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Abuse of the insolvency proceeding and defense against it
Toula Bergelová, Linda ; Pohl, Tomáš (advisor) ; Smolík, Petr (referee)
Title: Abuse of the insolvency proceeding and defense against it Abstract: The thesis deals with the abuse of the insolvency proceeding and tools how to defend against jt. In the introduction part of the thesis are described basic principles and concepts of bankruptcy law, the purpose of the insolvency proceeding and its effect. The core of the whole thesis is in the chapter 2 & 3. The chapter 2 deals with the abuse of the insolvency proceeding by the entities which are not the debtor. I was focused mostly on the unreasonable insolvency proposals by the creditors and on the existing specific tools which can be used to limit these kinds of proposal. The same chapter is also touching other cases of the abuse of the running insolvency proceeding by the entities which are not the debtor. At the end of this chapters are described the possible and currently proposed tools how to avoid the abuse of the insolvency proceeding. The chapter 3 deals with the abuse of the insolvency proceeding by the debtor. Because this topic is very complex and there are described just the most common way how the debtor abuses bankruptcy law and as well the possible methods, that are able to limit the possibility to abuse the law by debtor. First, there are briefly described two general phenomena linked to the insolvency process....
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International insolvency law
Šerák, Martin ; Brodec, Jan (advisor) ; Pfeiffer, Magdalena (referee)
This thesis focuses primarily on the field of European cross-border insolvency law, currently represented by the EU Regulation on Insolvency Proceedings (EC No 1346/2000). The EU Regulation considered theoretical conflict between advocates of universalism and territorialism, and is generally regarded as reflecting it in a way of modification, which is represented by distinction between main and ancillary insolvency proceedings. Determination of international jurisdiction in the main insolvency proceedings is inherently linked with the criteria of the centre of main interests (COMI), which serves as a specific connecting factor to constitute both the court with jurisdiction and applicable law, for the purpose of the whole insolvency process in accordance with the principle lex fori concursus. The COMI concept is the root of the jurisdiction trouble, thus this thesis aims at providing substantial information on the concept, since the EU Regulation neglects its proper introduction. One of many issues related to COMI conception is a phenomenon of forum shopping, term used to describe situations when debtors manipulate with facts relevant for establishing jurisdiction, in order to obtain more favourable position, usually at creditors' expense. The thesis also deals with another important initiative in...
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Creditors in insolvency proceedings
Fiedlerová, Dana ; Macková, Alena (advisor) ; Pohl, Tomáš (referee)
The topic of my thesis is the study of creditor status during insolvency proceedings. My objective is to provide a description of the current legal regulations of creditors and their receivables in insolvency proceedings with a focus on specific problems that may arise during the process of the collection of receivables during insolvency proceedings. I also refer to various principal court decisions dealing with these issues. The aim of this thesis is not to present a comprehensive description of all creditor related issues, but to provide a general summary of the relevant processes and to present the most common practical problems and their solutions.
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Discharging debts as a new phenomenon of insolvency law
Kožená, Michala ; Pohl, Tomáš (advisor) ; Smolík, Petr (referee)
This work intends to analyse current normative regulation of the institute of discharging debts, interpreting relevant provisions and point out some actual problems, which are dealt with in the judicial practice and that arise as a result of application of some statutory provisions in the process of solving bankruptcy problems of a debtor by the ways of discharge from debts. The doctoral thesis deals with institute of discharging debts as new a preservation method of solving debtor's bankruptcy situation, brought to the Czech legal system by the Insolvency Act. Beside chapters focused on discharging debts as a main subject of this Thesis, other chapters are concerned with the history of bankruptcy law including Act on Bankruptcy and Settlements and its comparison with the amendment contents in the Insolvency law. Still other chapters contain explanation of the basic concepts of Insolvency law such as bankruptcy, impending bankruptcy, insolvency, atc., brief description of the course of Insolvency proceedings including Insolvency proposals issuing from the judicature view, and some particular ways of solving a debtor bankruptcy. With regard to the fact that discharging debts is impossible to interpret independently of Insolvency proceedings as it is whit spacific deviations pervading it's whole...
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Incidental disputes in insolvency proceeding
Gaierová, Klára ; Pohl, Tomáš (advisor) ; Macková, Alena (referee)
The aim of this diploma thesis dedicated to the issue of incidental disputes in insolvency proceeding was to determine the incidental disputes in proceedings, categorize them systematically, outline their character and set a comprehensive overview of these disputes. Within the insolvency proceedings incidental disputes are largely solved as case law, which the author of this work deals within the description of the various types of disputes. The thesis is divided into fourteen chapters, which are further divided into subsections and parts. The first two chapters are devoted to insolvency proceeding in general, especially when the character and purpose of the insolvency proceeding as well as the conceptual definition of insolvency proceeding and its consequences are outlined, because without these underlying premise would be impossible to describe the issue as a whole. Incidental disputes have undergone throughout history certain development and as an incidental are spoken only in the 90s of the 20th century. The third chapter of the thesis is dedicated to the historical development of insolvency proceedings in Czech territory and comparisons applicable regulation of insolvency proceedings with modifications beginning in the 1781 and the issue of the general bankruptcy order compared to other...
