Bankruptcy Cases Research Articles

Мораторий на возбуждение дел о банкротстве и практика взыскания исполнительского сбора

The article is devoted to the initiation of bankruptcy cases absolute moratorium consequences imposed by the Government of the Russian Federation in 2022. Attention is drawn to the enforcement proceedings problems related to the performance fee collection from debtors during moratorium period. In addition, public authorities and courts present different variants of the rules application for suspending enforcement proceedings during moratorium that depend on subjects range and their status. The author makes a conclusion about practice formation on the topic of the bankruptcy moratorium using as an autonomous basis for performance free relief. Meanwhile, performance free relief depends on two points: the subject meets moratorium conditions; the duty to execute the judicial act came after moratorium establishment. Finally, the article proposes a procedural mechanism of performance fee relief in case of its illegal collection.

Individual Company Bankruptcy Based On The Bankruptcy Law

After the promulgation of Law Number 11 of 2020 Concerning Job Creation, it has been made possible to form a new legal entity, namely an Individual Company. These changes are referred to in the provisions of Article 109 of the Job Creation Law, which contains several changes to Law Number 40 of 2007 concerning Limited Liability Companies. The government also contains further regulations regarding the existence of an individual company as a legal entity in Government Regulation Number 8 of 2021 concerning Company Authorized Capital and Registration of the Establishment, Amendment and Dissolution of Companies that Meet the Criteria for Micro and Small Enterprises. However, the presence of Government Regulation Number 8 of 2021 does not comprehensively regulate several existing legal issues. Therefore, this research was conducted to analyze the problem. Issues related to whether or not individual companies can apply for bankruptcy at the Commercial Court. If this is possible, the creditor as referred to in the provisions of Article 2 of Law Number 37 of 2004 concerning Bankruptcy and Suspension of Obligations for Debt Payment can naturally become a party involved in a bankruptcy case filed against an Individual Company. This type of research is legal research using statutory and conceptual approaches. The results of this study indicate that an individual company is not necessarily easy to apply for bankruptcy, It is hoped that the existence of an individual company will be able to drive the movement of the economy. Thus, although it is possible to apply for bankruptcy against an individual company, to resolve problems related to general confiscations, a civil lawsuit should be filed in the District Court.

Peculiarities of the Bankruptcy Proceedings Regulation

In recent years, the law enforcement practice in bankruptcy cases has tended to increase the importance of the active role of the court in resolving court disputes. The paper discusses the causes and consequences of strengthening an active role of the court in relation to the specifics of bankruptcy proceedings. The author identifies the system levels of regulation of this type of legal proceedings and its place in the system of civil proceedings. The paper highlights the system-forming role of judicial practice that cumulates the biggest part of both the substantive and procedural features of such cases. The author summarizes and systematizes the points of view available in the doctrine concerning categorization of bankruptcy proceedings and gives her own opinion on this issue. The author concludes that strengthening the active role of the court in the bankruptcy proceedings is necessary to maintain a balance of interests and prevent abuse by the participants of the procedure. Consolidation of the active powers of the court at the legislative level can have a positive effect on reducing the time for consideration of such cases and increasing the percentage of satisfaction of creditors’ claims. At the same time, such consolidation will strengthen the specifics of bankruptcy proceedings, bringing them even closer to administrative proceedings.

Legal Policy of State Financial Losses Arrangement In A State-Owned Enterprise

This research aimed to examine the elements of state loss in regulations concerning the legal policy of state financial arrangements in a bankrupt state-owned enterprise and to analyze the effort of asset recovery related to state loss due to corruption based on the prevailing law in Indonesia and China. This is normative legal research with a comparative approach, with China being taken as a comparison. The study indicated that the elements of state loss are short of money, securities, and goods; it was caused by unlawful actions, either intentionally or negligently; and losses whose amount can be calculated based on the findings of the authorized agency or appointed public accountant, in the Indonesian legal system, asset recovery efforts can be examined from the perspective of criminal law and administrative law. The substance of state finances reveals the same element, namely that the financial loss of SOEs is a loss to state finances. In the execution of court decisions on SOE-owned assets in bankruptcy cases, the regulation does not provide fair legal recognition, protection, certainty, and equal treatment before the law in the management and accountability of state finances.

