Bankruptcy Law Research Articles

Tanggung Jawab Kurator Dalam Perkara Kepailitan Berdasarkan Prinsip Independensi

The curator must be independent and not have a conflict of interest because the curator has such great authority over bankruptcy assets. The research used in this research is normative legal research. This is because researchers use library materials as data to analyze cases in the preparation of this study. provisions regarding the principle of independence are emphasized in the Code of Ethics of the Indonesian Curator and Administrator Association (AKPI) which states that in every appointment received, members of the Indonesian Curator and Administrator Association (hereinafter referred to as "members") must be independent and free from anyone's influence. Independence in bankruptcy law can be interpreted that the curator may not and cannot be intervened by anything, either by debtors, creditors, or other individuals within the bankruptcy institution or outside the bankruptcy institution. Independent also reflects the integrity of a curator which contains values including having a noble character, being trustworthy in carrying out his position, being able to act wisely and prudently in dealing with a plural reality between the interests of debtors and creditors, being consistent between his words and the responsibilities he carries, obeying the values and Norms, both written and unwritten, and no less important, are always oriented to the best interests of the bankruptcy estate.

Tinjauan Yuridis Ditolaknya Pernyataan Pailit Atas Dasar Perlakuan Yang Sama Pada Anak Perusahaan BUMN

BUMN in carrying out restructuring carry out the principle of holding companies in maximizing capital. The legal relationship established in the application of the holding company principle between the parent company and its subsidiaries is caused by the takeover of shares by the parent company. BUMN subsidiaries are treated the same as BUMN by fulfilling several conditions as specified in Article 2A paragraph (7) of PP RI Number 72 of 2016. This research is focused on analyzing and analyzing problems related to the legal status of BUMN subsidiaries according to Indonesian law, legal provisions regarding the legal relationship of BUMN holding companies to BUMN subsidiaries filed for bankruptcy, and analysis of the rejection of bankruptcy applications based on equal treatment of BUMN subsidiaries in Decision Number 35/Pdt.Sus-Pailit/2021/PN. Niaga.Jkt.Pst. The research method used is a normative research method that is descriptive. Data sources were obtained through primary, secondary, and tertiary legal materials. The data collection technique used is a literature study. This normative research is based on qualitative analysis of secondary data in the form of laws and regulations and library materials. To prevent various interpretations regarding the limitation of bankruptcy application authority for BUMN subsidiaries engaged in the public interest sector, it is necessary to have clear arrangements. Currently, the Bankruptcy Law has not explicitly regulated the authority to apply for bankruptcy, especially for state-owned companies that adopt a holding system, so it is necessary to make changes or additions to the regulations. In Decision Number 35/Pdt.Sus-Bankruptcy/2021/PN.Niaga.Jkt.Pst the judge did not consider the aspect of share ownership of the bankruptcy respondent and its source of capital that must be owned entirely by the state against BUMN subsidiaries that are treated the same as BUMN engaged in the public interest when referring to Article 2 paragraph (5) of UU KPKPU.

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.

The Position of Creditors of Individual Collateral Holders In Insolvency Law

This researcher aims to find out about the rights of creditors of individual collateral holders in the norms of Law No. 37 of 2004 on Insolvency and Delay of Debt Payment Obligations. The researcher's method uses norrmative law with a statutory problem approach and a conceptual approach. Broadly speaking, the position of individual guarantees in the norms of the Bankruptcy Law if the insurer and debtor are declared bankrupt simultaneously, then it is a concurrent creditor and all the assets of the insurer as bankruptcy property. In the process of managing and releasing bankruptcy property, that the position of concurrent creditors in the process of division of bankruptcy property is at the bottom, because in principle it can but if the creditors are many while the property is few, then potentially do not get the share or even if it can be very small percentage. So that the position of creditors of individual collateral holders who are concurrent creditors is very weak in the process and distribution of bankruptcy property. When the debtor is declared bankrupt while the insurer is not declared bankrupt, then all the assets of the insurer do not include bankruptcy property. So creditors have the right to make a default lawsuit in accordance with Article 1243 kuhper to the insurer, if the process and enactment of the debtor's bankruptcy property is insufficient creditor debt. The mechanism of fulfilling achievements to individual guarantee holder creditors, namely creditors can execute the collateral object directly without having to apply for bail and execution to the court, because after the bail object is registered with the guarantee institution, the certificate will be issued as a guarantee that has executory power.

