| Abstract [eng] |
Civil Turnover Stability and Corporate Transactions Concluded before Bankruptcy Proceedings Were Initiated: Comparative Aspects An increasing number of bankruptcies leads to uncertainty about the fate of contracts concluded by company prior to the opening of bankruptcy proceedings. While establishing rules for termination or avoidance of pre-bankruptcy transactions, legislator faces the conflict between commercial certainty and protection of the interests of creditors. While applying these legal rules in practice the courts also face the conflict mentioned above. In order to assess best practices of foreign countries and to improve the national regulation, the thesis provides the comparative analysis concerning the question to what extent the balance between commercial certainty and protection of creditors is ensured in England, Germany, France and Lithuania. The thesis provides comparative analysis of requirements for the grounds of avoidance rules of transactions concluded by the company prior to the opening of bankruptcy proceedings. There is also analyzed the problematic aspects of lack of contractual stability in cases where the seller who retains the right of ownership to the goods which are sold, goes into bankruptcy. The thesis also provides comparative analysis of the possibility of the other contracting party to rely on ipso facto provisions. Besides, there is analyzed the fate of pre-bankruptcy transactions when the bankruptcy administrator within the statutory time limit does not make a decision on the performance or termination of the contract. The comparative analysis does not lead to unambiguous conclusion about effectiveness of ensurance the balance between two legal values mentioned above. On the one hand, while establishing requirements for transaction avoidance on the ground actio Pauliana Lithuanian legislator assessed the importance of both legal values and effectively ensures a balance between them. The same applies when a bankruptcy administrator within the statutory time limit does not make a decision on the fate of pre-bankruptcy contract. On the other hand, there is a threat to commercial certainty because there is no prohibition to the other contracting party to rely on ipso facto provisions. Besides, Lithuanian legislator does not guarantee the buyer the opportunity to acquire the right of ownership of the transferred goods where the seller who retains the right of ownership goes into bankruptcy. Thus, according to the best practices of foreign countries, Lithuanian regulation of relevant issues is to be improved. |
