17 National Report for Spain

This chapter discusses the law on creditor claims in Spain. Spain’s current insolvency regulatory regime resulted from the reorganization and modernization that took place with the passing of the 2003 Insolvency Law (Ley Concursal). The ranking of claims under the Insolvency Law coexists with a ranking of claims for execution in individual proceedings, regulated in the Civil Code. The Spanish system has been generally respectful of the pre-insolvency entitlements of secured creditors; provides priority for post-commencement financing; and includes different tiers of priorities for certain categories of creditors. The remainder of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

10 National Report for Germany

10.1093/law/9780198727293.003.0010 ◽

2016 ◽

Author(s):

Paulus Christoph G ◽

Berberich Matthias

Keyword(s):

Insolvency Law ◽

National Report ◽

Participation Rights ◽

The Law ◽

Insolvency Proceedings ◽

This chapter discusses the law on creditor claims in Germany. German insolvency law distinguishes between several types of creditors in insolvency proceedings and treats them differently with regard to priority of claims, enforcement, modes of realization, and costs. The doctrinal approach of the German Insolvency Code is not so much a categorization of claims, but rather it takes a view on the creditors. German insolvency law draws a rough distinction between four creditor groups: secured creditors; general insolvency creditors; subordinated creditors; and administration creditors. The remainder of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

2 National Report for Austria

10.1093/law/9780198727293.003.0002 ◽

2016 ◽

Author(s):

Duursma-Kepplinger Henriette ◽

Englmair Christof

Keyword(s):

Bankruptcy Law ◽

Federal Law ◽

Insolvency Law ◽

Comprehensive Review ◽

National Report ◽

Participation Rights ◽

The Law ◽

Insolvency Proceedings ◽

Compensation Law

This chapter discusses the law on creditor claims in Austria. ‘Modern’ bankruptcy laws—the Compensation Law (Ausgleichsordnung, AO) and the Bankruptcy Act (Konkursordnung, KO)—were first introduced by the imperial decree of 10 December 1914, 337 RGBl. Since then, these have undergone numerous amendments. Austrian insolvency law was subjected to the most comprehensive review and reform with insolvency amendment 2010, Federal Law Gazette 2010/29, which merged bankruptcy law and compensation law into a single procedural structure. The Compensation Law was repealed, while the Bankruptcy Act was renamed the Insolvency Law. The rest of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; classification and ranking of claims; and voting and participation rights in insolvency proceedings.

13 National Report for Poland

10.1093/law/9780198727293.003.0013 ◽

2016 ◽

Author(s):

Porzycki Marek ◽

Rachwał Anna

Keyword(s):

Law Reform ◽

Bankruptcy Law ◽

Insolvency Law ◽

National Report ◽

Participation Rights ◽

The Law ◽

Insolvency Proceedings ◽

Final Text

This chapter discusses the law on creditor claims in Poland, where a comprehensive insolvency law reform is ongoing. In May 2015, Parliament adopted the final text of the Restructuring Law (RL). Due to enter into force on 1 January 2016, it will cover four restructuring proceedings: arrangement approval; fast arrangement; arrangement; and reorganization. Their common aim will be rescuing the debtor’s enterprise via an arrangement adopted by a majority of creditors. They will apply in case of both threatened and actual insolvency, and replace the current reorganization bankruptcy and rarely used rehabilitation proceedings. The existing Bankruptcy and Rehabilitation Law will have its provisions on reorganization bankruptcy and rehabilitation proceedings repealed, and be renamed ‘Bankruptcy Law’. The chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

12 National Report for the Netherlands

10.1093/law/9780198727293.003.0012 ◽

2016 ◽

Author(s):

Faber Dennis ◽

Vermunt Niels

Keyword(s):

The Netherlands ◽

National Report ◽

Participation Rights ◽

The Law ◽

Insolvency Proceedings ◽

This chapter discusses the law on creditor claims in the Netherlands. It deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings. In essence, holders of insolvency claims (‘insolvency creditors’) are entitled to the liquidation proceeds of the debtor’s insolvency estate after the full discharge of the administration claims. Insolvency creditors (except secured creditors) can only pursue payment by submitting their claims for admission in the proceedings. Administration claims have to be satisfied in priority to insolvency claims and need not be submitted in the claims verification procedure. Holders of such claims (‘administration creditors’) can take recourse against assets comprised in the insolvency estate. Holders of non-enforceable claims can only seek recourse after the insolvency proceedings are terminated (provided that the debtor continues to exist).

3 National Report for Belgium

10.1093/law/9780198727293.003.0003 ◽

2016 ◽

Author(s):

Fransis Roel

Keyword(s):

National Report ◽

Participation Rights ◽

The Law ◽

Insolvency Proceedings ◽

This chapter discusses the law on creditor claims in Belgium. Legislators have limited the power of secured creditors to take individual enforcement actions with regard to their collateral, notwithstanding the opening of insolvency proceedings. For bankruptcy proceedings, the Bankruptcy Act of 8 August 1997 (BA) introduced a ‘cooling-off period’, imposing a temporary stay on individual enforcement actions by secured creditors. For judicial reorganization proceedings, the 31 January 2009 Act on the Continuity of Enterprises (BCA) imposes a general stay on enforcement actions, which also affects secured and preferential creditors. The remainder of the chapter looks into insolvency claims, administration claims, and non-enforceable claims in turn. Each part covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

