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Journal articles on the topic 'Debtor and creditor – Law and legislation'
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1
Bokwa, Krzysztof, and Iwo Jarosz. "The historical development of anti-usury laws in Austria and Poland." Fundamental and applied researches in practice of leading scientific schools 40, no. 4 (September 30, 2020): 18–26. http://dx.doi.org/10.33531/farplss.2020.4.3.
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Virtually all modern legal system attempts to balance the interests of debtors and creditors. Both categories of parties are equipped with instruments protecting their interests where the law (precisely: the social and moral convictions prevalent in the society that tend to determine the content of the law) deems such protection justified. Just as creditor protection concentrates on dealing with dishonest debtors and preventing fraud, debtor protection has been crafted to shield debtors from abusive interest rates or other – excessively detrimental – contractual provisions (e.g. clauses that unconscionably expand debtors’ liability or render their defences effectively inoperative). Such practices, especially charging excessive interest, have been called usury. In contemporary Polish law the system of debtor protection is multi-layered, with various instruments whose scope often overlaps. That such system exists and how it operates is a direct result of the historical development of instruments aimed at combating usury. This text aims to recapture how anti-usury legislation developed in Austria, whose legal system is closely related to Polish, and to describe how legal systems tend to arrive at very similar outcomes – notwithstanding the differences in the globality of circumstances. The authors employ legal comparative and historical methods, supplanted by formal-dogmatic ones, to present the evolution of anti-usury legislation in Austria as well as the state of anti-usury private law legislation in Poland.
2
Аюрова, Аюна, and Ayuna Ayurova. "Theoretical Grounds of the Challenging of the Transactions under the Bankruptcy Legislation." Journal of Russian Law 4, no. 11 (October 31, 2016): 0. http://dx.doi.org/10.12737/22197.
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A lot of national and foreign researchers attempted to examine the theoretical grounds of the challenging of the transactions under the bankruptcy legislation. Thus, tort and quasi-delictual theory, the theory of executive power of the judgment, the theory of the judicial lien and legal theory have been developed. However, until now there hasn’t been developed a unified approach to understanding of the question of what is the basis of the creditor’s right to demand recognition of the debtor’s invalid transaction committed by itself with a third party, in respect of which insolvency (bankruptcy) case has been initiated. This paper analyzes the main concepts developed in support of the rights of the creditor and assesses their strengths and weaknesses. The study and its findings formulated on the basis of the former have allowed the author to offer his own opinion based on challenging the debtor´s transactions. The author reveals the purpose of legal regulation of invalidity of transactions the debtor committed to them on the eve of bankruptcy. This purpose is to protect the rights and property interests of both the debtor and the creditors, as well as is the formal (violation of the law) and material (violation of the property rights of the debtor and its creditors) base to contest the transactions.
3
Kruhlova, Olha. "Legal analysis of mechanisms of influence on debtors." Naukovyy Visnyk Dnipropetrovs'kogo Derzhavnogo Universytetu Vnutrishnikh Sprav 2, no. 2 (June 3, 2020): 115–19. http://dx.doi.org/10.31733/2078-3566-2020-2-115-119.
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This article is dedicated to exploring legal mechanisms that can be used against debtors to satisfy creditors' rights and interests. The purpose of the study is to determine the list of measures aimed at exercising effective influence on the debtor, provided by law, and to formulate criteria for their application. The author draws attention to changes in the current legislation in this area in recent years and stresses the urgency of maintaining discipline in obligations, given the difficult economic situation in the country and the global financial crisis. One of such positive changes should be the establishment of the keeping of the Unified State Register of Debtors in Ukraine, whose functioning makes it possible to identify the debtor's property and impose restrictions on it, prohibit alienation and so on. And all this provides an opportunity to meet the property needs of creditors. For the first time, the study reveals the criteria that should be used to determine the areas of influ-ence for entities with debt to the lender: characteristics of the individual (individual / legal entity, etc.); the area of law that sets the obligation for the debtor (civil / family / commercial law, etc.); the causes of the debt (insolvency / liability of the debtor, etc.); the personal position of the debtor and / or creditor in the situation that has arisen (initiation of debt resolution / restructuring, etc.) The article also analyzes the specifics of choosing measures to influence debtors who have certain statuses. Such a feature exists in particular for an individual, a legal entity, a state-owned enterprise, an alimony debtor, an insolvent debtor, and others.
4
Hadinata, Ryan Ari. "Legal Consequences for Creditors Caused by Forced Withdrawal of Fiduciary Objects." NORMA 18, no. 2 (July 30, 2021): 27. http://dx.doi.org/10.30742/nlj.v18i2.1588.
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The researcher used the title Legal Consequences for Creditors Caused By Forced Withdrawal Of Fiduciary Objects. The formulation of the problems that arise includes, among others: what the creditor can take legal actions if the debtor does not pay the debt when it is due and what are the legal consequences faced by the creditor for the debtor's legal action related to the forced withdrawal of the object of fiduciary security by the creditor, The form of this research method is normative legal research, so in this study, an approach to legislation along with views and doctrines in legal science is analysed which is then analysed against the application of Law to resolve legal issues in this study. From the result the analysis carried out in this study, the researcher states that: as a result of the creditor executing the object of fiduciary security by force when the debtor defaults, it can be subject to criminal sanctions contained in Articles 335, 365, and 368 of the Criminal Code related to using coercion and physical violence and in Article 3 paragraph 1 of the Regulation of the Minister of Finance of the Republic of Indonesia Number 130/PMK.010/2012 which also imposes sanctions on financial institutions that do not register the object of guarantee at the fiduciary guarantee registration office. As for the things that underlie the parties to take legal action, namely: the creditor wants the debtor's obligations to be carried out correctly to pay off his debt. In contrast, the debtor wants to get protection against the forced withdrawal of the object of the guarantee carried out by the creditor.Keywords: Guarantee, Execution, Fiduciary
5
A, Babaskin. "Legal nature of subordinated debt of financial institutions in Ukraine." Yearly journal of scientific articles “Pravova derzhava”, no. 31 (2020): 272–81. http://dx.doi.org/10.33663/0869-2491-2020-31-272-281.
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In the article, the author argues that from the point of view of private law, the relationship that arises between the debtor (financial institution) and the creditor in attracting funds on terms of subordinated debt, is an economic relationship for attracting, respectively, loan, loan, bank deposit, which is performed on the terms of subordinated debt. Liabilities arising from borrowing on a subordinated debt basis are long-term, unsecured, repayable, and that change the order of creditors' claims to be applied in the event of the debtor's liquidation or bankruptcy. The existence of public-law rules governing the attraction of funds on subordinated debt does not affect the legal nature of the said transactions. Therefore, the failure of a debtor to comply with a transaction with the requirements of public law to attract funds on the basis of subordinated debt does not affect its validity. The funds attracted by the debtor bank acquire the status of subordinated debt, subject to obtaining the permission of the National Bank of Ukraine to take into account the borrowed funds on terms of subordinated debt to the capital of the bank. In the absence or revocation of the said permit, there is no reason to include such funds in the equity of the debtor bank and to assign the claims of the lender to such transaction in the event of liquidation or bankruptcy of the debtor bank to the queue established by law to satisfy the claims of creditors on subordinated debt. The article gives a comparative description of subordinated debt and hybrid capital instruments as components of the bank's additional capital, and offers suggestions for improvement of the current legislation of Ukraine.
6
Ochocińska, Karolina. "Creditors' and Third Parties' Rights In Rem under European Union Regulations and the UNCITRAL Legislative Guide on Insolvency Law." Comparative Law Review 27 (December 22, 2021): 353–66. http://dx.doi.org/10.12775/clr.2021.015.
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The purpose of this article is to present the legal position of creditors and third parties secured by rights in rem. The analysis takes into consideration the situation when the bankruptcy of a debtor is declared. The purpose of the article is to present the regulation provided in European Union regulations. According to the European Union regulations, the opening of insolvency proceedings does not affect the rights in rem of creditors or third parties {to assets?} belonging to the debtor which are situated within the territory of another Member State at the time of the opening of insolvency proceedings. Therefore the question arises of whether the scale of protection of a secured creditor or of third parties' is too wide in comparison with other creditors. Moreover it is necessary to compare the European Union provisions with regulations of an international character. The provisions of the UNCITRAL Legislative Guide on Insolvency Law constitute a point of reference for a comparative analysis of this issue.
7
Kovalyshyn, Oleksandr. "Ukrainian Insolvency Law: Retrospective And Current Issues." Gdańskie Studia Prawnicze, no. 2(54)/2022 (July 11, 2022): 45–53. http://dx.doi.org/10.26881/gsp.2022.2.04.
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The article is devoted to the historical and current issues of Ukrainian insolvency law. The author states that the insolvency law after 1991 passed three stages: 1) 1991 to 1996 – the replacement of soviet legislation in an independent state and the adoption of the Law of Ukraine “On Restoring Debtor’s Solvency or Declaring a Debtor Bankrupt”; 2) 1996 to 2018 – the influence of European doctrine of insolvency law based on restoration of the debtor’s solvency; 3) 2018 – the current stage of insolvency law based on the Ukrainian Code of Bankruptcy Procedures.
It is emphasized that the new Ukrainian Code of Bankruptcy Procedures is a compromise between “pro-creditor” European law and US law, which protects the debtor as much as possible by allowing him to restore solvency (“fresh start”) quickly.
8
Mastilovic, L. "The restructuring of the debtor as a means bankruptcy warnings under european law legislation." Courier of Kutafin Moscow State Law University, no. 3 (May 15, 2020): 179–86. http://dx.doi.org/10.17803/2311-5998.2020.67.3.179-186.
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Directive on preventive restructuring 1023/2019 (hereinafter referred to as the Directive) guarantees the right of bona fide and prospective commercial entities (hereinafter‑debtors) to initiate a preventive restructuring procedure in the absence of signs of bankruptcy, subject to the mandatory consent of the debtor and the majority of creditors, while, if the disagreement of the majority of creditors is not economically justified, the procedure can be approved by the authorized body (hereinafter — the court). The purpose of the procedure is to prevent bankruptcy in advance. A significant common characteristic of preventive restructuring and bankruptcy proceedings is the collective extension of legal consequences to all creditors, including those who disagree, because a single legal will is economically necessary to achieve the goal. In addition, it prohibits any of the creditors, including those from the dissenting minority, from starting enforcement proceedings (bankruptcy proceedings or enforcement proceedings) at a certain period, even if there are grounds provided for by law, since the legal consequences apply to all creditors, which ensures the incentive and effectiveness of the measures taken and avoids a conflict of creditors due to different assessments of the economic situation and prospects of the debtor.
9
Marina, Venetskay. "Expansion of party replacement designs in the commitment in the civil law of Ukraine." Yearly journal of scientific articles “Pravova derzhava”, no. 31 (2020): 298–305. http://dx.doi.org/10.33663/0869-2491-2020-31-298-305.
