Non-Declaration of Insolvency by the Manager of a Trade Company as Grounds for Criminal Liability – Practical Problems (original) (raw)
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European Business Organization Law Review
Little has been achieved at the EU level and internationally to harmonise the various approaches taken by national laws regarding the nature and extent of directors' obligations in the vicinity of insolvency. The first steps towards harmonisation can be seen in the Restructuring Directive, which aims to provide initial guidance on the duties of directors where there is a likelihood of insolvency. Lithuania is one of the countries which has most recently implemented a comprehensive insolvency reform, trying to better conform to the modern realities of business and promote the corporate rescue paradigm through the national legal regime. The new Law on Insolvency of Legal Persons introduced a range of changes that directly and indirectly impact the director's civil liability approach. The aim of this paper is to provide comprehensive insights from a comparative perspective on the Lithuanian approach to the regime of a director's civil liability in the vicinity of insolvency through an analysis of the conditions and sources of such liability in the context of the new legal regime of insolvency. The paper discusses the general features and doctrine of the legal regime regarding a director's civil liability in Lithuania. Secondly, it sets out the types of insolvency-related duties of directors, analyses the current state of harmonisation at the EU level in that regard, and then discusses the Lithuanian approach. Finally, it determines the main factors influencing the future of the legal regime of a director's liability, including the reactions of the legislators to the COVID-19 outbreak.
The liability for banks insolvency
CKS–eBook 2010, proceedings of Challenges of the Knowledge Society 2010 4th Edition, pp.596-618,, 2010
The bank's insolvency is also interesting from the aspect of the persons liable for such a situation. Following the path of the liability for the bank's insolvency, the regulation of bank's insolvency procedure is consistent with the principle of sanctioning not the debtor, but the persons involved in the management and control of the bank if such persons have contributed to the insolvency of the bank, by any of the actions limitedly provided under the law. This analysis deals with special aspects of the action for damages caused by the banks' insolvency from the perspective of the particularities significantly differentiating it from the action for damages formulated against the members of the managing boards / steering boards or any other persons causing the insolvency of commercial companies, as provided under the general regulation of insolvency.
Acta Universitatis Carolinae. Iuridica, 2020
This article deals with the legal regulation governing the ascertaining of applicable law under the Insolvency Regulation while focusing on the provisions of Articles 3 and 7 and classifying this legal regulation from the perspective of private international law. The part dedicated to the provisions of Article 3 as a norm of international insolvency law introduces the concept of COMI-a basis to determine the jurisdiction of the court that should commence insolvency proceedings. Furthermore, the essential case-law of the CJEU and Czech courts addressing COMI is presented. Regarding Article 7, an opinion is expressed that the legal regulation contained in Article 7 constitutes a conflict-of-laws rule for which the applicable law is determined by the location of the court that opened the given insolvency proceedings. At this point, a fundamental connection is seen between the legal regulation contained in Articles 7 and Article 3. In addition, an opinion is expressed that the legal regulation contained in the Insolvency Regulation leads to the unity of international court jurisdiction and the determination of applicable law, which can be seen as the current trend in European private international law.
Corporate Insolvency Proceedings: A Case of Visegrad Four
Acta Universitatis Agriculturae et Silviculturae Mendelianae Brunensis, 2016
Insolvency proceeding and liquidation of bankrupt companies are important topics in days of economic slowdown which affected all economies after financial crisis. This paper aims to find main differences between insolvency proceedings in the countries of Visegrad four. The main goal is to describe insolvency law in member countries and then to compare it from the poin of view of main actors. This comparison can help to find which changes and ideas could be applied to improve and make more effective the Czech insolvency system. The countries of Visegrad four was selected because of their common history and similar economic development. First of all, the legal background of insolvency proceedings which is possible for legal entities in these countries is examined. Then this paper deals with insolvency proceedings from the point of view of their participants – creditors, debtors and insolvency administrator. We have found that insolvency proceedings in these countries are very similar ...