The Impacts of Bankruptcy and Judicial Recovery Law Reform on the Liability of Managers of Companies under Judicial Recovery

The responsibility of partners and administrators for the company’s obligations in the context of Judicial Recovery and Bankruptcy has gained specific contours following the promulgation of Law No. 14,112/2020, which amended Law No. 11,101/2005 (the Recovery and Bankruptcy Law). Through bibliographic and qualitative research, this article aims to evaluate, from the perspective of fiduciary duties, the limits of administrators’ responsibility regarding the company’s obligations in recovery, through an analysis of the changes introduced by Law No. 14,112/2020 and their effects. Therefore, it is understood that mere non-compliance or any “bad decision” will not impose liability on administrators. It is essential for there to be a breach of fiduciary duties of diligence, loyalty, and information to trigger the accountability action or the incident of disregarding the legal personality, always in an exceptional manner, prioritizing the independence of the company’s management and excluding the previously applicable jurisprudential application.

Insolvency and Bankruptcy Based on Islamic Principles Within China – An Data-Driven Analysis and Framework

Objective: The objective of the article is to provide a solid outline how Islamic bankruptcy principles can be integrated into the Chinese legal system. Islamic bankruptcy law and Islamic finance have taken on a growing role in modern economies, with several governments aiming to align the economic system with Islamic principles in addition to solving some of the shortcomings of existing financial regulations related to bankruptcies. China has, within the last 40 years, become a major economy with significant development of its legal system. Theoretical framework: For the theoretical framework we utilized a comparative legal analysis framework for the integration, given that Islam emphasizes the importance that there should be no distinction between balance sheet insolvency and cashflow insolvency, as well as the importance of personal responsibility for the debts incurred. Method: For the method, we deployed a comparative analysis of the Islamic and Chinese bankruptcy legal framework. Results and conclusion: The article has presented a solid outline of the Islamic and Chinese bankruptcy laws and how Islamic principles can be integrated into the Chinese legal system. The arising system in the form of either a separate legal system or one integrating these principles into the existing bankruptcy regulations can significantly strengthen debtor responsibility and recovery rates, as well as encourage fairer business practices. Implications of the research: The research provides some critical insights into how Islamic Finance may be adjusted to support and reduce bankruptcy within China, outlining the major benefits of Islamic finance in strengthening the financial system. Originality/value: The article provides a unique outline of Islamic and Chinese bankruptcy laws and how Islamic principles may be integrated into the Chinese legal system.

Principles of Statutory Duty and Fiduciary Duty in The Responsibility of The Bankruptcy Curator

AbstractThe curator is a subject of Bankruptcy Law who has complete authority and responsibility for managing and resolving the bankruptcy estate. Curators are required to have integrity and are prohibited from having conflicts of interest with their duties and authorities. The issue raised in this study is the application of the principles of statutory duty and fiduciary duty in the responsibility of the bankruptcy curator. This study aims to identify, understand, and analyze bankruptcy law regarding the curator’s responsibility based on the principles of statutory duty and fiduciary duty. This study employed a normative method by examining the consideration materials to conclude. The results of the analysis in this study indicate that in carrying out the duties of managing and settling, the curator must comply with the principles of statutory duty and fiduciary duty as regulated in Law Number 37 of 2004 on Bankruptcy and Postponement of Debt Payment Obligations and the code of ethics of the curator profession. The curator’s actions that can harm the parties, whether creditors or bankrupt debtors, can be personally accounted for outside the bankruptcy estate by imposing civil, criminal, or administrative sanctions. Keywords: Halal Tourist; Additional Service; Local Economy.