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The article is devoted to improving the legal regulation of the replacement of a party to an obligation in the civil legislation of Ukraine, taking into account the needs of civilian turnover and economic practice. The reasonability of the additional settlement of issues of reimbursement of contracts for the assignment of claims and compensation for additional costs associated with such a concession, as well as the introduction of the institution of the assignment of contracts into Ukrainian civil law, is argued. The lack of a direct indication of the law on the remuneration of a claim for assignment of a claim has led to the emergence of a number of interpretations of such a transaction as being non-remunerative. Meanwhile, according to the basic provisions of the Civil Code of Contract - the contract is repayable, unless otherwise stipulated by the contract, law or does not follow from the essence of the contract. In addition, the consequence of concluding a deed of assignment claim is the acquisition by the new creditor of property rights that are property, so the free acquisition of property must be considered as a gift, an indication that is absent in the legislation. Unknown to the contract law of Ukraine and the civil institute of contract withdrawal, which is sufficiently widespread in economic practice and is regulated by European legislation. . The meaning of a contract cancellation is to transfer from one person to another the rights and obligations under the contract with a third party, ie it is a simultaneous combination of the cancellation of claims and the transfer of debt. It is necessary to extend the methods (structures) of transfer of debt through the introduction in Ukrainian civil law of the methods known since Roman times, in particular, the expropriation as a separate construction of the replacement of the debtor in the obligation, which occurs on the initiative of the creditor and on the basis of the agreement concluded between such credit and the new debtor in the absence of the need to obtain such consent from the original debtor; and intercession as a construct, when a new debtor is joined to the obligation (which may be divisible) and each of them must fulfill the obligation in its share.
10
Soraya, Disa. "LEGAL PROTECTION OF DISADVANTAGED DEBTOR CUSTOMERS IN THE IMPLEMENTATION OF OBJECT EXECUTION AUCTION PROCEDURES IN BANK CREDIT AGREEMENTS." Indonesia Private Law Review 2, no. 1 (March 24, 2021): 37–48. http://dx.doi.org/10.25041/iplr.v2i1.2224.
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In the process of granting credit, it often happens that the creditor loses when the debtor defaults so that legal rules are required in the implementation of the imposition of the mortgage as stated in a credit agreement, which aims to provide legal certainty and protection for the parties concerned. So, it raises a lawsuit for the cancellation of the auction. Based on these problems, this research aims to answer problems regarding the auction implementation of mortgage rights against debtors who are negligent by the Bank, limits on the determination of the auction limit value for the object of guarantee rights of security rights, and legal protection for bank customers for auction that does not match the value of a collateral object. This study uses an empirical juridical method by conducting literature studies and interviews with informants. The research and discussion results found that: First, the implementation of the mortgage right execution auction can be used as an alternative when bad credit occurs as a result of the customer (the debtor) in default to his creditor. The Bank, as the creditor, has the right to collect receivables from the sale of the object of the mortgage, which is guaranteed by an auction mechanism following the provisions of Law Number 4 of 1996 concerning Mortgage Rights for Land and Other Objects Related to Land. Mortgage rights in the credit agreement have a function to provide a sense of security for creditors in case of default by the debtor through the mortgage’s execution. Second, the limit value’s determination must be determined based on an appraiser’s assessment. So that if the determination of the limit value is so low, it can be used as one of the reasons for the auction’s cancellation. This is based on the provisions of Article 43 and Article 44 of the Regulation of the Minister of Finance of the Republic of Indonesia Number 27/PMK.06/2016 concerning Instructions for Conducting Auctions. Third, as a guarantee of legal protection for customers, if there is a loss due to implementing an auction that is not based on applicable legislation.
11
Hilmi Akhsin, Muhammad, and Anis Mashdurohatun. "AKIBAT HUKUM JAMINAN FIDUSIA YANG TIDAK DIDAFTARKAN MENURUT UU NOMOR 42 TAHUN 1999." Jurnal Akta 4, no. 3 (September 10, 2017): 485. http://dx.doi.org/10.30659/akta.v4i3.1825.
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ABSTRACTFiduciary agreements by notarial deed are not sufficient, but should be continued with fiduciary registrants. Fiduciary agreements set forth in notarial deeds without registration do not grant preferential rights to fiduciary recipients. Whereas the objective of Law Number 42 Year 1999 is basically to provide legal protection for creditors from losses caused by default from debtor. From this, the authors in this thesis take the title "Consequences of Fiduciary Guaranty Laws Not Registered According to Law Number 42 Year 1999." With the scope of the issues covered include: (1) How the procedure or implementation of credit with fiduciary guarantee in Indonesia; (2) What are the constraints and solutions in the implementation of credit with fiduciary guarantee in Indonesia, and (3) What are the consequences of fiduciary guarantee law enlisted under Law No. 42 of 1999.To obtain the results of research from these problems, the authors use the scientific method with an approach that is juridical empirical and normatiif. Empirically that is researching secondary data first and then continued by conducting research of primary data in field. The jurisdiction is to study the rules that exist with the problem in the perusal.Furthermore, from the results of the research can obtain the understanding that the first, that the credit agreement made by debtors and creditors is the principal agreement that refers to the general principles of the agreement, while the imposition of fiduciary collateral meruapakan follow-up agreement or accesoir, which registers it has been regulated by Law No. 42 of 1999 , And set further through Government Regulation No. 21 of 2015; Second, the registration of fiduciary security is a creditor's obligation, but sometimes the creditor does not register it, for cost reasons or because the treaty deed is made under the hand. Therefore, the right of the fiduciary guarantee certificate is categorized as a treaty under the hand. Therefore, the solution taken by the creditors can make the settlement by deliberation or applying through the judiciary. Third, Fiduciary Guarantees must be made by the Deed of Natariil (Notarial Deed) and registered to the Office of the Ministry of Justice and Human Rights, in order to have executorial power, in addition, the creditor will obtain the preferred right. If fiduciary warranties are not made under the hands and are not registered in accordance with legislative provisions, they have no executorial force, and the right of preference and may become void (vernitigbarheid).Whereas to further realize the main principle of Fiduciary Guarantee provides legal protection for the parties, it is necessary to revise the regulation of fiduciary guarantee in legislation in order to give more legal certainty.Keywords: Fiduciary Security, Registration Procedures, and Legal EffectsABSTRACT Fiduciary agreements by notarial deed are not sufficient, but should be continued with fiduciary registrants. Fiduciary agreements set forth in notarial deeds without registration do not grant preferential rights to fiduciary recipients. Whereas the objective of Law Number 42 Year 1999 is basically to provide legal protection for creditors from losses caused by default from debtor. From this, the authors in this thesis take the title "Consequences of Fiduciary Guaranty Laws Not Registered According to Law Number 42 Year 1999." With the scope of the issues covered include: (1) How the procedure or implementation of credit with fiduciary guarantee in Indonesia; (2) What are the constraints and solutions in the implementation of credit with fiduciary guarantee in Indonesia, and (3) What are the consequences of fiduciary guarantee law enlisted under Law No. 42 of 1999.To obtain the results of research from these problems, the authors use the scientific method with an approach that is juridical empirical and normatiif. Empirically that is researching secondary data first and then continued by conducting research of primary data in field. The jurisdiction is to study the rules that exist with the problem in the perusal.Furthermore, from the results of the research can obtain the understanding that the first, that the credit agreement made by debtors and creditors is the principal agreement that refers to the general principles of the agreement, while the imposition of fiduciary collateral meruapakan follow-up agreement or accesoir, which registers it has been regulated by Law No. 42 of 1999 , And set further through Government Regulation No. 21 of 2015; Second, the registration of fiduciary security is a creditor's obligation, but sometimes the creditor does not register it, for cost reasons or because the treaty deed is made under the hand. Therefore, the right of the fiduciary guarantee certificate is categorized as a treaty under the hand. Therefore, the solution taken by the creditors can make the settlement by deliberation or applying through the judiciary. Third, Fiduciary Guarantees must be made by the Deed of Natariil (Notarial Deed) and registered to the Office of the Ministry of Justice and Human Rights, in order to have executorial power, in addition, the creditor will obtain the preferred right. If fiduciary warranties are not made under the hands and are not registered in accordance with legislative provisions, they have no executorial force, and the right of preference and may become void (vernitigbarheid).Whereas to further realize the main principle of Fiduciary Guarantee provides legal protection for the parties, it is necessary to revise the regulation of fiduciary guarantee in legislation in order to give more legal certainty.Keywords: Fiduciary Security, Registration Procedures, and Legal Effects
12
Aryani, Fransisca Kusuma, and Gunawan Djajaputra. "PERLINDUNGAN HUKUM BAGI KREDITUR PEMEGANG HAK TANGGUNGAN TERHADAP SENGKETA AGUNAN YANG MENGAKIBATKAN BATALNYA PERJANJIAN KREDIT." Jurnal Hukum Adigama 1, no. 1 (July 17, 2018): 26. http://dx.doi.org/10.24912/adigama.v1i1.2135.
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The process of granting credit with the guarantee of Mortgage Rights experienced many obstacles, one of which is the cancellation of credit agreement due to a lawsuit from a third party. Examples of problems that will researchers take is a case between PT PNM as creditor and Erlinawati as a debtor. Erlinawati applied for credit to PT PNM and pledged SHM No. 1716 without her husband's agreement, Bagus Satriya. As time went by, Erlinawati could not fulfill its obligations as stipulated in the credit agreement, and then PT PNM sent a warning letter to Erlinawati. Good people who know the land and buildings of his property are used as a direct guarantee to file a lawsuit to the Blora District Court. The Blora District Court ruled that credit agreements and Deed of Mortgage Rights (APHT) are invalid and null and void. So far the legal protection for debtors who have sued from the other party on the guarantee given by the creditor has not been regulated specially in the legislation. The law only regulates bad debts and debt repayment through the execution process stipulated in the Law on Banking and Insurance Rights Act. Legal protection that creditor can use when obtaining a lawsuit from a third party is by using the general guarantees provided for in Articles 1131 and 1132 of the Civil Code.
13
Dukić-Mijatović, Marijana, and Ozren Uzelac. "Origin and legal regulation of the second chance for entrepreneurs in the European Union." Strani pravni zivot, no. 1 (2021): 91–104. http://dx.doi.org/10.5937/spz65-28236.
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In the history of human civilization, there has always been the problem of overindebtedness and personal bankruptcy, as well as the tendency to protect such persons to some extent from excessive sanctions or the consequences of their insolvency. Benevolence towards the debtor is limited by the existence of conditions of conscientiousness and honesty of the debtor in all legal systems, while the amount of debt forgiveness is different. Debt relief and providing a new chance to the entrepreneur is a kind of systemic social measure that should ensure the employment of the individual and his family, but also to ensure the continuity of the capitalist system. It is noticeable that benevolence towards the debtor through debt relief was a characteristic of the Anglo-Saxon jurisdictions, while the regulations of the states of legal systems based on Roman law were traditionally oriented in the opposite direction. Although the Republic of Serbia has regulated the matter of bankruptcy and reorganization, in many parts under the EU Directive on reorganization and bankruptcy from June 2019, it has not been the case with the area of the second chance for the entrepreneur and the possibility of debt release, so it will be necessary to adjust national regulations of bankruptcy. In this paper, the authors analyze the origin of debt forgiveness in case of entrepreneur bankruptcy through history and theories, and select the comparative law and provisions of the EU Directive on reorganization and bankruptcy which regulate the second chance for entrepreneurs, as well as the purpose and measures that preceded the adoption of this Directive. Another important possibility for insolvent entrepreneurs is their personal administration with bankruptcy estate during the process of reorganization. Entrepreneurs' personal administration is regulated by bankruptcy legislation in various ways in comparative legal systems, and in Serbian law, it had been regulated for the first time by the Bankruptcy Procedure Act of 2004, but repealed by the Bankruptcy Act in 2009. Taking into account its importance for the national bankruptcy law, Serbian legal theory has already given the reasons due to which it is necessary to reintroduce the institute of personal administration of debtors into domestic bankruptcy law. On the other hand, sole debt release in Serbian law comes into effect at the moment the creditor declares to the debtor that he will not ask for the fulfillment of the debt and the debtor agrees with that, and such an agreement is made in writing. Debt release is a possibility provided in the Agreed Financial Restructuring Act 2015 that creditor and debtor may use during the process of reorganization, provided they reach an agreement to that end.