9 National Report for France

10.1093/law/9780198727293.003.0009 ◽

2016 ◽

Author(s):

Cuniberti Gilles ◽

Rueda Isabelle

Keyword(s):

Legal Systems ◽

Insolvency Law ◽

National Report ◽

Participation Rights ◽

The Law ◽

The Right ◽

This chapter discusses the law on creditor claims in France. French insolvency law has traditionally been unfriendly to creditors benefitting from contractual security interests. Unlike most other legal systems, insolvency claims secured by contractual security interests over certain assets of the debtor do not enjoy the right to be satisfied from the secured assets in priority to all other claims. The treatment of creditor claims is also similar among various insolvency proceedings. In reorganization proceedings (sauvegarde or redressement judiciaire), post-commencement claims are more common and substantial, whereas in liquidation proceedings (liquidation judiciaire), such claims are often non-existent. The remainder of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

4 National Report for Brazil

10.1093/law/9780198727293.003.0004 ◽

2016 ◽

Author(s):

Sztajn Rachel ◽

Salles de Toledo Paulo Fernando Campos ◽

Nimer Moreira da Silva Fernando César

Keyword(s):

Federal Law ◽

Insolvency Law ◽

Legal Procedure ◽

National Report ◽

Time Period ◽

Participation Rights ◽

The Law ◽

This chapter discusses the law on creditor claims in Brazil. The legal treatment of creditor claims is similar to that in other worldwide systems. The new Brazilian Insolvency Law (Federal Law No 11.101/2005) and the former Decree-Law empower the insolvency judge to appoint a judicial administrator and define the time period in which existing debts will be recognized and included in the legal procedure. Because the firm’s assets represent the guarantee of payment of debts, the creditors’ and debtor’s legal positions are connected in a sort of unitary bundle. Of note in the new Law is the reduction of priority of tax and wages claims, leaving more value available for distribution to other creditors. The chapter then examines insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

11 National Report for Mexico

10.1093/law/9780198727293.003.0011 ◽

2016 ◽

Author(s):

Sánchez-Mejorada y Velasco Carlos

Keyword(s):

The Body ◽

Equal Treatment ◽

Social Policies ◽

Insolvency Law ◽

National Report ◽

Federal Constitution ◽

Participation Rights ◽

Asset Distribution ◽

The Law ◽

This chapter discusses the law on creditor claims in Mexico. Insolvency proceedings in Mexico aim for an orderly liquidation procedure of all of the bankrupt’s assets to allow an equally orderly distribution of proceeds among creditors under the principle of par conditio creditorum (equal treatment for all creditors). Ideally, the body of law regulating this procedure should match the insolvency law of each country, so that the process can be effected congruently and logically. However, social policies and other commercial considerations have created systems of priorities in asset distribution that vary from country to country as a function of the policies of each. In many cases, the only commonality in all systems is that ordinary unsecured creditors collect last, if at all. Mexico is no exception, specifically in the treatment of claims arising out of a labour relationship, which in turn is derived from the overly protective and outdated regime established by the federal constitution for workers. The remainder of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section examines: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

16 National Report for the Republic of Korea (South Korea)

10.1093/law/9780198727293.003.0016 ◽

2016 ◽

Cited By ~ 2

Author(s):

Oh Soogeun ◽

Kim Kyungjin

Keyword(s):

South Korea ◽

Republic Of Korea ◽

National Report ◽

Participation Rights ◽

The Law ◽

The Republic ◽

This chapter discusses the law on creditor claims in South Korea. Under South Korea’s Debtor Rehabilitation and Bankruptcy Act (DRBA), insolvency claims are classified into secured, unsecured, and administration claims. Unsecured claims are divided according to their level of priority. As administration claims can be paid on maturity without being impaired in the insolvency proceedings, a principal concern is determining whether or not a certain claim is an administration claim. The 2009 amendment to the DRBA gave new loans borrowed under the court’s permission a kind of priority to be paid before other common benefit claims in cases where a company’s property is insufficient to pay all common benefit claims. The chapter then deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section covers: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.

6 National Report for the People’s Republic of China

10.1093/law/9780198727293.003.0006 ◽

2016 ◽

Author(s):

Weiguo Wang

Keyword(s):

People’S Republic Of China ◽

Bankruptcy Law ◽

People's Republic Of China ◽

Republic Of China ◽

National Report ◽

Participation Rights ◽

The Law ◽

Rights And Interests ◽

This chapter discusses the law on creditor claims in China. The rights and interests of creditors are protected by the 2006 Enterprise Bankruptcy Law (EBL). The term ‘insolvency claims’ is not officially used to refer to the claims against the insolvent debtor which are eligible for insolvency proceedings. In the text of the EBL, they are simply referred to as ‘claims’ (ie, creditors’ rights or obligatory rights). Only when bankruptcy liquidation proceedings start following the court’s ruling of bankruptcy declaration do the claims become known as ‘bankruptcy claims’. The rest of the chapter deals with insolvency claims, administration claims, and non-enforceable claims in turn. Each section is concerned with: the definition and scope of the claim; rules for submission, verification, and satisfaction or admission of claims; ranking of claims; and voting and other participation rights in insolvency proceedings.