Insolvent Debtor Research Articles

The concept of a fresh start in the discharge of debt procedure in European Union insolvency law

A fresh start is the essence of personal insolvency proceedings. In the last few decades, policymakers in the United States of America and European countries have focused on establishing effective and efficient insolvency proceedings which would address the particular needs of insolvent natural persons. Previously, personal insolvency proceedings aimed to address the social and economic problems of insolvent debtors (consumers) which were not able to meet their financial obligations in time. However, the latest developments in this area reveal that specific rules should be established in insolvency law to tackle the insolvency problems of individuals who incur most of their debts from economic activities (entrepreneurs’ insolvency). The adoption of the Directive on Restructuring and Insolvency is the first attempt in European Union law to counter the challenges of the insolvency of entrepreneurs. This article analyses the main elements of a fresh start in European Union insolvency law, how this phenomenon has evolved and whether the European Union insolvency law provides an effective fresh start for insolvent entrepreneurs.

The Forgotten History of Bankruptcy, 1543–1624

ABSTRACT This article examines the foundations of bankruptcy law in England. Rather than looking at the bankruptcy statutes that were aimed at fraudulent insolvent debtors, it analyses debt settlements of honest insolvent debtors awarded by the court of Chancery between 1543 and 1628. It shows that these agreements were not only aimed at relieving creditors, but also financially rehabilitated debtors if they had become insolvent for reasons beyond their own control. Most debt settlements in the period were awarded following a bill of conformity procedure, in which a minority of creditors could be forced to agree to a settlement. Up to 1621 it was standard practice for debt settlements to include financial rehabilitation. The Chancery ordered delay of payment, part and full discharges of debts or alternative payment plans. Political struggles and fraudulent practices in the early 1620s ended this highly pragmatic practice, which was only to be restored centuries later.

The Death of an Insolvent Entrepreneur in the Light of Bankruptcy Law Regulations

Abstract This study aims to identify and analyse the specific regulations of the Bankruptcy Law to the extent that they relate to the death of an insolvent debtor. The authors attempt to determine the correct interpretation de lege lata, and where it is justified, draw conclusions de lege ferenda. Due to the fact that regulations must be interpreted together with the provisions of inheritance law and other regulations, their correct interpretation may be difficult. This study contains an analysis of three possible cases: when death occurred after the filing of a bankruptcy petition, during the course of bankruptcy proceedings, but also on the brink of bankruptcy before the petition was filed by an authorized person. In the event of death after filing for bankruptcy or after its declaration, the problem is essentially of a procedural nature and is generally resolved by identifying the persons participating in the proceedings (usually a trustee). On the other hand, in the event of the death of an insolvent entrepreneur before they file for bankruptcy, the Bankruptcy Law provides for a separate procedure. At the same time, it seems that due to the distinctness of this situation, the introduction of a different, specific definition of insolvency is justified, which the authors present in this study.

Does the treatment of arrear maintenance claims of children under the Insolvency Act 24 of 1936 constitute a violation of their constitutionally protected rights to social welfare and human dignity? An exposition

The time and space for the reformation of the Insolvency Act 24 of 1936 has presented itself through the introduction of a constitutional order in 1996. However, the legislature has thus far proven to fail in its responsibility to align consumer insolvency legislation with the values and rights that are contained in the Constitution of the Republic of South Africa, 1996. The Constitution appreciates the vulnerability of children and thus affords special protection to the rights of children, including their rights to social welfare. It further guarantees children that their best interest reign supreme in every matter concerning them. The Constitution also guarantees children the right to human dignity, which right is also a value underlying South African constitutional jurisprudence. These constitutionally guaranteed rights of children to social welfare and human dignity do not enjoy protection under South African consumer insolvency law, particularly in the treatment of arrear maintenance claims of children against the estate of an insolvent debtor. Children's maintenance arrear claims do not enjoy any preference as they are treated as concurrent claims. This also burdens them with the liability to contribute towards the costs of sequestration if they have successfully proven claims and where there are insufficient funds in the free residue account. Children's maintenance arrear debts are not exempt from the discharge of pre-sequestration debt under South African consumer insolvency jurisprudence. The overall approach to the treatment of children's arrear maintenance claims compromises the rights of children to social welfare and human dignity as guaranteed in the Constitution.

Legal Protection of Intellectual Property of Insolvent Debtors in Bankruptcy Perspective


 
 
 
 Intellectual Property can be certain patents, copyright, trademarks, industrial designs, trade secrets, and other rights that are part of the origin of the intellectual property regime. These certain intellectual property rights may be the primary asset that the debtor possesses or at least something of value. In addition, the Law No. 37 of 2004 on Insolvency and the PKPU does not specify in detail whether the property of the property is property of a thing or the right of an entity, because the law only regulates the property that is excluded or the property which is not able to be paid. The curator who wants to administer and manage the property of the bankrupt does not exist like the right has always had difficulties in evaluating the property.
 
 
 

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.