The Interconnected Nature of Family Indebtedness: The Halliday Family of Frome, Somerset (1733–1752)

This article analyzes a single bankruptcy case—Hancock v Halliday(1742–1752)—as it was litigated in the Court of Chancery across a ten-year period. By incorporating local sources, the work attempts to move away from assumptions surrounding the “implicit contract” of family, and to provide a more nuanced analysis of “family strategies” in action. I argue that business historians—looking at networks—and economic and social historians—analyzing the use and implementation of credit—should continue to explore the divisions within families, which will help to reemphasize the role of women within business transactions and the wider credit-based economy. Ultimately, this article makes a significant contribution to the burgeoning scholarship on the negative aspects of familial networks of credit and debt, demonstrating how the complex and multifaceted nature of family indebtedness has been overlooked, and misunderstood, in the existing literature.

Implementation of the Provisions of Laws and Regulations Concerning Bankruptcy in the PT Istaka Karya Case

Bankruptcy according to Article 1 point 1 of the Bankruptcy Law No. 37 of 2004 is a general confiscation of all the assets of the Bankrupt Debtor which management and settlement are carried out by the Curator under the supervision of the Supervisory Judge as stipulated in this Law. The Bankruptcy and PKPU Laws have a wider reach both in terms of norms, scope of material, and the process of settling debts. This wider reach is necessary due to the emergence of legal developments and needs in society. PT Istaka Karya has been declared bankrupt by the Central Jakarta District Court. The formulation of the problem in this study is how to implement Law No. 37 of 2004 concerning Bankruptcy and PKPU in the bankruptcy case of PT Istaka Karya and whose authority has the right to bankrupt a State-Owned Enterprise. The reason for the bankruptcy of PT Istaka Karya is because it is unable to fulfill its obligations due at the end of 2021 on the Peace Decision Number 23/PKPU/2012/PN Niaga Central Jakarta dated January 22 2013 in accordance with the cancellation of homologation.

Peran Dan Kewenangan Otoritas Jasa Keuangan (OJK) Dalam Perkara Kepailitan Perusahaan Asuransi

This study aims to find out perspectives on the role and authority of the Financial Services Authority in bankruptcy cases at insurance companies in Indonesia. OJK is an independent body that is free from government interference in its duties, functions and authority to supervise, inspect and conduct investigations in the financial services sector so as to create a good national economy. Within the scope of supervision in the insurance sector, the Financial Services Authority has the authority relating to submitting bankruptcy declaration requests to insurance companies in order to protect the interests of insurance policy holders. Arrangements regarding the authority of the Financial Services Authority in submitting requests for bankruptcy statements against insurance companies are regulated in Law no. 21 of 2011 concerning the Financial Services Authority. The research uses a qualitative descriptive approach using secondary data obtained through library research. The role of the Financial Services Authority in the bankruptcy of an insurance company is to oversee the course of the insurance company's bankruptcy until liquidation and to ensure that the insurance company has paid all its obligations to creditors.

Prinsip Kepastian Hukum Pemberhentian Sementara Notaris yang Dinyatakan Pailit

The problems and research objectives taken include reviewing and analyzing the legal ratio of arrangements for notaries as public officials to be bankrupt, reviewing and analyzing temporary dismissals of notaries in accordance with the principle of legal certainty and reviewing and analyzing future arrangements for temporary dismissals as a result of being declared bankrupt. The research method used is legal research. The problem approach used in this research is the statute approach, conceptual approach and comparative approach. The sources of legal materials used are primary, secondary and non-legal legal materials. The results of the study conclude first, that notaries are public officials who are given directly by the state. Has special features that are different from other public officials. The position given by a Notary by issuing a legal product in the form of an authentic deed in providing services to the community. So that all legal products issued by a Notary have binding legal consequences because they can be used as evidence. Notaries are required to provide good services and good behavior. Notaries who have problems, such as being sentenced to temporary dismissal to dishonorable dismissal due to tripping over a bankruptcy case. This will affect the authentic deed he made. Second, the temporary dismissal of notaries involved in bankruptcy as stipulated in UUJN does not provide legal certainty and is considered vague. When referring to the Bankruptcy Law and PKPU, temporary dismissal sanctions cannot be applied because the bankrupt object is deemed not in accordance with this law, and notaries who are bankrupt under this law are not included in the legal subject matter of the Bankruptcy Law and PKUPU. Third, future arrangements regarding the temporary dismissal of a Notary due to being declared bankrupt have occurred disharmony in the application of the Bankruptcy Law and PKPU regulated in the UUJN. UUJN should pay attention to one of the principles applied in the Bankruptcy Law and PKPU, namely the principle of business continuity.