Assessment of formal proceedings and out-of-court reorganisation: results from a survey among turnaround professionals in Austria

This study analyses the decision criteria for a specific form of reorganisation in a creditor-friendly bankruptcy system such as that of Austria. From a neoinstitutional perspective, we present different forms of bankruptcy law and the specifics of reorganisation in Austria. Next, we show several distinctive criteria and influencing factors for formal reorganisation and workouts. We group these factors into constitutions and institutional settings, process and handling, and implementation of the reorganisation. Using a sample of 411 survey responses from turnaround professionals, our empirical study analyses the decision criteria for a specific form of reorganisation. We apply a multivariate approach comprising two-sided paired samples Wilcoxon tests to assess the derived hypotheses and a hierarchical cluster analysis. Our results indicate significant differences in the valuation of the two forms: the turnaround professionals rate public perception much higher for out-of-court reorganisation, whereas legal certainty is rated significantly better for formal proceedings. Regarding process and handling, transparency and the handling of blocking positions are arguments for formal reorganisation, whereas flexibility is valuated better for workouts. In terms of implementation, respondents see advantages for out-of-court reorganisation, as it facilitates the implementation of both financial and operational measures. Taxation, the handling of blocking positions, and the improvement of public perception were identified as key development aspects for the legal framework conditions of the various reorganisation forms.

PERDAMAIAN YANG TERCAPAI DALAM KEPAILITAN YANG BERASAL DARI PENUNDAAN KEWAJIBAN PEMBAYARAN UTANG (PKPU) (Studi Putusan No. 59/Pdt.Sus-PKPU/2019/PN.Niaga.Sby)

Law No. 37 of 2004 concerning Bankruptcy and Postponement of Debt Payment Obligations (PKPU) only prohibits debtors from submitting a reconciliation plan if declared bankrupt based on Article 285, Article 286 and Article 292. This research seeks to answer legal issues regarding the legal position of debtors and creditors in bankruptcy after the plan has been rejected. peace in the PKPU process. To answer the research problem, this study uses a type of normative legal research with a statutory approach, a conceptual approach, and a case approach in the form of a Surabaya Commercial Court decision which has permanent legal force. The data used are secondary data in the form of primary, secondary and tertiary materials, obtained through library research or document studies. The results of this study indicate that debtors and creditors can still reach peace even though the Commercial Court has declared the debtor in a state of bankruptcy originating from PKPU. The legal considerations of the panel of judges in ratifying the reconciliation of PT Anugrah Kembang Sawit Sejahtera in bankruptcy originating from PKPU as stated in Decision No. 59/Pdt.Sus-PKPU/2019/PN.Niaga.Sby at the Commercial Court at the Surabaya District Court is the result of voting for a bankruptcy debtor's settlement proposal that has been approved by the creditor in accordance with the provisions of Article 151 of the Bankruptcy Law and PKPU which is then set forth in a peace agreement. In addition, the Court did not find any reasons for refusing to ratify the settlement in accordance with Article 159 paragraph (2) of Law No. 37 of 2004 concerning Bankruptcy and Suspension of Obligations for Payment of Debt, the court is obliged to give a decision regarding the ratification of the settlement.

Особенности оспаривания сделок в процедуре банкротства

The article reviews the issues of the transaction invalidity institution based on special rules and on broader grounds stipulated by the Bankruptcy Law. The author studies the correlation between the concept of a transaction under the bankruptcy laws and the concept established by the general rules on transactions stipulated by the Civil Code of the Russian Federation.

Legislative framework for public–private partnerships in the Sultanate of Oman

An effective regulatory framework is essential to attract international investment in infrastructure development and public services through public–private partnerships (PPPs). A transparent and predictable regulatory environment makes PPPs work in the long term, as this enables private sector participants to manage long-term risks in the most effective and efficient way. The legal framework for PPPs in Oman consists of four key pieces of legislation. The Foreign Capital Investment Law (Royal Decree 50/2019) outlines the procedures for application of an investment project licence and provides for investment incentives and guarantees to international investors. The Law of Privatization (Royal Decree 51/2019) provides a transparent framework for awarding of privatisation contracts. The Public Private Partnership Law (Royal Decree 52/2019) outlines the procedures for tendering and award of PPP projects and the essential elements of PPP contracts. The Bankruptcy Law in Oman (Royal Decree 53/2019) updates the law on corporate distress and introduces the concepts of corporate restructuring, preventative composition and bankruptcy-filing procedures. These four royal decrees are evaluated in this paper. The royal decrees promulgated in succession by the Sultanate of Oman bring privatisation and PPP policy in line with international best practice and constitute a central component of the nation’s strategy and supply side reforms to diversify the economy.