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Butsan, Marharyta. "Performance of obligations in modern civil law." Law Review of Kyiv University of Law, no. 1 (April 15, 2020): 414–17. http://dx.doi.org/10.36695/2219-5521.1.2020.82.
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The article considers the notion of performance. Treaty obligations were the most common in the civil turnover. Their performance depends to a large extent the stability of the economy and society as a whole. Of particular importance are norms of civil legislation implementing the Treaty obligation. They are used daily in practical activities of legal entities and citizens. The performance of an obligation – it is always a process that takes some period of time and consists of a series of actions of the debtor and the creditor. Debtor proposes the execution, the creditor accepts it. The article studies scientific approaches with respect to conditions of contractual obligations. practice shows that most contracts are careless, do not contain the necessary conditions to realization of the interests of the parties, do not include measures to ensure contractual obligations. During the execution of such contracts often have complications, different interpretations by the parties to the same conditions, and as a result, there has been a massive failure by the parties of their responsibilities, resulting in numerous conflicts. The most important task of modern legal science and practice – the creation of legal mechanisms, allowing most effectively to ensure the proper performance of contractual obligations and to compensate the injured party for the loss caused by their failure or improper performance. Mechanism of performance of the obligation is the mutual interest of the parties. In determining the obligations a list of specific actions that the debtor is obliged to make in favor of the lender, is limited to the indication of the transfer of property, performance of work and payment of money. Undoubtedly, the parties rely on bilateral compliance with the obligations under the contract, but obviously there are cases when under any circumstances one of the parties does not fulfill its obligations. Performance of the obligation should also be understood as certain acts by the debtor (or refraining from doing,) that is the obligation of the debtor. In this regard, it should be noted that the lender has the right to demand fulfillment of the obligation, but the debtor is involved in such actions. Moreover, under proper performance to understand the performance of an obligation by an appropriate person at the appropriate time a particular person under equal circumstances. The real is the performance of specific obligations, which is reflected in the implementation of certain actions.
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Alferov, V. N. "IMPROVING THE MECHANISMS OF PRE-TRIAL FINANCIAL RECOVERY OF DEBTORS UNDER THE CONTROL OF CREDITORS." Strategic decisions and risk management, no. 4 (October 26, 2014): 68–73. http://dx.doi.org/10.17747/2078-8886-2012-4-68-73.
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In law enforcement challenge in the case of bankruptcy of the debtor payments in the performance of obligations under the loan agreements arise cases which may lead to complication and expensive credit borrowers. The work considers the causes of default by the debtor during the insolvency and foreign experience in crisis management under the control of the lender, which is proposed to use in the Russian legislation on bankruptcy in order to pre-trial financial rehabilitation of debtors.
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Yasin, Zainuddin. "Pengaturan Perlindungan Hukum Terhadap Kreditur Dalam Eksekusi Objek Hipotek Kapal Laut Yang Dijaminkan Ke Bank Berdasarkan Perspektif Perundang-Undangan." Recital Review 4, no. 1 (February 18, 2022): 114–39. http://dx.doi.org/10.22437/rr.v4i1.14089.
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The purpose of this study is to determine and criticize the regulation of legal protection for creditors in execution of marine mortgage objects in perspective of legislation and regulation of execution of marine mortgage objects guaranteed in banks. In this study, the authors use normative juridical research methods. The approach used is a statutory approach, conceptual approach, and case approach. The results of this research are that the debtor is based on Article 1178 of the Civil Code which focuses on fiat execution (there must be annmainig 1,2,3), while the creditor focuses on Article 224 of the HIR which contains the title of executorial, so this does not provide a guarantee. legal certainty and legal protection for the creditor in getting the accounts receivable paid off from the debtor. Second, the arrangements for the execution of ships as objects of collateral, namely: First, Law Number 17 of 2008 concerning Shipping regulates the process of execution to court through an executorial title, that each mortgage deed is issued one mortgage grosse deed and Article 224 HIR Jo. Article 195 HIR with the lines contained in the mortgage grosse deed, if it is listed for the sake of justice based on supreme Godhead, then the mortgage is attached to the executorial power (executoriale kracht) because the law itself equates it with a judge's decision or justice which has permanent legal force Second, with the Parate Execution process or it can be called auction sale by creditors based on their own power of attorney (eigenmachtige verkoopI). In this Mortgage is based on Article 1178 paragraph (2) KUHPerdata. The conditions for executing Parate Execution are that the power of attorney must be set forth as a clause in the Mortgage deed which contains a statement that the debtor gives the creditor the right or power of attorney to sell the object of the Mortgage goods himself, if the debtor is default with the procedure of selling must remain subject to Article 1211 KUHPerdata, namely the sale must be made in public, and the Creditor requests the assistance of the Auction Office to conduct the auction sale. The third process is an underhand sales process. Abstrak Tujuan dari penelitian ini adalah untuk mengetahui dan mengkritisi pengaturan perlindungan hukum terhadap kreditur dalam eksekusi objek Hipotek kapal laut dalam perspektif peraturan perundang-undangandan pengaturan eksekusi objek Hipotek kapal laut yang di jaminkan di bank.Dalam penelitian ini penulis menggunakan metode penelitian yuridis normatif. Pendekatan yang digunakan adalah pendekatan undang-undang, pendekatan konseptual, dan pendekatan kasus. Adapun hasil dari penelitian ini yaitu bahwa Debitur berpijak pada Pasal 1178 KUHperdata yang bertitik berat kepada fiat eksekusi (harus ada anmainig 1, 2, 3), sementara pihak kreditur bertitik berat pada Pasal 224 HIR yang mengandung titel eksekutorial, sehingga hal tersebut tidak memberikan jaminan kepastian hukum dan perlindungan hokum kepada pihak kreditur dalam mendapatkan pelunasan piutang dari pihak debitur. Kedua, Pengaturan eksekusi kapal laut sebagai obyek jaminan yaitu: Pertama, Undang-Undang Nomor 17 Tahun 2008 Tentang Pelayaran mengatur proses eksekusi ke pengadilan melalui titel eksekutorial, bahwa setiap akta Hipotek diterbitkan satu grosse akta Hipotek dan Pasal 224 HIR Jo. Pasal 195 HIR dengan irah-irah yang terdapat dalam grosse akta Hipotek, apabila tercantum Demi Keadilan Berdasarkan Ketuhanan Yang Maha Esa, maka pada Hipotek melekat kekuatan eksekutorial (executoriale kracht) karena undang-undang sendiri mempersamakannya dengan putusan hakim atau keadilan yang berkekuatan hukum tetap. Kedua, dengan proses Parate Eksekusi atau dapat disebut penjualan lelang oleh kreditur berdasarkan kuasa sendiri (eigenmachtige verkoopI). Dalam Hipotek hal ini didasarkan Pasal 1178 ayat (2) BW. Syarat-syarat untuk melakukan Parate Eksekusi adalah dalam kuasa tersebut harus dituangkan sebagai klausul dalam akta Hipotek yang berisi pernyataan, bahwa debitur memberikan hak atau kuasanya kepada kreditur untuk menjual sendiri objek barang Hipotek, apabila debitur cedera janji dengan tata cara penjualan harus tetap tunduk pada Pasal 1211 BW, yaitu penjualan harus dilakukan di muka umum, dan Kreditur meminta bantuan Kantor Lelang untuk melakukan penjualan lelang. Proses yang ketiga adalah proses penjualan di bawah tangan.
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Kliestikova, Jana, Maria Misankova, and Tomas Kliestik. "Bankruptcy in Slovakia: international comparison of the creditor´s position." Oeconomia Copernicana 8, no. 2 (June 30, 2017): 221. http://dx.doi.org/10.24136/oc.v8i2.14.
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Research background: Bankruptcy shouldn´t be considered only as negative phenomena although its impact is for companies in most cases more than devastating. This change of point of view is invoked by the needs of contemporary socio-economic evolution. If society wants to reach sustainable development, the bankruptcy should be perceived as an immanent part of normal cyclical economic development. Moreover, if the view of bankruptcy is changed in a positive way, it can be a stimulus for innovations, investment and global welfare. But it is not possible without an increase in the effectiveness of national and international bankruptcy law.Purpose of the article: The goal of this study is to analyse the position of a creditor in the case of a debtor´s bankruptcy on the basis of comparative law in the Slovak Republic de lege ferenda. It is because we assume that continuous attention should be given to the issue of the creditor’s position with regard to a debtor´s bankruptcy to achieve sustainable economic development.Methods: The potential consideration de lege ferenda should be based not only on performed legal analysis, but also on performed economic analysis. So, selected countries have been evaluated according to specific economic and legal indicators. We used the interdisciplinary approach based on selection analysis and legal comparative analysis applied to international comparison of the status of creditor and the effectiveness of bankruptcy law from his point of view.Findings & Value added: The applied approach has led us to the detection of the most important insolvency laws, specifically the insolvency laws of the United States and Austria. These legislations were further applied in the context of consideration de lege ferenda over the position of a creditor in the case of a debtor´s bankruptcy in the Slovak Republic.
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Kasatkin, Sergey. "On Absolute Legal Force of Obligations." Journal of Russian Law 4, no. 4 (April 11, 2016): 0. http://dx.doi.org/10.12737/18687.
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The article considers the recent legislative changes that allow the extension of the notion of an obligation as a relative relationship. Based on judicial practice and the positions of well-known jurists, the author comes to the conclusion that an obligation does not only connect the debtor with the creditor, but also generates passive duty for all the subjects of law to refrain from creating obstacles to the creditor in the exercise of its subjective rights. Meanwhile a creditor has the right to protect subjective rights from violations not only on the part of the debtor but also on the part of any third party. However, in a number of statutory cases, the creditor may be denied the opportunity to refer to the obligation in relations with third parties. Such legal consequences occur, in particular, in case of non-fulfillment of legislative requirements on the necessity of state registration of the contract, and in case of violation of the rules of the notification on the pledge of movables. The author proposes to refer to legal significance of relative relationship for third parties as an absolute legal force of obligations.
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Bridge, Michael G. "The English Law of Real Security." European Review of Private Law 10, Issue 4 (August 1, 2002): 483–508. http://dx.doi.org/10.54648/5096730.
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The subject of security over movable property is rightly seen as belonging to the core of activities dealing with the harmonisation and unification of European private law. The current differences in the laws of Member States of the European Union inhibit the free movement of capital and delay the completion of the internal market. English law is widely considered as sympathetic to secured credit and has therefore facilitating the making of loans to industry and commerce. In this article, the author emphasises the ease and simplicity with which a creditor can take security, drawing attention to the celebrated floating charge. He points to the current failure of English law to subscribe to the functional policies underpinning article 9 of the American Uniform Commercial Code (so influential in the model law drafted for the European Bank for Reconstruction and Development). Finally, he draws attention to the way English law focuses on freedom of contract between secured creditor and debtor, refusing to take account of distributional (or third party) considerations. Change, however, is in the air. The Privy Council has recently imposed controls over the taking of fixed security and the creditor's self-help remedies are under threat from proposed legislative change.
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BELOVA, IRINA. "PECULIARITIES OF CHALLENGING A DEBTOR-CITIZEN TRANSACTION: TRENDS IN LEGISLATION AND LAW ENFORCEMENT PRACTICE." Economic problems and legal practice 16, no. 06 (December 28, 2020): 172–77. http://dx.doi.org/10.33693/2541-8025-2020-16-6-172-177.