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The article provides a critical analysis of bankruptcy prevention procedures in the context of interactions between the principle of self-regulation (interaction between free legal will of creditors and the debtor) and the principle "cross-class cram-down" (the right of a court to prevail over the principle of self-regulation). The judicial authority, within the framework of European preventive restructuring law, has the absolute right to discretionally decide on any issue if it is approved by the debtor (freedom of entrepreneurial activity is guaranteed to every solvent debtor). Interference in the business of the solvent and insolvent debtor by judicial authority is not allowed in any other procedures including traditional insolvency court procedures (the majority of creditors are empowered to make decisions). In all legal orders, the traditional insolvency court procedures prioritize the principle of "majority of creditors" to the principle of self-regulation in contrast to European preventive restructuring procedures, where the principle of self-regulation dominates. Therefore, European preventive restructuring cannot be unambiguously attributed to either a civil law legal nature or a bankruptcy law legal nature. In Russia pre-insolvency procedures represent only the civil law legal nature during all procedure. The author introduces new pre-bankruptcy terms: "normative legal collectivity"-mandatory distribution of consequences to all parties, "actual collectivity"-the voluntary consent of all creditors in a particular case and "regulatory actual collectivity"-the requirements for voluntary consent of all creditors. The final result of the European preventive restructuring procedure is unknown until the very end (the same for traditional insolvency court procedures), while according to Art. 31 of the Bankruptcy Law Act of the Russian Federation, the result is fully known from the beginning where it works according to the principle: "either everything and immediately, or nothing".
V. 16, n. 03, 2023
This paper analyzes the processes of dissemination of ideas, institutional transplantation, and monitoring of European legal models that influenced Ibero-American—particularly Argentine— Commercial Law and, specifically, Insolvency Law during the XIX and the XX centuries. The fundamental thesis of the author states the relevance and scientific legitimacy of the so-called broad thesis on the "State of Cessation of Payments" (or “State of Default” / “Bankruptcy Status”) and its legal consequences. Throughout this study, these consequences derived from this broad theory— which are part of the principles applicable to this doctrine of the “State of Default”—have been highlighted to correctly interpret the legal texts de lege lata and de lege ferenda for Argentina, other Latin-American and European jurisdictions. The working method consisted of a qualitative analysis of the legal sources of comparative doctrine, legislation, and jurisprudence - European and American - on the concept of insolvency and its founding theories. The results consist of the correct definition of the so-called "State of Cessation of Payments" or also "Insolvency", from the legal point of view and therefore the formulation of interpretations de lege lata in accordance with this concept, as well as future texts de lege ferenda.
INSOLVENCY IN THE CONTEXT OF THE PRESENT FINANCIAL CRISES – A COMPARATIVE ANALYSES
2009
This paper presents the current trends in the view of various national states and their impact on the application of collective insolvency proceedings, also called bankruptcy procedure in common language, by analysing their main pieces of legal regulation, extremely useful both for specialists as well as for creditors and debtors.
Certain Considerations Regarding Risk Management in Insolvency Proceedings
2017
In this article I have tried to analyze the manner in which risk management, as a branch of organizational management, can be applied in insolvency proceedings. In order to reach this general objective, I have structured a few specific objectives: the identification of the type activities in insolvency proceedings and the identification of the risk generating sub-activities; the drafting of a matrix for risk ranking; identification of the elements of the risk management process in insolvency proceedings and also of the elements of the risk documentation plan. Using the Delphi technique, through a questionnaire administered to the insolvency practitioners, in a first stage, I have identified the type activities specific to the insolvency proceedings, which, in my opinion, can be constituted in an insolvency management. In the second stage of the research, I have identified, for each type activity, the risk generating sub-activities in insolvency proceedings. Starting from the classic...
A Comparative Analysis Of Insolvency Proceedings In France, Germany And Slovak Republic
2013
This contribution aims to compare legislation adjusting the course of insolvency proceedings in France, Germany and Slovakia. On the basis of an investigation of the legislative adjustment of this problem, an attempt is made to ascertain in the given countries the extent to which the outcome of the entire proceedings is influenced by legislation and to determine the fundamental moments that influence costs, recovery rate and the duration of proceedings. A comparative analysis was utilized in order to achieve the set goal. The results of the survey could be used to improve legislation so as to lead in the best and most expedient way to a departure from the market of those subjects that are for economic reasons unable to continue with their activities whilst burdening the entire process with the lowest possible costs, which would lead to a high level of satisfaction for creditors.