Reconstructing the Debt Restructuring Mechanism in the Indonesian Law on Bankruptcy and Suspension of Debt Payment Obligations

The purpose of the Suspension of Debt Payment Obligations (SDPO) is to prevent a debtor who is in trouble for whatever reason, lacks money, or finds it difficult to obtain credit, from being declared bankrupt. The current Indonesian Bankruptcy Law lacks a debt restructuring mechanism. There need to be improvements to ensure quality, transparency of objectivity and implementation mechanisms, honesty and legal certainty. This study aims to reconstruct the debt restructuring mechanism through the SDPO in the Indonesian Bankruptcy Law to provide legal certainty and benefit for all parties. This research has an Indonesian national scope. This is normative legal research that applies the statute and comparative approaches. Results show that Law Number 37 of 2004 still does not provide a legal framework for an effective corporate reorganization or debt restructuring. This law should be a system created to prepare agreements between creditors and debtors to negotiate based on an analysis of future events. Debtors often fail to postpone their obligation to pay debts not because the debtor did not submit a reconciliation plan, but because an agreement was not reached in the reconciliation process. As Law Number 37 of 2004 does not regulate the form of debt restructuring and company reorganization (including the payment process, payment period, and interest rate reduction) to save the debtor’s company, it is still difficult for the debtor’s company to pay off its debts.

كلمة العدد (الإنجليزي)

Undoubtedly, the International Journal of Law's achievements affected the development of legal knowledge among all those interested in law. Accordingly, the journal aims to select authentic legal research characterized by strong structure, in-depth ideas, and smooth expression of thought to reach a wide audience. This new issue of the International Journal of Law includes a number of articles written by researchers who rely on the Journal as an open scientific platform through which they can reach the greatest number of readers. The issue includes the following research papers: 1. “The Employee’s Post-employment Non-compete Covenant: Analytical and Comparative Study from the Perspective of Qatari Law” by Dr. Nader Mohamed Ibrahim. 2. “Justice in a Time of Health Crisis: A Comparative Study” by Dr. Abderraouf Elloumi. 3. “The Legal Provisions of the Garnishee in an Attachment for a Debtor to a Third Party: A Comparative Analytical Study between French, Kuwaiti and Qatari Law” by Dr. Yousef Alyaqout. 4. “Financial Restructuring of Distressed Businesses Under the New Kuwaiti Bankruptcy Law No. 71 of 2020: A Comparative and Critical Study” by Dr. Fahad Neamah Alshammari and Dr. Abdulwahab Abdullatif Sadeq. 5. “The Role of Governance and Anti-corruption Structures in Public Shareholding Companies Privately Owned in accordance with Qatari Law” by Dr. Jamel Baccar. 6. “Procedural Effects of Mediation in Qatari Law: A Comparative Analytical Study in the Qatari Mediation Law No. 20 of 2021” by Dr. Mohammed Ammar Torkmanie Ghazal and Dr. Imad Qaminassi. 7. “Crimes of Electronic Defamation, Libel, and Slander under Jordanian Cybercrimes Law” by Dr. Muath Al-Zoubi (in English). 8. “Technical and Legal Framework of Initial Coin Offerings” by Dr. Haïssam Fadlallah (in English). 9. “ Le cadre juridique de la société par actions simplifiée dans la législation marocaine ” by Dr. Rachid Attahir (in French). The Editorial Committee thanks all contributors to this issue, hoping that the readers find it as the best source of legal knowledge, and that researchers are further incentivized to write legal research.

Financial Restructuring of Distressed Businesses under the New Kuwaiti Bankruptcy Law No. 71 of 2020- A Comparative and Critical Study