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The purpose of this article is to study the theoretical and practical aspects of the procedure for challenging transactions in the framework of bankruptcy proceedings of individuals, identifying trends in regulation and law enforcement practice in this area. To achieve it such tasks are set as: the analysis and study of the procedure and grounds for challenging transactions of the debtor-citizen, the identification and characterization of the features of the application of provisions of family law in challenging transactions of the debtor-citizen, the establishment of peculiarities of challenging transactions of the debtor-inheritor. The conducted work allowed to establish the relationship of the rules on bankruptcy of individuals with the general provisions of the legislation on insolvency, the norms of family and inheritance law. The study of the contestation of debtor-citizen transactions allowed to identify general and special rules, to develop a proposal to adjust the terms of claims for contestation of transactions by creditors. The interrelation of norms of family law and provisions of bankruptcy law in terms of meaning, legal consequences and peculiarities of challenging extrajudicial agreements on the division of marital property and the establishment of alimony obligations was established. Attention is drawn to the legal positions of the Plenum of the Supreme Court of the Russian Federation on the possibility of combining spouses' insolvency cases. It is noted that these aspects are reflected only in the explanatory act of the highest court. It is concluded that the regulation of social relations connected with the contestation of transactions of the debtor-inheritor is lacunae. It emphasizes the debatable nature of the issues of admissibility of the debtor's transactions by the heirs and the application of the consequences of invalidation of the transaction. It is determined that the proper legal regulation and law enforcement of norms of contestation of debtor-citizen transactions should ensure the efficiency of formation of the bankruptcy estate and contribute to the satisfaction of creditors' claims.
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Natig Mammadova, Nazrin. "THE SCOPE OF SURETY’S LIABILITY AND TYPES OF SURETYSHIP IN TERMS OF LIABILITY." SCIENTIFIC WORK 65, no. 04 (April 23, 2021): 305–9. http://dx.doi.org/10.36719/2663-4619/65/305-309.
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Suretyship agreement is one of the ancient personal security devices known from Roman law. This agreement pursues the aim to protect property interests of the creditor. Nowadays, it is especially concluded between the parties in order to ensure the performance of the debt contracts. Taking into account the essence of suretyship contracts in practice, the legal consequences emerging from the default of the main debtor have to be enlightened. That is why, the scope and characteristics of the surety’s liability in respect of joint and subsidiary suretyship are researched in this article. It illustrates the basis of the creditor’s right to resort to the surety, the comparative analysis of legislative norms regulating the types of surety’s liabilities with foreign legal systems. Key words: a basis of surety’s liability, types of suretyship agreement, joint suretyship, subsidiary suretyship, default by the debtor, co-sureties
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Borisovich, Yermilov Valery. "Subsidiary liability of the persons controlling a debtor." SHS Web of Conferences 118 (2021): 04015. http://dx.doi.org/10.1051/shsconf/202111804015.
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This article gives a general description of Chapter III.2 of the Bankruptcy Law and considers the issues related to the moratorium on bankruptcy. Attention is drawn to the changes that have been introduced in recent years in the legislation on bringing to the subsidiary liability of persons controlling a debtor for the inability to pay creditors’ claims in full, as well as the obligation to apply for the debtor and the liability for failure to do so (untimely application). The author, on the basis of the study, concludes that it is necessary to further improve the legislation on the liability of the head of the debtor and other persons in bankruptcy cases.
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Rabello, A. M. "Renunciation of Right and Remission of Debt in Comparative and Israeli Law." Israel Law Review 21, no. 3-4 (1986): 388–424. http://dx.doi.org/10.1017/s0021223700009201.
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Renunciation and remission are not comprehensively treated in the new Israeli legislation. And although the legislature has referred to these terms in the course of its legislation, they are nowhere defined.The first reference to the terms, chronologically speaking, is in sec. l(c) of the Gift Law, 1968: “A gift may consist in the donor's renunciation of a right against the donee or in the donor's remission of an obligation of the donee towards him”.In the chapter treating of “Several Debtors and Creditors”, the Contracts (General Part) Law, 1973, provides an enlightening reference to the terms under discussion. Sec. 55(c) states: “If the creditor discharges one of the debtors of the whole or part of the obligation - by way of waiver, remission, compromise or otherwise - the other is discharged to the same extent unless a different intention appears from the discharge”. Thus we have before us a list of terms (renunciation, waiver, remission, compromise, discharge) that often appear in modern codices as factors that terminate a debt by means other than performance.
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Truntsevsky, Yuri. "Judicial protection of the rights of the victim (bank-creditor) after the conclusion of the agreement of assignment of the right (requirements) in the conditions of the intentional bankruptcy of the debtor." Law Enforcement Review 1, no. 3 (October 3, 2017): 150–59. http://dx.doi.org/10.24147/2542-1514.2017.1(3).150-159.
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The subject of analysis in the paper is Russian insolvency legislation? As well as rules ofRussian Criminal Code about insolvency crimes.The purpose of the article is to analyze methods of the judicial protection of the rights ofthe victim (creditor-bank) after the conclusion of the contract of cession of rights (claims)in the context of deliberate bankruptcy of the debtor.The methodology of research includes: analysis, synthesis, induction, deduction, survey,and statistical method.The results, scope of application. Intentional bankruptcy (Art. 196 of the Russian CriminalCode) violates the legitimate property interests of creditors. In particular, the Bank has theright to appeal to law enforcement agencies with a statement about criminal acts committedagainst the Bank that caused damage to the Bank. The creditor has the right to applyfor recognition as an injured person. Such a creditor is harmed by a crime. In the event thatthe Bank deliberately bankruptcy of the debtor harmed, and there is a causal relationshipbetween such actions and the socially dangerous consequences that have occurred, then,as follows from Part 1 of Art. 44 of the Code of Criminal Procedure, this circumstance is aprerequisite for the recognition of the Bank as a civil plaintiff. Such a bank has the right todeclare in the criminal case a civil claim for damages to the bank. The purpose of this articleis to provide judicial protection of the rights of the victim (creditor bank) after concludingthe contract of assignment of the right (claims) in the circumstances of the debtor's deliberatebankruptcy. The research methods are: analysis, synthesis, induction, deduction,questioning and statistical method. The conclusion is drawn that the assignment of claimsunder a civil law contract is not grounds for refusing to recognize the Bank as a victim anda civil plaintiff in a criminal case under Art. 196 of the Criminal Code.Conclusions. The assignment of claims under civil contract is not a ground for refusingrecognition the Bank as the victim and civil plaintiff in a criminal case under Arti. 196 of theCriminal Code.
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Petukhova, Irina. "Civil Law Aspects of Bankruptsy of Debtor’s Property." Legal Concept, no. 4 (December 2019): 119–25. http://dx.doi.org/10.15688/lc.jvolsu.2019.4.16.
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Introduction: the amount of satisfied creditors’ claims in completed debtor insolvency cases raises concerns and necessitates a change in the approaches used in bankruptcy proceedings. In this connection, the author aims to study the civil law problems relating to the disposal of the debtor’s property – a legal entity in bankruptcy. The research will use such general scientific methods of cognition as synthesis and analysis, as well as such specific scientific methods of cognition as systemic and formal legal ones. Results: analyzing the legal theories, law enforcement practice and the current bankruptcy legislation, the author identified the problematic issues arising from the bankruptcy of the debtor’s property in bankruptcy procedures. Conclusions: adhering to the point of view that the theory of constraint of legal capacity (capability) of the debtor is fundamental in the legislative regulation of bankruptcy relations, the author identified the problematic aspects in determining the time of commencement of such constraint, the debtor’s property assets to be disposed of in bankruptcy proceedings.
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Rudenko, L. D., and M. D. Zhitelny. "Grounds for initiating proceedings in the case of insolvency of an individual." Legal horizons, no. 24 (2020): 47–52. http://dx.doi.org/10.21272/legalhorizons.2020.i24.p46.
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The article specifies the grounds for initiating proceedings in the case of insolvency of an individual on the basis of a comprehensive comparative analysis of foreign experience, scientific literature, national legislation and practice of its application. Based on the analysis of the legislation and case law, it is noted that the Bankruptcy Code does not clearly define the term "threat of insolvency". Article 115 of the Code states that the threat of insolvency includes circumstances that confirm that in the near future the debtor will not be able to meet its monetary obligations or make normal current payments. It is argued that the lack of definition of "threat of insolvency" in the Code is a shortcoming of current legislation, and therefore this rule needs to be clarified in terms of confirming the inability of the debtor to meet financial obligations, the terms of default. It is proposed to define "threat of insolvency" as a set of documented legal grounds that indicate the inability of the debtor to meet its own financial obligations or make regular financial payments over the next two months. The expediency of determining in Article 115 of the Bankruptcy Procedure Code an exclusive list of grounds for initiating insolvency proceedings against an individual is argued. Consolidation in Art. 115 of the Code of the inexhaustible list complicates law enforcement as provides a possibility of application of norms of other regulatory legal acts; provides wide discretion to the court, which creates conditions for the abuse of procedural rights for both participants in the bankruptcy proceedings and judges. The peculiarities of initiating proceedings to restore the solvency of an individual are specified: only the debtor himself may apply to the court to declare an individual insolvent. In order to reduce the financial burden on an insolvent individual in the implementation of bankruptcy proceedings, it is proposed to give the creditor the right to initiate legal proceedings for the insolvency of such a person.
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Pushkina, Anna V. "Protection of the rights of the debtor in the security transfer of title." Gosudarstvo i pravo, no. 9 (2022): 162. http://dx.doi.org/10.31857/s102694520022229-2.
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The article defines that the security transfer of title refers to unnamed methods of securing the performance of obligations. The main attention is paid to the security transfer of ownership. The correlation of this method of collateral with collateral is considered. It is assessed how correct it is to recognize the security transfer of ownership as a transaction aimed at circumventing the norms of the law on pledge. It is determined that the possibility of protecting the rights of the debtor directly depends on how the title security is issued. In case of incorrect execution, today the best way to protect the debtor's rights is to recognize the secured sale transaction as invalid. If legally regulated methods of title security are used - repo transactions, security factoring, leaseback - other protection mechanisms provided for these transactions can be applied. In the future, in order to protect the rights of the debtor, it would be possible to enshrine at the legislative level the emergence of a limited real right to the subject of security for the debtor and the restriction of ownership of the subject of security for the creditor.
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Vasiljević, Mirko. ""The Bermuda triangle" of company, bankruptcy and law on takeover of joint stock companies: Three subjects of protection: Company, creditor and shareholder." Strani pravni zivot, no. 2 (2021): 193–213. http://dx.doi.org/10.5937/spz65-33361.
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Company, bankruptcy and the law on takeover of joint stock companies, by regulating the duties (obligations - debtor of the obligation) of members of the management of the public joint stock company (first of all), do not have the same approach in determining the subject of protection to which there is a prescribed duty (creditor of the prescribed obligation). On the other hand, the regulation of this issue is not uniform in the relevant comparative laws of these branches of law, both at the level of legal ("hard") law as well as at the level of autonomous ("soft") law. In this paper, the author seeks, first of all, to determine the dominant position of comparative regulations regarding the determination of the subject of law (the subject of protection) of the prescribed duty of the management of a company, as well as the reasons for such determination. The author takes the position, based on the appropriate argumentation that in the company law the subject of protection is a joint stock company (company as a legal entity), in the bankruptcy law it is an unsecured creditor while in the takeover law it is a shareholder. Since there is no unique position on these issues in legal theory, legislation and jurisprudence, the author refers to this situation as a kind of "Bermuda triangle".
