Suchergebnisse

The sense of the subsidiary liability is determined by the obligations of the principal and the secondary debtor, aimed at satisfying the claims of the lender. A secondary debtor is required to fulfill obligations that had not been fulfilled by the principal debtor. The article deals with the study of the grounds for the emergence of subsidiary civil liability. The author analyzes the provisions of the current national legislation and theoretical developments on the subject. Subsidiary liability arises on the basis of a contract or law. However, the law or the contract must indicate the existence of a subsidiary liability. It is emphasized that the existence of a subsidiary liability requires the existence of a specific legal relationship in which there is a creditor, principal debtor and secondary debtor. In accordance with the provisions of Article 619 of the Civil Code of Ukraine it is necessary to have the following reasons for the emergence of subsidiary liability: the emergence of relations between the principal and additional debtors; the emergence of a relationship between the creditor and the principal debtor; default or default of the principal debtor. The principle of the freedom of a contract gives parties the opportunity to enter into contracts where a subsidiary plurality can be envisaged. It is substantiated that in the subsidiary liabilities arising from the contract, the will of the entities (creditor, principal and additional debtors), which is realized through the conclusion of the contract (contracts), plays an important role. The contractual relationship between the parties of the subsidiary liabilities determines the conditions under which the additional debtor will be involved in the performance of the obligation, their scope, and the consequences for the parties to the subsidiary liability in the case of its performance by the secondary debtor. It is concluded that the nature of the agreement between the creditor and the debtor is conditional, since the involvement of the secondary debtor in the performance of the liability depends on the conduct of the principal debtor. As for subsidiary liabilities arising from the law, the relations between the entities are governed by the imperative provisions of the law. The obligation of the secondary debtor to fulfill the claim of the creditor arises on the basis of clearly established legal facts. ; Сутність субсидіарного зобов'язання визначається обов'язками основного та додаткового боржника, спрямованими на задоволення вимог кредитора. Додатковий боржник зобов'язаний виконати тільки ті зобов'язання, які не були виконані основним боржником. Стаття присвячена дослідженню підстав виникнення субсидіарних цивільно-правових зобов'язань. Автором проаналізовано положення чинного вітчизняного законодавства та теоретичні розробки з даного питання. Субсидіарні зобов'язання виникають на підставі договору або закону. Водночас у законі або договорі має бути вказано на існування саме субсидіарного зобов'язання. Акцентовано увагу, що для виникнення субсидіарного зобов'язання необхідна наявність конкретного правовідношення, у якому є кредитор, основний боржник і додатковий боржник. Відповідно до положень статті 619 Цивільного кодексу України, для виникнення субсидіарного зобов'язання необхідна наявність таких підстав: виникнення відносин між основним і додатковим боржниками; виникнення відносин між кредитором і основним боржником; невиконання чи неналежне виконання зобов'язання основним боржником. Принцип свободи договору надає сторонам можливість укладати договори, у яких можна передбачити субсидіарну множинність. Обґрунтовано, що в субсидіарних зобов'язаннях, які виникають на підставі договору, важливу роль відіграє волевиявлення суб'єктів (кредитора, основного та додаткового боржників), яке реалізується шляхом укладення договору (договорів). У договірних відносинах між сторонами субсидіарного зобов'язання визначаються умови, за яких додатковийборжник буде залучатись до виконання зобов'язань, їхній обсяг, а також наслідки для сторін субсидіарного зобов'язання в разі виконання зобов'язання додатковим боржником. Зроблено висновок, що за своєю природою договір між кредитором і боржником є умовним, оскільки залучення додаткового боржника до виконання зобов'язання залежить від поведінки основного боржника. Що стосується субсидіарних зобов'язань, які виникають на підставі закону, то відносини суб'єктів один з одним регулюються імперативними приписами закону. Обов'язок додаткового боржника виконати вимогу кредитора виникає на підставі чітко визначених законом юридичних фактів.

