue order as set out in section 131(4) of the Companies Act 71 of 2008." Thesis, 2014. http://hdl.handle.net/10210/10763.
Full textAbstract:
LL.M. (Commercial Law)The Companies Act 71 of 2008 (hereinafter referred to as the Act) was passed by Parliament on 19 November 2008 and assented to by the President on 8 April 2009. The Act came into force on 1 May 2011 and contains the provisions regulating the new business rescue proceedings that replace judicial management under the Companies Act 61 of 1973. However, since the introduction of Chapter 6 of the Act, the courts South Africa still appear to be finding their feet with regard to many of the Act’s provisions. In spite of this, the new business rescue practice has become an important part of the South African corporate framework. The outbreak of recent case law has started to shape the direction, which business rescue, as interpreted by the Courts, is taking. An important debate among the courts is whether the courts should rescue a business entity or liquidating the businesses assets in order to settle claims against it. While a liquidation aims to divide the profit from the sale of assets amongst creditors and to dissolve the company, business rescue legislation provides for a restructuring of the financial structure of a distressed debtor to save the business as a going concern and to assist the settlement of claims against the business in full. The business rescue proceedings have been provided for by legislation in the Act, however, the result of the vast recent court decisions show that the Act may not be relied upon unconditionally without proper regard to the circumstances of each case. This research analyses the appropriateness of business rescue as opposed to liquidation by specifically looking at the requirements for a successful business rescue order. This research further analyses whether the decisions of the courts in present case law are on the correct path when interpreting the business recuse provisions in terms of the Act.
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FOLVARČÍKOVÁ, Nikola. "Kvalita úpadkového práva v podmínkách tržní ekonomiky ČR." Master's thesis, 2016. http://www.nusl.cz/ntk/nusl-251730.
Full textAbstract:
The topic of this thesis is the quality of insolvency law in the market economy of the Czech Republic. The aim of the thesis is outlining the course of the insolvency proceedings and introducing basic ways of resolving bankruptcy of a debtor, which means declaring bankruptcy, the discharge of the debt and reorganization. The work focuses in more detail on problems of the discharge of the debt. The main aim of this work is calculating an average amount of satisfaction of unsecured creditors in case of resolving bankruptcy by declaring bankruptcy, reorganization, or the discharge of the debt on the ground of data from the insolvency register which is accessible to the public. There were used samples of proceedings at the Regional court in České Budějovice (hereinafter referred to as "the Regional court in ČB"). The data were subsequently compared with an amount of satisfaction according to statistics. The representative sample consists of the finished insolvency proceedings in the first trimester of years 2011 2015 at the Regional court in ČB.