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Molodyko, Kirill. "REGULATORY CHOICES OF RUSSIAN AN D UKRAINIAN LEGISLATORS IN CONSUMER CREDITS: A COMPARATIVE PERSPECTIVE." Russian Law Journal 6, no. 4 (November 1, 2018): 100–125. http://dx.doi.org/10.17589/2309-8678-2018-6-4-100-125.
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Russia and Ukraine have recently adopted complex statutes on consumer credit. Ukraine, unlike Russia, declared the aim of the new act, inter alia, harmonization of the legislation with international and EU standards. Prior to enactment, both countries had a fragmentary regulation of few aspects of consumer credit in general consumer protection laws. I consider peculiarities of the elimination of the contract disproportion of debtor and creditor rights in contracts on consumer credit under new Russian and Ukrainian regulations from a comparative perspective. EU law does not regulate some important issues covered by Russian and Ukrainian legislations, e.g. priority of payments. On the contrary, some useful concepts, which are applicable to consumer loans under EU law, like “linked credits,” “open-end agreements” are absent in both Russian and Ukrainian laws. While comparing new Russian and Ukrainian consumer credit statutes, it is clear that in some aspects the Ukrainian one is pro-consumer, and in some other aspects the Russian one is more pro-consumer. Some provisions of both Russian and Ukrainian consumer credit statutes are very controversial and unclear; in some instances they could lead to debt slavery, so they must be corrected in the future.
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Shishmareva, Tatyana P. "Legal means of effective rehabilitation of a debtor or its enterprise in restricting procedures in Russia and Germany." Vestnik of Saint Petersburg University. Law 12, no. 4 (2021): 1128–36. http://dx.doi.org/10.21638/spbu14.2021.420.
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The article analyzes the legal means of rehabilitation during the extrajudicial procedure for restructuring an enterprise in German law, as well as the provisions of the Russian law draft that introduces a similar judicial procedure. The purpose of this study is to formulate the main provisions of the rehabilitation procedures of insolvency (bankruptcy) in the national Russian legislation on the basis of the normative regulation and doctrinal concepts prevailing in Germany, where both debtor and his enterprise can be rehabilitated. The main research methods used were comparative legal and historical legal methods in combination with the systematic method. The methods of synthesis, interpretation, and the teleological method were also used to assist in selecting the appropriate legal means to achieve the goal of rehabilitating the debtor or his enterprise. The legal nature of the law of the restructuring plan is analyzed as well as its main elements and the procedure for adoption and approval that takes into account creditors’ interests of. It is concluded that rehabilitation can be carried out in the form of extrajudicial rehabilitation both within the framework of a special procedure and in a free form on the basis of an agreement between the debtor and his creditors in regard to debt restructuring. The legal means of reorganization of the debtor and his enterprise are highlighted. It is substantiated that the Russian legislation needs to change its concept of rehabilitation procedures. First of all, it is necessary to complement the goal of rehabilitation procedures by translatable rehabilitation if the debtor cannot be rehabilitated and to use appropriate legal means of stabilizing and preserving the debtor’s business or part of it to minimize the negative consequences of insolvency.
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Minkovskyi, S. V., and Ye V. Chypyzhenko. "ISSUES OF COMPETITION OF THE RULES OF THE CODE OF UKRAINE ON BANKRUPTCY PROCEDURES AND THE LAW OF UKRAINE “ON EXECUTIVE PROCEEDINGS” IN CASES OF INSOLVENCY OF INDIVIDUALS." Economics and Law, no. 4 (December 6, 2021): 32–38. http://dx.doi.org/10.15407/econlaw.2021.04.032.
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The Code of Ukraine on Bankruptcy Procedures is the first insolvency law codified in domestic legislation. The legislative novelty is the so-called consumer bankruptcy provided by the Code, the restoration of solvency through the settlement of problem debts of individuals, individuals – entrepreneurs to banks, microfinance organizations, arrears of taxes, fees and other mandatory payments within the framework of litigation, and in case of impossibility – their repayment (write-off) in the procedure of debt repayment. In addition, the new Code offers special conditions for addressing the issue of “foreign currency borrowers”, which has become relevant for many Ukrainians after the financial crisis of 2008. In general, the procedure for restoring the solvency of individuals is designed to encourage responsible borrowing, start or resume business, increase economic activity and taxable income, aimed at preventing crime and unemployment. Such a procedure is beneficial not only to the debtor, but also to the state. An individual, getting rid of debts, returns to active legal work, and the state returns another economic unit to an active lifestyle, acquires another taxpayer. In addition, the procedure provides creditors of the debtor – an individual with legal grounds for instalment and (or) write-off of part of the debt, as well as improving their own financial performance. However, currently many norms of the Code and other acts of the legislation of Ukraine are inconsistent, which causes conflicts during their practical application. The article considers some aspects that arise in cases of insolvency of individuals, individuals – entrepreneurs during the competition of the Code of Ukraine on Bankruptcy Procedures and the Law of Ukraine “On Enforcement Proceedings”, which relate to: suspension of enforcement proceedings during the moratorium on satisfaction of claims creditors; removal of arrests (encumbrances) in the procedure of debt repayment; consequences of the completion of the debt repayment procedure (including the exclusion of a person from the Unified Register of Debtors), identified problematic issues and proposals for their improvement by making appropriate changes to the legislation of Ukraine.
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Kelly-Louw, Michelle, and Philip Stoop. "Prescription of Debt in the Consumer-Credit Industry." Potchefstroom Electronic Law Journal 22 (December 12, 2019): 1–35. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a6571.
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A person may acquire rights or be released from obligations through the passage of time. This is known as prescription. The objective of prescription is to achieve legal certainty and finality in the relationship between a debtor and a creditor, with the focus on protecting a debtor (consumer) against the unfairness of having to defend old claims. Old claims are therefore after the elapsing of specific time periods extinguished through prescription. A debtor must then specifically raise prescription as a defence against claims from creditors based on prescribed debts. The prescription of consumer debts is regulated by the National Credit Act 34 of 2005 (when the credit agreement falls under the NCA) and the Prescription Act 68 of 1969. The Prescription Act generally regulates all aspects of the prescription, which would also include consumer debts, while section 126B of the National Credit Act regulates and prohibits certain practices related to prescription, such as the selling of prescribed consumer debts or the continued collection or re-activation of prescribed consumer debts. In this article several practical aspects related to prescription and the National Credit Act are discussed, such as the impact of non-compliance with section 96 and section 129(1)(a) of the NCA on prescription. Section 126B is specifically analysed, and the question whether section 126B absolutely prohibits certain abusive practices related to the prescription of consumer debts is answered. Several shortcomings of the current legislation are also pointed out. In this article some aspects of the draft Prescription Bill proposed by the South African Law Reform Commission are also considered. In particular, we focus on the impact the Bill may have on the consumer-credit industry.
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Priyanto, Ari, B. Rini Heryanti, and Mukharom. "Analisis Proses Eksekusi Hak Tanggungan Terhadap Jaminan Kebendaan Tidak Bergerak Berdasarkan Undang- Undang Hak Tanggungan." Hukum dan Masyarakat Madani 6, no. 2 (May 15, 2016): 30. http://dx.doi.org/10.26623/humani.v6i2.949.
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<p>Eksekusi jaminan Hak Tanggungan merupakan langkah terakhir yang dilakukan kreditor selaku penerima Hak Tanggungan apabila debitor selaku pemberi Hak Tanggungan cidera janji melalui Pasal 6 UU No.4 Tahun 1996 dan Pasal 20 ayat 1 tentang Hak Tanggungan atas Tanah serta Benda-benda yang Berkaitan dengan Tanah. Berdasarkan hal tersebut masalah yang akan dikaji dalam penelitian ini adalah:</p><ol><li>Bagaimana proses eksekusi Hak Tanggungan secara umum yang terjadi di Pengadilan?</li><li>Bagaimana proses eksekusi Hak Tanggungan berdasarkan ketentuan Pasal 6 dan Pasal 20 ayat (1) UUHT ?</li><li>Apa kendala yang dihadapi dalam proses eksekusi Hak Tanggungan berdasarkan ketentuan Pasal 6 dan Pasal 20 Ayat (1) UUHT & bagaimana solusinya ?</li></ol><p>Berdasarkan perumusan masalah maka metode pendekatan yang digunakan dalam penelitian ini adalah pendekatan <em>yuridis sosiologis</em>, spesifikasi penelitian deskriptif analitis.</p><p>Berdasarkan hasil penelitian menunjukan bahwa :</p><ol><li>Proses eksekusi Hak Tanggungan secara umum yang terjadi di Pengadilan diawali dengan pihak kreditur dalam hal ini bank mengajukan permohonan somasi lewat Pengadilan. Permohonan tersebut diatas dilampiri dengan sertipikat Hak Tanggungan, sertipikat tanah, Akta Pemberian Hak Tanggungan, Perjanjian Kredit, serta KTP dari debitur yang biasanya dilampirkan oleh debitur pada saat pemenuhan syarat pinjam ke bank sebagai bukti tempat tinggal untuk pemanggilan, kemudian dilaksanakan lelang ke Kantor Pelayanan Negara dan Lelang ( KPKNL )</li><li>Proses eksekusi Hak Tanggungan berdasarkan ketentuan Pasal 6 dan Pasal 20 Ayat ( 1 ) UUHT, Berdasarkan Ketentuan Pasal 6 Undang-Undang Hak Tanggungan di KPKNL Semarang sesuai dengan ketentuan Undang-Undang Hak Tanggungan dalam hal debitur wanprestasi, kreditur selaku pihak bank yang dirugikan berhak untuk menjual barang jaminan yang dijaminkan, berupa tanah atau tanah dan bangunan. Sedangkan berdasarkan ketentuan Pasal 20 Ayat ( 1 ) UUHT bahwa kreditor/pemegang Hak Tanggungan pertama berhak mengambil pelunasan piutang yang dijamin dari hasil penjualan lelang obyek Hak Tanggungan lebih dahulu daripada kreditor-kreditor yang lain.</li></ol><p>3. Kendala dalam proses eksekusi berdasarkan Pasal 6 UUHT adalah perlawanan yang dilakukan oleh debitur atas upaya eksekusi yang akan dilakukan oleh bank. Solusinya dengan melakukan pendekatan kepada debitur secara persuasif. Sedangkan berdasarkan ketentuan Pasal 20 ayat ( 1 ) kurang efisien. proses pelaksanaan eksekusi di Pengadilan Negeri membutuhkan waktu yang cukup lama. Solusinya bagi kreditur atau lembaga keuangan lebih cenderung memanfaatkan proses parate eksekusi karena secara prosedural lebih mudah dan cepat.</p><p><em>Execution security formal use of hak tanggungan is the last step done creditors as recipients formal use of hak tanggungan when debitor as the formal use of hak tanggungan injured promise through article 6 law no.4 1996 and article 20 paragraph 1 of their rights to the ground and objects pertaining to the ground .According to the regulations rights legislation dependents is decide when debitor wanprestasi ( injured promise , so the holder the right to have the right to sell objects formal use of hak tanggungan over chair itself through auction common and taking the piutangnya from the sale of the . Formulation matter to be examined in this research was: </em><em></em></p><p><em>a. how the execution process formal use of hak tanggungan in general happened in court ? </em><em></em></p><p><em>b. how the execution process formal use of hak tanggungan based on the provision of article 6 and article 20 paragraph ( 1 ) uuht ? </em><em></em></p><p><em>c. what the obstacles in the execution process formal use of hak tanggungan based on the provision of article 6 and article 20 paragraph ( 1 ) uuht& amp; how the solution ?</em><em></em></p><p><em>Based on the formulation of problems so method approach that is used in this research is the approach juridical sociological , specification descriptive analytical research .Based on the research done showed that follows: 1 .The execution process formal use of hak tanggungan in general happened in court started with the his creditor in this bank submit a request for somasi through court .The request above have the with certificates formal use of hak tanggungan , a land certificate , granting a certificate dependents , a credit agreement , and id card of a debtor was usually be attached by a debtor at the time of the fulfillment of requirements and loan to the bank as evidence residence for call , then carried out auction to service office the state and auction ( kpknl )</em></p><p><em>2 .The execution process formal use of hak tanggungan based on the provision of article 6 and article 20 paragraph ( 1 ) uuht , under the terms of article 6 rights legislation dependents in kpknl semarang in accordance with the provisions rights legislation dependents in terms of debtors wanprestasi , a creditor as the bank who injured party has the right to sell collateral who pledged , earth or land and building .But based on the provision of article 20 paragraph ( 1 ) uuht that creditors / the holder the right dependents first be entitled to adopt the receivable guaranteed from the sale of auction objects formal use of hak tanggungan more were of those kreditor-kreditor another .</em></p><p><em>3 .Obstacles in the execution process based on article 6 uuht is the encounter conducted by a debtor to the efforts of execution will be conducted by a bank .The solution with making an approach to debtor in a persuasive manner .While under the provisions of article 20 paragraph 1 of inefficient . The process to the execution in the domestic court takes time .The solution for a creditor or finance institutions more tend to make use of the process of parate execution due to procedural in more easy and fast .</em></p><p><em> </em></p>
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Widhiatmika Dewi, I. Gusti Ayu, and Marwanto Marwanto. "IMPLIKASI HUKUM TERHADAP PENGIKATAN TANAH GIRIK DENGAN SURAT KUASA MENJUAL AGUNAN." Kertha Semaya : Journal Ilmu Hukum 10, no. 10 (August 16, 2022): 2406. http://dx.doi.org/10.24843/ks.2022.v10.i10.p18.