To what extent are questions of sovereign debt a matter for political rather than scientific or moral adjudication? We answer that question by defending three claims. We argue that (i) moral and technocratic takes on sovereign debt tend to be ideological in a pejorative sense of the term, and that therefore (ii) sovereign debt should be politicised all the way down. We then show that this sort of politicisation need not boil down to the crude Realpolitik of debtor-creditor power relations—a conclusion that would leave no room for normative theory, among other problems. Rather, we argue that (iii) in a democratic context, a realist approach to politics centred on what Bernard Williams calls 'The Basic Legitimation Demand' affords a deliberative approach to the normative evaluation of public debt policy options.

he article is devoted to minimum standards in the new procedural instrument - the European Account Preservation Order. The main purpose of the preservation proceeding is to grant an interim order of creditor's claim on debtor assets, without overburdening his property. Due to the complicated procedure established by Regulation (EU) No 655/2014, the European Account Preservation Order should serve as an additional and optional measure for the creditor, the examination of the minimum standards is essential. The Author indicates the relation between above-mentioned regulation and other regulations and gives explanation why this instrument is another symptom of the new EU legislator's approach to cross-border civil matters. Since the debtor is a person whose interests are most affected by the preservation on the bank account, it is necessary to specify his rights and obligations in this proceedings.

he article is devoted to minimum standards in the new procedural instrument - the European Account Preservation Order. The main purpose of the preservation proceeding is to grant an interim order of creditor's claim on debtor assets, without overburdening his property. Due to the complicated procedure established by Regulation (EU) No 655/2014, the European Account Preservation Order should serve as an additional and optional measure for the creditor, the examination of the minimum standards is essential. The Author indicates the relation between above-mentioned regulation and other regulations and gives explanation why this instrument is another symptom of the new EU legislator's approach to cross-border civil matters. Since the debtor is a person whose interests are most affected by the preservation on the bank account, it is necessary to specify his rights and obligations in this proceedings.

The article is devoted to minimum standards in the new procedural instrument - the European Account Preservation Order. The main purpose of the preservation proceeding is to grant an interim order of creditor's claim on debtor assets, without overburdening his property. Due to the complicated procedure established by Regulation (EU) No 655/2014, the European Account Preservation Order should serve as an additional and optional measure for the creditor, the examination of the minimum standards is essential. The Author indicates the relation between above-mentioned regulation and other regulations and gives explanation why this instrument is another symptom of the new EU legislator's approach to cross-border civil matters. Since the debtor is a person whose interests are most affected by the preservation on the bank account, it is necessary to specify his rights and obligations in this proceedings.

This book evaluates the application of the first autonomous European civil procedures: the European Order for Payment and the European Small Claims Procedure. The study offers an in-depth comparative and empirical analysis of the way these instruments function in interaction with national procedures in England and Wales, France, Italy, and Romania. The analysis combines available statistics with European and national case law, together with practitioners' experience. This approach provides a comprehensive understanding of the difficulties encountered, and of the solutions chosen to overcome procedural intricacies and to secure parties' procedural rights. The findings create a solid basis for enhancing judicial cooperation and addressing the practical aspects related to the application of the procedures. In its conclusion, the book discusses the ongoing developments taking shape in this area, and reflects on the implications that the legal standards established by the European uniform procedures have for future developments. The book is of particular relevance for practitioners and courts applying the European Order for Payment and the European Small Claims Procedures; for European and national legislators, and policymakers working in this field; and for scholars interested in European civil procedure

Enforcement is an integral part of the right to a trial and this right would be illusory if the law of a mandatory system would leave the decision of the Court's failure, to the detriment o fone of the parties. Often stressed that the process does not end the civil court decision. Even then, in some cases, it is necessary to use coercive apparatus of justice. And justice can be fulfilled and to achieve its goal only when it is legally, quickly and effectively enforced court decision. In cases where a decision is not met, the persons for whose benefit the decision may request the decision to compulsorily. Enforcement of Civil Procedure is the final stage, during which implemented the court decision and the creditor and the debtor actually experienced legal and property implications of the court decision. The judgments must strictly comply with the statutory compulsory enforcement procedures to prevent violations of creditors to the debtor and third party rights and legitimate interests. Legal relations in civil proceedings entities for their role in civil proceedings are divided into: a) pursuing justice and ensuring the implementation of judicial decisions, b) participants (those involved in this case and other participants in the process). The first group includes the court, bailiff, court clerk (Rechtspfleger) and other entities engaged in ensuring fairness and justice act - of a judicial decision, order or decision - implementation. The second group includes the parties (the creditor and the debtor), the persons concerned and other persons involved in the process (external, interpreters, experts, etc.). One of the practical problems of implementation of the process - to ensure the creditor and the debtor's rights and obligations of the balance. The legislature shall endeavor not to grant an unfair advantage by either party. In Lithuania there is not plenty of Defending the rights of persons in judicial decisions. Theory identifies such remedies as judgments for targeting urgent appeals on procedural bailiff action or refusal to perform the examination, the enforcement process, the parties and others dispute the claims procedures and recourse to justice enforcement. German civil procedure law enforcement process, the parties and third parties to protect the more isolated forms: 1. Comments on Performance (German Vollstreckungserinnerung, ZPO § 766); 2. Immediate private complaint (German sofortige Beschwerde, ZPO § 793); 3. The debtor's claim to enforcement (German Vollstreckungsabwehrklage, ZPO § 767); 4. Third-party rights action (German Drittwiderschpruchsklage, ZPO § 771); 5. A claim of priority to meet the requirements (German Klage auf vorzugsweise Befriedigung, ZPO § 805); 6. Protection from enforcement (German Antrag auf Vollstreckungsschutz, ZPO § 765a); 7. Rechtspfleger's of Appeals decision in accordance with § 11 RPflG (German Rechtsbehelfe Rechtspflege of the decisions made against it, RPflG § 11); 8. Appeals pursuant to § 71 GBO (German Beschwerde die nach § 71 GBO). Due to the different remedies in Lithuania and Germany would be appropriate to divide them into groups. In our opinion, the clearest criteria for the classification of the two countries highlighted the rights remedies, to execution by the parties and other persons that are not in enforcement proceedings. This means that an individual deals with General creditor's and debtor's and other persons rights of execution methods, separately creditor's remedies, as well as the debtor's remedies of execution.