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Position of spouses in insolvency proceedings
Hašová, Klára ; Pohl, Tomáš (advisor) ; Macková, Alena (referee)
The aim of this thesis is to describe and bring the issue of the position of spouses in insolvency proceedings to the reader. In last few years this issue has become more and more relevant and brought a lot of questions and problems to case law but also to the legislation that deals with it. The thesis is divided into three chapters. Chapter One introduces the basic terminology used in the thesis to the reader in order to help him or her understand issues presented later. The definitions of following concepts may be found in this chapter: insolvency proceedings, insolvency and its solution modes, marriage, common property of spouses and the estate in insolvency proceedings. Chapter Two deals with the discharge of the debts of spouses which represents the new legal institute adopted by Act No. 294/2013 Coll., which changes the Act No. 186/2006 Coll., on insolvency and its solution modes (Insolvency Act) and Act No. 312/2006 Coll., on insolvency administrators (hereinafter referred to as "revising amendment"). The first subchapter briefly illustrates the previous legislation so the reader can compare the differences and note the changes brought by the revising amendment. The following subchapters describe the whole process of discharge of the debts step by step concentrating on the specifics of...
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Insolvency petition and its misuse
Kadlec, Tomáš ; Pohl, Tomáš (advisor) ; Macková, Alena (referee)
The goal of this thesis is to explain the conception of the insolvency petition and to solve issues arising from the misuse of the insolvency petition including the motivation to file such an unlawful claim. Under the Czech law, the Insolvency petition is an important part of the insolvency proceedings that are initiated at the moment when an insolvency court receives the insolvency petition. Particular legal requirements of the insolvency petition, which would be able to initiate demanded consequences, were analysed step by step in this thesis too. Differences between the situations when the insolvency proceedings were initiated by the creditor or by the debtor were also specified. Significant part of this thesis deals with matters relating to the misuse of the insolvency petition. The overview of the principle of misuse of law in civil law was given at the beginning of this part. One of the objects of the chapter was also to determine the motivation to submit an unlawful insolvency petition as well as the characteristics of this illegal claim. Subsequently, the possibilities of defense against the unlawful insolvency petition were stated. Some of these defence mechanisms are explicitly mentioned in the Act No. 182/2006 Coll., on Insolvency and methods of its Resolution (Insolvency Act), the rest...
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Creditors and make claims in insolvency proceedings
Kociánová, Barbora ; Smolík, Petr (advisor) ; Pohl, Tomáš (referee)
The aim of rigorosum thesis is to give an analysis of the various institutes of insolvency law with a focus on the creditor and the procedural steps in the insolvency proceedings, accompanied by a comparison method, case law, the views presented in technical writing, knowledge of practical life creditors and critical evaluation of problematic issues applicable legislation. The result of the work should be comprehensive methodology of conducting the creditors during the insolvency proceedings, from its opening to the moment when the insolvency proceedings on procedural grounds built for sure that the creditor's receivable is determined and the lender will be satisfied with any of the bankruptcy. The work is divided into seven chapters, each chapter reflects significant legal field relating to creditors and their claims. The introductory part is rather theoretical focus, especially on the subject of insolvency proceedings, bankruptcy legislation and its development rights, the principles on which the insolvency proceedings is, definition of debt as contract law and a person lender. Another chapter discusses the course of bankruptcy proceedings, from its launch until the bankruptcy court decides whether the debtor's bankruptcy or not qualified. Among other things, the chapter also explains the meaning of...
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Reorganization plan - preparation and performance
Nováková, Karolina ; Pohl, Tomáš (advisor) ; Smolík, Petr (referee)
IN ENGLISH: Reorganization plan - preparation and performance The main purpose of my thesis is definition of the functioning of the reorganization and providing detailed analysis of preparation and performance of a reorganization plan until the termination of the reorganization. The work focuses on the problematic parts of the reorganization process under the existing legislation included in the Act No. 184/2006 Coll., Insolvency Act, and points out a way how the stakeholders deal with these issues in the practice. The aim of my work is to answer why there is still so small amount of successful reorganizations and why is reorganization overall underused means of resolving insolvency or impending bankruptcy of debtors. The thesis is divided into eight chapters and each chapter is further divided into several subchapters. The first chapter deals with reorganization as a remediation solution of the debtor's bankruptcy in general. The second chapter is concerned with creditor's position in the reorganization process. Third chapter discusses in detail the issue of a reorganization plan, in particular the question of its purpose, the process of preparation of a reorganization plan, the content of a reorganization plan and its annexes. The fourth chapter is concerned with a report on the reorganization...
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Assets
Ryšlavý, Dalibor ; Smolík, Petr (advisor) ; Pohl, Tomáš (referee)
The aim of this thesis is mainly define Institute of assets within the meaning of the Insolvency Act. This thesis is also interested in two important terms, Insolvency register and Insolvency administrator. This Thesis deals with the activity and competencies of the insolvency administrator in the process of determination and listing the assets. This thesis also deals with invalidity and unenforceability of legal acts, which reduce the assets. This thesis deals compared Insolvency Act and the older Act on Bankruptcy and Composition and author's de lege ferenda ideas as well. Attention being paid is also insolvency proceedings with European international element contained in Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings.
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