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Tujuan penelitian untuk mengetahui kedudukan hukum pemegang bukti girik atas sebidang tanah serta untuk mengetahui implikasi hukum dari penggunaan Surat Kuasa Menjual Agunan (SKMA) untuk mengikat tanah girik. Metode yang dipergunakan yaitu penelitian hukum normative, sementara itu pendekatannya menggunakan tiga pendekatan diantaranya perundang-undangan (statute approach), pendekatan konsep (conceptual approach) dan pendekatan analitis (analytical approach). Diperoleh hasil penelitian bahwa girik bukanlah bukti kepemilikan yang sah dan tidak punya kekuatan pembuktian yang mutlak sehingga seseorang yang hanya memegang bukti girik atas sebidang tanah hanya berkedudukan sebagai bezitter yang mempunyai hak pakai dan hak mendiami. Kedudukannya sebagai bezitter mengakibatkannya tidak berwenang untuk melakukan perbuatan hukum atas tanah girik tersebut, termasuk memberikan kuasa kepada pihak lain untuk melakukan jual beli atas tanah tersebut. Kemudian, yang kedua, Surat Kuasa Menjual Agunan (SKMA) bukan merupakan unsur pengikat agunan tanah dalam Undang-undang Hak Tanggungan (UUHT) sehingga keberadaannya jika digunakan sebagai pengikat agunan berupa tanah girik yang akan memberikan implikasi hukum berupa tidak adanya kepastian hukum bagi debitur maupun kreditur, selanjutnya Surat Kuasa Menjual Agunan (SKMA) tersebut tidak memberikan hak eksekutorial bagi kreditur apabila debitur wanprestasi. Ditambah, penggunaan Surat Kuasa Menjual Agunan (SKMA) tersebut dapat batal demi hukum dikaitkan dengan kedudukan debitur yang hanya sebatas bezitter.
The purpose of the study was to determine the legal position of the holder of the girik evidence on a plot of land and to determine the legal implications of using a Power of Attorney to Sell Collateral (SKMA) to bind the girik land. The method used is normative legal research, while the approach uses three approaches including legislation (statute approach), concept approach (conceptual approach) and analytical approach (analytical approach). The results of the research show that girik is not valid proof of ownership and does not have absolute evidentiary power so that someone who only holds girik evidence on a plot of land only has the position of bezitter who has the right to use and the right to inhabit. His position as a bezitter resulted in him not having the authority to carry out legal actions on the girik land, including giving power to other parties to carry out the sale and purchase of the land. Then, secondly, the Power of Attorney to Sell Collateral (SKMA) is not an element of binding land collateral in the Mortgage Law (UUHT) so that its existence if used as a collateral binder in the form of girik land will have legal implications in the form of lack of legal certainty for the debtor or the debtor. creditor, then the Power of Attorney to Sell Collateral (SKMA) does not give the creditor executorial rights if the debtor defaults. In addition, the use of the Power of Attorney to Sell Collateral (SKMA) can be null and void due to the position of the debtor which is only limited to bezitter.
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Evans, Roger G. "Legislative Exclusions or Exemptions of Property from the Insolvent Estate." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 14, no. 5 (June 8, 2017): 38. http://dx.doi.org/10.17159/1727-3781/2011/v14i5a2598.
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The general policy in South African insolvency law is that assets must be recovered and included in the insolvent estate, and that this action must be to the advantage of the creditors of the insolvent estate. But there are several exceptions to this rule and an asset that is the subject of such an exception may be excluded from the insolvent estate. The Insolvency Act, however, does not expressly distinguish between excluded and exempt assets, thereby resulting in problem areas in the field of exemption law in insolvency in South Africa. It may be argued that the fundamental difference between excluded and exempt assets is that excluded assets should never form part of an insolvent estate and should be beyond the reach of the creditors of the insolvent estate, while exempt assets initially form part of the insolvent estate, but in certain circumstances may be exempted from the estate for the benefit of the insolvent debtor, thereby allowing the debtor to use such excluded or exempt assets to start afresh before or after rehabilitation. Modern society, socio-political developments and human rights requirements have necessitated a broadening of the classes of assets that should be excluded or exempted from insolvent estates. This article considers assets excluded from the insolvent estates of individual debtors by legislation other than the Insolvency Act. It must, however, be understood that these legislative provisions relate to insolvent estates and thus generally overlap in one way or another with some provisions of the Insolvency Act.
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Hudaybergenov, Behzod. "THE DEVELOPMENT OF INSOLVENCY (BANKRUPTCY) LAW AND FORMATION OF BASIC PRINCIPLES IN THE WEST." Jurisprudence 1, no. 4 (December 14, 2021): 50–65. http://dx.doi.org/10.51788/tsul.jurisprudence.1.4./badw6498.
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This article analyzes the emergence and development of norms aimed at the legal regulation of insolvency in Ancient Rome, Italy, France, Germany and England in the Middle Ages. Roman law also explains the procedure for fulfilling the claims of the debtor’s creditors, the retention of which is focused on the debtor’s personality and property, the privileges granted to the debtor, and in which cases the debtor is released from liability. In addition, in the Middle Ages, the impossibility of paying for trade in Italy, France, Germany and England was studied – the formation of a bankrupt, the creation of a regulatory framework, features that differ from each other in the legislation of states and their similar aspects. An attempt was made to reveal the content of various tools used in the process in these states, it was analyzed which rules are still widely used today, and how these norms have entered into the legislation of Uzbekistan, and how they are now called and applied. It is on the basis of the legislation adopted in these states that various directions and trends in the law of insolvency are established. It also covered the issues of restoring the existing in history and lost its force, but socially useful, by changing the rules and norms in the current legislation.
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Bormann, Jens. "The German Enforceable Notarial Act in Cross-Border Cases." LeXonomica 14, no. 1 (June 22, 2022): 49–72. http://dx.doi.org/10.18690/lexonomica.14.1.49-72.2022.
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The subject of this article is to explain and discuss the legal framework for German enforceable notarial acts in cross-border traffic. The first part will illustrate the prerequisites for the enforcement of a notarial act in Germany, especially in circumstances when the creditor or debtor lives abroad. The second section is dedicated to the enforcement of German enforceable notarial acts abroad. After presenting the principles of international law, the main legislative acts regarding enforcement in the European and international framework will be analysed in detail.
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Pradini, Devy Iziana, Izzi Zya Hariyadi, and Shohibul Khoir. "Kepastian Hukum Kredit Online." Jurnal Ilmiah Pendidikan Pancasila dan Kewarganegaraan 5, no. 2 (December 31, 2020): 324. http://dx.doi.org/10.17977/um019v5i2p324-331.
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This paper aims to discuss the validity of a contract in online credit and the provision of collateral for online credit as an embodiment of the 5C principle in banking. The method of study uses a normative juridical approach to the legislation and conceptual approach. Online credit contracts are legally valid because they meet the legal requirements of a contract, only the legal certainty is low because the parties do not know firsthand the good intentions of the parties. The provision of collateral in online credit is not against the law, it’s just that the precautionary principle that the bank should apply in providing credit is not fulfilled. The creditor does not have a guarantee for the debtor’s debt repayment if at any time the debtor is unable to repay the loan or break the promise.
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Bushev, A. Iu, and O. Iu Skvortsov. "The Theoretical Underpinnings of Commercial Law: A Russian View of Bankruptcy and Securities." Review of Central and East European Law 30, no. 2-4 (2005): 183–84. http://dx.doi.org/10.1163/1573035054733040.
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AbstractPart One. The history of bankruptcy in Russian law both before and after the 1917 Revolution is the tool used to introduce the reader to this article. During the Soviet period, creditors of enterprises never participated in proceedings for their liquidation. This state of affairs began to change in 1992 with the adoption of the first bankruptcy legislation in the post-Soviet period.However, as reality soon showed to most observers, this was not a successful piece of legislation—at least as regards the needs of liberalized trade and commerce. This prompted the Russian legislator to promulgate new bankruptcy legislation in 1998; in turn, its life span was but a short four years. The reader here will be offered critical comments on the most recent RF Bankruptcy Law dating from 2002 and thoughts on how its provisions compare with those from prior versions of RF laws on insolvency. This will include views on bankruptcy practice in Russian courts the case load of which is growing each year.Part of the growth in application of bankruptcy legislation in Russia is a function of its use by entrepreneurs as a tool to divide up business assets. This has led to the phenomenon of fictitious bankruptcies. Another major problem in the application of bankruptcy legislation in recent years in Russia has been—the authors argue—a failure to take into account the interests of minority shareholders in corporate bankruptcies as well as of those corporate creditors who obligations are secured by collateral.Part Two. Transactions that are declared invalid during bankruptcy proceedings are the subject of this section. This analysis will be made using the approach of classic, continental law to the grounds for declaring a transaction to be invalid. The authors then highlight the logic in applying this institution to the area of bankruptcy. In doing so, the specific features are revealed of voiding transaction in bankruptcy proceedings.In particular, the authors draw the attention of the reader to the criteria under which a transaction concluded by an insolvent debtor is either void (nichtozhnaia) or voidable (osporimaia). They also underscore the necessity of striking a balance between the interests of creditors and those of an insolvent debtor. In this regard, the institute of the invalidity of transactions is examined from the point of view of providing a pro-creditor, pro-debtor, or neutral system in bankruptcy legislation.Part Three. The development of the generic institute of securities in Russia—as a form of debt instrument—is the focal point of this section. The influence of the Pandect system of Russian law on securities is illustrated as is that of politics (that has led to substantial changes in commerce and entrepreneurial activity) and doctrine. The authors argue the point that the characteristics of a security—both those seen on a paper document as well as those in an electronic form—can be united into a single, generic concept. The particularities of this concept are of an evidentiary nature.Each security is an evidentiary document that is distinguished (both in paper as well as electronic form) from other documents in the manner in which it can be contested and entered into evidence in judicial proceedings. The contestability of a security depends, in turn, upon the type of security involved and the rights that they confirm (a good, money, income).Arguments are given by the authors of this article in support of the thesis—not uniformly shared by all Russian scholars—that such means of legal defense as vindication is permissible vis-à-vis electronic securities. Yet the authors here also speak of a just (spravedlivyi) balance of the risks between the holder of a security that has lost the legal control (ownership) there over and a bona fide acquirer of such a security. Justice is reached through a determination in substantive law of procedural norms that apportion in a set fashion the burden of proof among interested persons.Lastly, this work also highlights the work of regulating the institute of securities in other CIS jurisdictions. In doing so, the authors point out a few areas in which Russia is lagging behind as concerns the organization of electronic trading in securities.
