Abstract
The article reviews the regulations of Republic of Serbia, domestic legal practice, as well as the opinions of jurisprudence on the exercise and protection of the preemptive rights of separate and pledge creditors in a bankruptcy proceedings. There has been clarified the legal nature of the preemptive right on the subject of the secured right or lien. There were also provided the details related to the significance of the right of a creditor to set off its secured claim with the purchase price, in the case of a creditor being the best bidder (credit bidding). The article aims to present the manner of exercise of preemptive rights in the case of the method of sales of encumbered property/assets by a direct agreement, as well as the legal instruments the secured creditors may use in the case of its violation. There have been analysed the rules of procedure per lawsuit for annulment of a sale due to the violation of the preemptive rights. The deadline for a lawsuit, the content of the lawsuit which protects the preemptive right as well as the damage compensation right were especially considered.
Highlights
Bankruptcy framework in the Republic of Serbia limits their rights on one hand, and provides extensive guarantees on the other, by prescribing several specific institutes that protect the rights of secured creditors in the procedures of bankruptcy debtor asset sales, which is the topic of this paper
In case the right to credit bidding is not exercised, the secured creditor shall, simultaneously with the statement on purchase, be obligated to pay the price agreed with the third party, or deposit it with the court, in line with the application of rules on the price payment deadline (Law of Contracts and Torts - LCT, 1978, Article 528 paragraph 2 and Article 533 paragraph 4), since the rules on preemptive rights shall be applied to the legal preemptive right (Dukić Mijatović & Kozar, 2019, p. 498)
One of the consequences of opening bankruptcy proceedings is the establishment of the legal preemptive right for the benefit of secured creditors and persons related to them, over the subject of secured right or lien, in case of sales method by direct agreement
Summary
Initiation of bankruptcy proceedings over the owner of property under mortgage or movables under pledge has a significant impact on a position of secured creditors, regardless of the fact it will not lead to the cessation of real and legal securities, since, as a rule, it disables execution of the procedure of individual enforcement and settlement outside bankruptcy proceedings (Kozar & Aleksić, 2018, p. 920). This protects its position in situations where there are no public announcements of the sales process, when the method of sales is not public bidding or public collection of bids, without damaging the bankruptcy estate, since such creditor, provided that it wishes to use this right, shall be obligated to offer the same terms as offered by the best bidder, at minimum. This option is valid for other legal entities as well, that are not banks that act in the capacity of secured creditors
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