К вопросу о банкротстве наследственной массы

The norms of the bankruptcy legislation in terms of initiating a bankruptcy case of a citizen after his death or after declaring him deceased are analyzed. It is proposed to extend these rules to cases of recognition of the debtor as missing, as well as to use the term “bankruptcy of the hereditary mass” instead of “bankruptcy of a deceased citizen”. Proceedings in this category of cases should be initiated taking into account the general statute of limitations, during which creditors, the authorized body or heirs have the right to file for bankruptcy of the estate.

A Dualistic Concept of Personal Guarantee Responsibility and Its Relevancy with Law Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligation A Dualism Of Personal Guarantee Responsibility In Indonesia Bankruptcy Law

Indonesia's legal system recognizes the concept of personal guarantee, which is a promise or guarantee of an individual as a third party to fulfil the debtor's obligations. The concept of guarantee in Indonesia regulates the roles and responsibilities of personal guarantees if the debtor cannot pay his debts. However, the problem is a dualism in theory or approach to personal guarantee responsibility, especially in carrying out debt collection in the debt settlement process in Bankruptcy and Suspension of Debt Payment Obligations ("PKPU"). This dualism exists in the approach to justify actions for the creditor in determining who can be claimed to fulfil debt payment obligations - the debtor or personal guarantor. The main purpose of this journal is to analyze the existence of dualism problems in the concept of responsibility in personal guarantees and how to address the issues. In this journal, the author uses normative juridical research methods, which can be analyzed with conceptual and statutory approaches. This journal addresses an analysis that there are still inconsistencies in Indonesian legal practice in determining responsibility for the implementation of debt obligations, especially in deciding bankruptcy cases in Indonesia. Regarding whose debt responsibility is, there is still a dual approach, namely whether to use the "guarantor is always a guarantor" approach or the "guarantor is the debtor" approach. This journal concludes that there is a legal vacuum to resolve these circumstances. Regardless of the dualism of these circumstances, the author argues that it is necessary to unify the concept of responsibility for personal guarantees to provide legal certainty, especially concerning the implementation of debt collection in the bankruptcy process and at the time of PKPU.The dualism of personal guarantee theory has indicated that it is urgently needed to unify the concept of personal guarantee to provide legal certainty, especially concerning the implementation of debt collection in the process of settlement of debts in bankruptcy and at Suspension of Debt Repayment Obligation (Penundaan Kewajiban Pembayaran Utang/PKPU), where the creditor must determine who can be claimed to fulfill the debt payment obligations. In this paper, the author seeks who is responsible to pay the debt when there is a personal guarantor to guarantee the debtor, and also to examine the debt settlement process through PKPU or bankruptcy.

ЭВОЛЮЦИЯ ГОСУДАРСТВЕННОГО РЕГУЛИРОВАНИЯ ДЕЯТЕЛЬНОСТИ СПЕЦИАЛИЗИРОВАННОГО ОРГАНА В ОБЛАСТИ БАНКРОТСТВА В КОНТЕКСТЕ РАЗВИТИЯ ИНСТИТУТА НЕСОСТОЯТЕЛЬНОСТИ

The thirty-year history of the formation and development of the institution of bankruptcy in Russia is characterized by complex processes of transformation of the structure of its state regulation bodies. However, in practice, the institution of bankruptcy has not proven itself as an effective mechanism for regulating market relations, demonstrating an extremely low level of return on the implementation of bankruptcy procedures: if in 2015, 6.3 kopecks (6,3%) were returned to creditors from one ruble of monetary claims, then in 2021 this figure dropped to 3.5 kopecks (3,5%), which actualizes the need for further improvement of the organizational unit of the insolvency institution based on rethinking its reform experience. The purpose of this study is to identify and systematize the stages of development of the activities of a specialized state body on bankruptcy issues in the historical retrospective of the dynamic improvement of bankruptcy legislation and changes in approaches in the context of administrative reforms in the Russian Federation. As a result of the study, a periodization of the reform and identification of models of the organizational component of the system of state management of bankruptcy processes was carried out: from a centralized model with limited independence of a specialized bankruptcy authority (September 1993 - February 1998) with further strengthening of independence and expansion of its powers (March 1998 - February 2004) and the transition to a decentralized model of state bankruptcy management, when diverse functions were transferred to various state authorities in accordance with their competence, and the function of the authorized body was transferred to the Federal Tax Service of Russia. At the present stage, there is a tendency to strengthen the organizational block for ensuring bankruptcy procedures within the Federal Tax Service of Russia. From the standpoint of the synthesis of theoretical approaches, the results of judicial practice and international experience, it was concluded that the role of the authorized body in bankruptcy cases is growing, the constructive position of which contributes not only to protecting state interests, but also to increasing the efficiency of the implementation of bankruptcy procedures, reducing criminalization bankruptcies, judicial errors in the consideration of disputes in bankruptcy proceedings.