تكمن أهمية الدراسة والهدف منها في تناول أساس الإشكاليات القانونية لتنظيم إعادة الهيكلة وفق قانون الإفلاس الكويتي الجديد رقم 71 لسنة 2020، وتطوير القواعد الحاكمة لإعادة الهيكلة وفق هذا القانون. فعلى الرغم من حرص المُشرِّع الكويتي على تنظيم قانون الإفلاس الجديد بفلسفةٍ جديدةٍ، ومتطورةٍ؛ متبنيًا مجموعةً من النظريات القانونية، والاقتصادية التي تركِّز على إعادة تنظيم أعمال المدين التاجر الذي يضطرب مركزه المالي، إلَّا أنَّ الإشكالية وفق هذا القانون تكمن في أن آلية إعادة الهيكلة فيه مقيدة بالعديد من الإجراءات الطويلة والقيود، التي تؤثر في ضمان توفير فرصة عادلة؛ لإعادة هيكلة المدين المتعثر ماليًا بآليةٍ تُراعي مصالحَ المدين، والدائنين بذات الوقت. ولتحقيق هذا الهدف، انتهجت الدراسة النهج التحليلي المقارن المتداخل مع الأحكام ذات الصلة الواردة في القوانين المقارنة كالقانون الأمريكي، والمصري، والإماراتي والسعودي. ولقد كشفت الدراسة أن تنظيمَ آليةِ إعادة الهيكلة وفق هذا القانون مقيدٌ بالعديد من الإجراءات الطويلة والقيود على المدين والدائنين ومحكمة الإفلاس، الأمر الذي سيعيق الاستفادة القصوى من إعادة الهيكلة وعدم تحقيق الأهداف الرئيسية المرجو منها؛ ألا وهو ضمان توفير فرصةٍ حقيقيةٍ لإعادة هيكلة نشاط المدين الذي يتعثر ماليًا. ولقد اختتمت الدراسة بمجموعة من النتائج، والتوصيات الى المُشرِّع الكويتي لإدخال عدة تعديلات على القانون رقم 71 لسنة 2020.

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.

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.

Perlindungan Hukum Kreditor Preferent Pada Perusahaan Asuransi Yang Pailit

Legal protection for policyholders, insured or insurance participants, in relation to insurance company bankruptcy, Indonesian positive law has actually provided a way out with several alternative options, namely based on the provisions of the Civil Code, the Bankruptcy Law, and the provisions of the Indonesian Civil Code. Law No.40 of 2014 stipulates explicitly that the rights of the policyholder/insured or insurance participant for the distribution of the assets of an insurance company bankrupt by court or liquidation have a higher (primary) position than the rights of other creditors. Article 52 paragraph (1) states “In the event that an insurance company, sharia insurance company, reinsurance company or sharia reinsurance company is bankrupt or liquidated, the rights of the policyholder, the insured or participants for the distribution of their assets have a higher position than the rights of other parties”. The meaning of this sentence is thar the policyholder has a position as a preferred creditor, namely a creditor whose position takes precedence over other creditors in the distribution of bankruptcy assets of an insurance company. In the distribution of bankruptcy assets, the policyholder has the right to demand priority payment of his rights in accordance with the previously agreed agreement.

Financial Reform and Public Good Provision: Municipal Bankruptcy Law and the Financing of Hospitals

Does financial reform improve public good provision? We examine state-level adoption of municipal bankruptcy law. After reform, municipalities’ borrowing costs decrease and bonds’ issuance increase, particularly for bonds financing hospitals; hospitals’ investments increase, particularly when using such bonds; local firms’ investment and performance increase, particularly in the construction sector. Ex ante, reform occurs earlier in states with weaker unions, stronger bondholders’ interests, and better courts. Similar factors explain congressional voting on municipal bankruptcy law. These results support the hypothesis that financial reform destroys labor union rents and expands investment, highlighting a novel spillover channel from public finance to the real economy. This paper was accepted by Victoria Ivashina, finance. Funding: This work was supported by the Baffi-CAREFIN Research Center at Bocconi. Supplemental Material: The data files and online appendix are available at https://doi.org/10.1287/mnsc.2023.4800 .

Bankruptcy Law's Knowns and Unknowns

In 1978, Congress created a new federal bankruptcy law that has since become a key part of the American capital markets. I examine how large companies and their investors contract to make bankruptcy more or less likely, how distressed firms negotiate with creditors outside of bankruptcy, and how companies plan for a Chapter 11 filing and navigate the bankruptcy system. I also survey the strategic moves, ranging from litigation to financing, that activist investors deploy to improve their bargaining power and earn higher returns. The American bankruptcy system is evolving constantly, and prevailing accounts of bankruptcy law quickly become stale, creating a constant need for new empirical research to establish a foundation for policy making.

Bankruptcy law and angel investors around the world

Bankruptcy law and angel investors around the world