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SHAPSUGOVA, MARIETTA. "ON THE INEXTRICABLE LINK BETWEEN THE PERSONALITY OF THE PARTICIPANT AND THE SOCIETY ON THE EXAMPLE OF LAW ENFORCEMENT PRACTICE ON BRINGING THE DEBTOR'S CONTROLLING PERSONS TO SUBSIDIARY LIABILITY." Economic problems and legal practice 17, no. 01 (February 28, 2021): 135–39. http://dx.doi.org/10.33693/2541-8025-2021-17-1-135-139.
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The purpose of the research. Bankruptcy proceedings increasingly involve not only controlling persons but also members of their families. The reason for this is the conflict of interests of the family and creditors. The development of bankruptcy legislation leads to a reduction in the possibilities of preserving the property of family members from collection under the obligations of the controlling person of the debtor. Until recently, one of these methods was the alienation of property in favor of a minor, which undoubtedly led to a violation of creditors' interests. The need to protect creditors' interests gave rise to new specific forms of lawmaking by the higher courts, in particular, bringing the children of the controlling debtor to responsibility. This decision seems to be controversial. This is the exhaustion of the theory of independent legal personality of a legal entity and the lack of a theoretical justification for the implementation of entrepreneurial activities of citizens in the form of participation (membership) in a legal entity. The article aims to identify sources of legal uncertainty in bringing the children of the controlling debtor to respond within bankruptcy procedures. The article analyzes the judicial practice in cases of bringing family members of a controlling debtor, including children, as controlling beneficiaries, to subsidiary liability for society's obligations through the prism of the conscientiousness of the exercise of parental rights and the conscientiousness of a minor. Results. It is proposed to introduce into legislation two presumptions: a refutable presumption of the conscientiousness of a parent and an irrefutable presumption of a child's good faith as a tool to save a minor from civil death through the fault of the parents.
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Poiedynok, V. V., and I. V. Kovalenko. "RESPONSIBILITY OF DIRECTORS IN BANKRUPTCY PROCEDURES UNDER EU LAW AND INDIVIDUAL MEMBER STATES OF EU." Economics and Law, no. 1 (April 15, 2021): 48–60. http://dx.doi.org/10.15407/econlaw.2021.01.048.
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The Bankruptcy Proceedings Code of Ukraine provides for the possibility of imposing liability under the obligations of the debtor – a legal person on the founders (stakeholders, shareholders) or other persons who have the right to give mandatory instructions to the debtor or have the opportunity to otherwise determine his actions. As a result, "comfortable" organizational forms of companies, such as LLCs and JSCs, have become risky for investors; managers, who may be employees, bear risk too. The article analyzes the legislation of the EU and some EU member states (Germany, France, Spain, the Netherlands, Latvia, Romania), concerning the liability of individuals in insolvency proceedings. We find that the rules on such liability are not harmonized at the EU level; as for individual countries, their laws do provide for the possibility of holding both de jure and de facto directors, whereas the latter may include the founders (stakeholders, shareholders) of the company, for the debts of the company. At the same time, the legislation of European countries describes in great detail the conditions and procedure for imposing such liability, which makes the risks for the individuals concerned predictable. Moreover, special rules on liability in insolvency proceedings are systematically linked to the provisions of company law, which establish the obligation of directors to act with due diligence in the interests of the company and liability for knowingly making business transactions with the knowledge that the company is insolvent (wrongful trading). In Ukraine, there are absolutely no specific legal provisions on the conditions and procedure for holding even de jure directors to liable in insolvency proceedings, not to mention the founders (stakeholders, shareholders) of companies, which creates a situation of legal uncertainty. To eliminate it, the legislation of Ukraine should define: the range of individuals on whom such liability may be imposed; a specific list of actions, the commission of which may give rise to liability; the need to prove the guilt of such individuals; forms of guilt sufficient to be held liable (only intent or also negligence); procedural rules for establishing guilt, including the issue of the burden of proof; who may lay claim to a director (insolvency administrator, creditor, court); statutes of limitations on the liability of directors, etc.
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Suwanto, Suwanto, Sri Kusriyah Kusriyah, and Bambang Tri Bawono. "Criminal Aspects Of The Fiduciary Guarantee Transfer As Decision Basis On Criminal Justice Process." Jurnal Daulat Hukum 3, no. 1 (April 13, 2020): 93. http://dx.doi.org/10.30659/jdh.v3i1.8405.
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The research problems are: What is the criminal aspect to the transfer that occurred on fiduciary as the basis for the decision in the court proceedings? The approach used in this research is normative juridical approach or the written law (law/statute approach), This approach is also known by the literature approach, namely by studying books-books, legislation and other documents related to this research. The study concluded that the diversion of the object fiduciary by the debtor without the consent from creditors including activities that violate the rights of creditors as the recipient of fiduciary protected by the Fiduciary Law, specifically Article 36 of Act No. 42 Of 1999 On Fiduciary.Keywords: Criminal Aspects; Fiduciary Guarantee Transfer; Criminal Justice.
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Muneeza, Aishath, and Zakariya Mustapha. "Practical application of Kafalah in Islamic banking in Malaysia." PSU Research Review 4, no. 3 (February 21, 2020): 173–87. http://dx.doi.org/10.1108/prr-01-2019-0001.
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Purpose The purpose of this paper is to explore the application of Kafalah in the practice of Islamic banking in Malaysia generally and ascertain applicable rules governing the application under relevant legislations and Shariah. The study also aims to examine the legislations in the light of Shariah provisions governing Kafalah and propose amendments. Design/methodology/approach This is a qualitative research where primary data sources mainly legislations and secondary sources comprising of articles and books on the subject of Kafalah were examined. It is an exploratory legal research that primarily focuses on library studies and adopts doctrinal approach for content analysis of data from the identified sources. Findings Kafalah is widely used in Islamic banking in Malaysia with primary or secondary application in structuring such products/services as personal guarantee, bank guarantee, Islamic credit card among others. The substantive law applicable to Kafalah in Islamic banking in Malaysia is the Contracts Act 1950 as decided cases indicate. However, provisions of the Act are at variance with rules of Shariah applicable to Kafalah on absolution of guaranteed debtor, multiple guarantors’ liability towards guaranteed sum as well as recourse and recovery from principal debtor. Research limitations/implications This research explored the practice of Kafalah in Islamic banking under Malaysian legal framework based on the available literature. The research does not embody an empirical evaluation. Originality/value This research suggests, with respect to the identified issues, an amendment to the Act for clarification as follows: that recourse and recovery from principal debtor is only where creditor has requested guarantor to settle outstanding debt, that presence of surety does not absolve principal debtor from his original liability and that multiple guarantors stand as having equal responsibility towards guaranteed amount. The research findings will assist policy and law makers to harmonize the relevant laws with the Shariah to facilitate sustainable development of Islamic banking.
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Rasskazova, V. V. "Settlement and Release in European Legislation." Bulletin of Kharkiv National University of Internal Affairs 89, no. 2 (June 26, 2020): 61–68. http://dx.doi.org/10.32631/v.2020.2.05.
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Since the current contractual practice demonstrates the active use of settlement and release construction by the parties of civil legal relations as one of the most flexible instruments of termination of an obligation, the issue of ensuring unity in the interpretation and practice of this legal institution remains relevant. The subject matter of this study is the norms of civil law of different Member States of the European Union, and the purpose is the study of the conceptual approaches of other states to the legislative consolidation of settlement and release structure, its recognition as one of the ways to terminate the obligation and specific features of the interpretation and application of this institution that will make it possible to enlarge the view on the essence and role of settlement and release within the system of grounds for the termination of civil obligation and national contractual practice.
The comparative and legal method was chosen as the main method of scientific research, due to which the author characterizes the main elements, purpose and essential features of legal constructions in civil law of other states, which are similar to the institution of settlement and release in Ukraine; the author pays attention to distinctive technical and legal peculiarities of civil legislation of some EU countries.
According to the results of the conducted research the author has established that civil legislation of the most European countries does not enshrine settlement and release as the institution of obligation law and does not recognize it as an independent method to terminate the obligation. At the same time, the codified acts of some states contain certain legal norms, which provide for cases of transferring a certain good by the debtor to the creditor instead of fulfillment of an obligation, as well as enshrine legal institutions that act as settlement and release.
The significance and practical significance of the paper is that the conducted study reveals new directions for further research, demonstrates the relevance and need for a more detailed and comprehensive analysis of the content and legal features of settlement and release, its importance and role in national contractual practice, as well as in the practice of other states.
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Arbekova, A. V. "The Evolution of Liability Measures Applied in Bankruptcy to Creditors’ Property Rights Violators in Russia." Actual Problems of Russian Law 16, no. 5 (June 9, 2021): 84–97. http://dx.doi.org/10.17803/1994-1471.2021.126.5.084-097.
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One of the tasks the modern law in the field of insolvency of legal entities pursues is to ensure the maximum balance of the rules governing the measures of liability applied to managers, participants and other entities controlling the debtor. In this regard, the author applies historical and comparative method of studying the measures of responsibility applied during the development of domestic legal regulation of insolvency and the critical assessment method that forms the basis for the analysis of the current Russian legislation. The paper carries out a retrospective analysis of the form and degree of fault as an element of the offense that traditionally acted as one of the criteria for choosing the type of insolvency, as well as for imposing the measures of responsibility. A comparative analysis of the norms of the Russian bankrupt legislation in historical retrospect allowed raising problematic issues of the current legislation and making proposals aimed at their resolution. Currently, the rules of the current domestic insolvency legislation provide an equal amount of responsibility for both bad faith (intentional) and unreasonable (careless) actions of entities controlling the debtor. The normative consolidation of measures of responsibility dependent on the form of fault, namely, the separate qualification of intentional and careless offenses, will secure coherent application of the principle of justice. Modern Russian law contains the concepts of “insolvency” and “bankruptcy”, which in some cases creates legal uncertainty. Therefore, it is proposed to delineate these concepts by law, eliminate the term “objective bankruptcy” from the application, and shift its semantic burden to the concept of “insolvency”. Thereby, a separate category of insolvency will be included in the current legislation.