COMPARISON OF THE USE PRINCIPLES OF BUSINESS CONTINUITY IN BANKRUPTCY LAW AND THE JUDGE'S CONSIDERATION DECIDES THE BANKRUPTCY CASE BETWEEN INDONESIA AND WITH UNITED STATES

This study aims to compare the use of the principles of business continuity in bankruptcy law and judge's considerations in deciding bankruptcy cases between Indonesia and countries that use the common law system, especially in the United States.This research method is normative juridical using secondary data obtained from literature studies and supported by analysis of solutions through conceptual approaches, comparisons, and case studies of bankruptcy decisions at the first-level commercial court in Central Jakarta.The results of this study indicate that the United States has applied the principles of business continuity to companies that are healthy with the insolvency test, while Indonesia has not, so it is necessary to use it as the judge's main consideration. Based on data, the panel of judges used the principles of business continuity at the Central Jakarta Commercial Court in deciding bankruptcy cases as the main consideration for only 1.9% of the 416 total decisions from 2015 to 2022. There are several articles in Law 37/2004 that do not reflect the principles of continuity of business, especially the articles that are often used by judges to decide on bankruptcy cases, namely article 1 paragraph (1) regarding "the definition of bankruptcy" and article 2 paragraph (1) concerning "the terms of bankruptcy" including the article related to article 8 paragraph (4).Recommended that lawmakers carry out a reconstruction of the articles that are often used by judges in deciding bankruptcy cases.

The Debtor’s Liability For The Loading Of Personal Security In Indonesia

This study aims to find out the legal liability as well as the judge’s consideration of personal guarantees in the case of debtors who are declared bankrupt based on act number 37/2004.. The research method used is the normative juridical method, using library data. The results of this study indicate that in personal guarantee liability, there are two different agreements but closely related to each other, namely the guaranteed principal agreement and the personal guarantee agreement as a guarantee of the main agreement. In the personal guarantee agreement, besides the main agreement, there is also an accessory agreement where a personal guarantee serves the obligations. Personal guarantee in this bankruptcy case is the debtor from the obligation to pay off the debt. The personal guarantee assets will only be used to the return of the debts to creditors when the property has been confiscated and auctioned. However, the proceeds are not sufficient to pay the debt. This could be due to the debtor having two or more creditors and not paid off at least one overdue debt and can be collected.

Реструктуризация задолженности: как защитить интересы независимых кредиторов?

This article is devoted to the issues of taking into account the interests of the debtor’s minority creditors when approving rehabilitation procedures, both those regulated by the Bankruptcy Law and out-of-court agreements on restructuring. Author analyses the risks for creditors when concluding agreements on restructuring without their participation, as well as the problems of applying the rehabilitation privilege to creditors’ claims resulting from crisis financing. In addition, author considers the problem of coercing the minority by the majority when voting on conclusion of a settlement agreement in a bankruptcy case and analyses the case law of the Supreme Court and arbitration courts on disputes on the approval of settlements. A draft reform of the Bankruptcy Law is also considered in the context of expanding the practice of rehabilitation procedures and protecting the interests of minority creditors.

SIMPLE EVIDENCE OF BANKRUPTCY CASES IN COURT BASED ON IUS CONSTITUENDUM OF CIVIL PROCEDURAL LAW

Simple evidence principle in the Commercial Court is not easy to imagine. Simple evidence (sumir) currently still uses civil procedural law as a formal source in court. In addition it exists in various other regulations such as bankruptcy. The purposes of this study are 1). Analyze simple evidence (sumir) practices in bankruptcy cases in court, especially civil courts. 2). Analyze the ius constituendum regulation of simple evidence (sumir) of bankruptcy cases in court based on civil procedural law.This research used method of normative legal research. It also used doctrinal research. The approach is carried out using the following methods: statute approach, conceptual approach, and case approach.The results of the research indicated that simple evidence (sumir) practices in bankruptcy cases in court, especially civil courts, are not as simple as one imagine because in reality there are inconsistencies in the panel of judges in examining cases. Afterward, the ius constituendum regulation for simple evidence (mumir) of bankruptcy cases in court based on civil procedural law is absolutely necessary to prevent inconsistencies in interpretation between the panel of judges examining the case.