Enforcement is an integral part of the right to a trial and this right would be illusory if the law of a mandatory system would leave the decision of the Court's failure, to the detriment o fone of the parties. Often stressed that the process does not end the civil court decision. Even then, in some cases, it is necessary to use coercive apparatus of justice. And justice can be fulfilled and to achieve its goal only when it is legally, quickly and effectively enforced court decision. In cases where a decision is not met, the persons for whose benefit the decision may request the decision to compulsorily. Enforcement of Civil Procedure is the final stage, during which implemented the court decision and the creditor and the debtor actually experienced legal and property implications of the court decision. The judgments must strictly comply with the statutory compulsory enforcement procedures to prevent violations of creditors to the debtor and third party rights and legitimate interests. Legal relations in civil proceedings entities for their role in civil proceedings are divided into: a) pursuing justice and ensuring the implementation of judicial decisions, b) participants (those involved in this case and other participants in the process). The first group includes the court, bailiff, court clerk (Rechtspfleger) and other entities engaged in ensuring fairness and justice act - of a judicial decision, order or decision - implementation. The second group includes the parties (the creditor and the debtor), the persons concerned and other persons involved in the process (external, interpreters, experts, etc.). One of the practical problems of implementation of the process - to ensure the creditor and the debtor's rights and obligations of the balance. The legislature shall endeavor not to grant an unfair advantage by either party. In Lithuania there is not plenty of Defending the rights of persons in judicial decisions. Theory identifies such remedies as judgments for targeting urgent appeals on procedural bailiff action or refusal to perform the examination, the enforcement process, the parties and others dispute the claims procedures and recourse to justice enforcement. German civil procedure law enforcement process, the parties and third parties to protect the more isolated forms: 1. Comments on Performance (German Vollstreckungserinnerung, ZPO § 766); 2. Immediate private complaint (German sofortige Beschwerde, ZPO § 793); 3. The debtor's claim to enforcement (German Vollstreckungsabwehrklage, ZPO § 767); 4. Third-party rights action (German Drittwiderschpruchsklage, ZPO § 771); 5. A claim of priority to meet the requirements (German Klage auf vorzugsweise Befriedigung, ZPO § 805); 6. Protection from enforcement (German Antrag auf Vollstreckungsschutz, ZPO § 765a); 7. Rechtspfleger's of Appeals decision in accordance with § 11 RPflG (German Rechtsbehelfe Rechtspflege of the decisions made against it, RPflG § 11); 8. Appeals pursuant to § 71 GBO (German Beschwerde die nach § 71 GBO). Due to the different remedies in Lithuania and Germany would be appropriate to divide them into groups. In our opinion, the clearest criteria for the classification of the two countries highlighted the rights remedies, to execution by the parties and other persons that are not in enforcement proceedings. This means that an individual deals with General creditor's and debtor's and other persons rights of execution methods, separately creditor's remedies, as well as the debtor's remedies of execution.

During the nineteenth century, sovereign debt defaults led to active intervention by governments from creditor countries to defend the claims of their bondholders. In certain cases, these interventions triggered the imposition of foreign control through commissions formed by States' and bondholders' representatives. This chapter investigates why foreign control episodes were mostly absent in Latin America despite its recurrent debt crises. We focus on two case studies from the mid-nineteen century, Mexico and Peru, and analyze how public and private control was pursued to secure debt repayment and the development of international trade. Even though the British government was reluctant to intervene, major merchant banks could heavily influence the fiscal and commercial policies of countries with European commercial relations. However, the resumption of debt service in the aftermath of a default depended upon a complex set of political and economic factors.