La sanzione a carico del debitore insolvente nel diritto etrusco

The sanction against the insolvent debtor in Etruscan law – In Etruscan society, according to a historiographical trend that begins with Aristotle, there was a law that punished the insolvent debtor with public redicule exposure. This punishment, apparently not incisive, to be understood needs to be correlated with the Etruscan legislation on perjury, preserved by Maurus Servius Honoratus, and with many other Roman, Greek and the laws of other ancient peoples. I will highlight the Dionysian aspect of the norm and the link with the poena cullei of archaic Roman law. So, the aim of this paper is to reconstruct the Etruscan legislation in debt matters, to the limited extent possible due to the gaps in the sources.

Juridical Analysis of Debt Settlement Through Bankruptcy (Study of Decision 24/Pdt.Sus-Bankrupt/2019/PN Niaga Sby)

Every bankruptcy has legal consequences for both the debtor and the creditor, one of which is the ability to represent the bankrupt debtor in property law matters. As a result, the authority of the debtor is very limited. Therefore, the debtor remains liable for outstanding debts in the event of bankruptcy, and the creditor must use all reasonable efforts to collect outstanding debts. Regarding debt settlement through bankruptcy (Decision of the Surabaya District Court Case PT. Sinar Pembangunan Abadi) to find out the basis for the considerations of the Panel of Judges in case number: 24/Pdt.Sus-Pailit/2019. This case was originally with the bankruptcy respondent having debts to the bankruptcy applicants that were due and could be collected for severance/compensation payments. This study uses the method of literature review. This type of research data is secondary data. The normative approach to analyzing juridical legal analysis is to resolve issues related to debt settlement difficulties in the consideration that the Commercial Court at the Surabaya District Court has stated that it is proven that it has not fulfilled the legal or debt obligations mentioned above, then the legal consequences (legal consequences) of the bankruptcy respondent can be declared negligent law (ingebreke stelling) can be declared negligent or default on their obligations (counter-performance) in accordance with the provisions of Article 1238 of the Civil Code.

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.

LEGAL PROTECTION OF THE AUTHORITY OF THE CURATOR IN THE MANAGEMENT AND SETTLEMENT OF BANKRUPT ASSETS

This writing aims to determine the legal protection for the curator in exercising the authority to manage and settle bankrupt assets as well as the duties and authority of the curator in managing and controlling the bankrupt debtor's assets. This paper uses the normative juridical law research method by conducting a study and analysing laws and regulations related to the problem under study so that the results of the research above in the provisions of Law Number 37 of 2004 concerning Bankruptcy and Suspension of Obligations for Payment of Debt do not guarantee legal protection for curators in carrying out their duties of managing and dealing with bankruptcy assets. Article 50 of the Criminal Code provides protection for curators who carry out their duties based on statutory regulations.

How Canadian seniors make decision about insolvency?

This paper analyzes the growing insolvency phenomenon among Canadian seniors. It aims at situating the rise of insolvencies among seniors in the context of the demographic transition to understand the cause of their indebtedness. Furthermore, it feeds the scientific voice in the current debate to explain the rise of insolvencies among seniors. Our study is based on data of 1,285,000 insolvent debtors collected by the Canadian Office of the Superintendent of Bankruptcy (OSB) from 2008 to 2018. We observed that the rise in the share of insolvencies filed by seniors is consistent with the progression of their share in the total population. Therefore, the relative increase observe in seniors' insolvencies is attributable to their growing share in the total population, and not necessarily to an increase in seniors' insolvencies. Given the aging of the Canadian population and its impact on the labour market, policy makers should adjust the insolvency system to be more responsive to seniors’ needs and align with other public policies.

Evaluation of Reliability Parameters of a Cement Manufacturing Plant by using Supplementary Variable Technique

In particular, Article 40 of Law Number 37 of 2004 concerning Bankruptcy and PKPU regulates that the curator may not take an inheritance during bankruptcy that descends to the bankrupt debtor unless it benefits the bankrupt assets. This piece specifically warns the curator not to become a bankrupt banker by being cautious when collecting the debtor's assets. In reality, it is not unusual for the debtor's heirs to decline to provide security for the seizure of the deceased debtor's assets to be used as collateral for repayment of the debt by the creditor. This refusal increases the weight of losses on unresolved/unsettled receivables for creditors as a result of the debtor's passing. Naturally, this raises issues with the legal elements of warranties and contract law. There are rights and responsibilities that cannot be resolved, and it is still unclear how the heirs of a deceased debtor who still owes money to creditors will be treated. The emphasis of this study is on the distinction between the bankruptcy-related positions of the debtor who receives an inheritance (the debtor) and the debtor who inherits it. The mechanism for listing debtor's assets as bankruptcy assets is the second study's main focus. Keywords: Line Balancing, Moodie Young, Line Efficiency, Balance Delay, Smooth Index

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.