Summary Proof of Postponement of Debt Payment Obligations Through Act Number 37 of 2004 (Study of Decision Number 7/PDT.SUS-PKPU/2022/PN NIAGA MEDAN)

<p>Debt is a liability that arises through an agreement made between a debtor and a creditor. Debt is used as a basis for bankruptcy or for submitting a delay in payment of the debtor's debt. Summary Proof of Bankruptcy and Postponement of Debt Payment Obligations (PKPU) has actually been regulated in Article 8 paragraph (4) of Law Number 37 of 2004 and strengthened by Supreme Court Decision (MA) No.109/KMA/SK/IV/2020 concerning "Enforcement of the Handbook for Settlement of Bankruptcy Cases and PKPU". Summary Proof can be a reference for the Panel of Judges in granting PKPU applications by debtors or creditors to the Commercial Court. The PKPU application submitted through Decision Number 7/Pdt.Sus-PKPU/2022/PN Niaga was rejected by the Panel of Judges because the Panel of Judges considered that the non-fulfillment of the 'simple debt' requirement that had to be fulfilled was one of the burdens of proof in the application for PKPU.</p>

The Position of the Supreme Court of the Russian Federation on the Issue of Including Intra-Group Debt in the Register of Creditors’ Claims Through the Conclusion of Suretyship Agreements

The article considers the approach of the Supreme Court of the Russian Federation to the unlawful circumvention of the order of satisfaction of creditors’ claims by a controlling person in order to increase the order of satisfaction of their claims, as well as subsequently establishing control over bankruptcy.The Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation noted that when evaluating a security transaction for validity and, accordingly, economic feasibility in its conclusion, the courts had to proceed from the fact that, as a general rule, in case of an intra-group loan, money remains under the control of a group of persons, due to which, with from the point of view of normal civil turnover, there is no need to use mechanisms that additionally guarantee the return of funding. In the conditions of affiliation of the lender, borrower and guarantor with each other, in a bankruptcy case, these persons are obliged to disclose reasonable economic motives for making a security transaction, in particular, issuing a surety.

What can be learnt from failures in the sports media business? A case study of the Mediapro crash in football media rights in France

ABSTRACT Several bankruptcies have occurred in sports media related to overinvestment in football. This research aims to contribute to the extension of the literature on such failures through a further study of business models. This article consists of a case study about Mediapro’s arrival in the French sports broadcasting rights market and its rapid downfall. The theoretical framework is based on the concepts of winner’s curse and business model, and a detailed review of cases of bankruptcy in sports media. The results of this study demonstrate that the winner’s curse is not only the result of the auction process but also the consequence of an unsustainable business model.

Legal regime of non-monetaty claims against the debtor arising from contracts concluded before the initiation of bankruptcy proceedings

The successful development of the economy of the Russian Federation implies the stability of civil turnover, proper fulfillment by counterparties of their obligations. The rupture of economic chains leads to an avalanchelike bankruptcy of economic entities, deterioration of the investment climate in the country. The article analyzes the issue of the possibility of a legal entity (debtor), in respect of which a bankruptcy case has been initiated, fulfilling property (non-monetary) obligations in favor of counterparties under contracts concluded before the initiation of bankruptcy proceedings against the debtor. Such execution may create preferential satisfaction of the claims of individual creditors over others with whom there are also contracts not executed by the debtor. Justified that property grants from the debtor can meet the goals of restoring the debtor’s solvency, replenishing the bankruptcy estate in the interests of all creditors, and therefore creditors’ claims for the performance of property obligations in kind should be subject to judicial protection and enforcement throughout the period of the insolvent debtor’s economic activity.

Biting the Bullet: A Bipartisan Solution to Increase Debtors' Access to Chapter 7 Relief While Exempting Firearms in a Bankruptcy Case

Biting the Bullet: A Bipartisan Solution to Increase Debtors' Access to Chapter 7 Relief While Exempting Firearms in a Bankruptcy Case