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Bondar, I., and L. Maliarchuk. "THE CHRONICLE OF THE ENFORCEMENT OF DECISIONS DURING THE MARTIAL LAW PERIOD: RELEVANT QUESTIONS AND WAYS TO SOLVE THEM." Bulletin of Taras Shevchenko National University of Kyiv. Legal Studie, no. 121 (2022): 10–15. http://dx.doi.org/10.17721/1728-2195/2022/2.121-2.
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The article addresses a systemic analysis of legislative changes under conditions of martial law in the sphere of the enforcement of decisions. The target is to analyse the separate novelties and prohibitions which were introduced or going to be introduced concerning their reasonableness and appropriateness. General and special scientific methods were used to achieve stated aim, namely dialectical, comparative and analytical, which jointly allowed the authors to find answers for the questions outlined. In the research particular features of the enforcement of decisions in modern conditions were highlighted, the consequences of establishing restrictive measures and changes for participants in enforcement proceedings and the government as a whole were analysed. It is justified that the system of the enforcement of decisions from the day of the invasion goes through a though point and is in stagnation. In fact, private executors remain without work, payment for it, while they have to hold offices, pay wages to their assistants. Creditors remain unprotected as they are not able to restore their rights and satisfy their demands due to continued absence of access for executors to Automated system of enforcement proceedings, suspension of state registers' work, suspension of realization electronic tradings, and also established limits relating to pursue assets to wages and other types of debtor income, moratoriums on implementation decisions about some debtors, while creditor might also remain without work and expect to return at least debt. Even a debtor can feel negative consequences of absence of conditions to implement decisions and a corresponding end of implementing decisions with an opportunity to remove coercive measures, which are applied to him, and ensure the enforcement of the decision. Circumstances, which were mentioned, led to the urgent need in resolving relevant problems of the enforcement of decisions through experiencing new mechanisms and using other means to accomplish their features and cooperation with other authorities. Particularly, unlocking a work for private executors, providing the same conditions of access to procedural means to implement decisions on an equal basis with state executors, optimising the rules of the provision of executive documents, solving questions on extraterritoriality etc.
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Hutsaliuk, Olexii. "The Development of State Regulation of Economic Relations in Field of Bankruptcy in Ukraine." Herald of the Economic Sciences of Ukraine, no. 1(38) (2020): 188–91. http://dx.doi.org/10.37405/1729-7206.2020.1(38).188-191.
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The article deals with the main stages of becoming a bankruptcy institute in Ukraine as a mechanism for regulating a market economy, examines the development of state regulation of economic relations in the field of bankruptcy in Ukraine, and presents problems and proposals for their solution. The bankruptcy procedure is distinguished and the national aspects of bankruptcy are emphasized. The problems of applying bankruptcy law have been identified. Gaps in national legislation have been identified. The approaches that were identified to identify the goals of the bankruptcy procedure are analyzed and the causes of bankruptcy of domestic enterprises are presented. Ukraine, as a country aimed at building a market economy, must have an effective bankruptcy institution. The goals of such an institute are to restore the debtor’s solvency and to preserve the business entity. For this purpose it is necessary to improve the normative-legal mechanism of the institute, which would take into account the state of the modern economy, the level of social development, the historical way of life of the people and set the goal of achieving not private interest, but the general goal – restoring the solvency of the debtor. Bankruptcy means liquidation, sale of property assets of the debtor in order to satisfy the claims of creditors. Liquidation is an extreme measure applied to the debtor if the debtor’s financial recovery measures did not bring a positive result. That is, bankruptcy law has two goals: restoring the solvency of the debtor, and in the event that such a restoration is impossible, satisfying the creditors’ claims in the most equitable way.
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Datau, Rahmat, Abdul Rachmad Budiono, Iwan Permadi, and Siti Hamidah. "The Meaning of Indigenous Rights in Fidusian Guarantee in the Perspective of Law Number 42 of 1999 Concerning Fidusian Guarantee." International Journal of Multicultural and Multireligious Understanding 7, no. 8 (September 3, 2020): 187. http://dx.doi.org/10.18415/ijmmu.v7i8.1837.
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The purpose of this article is to discuss the meaning of material rights in fiduciary security in the perspective of Law Number 42 of 1999 concerning Fiduciary Security. The research method used is document review with the Statute Approach approach to fiduciary legislation as primary legal material, as well as various secondary legal materials such as the results of fiduciary scientific studies and literature reference materials about fiduciary. The analysis used is Content Analysis of articles related to fiduciary law. The results showed that the meaning of property rights in nature is always attached to the owner. On the other hand, according to customary law, the meaning of property rights is essentially communal/collective (family/community) as the basis for their rights, both for movable or immovable objects in their possession. Essentially fiduciary property rights are handed over from the debtor's hands to the creditor, with a belief that the property rights will be handed over again if the debtor has paid off his debts, but in the process of surrender, control and his debts often cause legal problems, even though the Fiduciary Guarantee Institute has been formed. The conclusion that the meaning of material rights in fiduciary security lies in the matter of 'Delivery' and 'Mastery' of the items guaranteed.
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Ściślicki, Piotr. "RZYMSKA GENEZA INSTYTUCJI ZAWIADOMIENIA DŁUŻNIKA O PRZELEWIE WIERZYTELNOŚCI. DENUNTIATIO Z C. 8,41,3 PR. A WYBRANE USTAWODAWSTWA WSPÓŁCZESNE." Zeszyty Prawnicze 3, no. 1 (March 29, 2017): 93. http://dx.doi.org/10.21697/zp.2003.3.1.04.
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THE ROMAN ORIGINS OF THE NOTICE TO DEBTOR OF ASSIGNMENT DENUNTIATIO IN C. 8,41,3 PR. AND SELECTED CONTEMPORARY LEGAL SYSTEMSSummary The transferability of relative rights is now commonly admitted as one of the most basic and indispensable foundations of economic turnover. The creditor’s right, to which there corresponds a duty o f some designated individual, is considered to be first and foremost a fraction of capital, an element o f property broadly construed, capable of being alienated. The subjective level of a right, the fact that it belongs to one concrete person against an other, does not constitute its crucial and defining aspect.The standpoint of classical Roman law was, at least initially, different - iurisprudentes used to consider obligatio as a strictly personal legal bond which could not be affected by any subjective transformations. As such a rule did not correspond to commercial needs, there appeared a strong tendency to overcome it by means of legal instruments which to some extent did the work of assignment - novation with a change of subject, based on the Roman delegatio and the appointment of an attorney, authorized by the creditor to sue for the debt in the creditor’s name without any liability to account him (procuratio in rem suarri). Both devices, forms of Roman, so to say, quasi-cessioy were nothing but palliatives of assignment and as such had many disadvantages. Novation as a contract where the debt owed by the debtor would henceforth be owed to a third party does not preserve the identity o f the legal relation - the third party’s quasi-assignee’s) right against the obligor is based on the new contract between him and the debtor, while the original debt and correlative creditor’s (quasi- -assignor’s) right cease to exist. The power of attorney however can be revoked at any time by the creditor. Moreover, the quasi-assignor is here still able to sue the debtor personally and thus to deprive the quasi-assignee o f the acquired right.It is disputable whether Roman law ultimately worked out the idea of assignment. Some Romanists claim it never happened. However, according to the alternative view, the methods elaborated by classical jurisprudence to evade unpractical restriction, especially procuratio in rem suam, were gradually improved and endowed with properties that finally converted them into a form notionally equivalent to the contemporary understanding o f assignment.As has already been stated, in the light o f contemporary legal systems creditor’s rights against the debtor can be freely transferred to a third party by a process called assignment without affecting the identity o f the legal bond. The debtor is not a party to the transaction and his consent is not necessary to its validity. After a valid assignment is made, the assignee substitutes for the assignor as the person to whom performance must be rendered. There appears a risk that the debtor, unaware of the change, could still treat the assignor to be an obligee and consequently render the performance to him. Such an undue performance in principle does not discharge the obligation and thus the debtor’s responsibility to the assignee remains. It therefore follows that although the obligor need not be a party to or assent to the assignment, he should be notified of it so that he knows the person to whom performance is now due.The notification to the debtor (denuntiatio) has its origins in Codex Iustinianus - C. 8,41,3 pr. The point of this paper is to outline the influence of the above mentioned source upon some selected contemporary civil law systems, sc. French, Italian, Austrian, German, Swiss and Polish. The Roman concept of denuntiatio appears in all of them as the crucial element of the legal construction o f assignment. Furthermore, it seems to be the case that different ways of interpreting C. 8,41,3 postulated by the romanists have been reflected in the manifold of models according to which the contemporary cession is formed by lawmakers of different countries. It has to be underlined that the variety of possible schemes of assignment depends to a large extent on what legal significance is being attached to the denunciation - on whether it is considered to be the condition of validity or efficacy o f the transaction between assignor and assignee or whether it serves only as a contrivance to deprive the debtor of the possibility of rendering the performance in favor o f the assignor with the effect of discharging the obligation.The modifications of the Roman norm in the aforesaid legislations fall into three categories: 1) the legal significance of denuntiatio - what is the impact o f notification on the legal relation between assignor and assignee, 2) the technical aspect of notification - what is self-contained denunciation, who is enabled to perform it, what formalities are required for the notice, 3) the equivalents of denunciation - are there any states of affairs that bring about identical effects as self-contained notification, what is the status of the obligor’s pure, informal knowledge about the assignment from this point of view.Some remarks concerning common law systems aim at emphasizing the considerable similarities between them and continental legislations concerning the way in which they regulate the transfer of rights. Here notification plays an analogical role - it has a similar nature, relevance and consequences.
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Kuznetsova, N. V. "CONTRACTUAL BASIS FOR TERMINATION OF CIVIL LEGAL OBLIGATIONS: PROBLEMS OF THEORY AND PRACTICE OF APPLICATION." Bulletin of Udmurt University. Series Economics and Law 31, no. 6 (December 3, 2021): 1054–58. http://dx.doi.org/10.35634/2412-9593-2021-31-6-1054-1058.
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The article considers contractual grounds for termination of civil obligations: compensation, innovation, debt forgiveness. The paper notes some problems of the application of Articles 409, 414, 415 of the Civil Code of the Russian Federation in judicial practice, analyzes the issues of the ratio of compensation and innovation, the differentiation of these contracts. The problems of qualification of agreements on the grounds for termination of obligations in law enforcement practice and the question of applying the principle of freedom of contract to the relations under consideration are considered. It is noted that at present the practice of applying the legislation on compensation has changed significantly. Despite the restrictions established by the norm of Article 409 of the Civil Code of the Russian Federation, judicial practice allows the possibility of using works and services as a subject of compensation, which leads to problems of distinguishing such contractual grounds for termination of obligations as compensation and innovation. With regard to the innovation, an analysis of the provisions on the possibility of novating the penalty into a loan obligation is given. A problematic issue is the legal qualification of debt forgiveness as a basis for termination of an obligation. It is noted that the contractual nature of debt forgiveness should be taken into account. Acceptance of notification by the debtor's creditor of his release from the performance of his duty is the silence of the debtor (clause 2 of Article 438 of the Civil Code of the Russian Federation). The article also considers the question of the ratio of debt forgiveness and donation. The analysis of judicial practice shows that the courts do not consider debt forgiveness as a gift, except in cases when the creditor released the debtor from the performance of the obligation free of charge. In this case, the norms of Article 168 of the Civil Code of the Russian Federation and paragraph 4 of Article 575 of the Civil Code of the Russian Federation are subject to the application of debt forgiveness.