Abstract
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.
Highlights
The development of bankruptcy law is related to the following categories: venditio bonorum, distraction bonorum and cession bonorum created by the Roman civilists
Based on the study completed, it has been established that individual countries use the following legal criteria that may become a base of unified legislative techniques at the insolvency proceedings regulation; а) the legally protected interest; b) objectives the legislation is based on; c) application scope by the type of the passive subject who proceedings are allowed to be initiated against; d) the type of individual courts; e) the object of reorganization that may be the entrepreneur himself or his business; f) the availability of reorganizational procedures; A legally protected interest turns out to be a criterion serving as a base for setting up legislative models which determine the ratio between the rights and obligations of the persons involved in the proceedings
According to the protection intensity, we distinguish the procreditor system, where the creditors’ interests dominate. It exists in two types: а) radical (England), where the application of liquidation procedures and ultimate allocation of the debtor’s assets in favor of the creditors’ receivables is typical; and b) moderate (Germany), where various mechanisms of the debtor’s company preservation are stipulated
Summary
The development of bankruptcy law is related to the following categories: venditio bonorum, distraction bonorum and cession bonorum created by the Roman civilists They are based on the aim of proportionate satisfaction of creditors out of a debtor’s property which, in most cases, used to be transferred to them voluntarily. The concept of cessio bohorum contains the idea of proportionate satisfaction of the creditors with the debtor’s consent and preservation of the latter’s minimum existence funds In this sense, the genesis of the concept relates to the period of development of Roman law in the Middle Ages, where a debtor’s insolvency would affect most of all the creditor’s interests, and public interests are not infringed at that stage. Roman law perceives as a concept the presence of the debtor’s fault, and the idea of insolvency existing through no one’s fault arises at a later stage in result of the evolution of Roman jurisprudence
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