HIERARCHY OF THE DISTRIBUTION OF BANKRUPTCY PROPERTY IN SYNDICATED LOAN FACILITY AGREEMENT FOR THE BANKRUPT DEBTOR

The position of individual creditors over the collateral in syndicated loan is represented by security agent as the recipient of collateral and the holder of material collateral. It is the legal consequence of agency relation as regulated in Syndicated Loan Facility Agreement. Therefore, the security agent in this syndicated loan, for the sake of law, serves as preference creditor to other syndication participation. This research aims to answer the problems related to the implementation of pari passu pro rata parte principles in determining the hierarchy of creditor in syndicated loan facility agreement to the bankrupt debtor. Firstly, it is intended to find out the position of individual creditors to the collateral in syndicated loan in bankruptcy position and secondly, it is intended to the hierarchy of bankruptcy property payment to the debtor of syndicated loan in bankruptcy position. The research method employed in this research was a normative research. It used juridical normative research type aiming to find the truth based on the legal science logic from its normative side. Data source used in this research was secondary data including laws, court verdicts, books, journals, articles, materials from internet, and dictionaries.

Financial recovery as a means of restoring solvency of bankrupt debtor: special provisions in Russian civil law

The relevance of this study is due to the uncertainty and high degree of turbulence of economic processes in the country and, therefore, the growing number of insolvent business entities. At the same time, in the case of bankruptcy procedures applied to debtors, one of the most optimal for both the debtor and his creditors is the procedure of financial rehabilitation, the purpose of which is to restore the solvency and effective economic activity of the debtor. The key figure in the financial recovery procedure is the administrative manager, whose purposeful implementation of recovery measures in relation to the debtor’s property and debts will allow the latter to continue carrying out business activities in full and with profit, as well as with the payment of mandatory payments to the state budget – taxes, fees, excise duties. However, this procedure is the least popular among administrative managers and creditors of the debtor, since it is the only provision in the Law “On Insolvency (Bankruptcy)” that provides for the preservation of the authority for the debtor’s management bodies and their relative independence from the administrative managers and creditors when making decisions on material issues of debtor’s activities. The authors consider it necessary to increase the applicability of financial rehabilitation in relation to other bankruptcy procedures.

Foreclosure on the sole residential premises of an insolvent debtor: problems and prospects

Foreclosure on the sole residential premises of an insolvent debtor: problems and prospects

Problems of proving subjective signs of bad faith in case of contesting suspicious transactions of an insolvent debtor

Problems of proving subjective signs of bad faith in case of contesting suspicious transactions of an insolvent debtor

Development and Challenges of Using Trademark Rights as Intangible Assets in Bankruptcy Assets in Indonesia

Intellectual property rights in the form of trademarks rights are company assets that have economic value. In its development, trademark rights can become part of the debtor’s bankruptcy estate in a bankruptcy. However, in its implementation there are challenges in the use of trademark rights as bankrupt assets in order to pay off the debts of the bankrupt debtor. This study aims to determine the development of the use of trademark rights as bankrupt assets and analyze the challenges of trademarks execution as assets of bankrupt debtors. This research is a normative legal research using a statutory approach and a conceptual approach. The results showed that a trademark as a type of object, related to the bankruptcy process, is a type of object that can be used as part of assets in the process of paying debts to creditors, because intangible assets that have economic value and trademark rights can be transferred handing over their rights to other parties is part of the bankruptcy estate. The challenges faced in the use of trademark rights as bankrupt assets are related to trademark valuation, protection status and the validity period of trademark protection, as well as related to disputes over trademarks with third parties.

Failliet in de Republiek

Between 1643 and 1713, many cities in the economic core areas of the Dutch Republic introduced local ordinances concerning desolate boedels, insolvent estates. This article compares the contents of a substantial number of such ordinances and explains these legal innovations as part of broader patterns of institutional change. The introduction of majority compositions in this period substantially improved the chances for economic recovery of insolvent debtors. It also formed a violation of the creditors’ property rights. This article shows how this was compensated for by a much improved and stricter supervision of insolvency procedures and curators by local authorities. It is argued that these legal and institutional developments should be seen as part of an important shift in public mentalities: local authorities all over the early modern Dutch Republic sought to maintain public order and protect the common good by regulating ever more aspects of society.

Implications of Bankruptcy of Married Debtors on Authority and Asset Status in Marriage

Background: Individual debtor bankruptcy will be an interesting problem if the individual debtor is bound in a legal marriage. Of course, there will be certain legal consequences for the husband or wife of the bankrupt debtor
 
 Objective: The purpose of this study is to determine the legal consequences of bankruptcy on the authority of debtors who are bound by marriage and their partners and the legal consequences of assets in marriage.
 
 Methods: The research method used is a normative legal research method, which is prescriptive in nature. The analytical method used in this study is a qualitative analysis in order to answer the problems studied.
 
 Results: The results of the study show that firstly, the consequences of bankruptcy can affect the authority of the debtor couple, if the husband or wife of the debtor who is declared bankrupt does not make a marriage agreement for the separation of assets, then to represent him a Curator is appointed. Second: the legal consequences of bankruptcy on assets are influenced by the presence or absence of a marriage agreement and the purpose of the use of debt, whether for the personal interest of the debtor or the common interest will determine the status of the assets in the marriage as bankrupt assets, which will be used to pay the debtors' debts. bankruptcy against its creditors.