Enforcement of the right to a bond of arrest in insolvency proceedings in Russia and Germany

Abstract

Creditors whose claims are secured by the debtor’s property have a privileged position in the insolvency proceedings. The legal status of depositors and the manner in which their claims are met are the subject of close research. However, the problem of bail is little studied in Russian doctrine. The purpose of the present study is to formulate, on the basis of regulation and doctrinal thinking in Germany, where the right to a bond of arrest has been successfully applied, a framework for the exercise of the right of a bond of arrest in insolvency proceedings (bankruptcy) for Russian legislation. The main methods of the study are: Comparative law, which allows the study of the theoretical provisions of the right to bail and the proposal of appropriate legislative designs; as well as the historicallegal method combined with the systematic method of analysis of the problem under investigation. Synthesis, interpretation and teleological methods are also used. Since the study of property rights in Germany has had a significant impact on the Russian doctrine, the German experience of the legal regulation of a creditor whose claims are secured by the seizure of property has been used in the analysis of the problems of a bond of arrest. The legal nature of the right to bail, which is the subject of debate in the doctrine of Germany and Russia, has been analysed. It has been concluded that the right to an arrest bond is a special right of bail, together with a contractual and legal bond. It is substantiated that there is a gap in Russian law regarding the legal position of a creditor in insolvency proceedings (bankruptcy) in the event of securing his claims by seizure of the debtor’s property. The preferential right of tax authorities to obtain satisfaction in insolvency proceedings in the attachment of taxpayer property, qualified as a legal security, introduced in Russian tax legislation, It is considered to be a breach of the balance between public and private interests. It is justified that the right to a bond of arrest is subject to the law of procedural law and proposals have been made to regulate the legal position of creditors entitled to a bond of arrest in insolvency proceedings (bankruptcy).