The Portnoy, Brooks, and Lawrence cases demonstrate that under the right facts and circumstances, courts can and will enter orders finding spendthrift provisions of asset protection trusts invalid. These cases and this Article discuss a path that a bankruptcy court may follow to find that property transferred to an asset protection trust is property of a bankruptcy estate. Such a finding may lead to effective remedies for creditors, such as denial of a discharge to a debtor, orders compelling a debtor to direct a trust trustee to transfer assets, with contempt orders if the debtor fails to comply, and, possibly, a claim against a professional who assisted a debtor in setting up the asset protection trust. In cases involving domestic trusts, because the bankruptcy court will have personal jurisdiction over the trustee, any judgment entered by a bankruptcy court would be binding on the trustee and a bankruptcy trustee or a creditor should be able to pursue remedies against the trust trustee. In cases involving offshore trusts, such as In re Brooks and the Hess article mentioned at the beginning of this paper, where an asset such as stock of a domestic corporation is at issue, a court may be able to order the cancellation of stock transferred to a trust and the issuance of stock to a creditor or a bankruptcy trustee. However, unless and until governments take legislative action to prevent transfer of assets to asset protection trusts, creditors will not have completely effective remedies against a debtor who transfers assets to an offshore asset protection trust.

The case decided by the Belgian Hof van cassatie/Cour de cassation on 31 January 2002 concerns the effects of avoidance in bankruptcy of an impeachable transaction by the bankrupt debtor disposing of assets, and especially the conflict with a subsequent acquirer of these assets. The bankrupt debtor (Transport de Koning) had transferred shortly before bankruptcy a trailer in lieu of payment to its creditor Diemotrans. Diemotrans had sold and delivered the trailer shortly after bankruptcy to a subsequent buyer in good faith, the LLC André. The insolvency administrator (Driessen) asked the court for a declaration of ineffectiveness of the transaction vis-à-vis the creditors and a condemnation of LLC Andre to restitute the trailer to the bankrupt estate. The Court decided that the claim of the insolvency administrator fails insofar as the conditions for bona fide acquisition by LLC Andre are met (actual possession and good faith).

During the century which culminated in the First World War, Great Britain was the principal source of capital supply for countries that drew upon foreign resources. Until 1940 her claims as creditor remained substantially greater than those of any other nation. Investments grossing from forty to fifty billion dollars have been made in the course of her virtually continuous process of capital outlay abroad. The outstanding total in 1914 amounted to twenty billion dollars, yielding an annual income of about one billion, which was nearly one tenth of the national income of the United Kingdom. This was the result of a process of accumulation which reached its greatest intensity during the periods 1868–1875, 1884–1893, and 1905–1912, when annual public issues of foreign and colonial securities averaged 6 or 7 per cent of those outstanding. During the latter period, at least, more than half of all British investment of new capital was being made abroad.

Securing claims by way of real assets such as mortgage or chattel mortgage has great significance for the operation of banks and other economic entities. Opening bankruptcy proceedings over the owner of the real estate under mortgage or movable property under chattel mortgage has a significant impact on the process of exercising rights and the position of secured creditors. Bankruptcy framework in the Republic of Serbia limits their rights on the one hand, and provides extensive guarantees, on the other, by prescribing several specific institutes that additionally protect the rights of secured creditors in the procedures of bankruptcy debtor asset sales, which is the topic of this paper. Provisions of the Law have been analyzed, positions of the judicial practice as well as opinions of the jurisprudence on secured creditors as a special category. Special attention was paid to the impact of the legal prohibition of individual enforcement for the settlement of claims from the assets that are under any burdens as well as the cancellation of moratorium. Significance of the right of the creditor to offset its secured claim against purchase price has been explained in detail in case of the best bidder (credit bidding) as well as the legal preemptive right on the subject of secured right or lien, in case of sales method by direct agreement. Also, rules were considered that condition the possibility of leasing assets under burden of the bankruptcy debtor with the consent of secured creditors.

