VRSTE IZLUČNIH PRAVA U STEČAJNOM POSTUPKU

Abstract

This paper examines the regulations of the Republic of Serbia, the stances of domestic case law, and jurisprudential perspectives regarding the enforcement of the rights to separate recovery by entitled creditors in bankruptcy and litigation proceedings. It places particular emphasis on delineating the various types of rights to separate recovery and the prerequisites for initiating a separate recovery claim against a bankruptcy debtor. After an introductory elucidation on the legal essence of the right to separate recovery and the claim derived from it, which is predominantly a proprietary claim aimed at isolating a specifically identified asset from the bankruptcy estate, the paper delves into the protection of the rights of the seller in cases involving sales with retention of ownership rights. It also explores the claim of the presumed owner (actio Publiciana). Furthermore, the analysis extended to the separate recovery claim for negative performance of an obligation based on industrial property rights or other personal rights. It was determined that the legal basis of such a separate recovery claim primarily lies in absolute rights, such as ownership of assets, which remain with the bankruptcy debtor upon the initiation of bankruptcy proceedings, or in industrial property rights (trademarks, patents). Additionally, it encompasses relative rights – obligation-based entitlements oncerning the transfer of individually identified assets over which the bankruptcy debtor lacks ownership rights. These may include rights of lessors, bailors, depositors, senders, principals, pledgers, and other creditors. It was explained that on the day of the opening of bankruptcy proceedings against a legal entity against whom a decision on temporary confiscation of assets was made in criminal proceedings, a sui generis "right to separate settlement" arises in favor of the Directorate for the Administration of Seized Assets, which has the legal nature of an obligation of the bankruptcy estate.