The thesis has been conducted upon a unique and primary database manually collected through courts and various reliable sources (governmental and non-governmental offices). This is the major strength of this thesis. With such a database, we built individual statistics on the corporate bankruptcies process in for two major European countries (France and United Kingdom). The collected data deals with the causes of financial default, the recovery rates of creditors, the process of decision making at the time of default, the efficiency of such decisions, etc. Such research project helps in distinguishing the origins of corporate financial default: are they independent from the national bankruptcy code or not? In order to test the effect of legal environment, we computed the most comprehensive legal indexes till date. Our legal indexes consist of more than 300 questions that explain the particular function of bankruptcy. We merge these indexes with the hand collected database for France and UK. This makes this thesis really unique as it is composed of original hand collected databases. To the best of our knowledge the UK database has no equivalence as for the first time we manage to include liquidations which constitute more than 85% of bankruptcies in UK. Even the scholars in UK lack such information. Such empirical work is completed by a microeconomic theoretical analysis and would yield interesting results that will be discussed in detail in the rest of the chapters of the thesis and also open avenues for future research work. Chapter 1 presents a brief introduction to the topic, explaining the research aims and research methodology. Chapter 2 presents the detailed survey of literature on bankruptcy. It starts by explaining the basic concept associated with bankruptcy, need of bankruptcy laws, the main objective of bankruptcy, the main processes associated with bankruptcy, classification of bankruptcy regimes and the law and finance approach to understand legal environment affecting bankruptcy. It explores the previous literature and findings and provides our contribution to the pre-existing literature and justifies our research goals and our approach. Chapter 3 empirically investigates the choice between informal and formal (court-supervised) restructuring of small and medium French firms in default. The procedure is depicted as a sequential game in which stakeholders first decide whether or not to engage in an informal negotiation. Then, conditional on opting for an informal workout, the creditors and the debtor can succeed or fail in reaching an agreement in order to restructure the firm's capital structure. Based on a sample of 735 credit lines allocated to 386 French distressed firms, we test different hypotheses which captures i) coordination vs. bargaining power issues, ii) informational problems, iii) firms' characteristics, and iv) loan characteristics. Using a sequential LOGIT approach, we first find that the probability for opting for an informal workout i) decreases when the bank is the debtor's main creditor and ii) increases with the size of the loan. In addition, the likelihood of success of an informal workout i) decreases when the management of a badly rated firm is considered as incompetent, and ii) decreases when the bank is the debtor's main creditor. The result concerning the bank as being the main creditor suggests that "bargaining power" argument dominates the "coordination" argument. Finally, we find no evidence of the impact of collateral on the decision between informal and formal restructuring. Chapter 4 describes the prevalent bankruptcy procedure of UK and France; in general it provides an entire macro view of the bankruptcy laws in given two countries. It presents the various formal and informal procedures, explains their functioning, how they are triggered and the underlying specificities about each process. It is very crucial to understand the working of each procedure as this forms the basis for the future chapters where we related the result of our summary statistics and econometrics to specificities of these procedure and come up with useful conclusions and insights. In chapter 5 the focus returns to the micro economic analysis. We explore the two unique hand coded databases, collected through different sources. Our database consists of 264 small and medium sized enterprises representing France and 564 small and medium sized enterprises representing UK. These countries represent two major legal systems prevailing in Europe: common law and civil law. Both legislations have features that are of interest for research. Based on are datasets we provide summary statistics on both the countries. Our descriptive statistics explains the average profile of our sample company, it provides us with the reasons that lead the company into bankruptcy, it provides us the detailed asset and liability structures of the firms and the detailed claim structure and recovery structure. In addition it also provides us with the duration of the procedure and the costs involved in the process. We also perform multivariate analysis to test the choice between continuation and liquidation for France and to test the factors that increase or decrease the chances of receivership (procedure made for the benefits of banks) and administration (regarded as reorganization procedure) in UK. The main aim of the chapter 6 is to find the legal characteristics that impact on the recovery rates. Previous studies (LLSV, Doing Business Report, World Bank) have usefully used a set of legal indexes to rank the bankruptcy law prevalent within the country. But they fail to identify the characteristics of bankruptcy procedures that create more recoveries. We give here elements of answer by taking into consideration two countries that are good representatives of the two main legal systems prevailing in Europe: France (Civil Law) and United Kingdom (Common Law). To enable this, we built original legal indexes comprising of 158 binary questions that highlight ten major dimensions of corporate bankruptcy procedures: (1) accessibility, (2) exclusivity, (3) bankruptcy costs, (4) production of information, (5) protection of the debtor's assets, (6) protection of claims, (7) coordination of creditors, (8) decision power, (9) sanction of faulty management, and (10) inclination towards liquidation / reorganization. We then propose a mapping of procedures that shows a clear specialization between them. The French procedures ("redressement judiciaire" and "liquidation judiciaire") are more protective of the debtor's assets and favor more the coordination of secured claims, public claims, and unsecured claims. In UK, we find strong opposition between the procedures oriented to liquidation and the other procedures.