15 Germany

2018 ◽  
Author(s):  
Haag Hendrik, Dr
Keyword(s):  
Civil Code ◽  
Cross Border ◽  
General Terms ◽  
The Right ◽  
Insolvency Proceedings

This chapter examines statutory and contractual set-off in Germany prior to insolvency proceedings and how such proceedings affect the prerequisites relating to set-off. It begins with a discussion of set-off between solvent parties, focusing on the statutory right of set-off under the German civil code ‘BGB’, contractual right of set-off, exclusions of set-off, set-off restriction in general terms and conditions, and limitations of a set-off claim. It then considers set-off against insolvent parties, taking into account the relevant provisions of the German Insolvency Statute ‘InsO’, acquisition of the right to set-off before the commencement of insolvency proceedings, set-off between two insolvency administrators, and cash pooling in insolvency proceedings. Finally, it analyses cross-border issues arising from the right to set-off.

30 South Korea

2018 ◽  
Author(s):  
Hong Suhn-Kyoung ◽  
Cheong Seong-Koo
Keyword(s):  
South Korea ◽  
International Law ◽  
Legal Framework ◽  
Civil Code ◽  
Private International Law ◽  
Cross Border ◽  
The Law ◽  
The Right ◽  
Insolvency Proceedings ◽  
Governing Law

This chapter discusses the law of set-off in South Korea, along with certain restrictions on the exercise of the right of set-off in insolvency proceedings. The legal framework for set-off in South Korea is based on the Civil Code. The courts have also generally supported set-off as a means of satisfying a claim or discharging debt. The Korean Private International Law does not expressly lay down the governing law for set-off. This governing law issue is commonly discussed under two scenarios: set-off is undertaken on the basis of a set-off agreement between the parties; and set-off is undertaken in the absence of an agreement. The chapter first considers the governing law of contractual and non-contractual set-off in South Korea before turning to set-off between solvent parties and set-off against insolvent parties. It also analyses issues arising in cross-border set-off.

4 Austria

2018 ◽  
Author(s):  
Tiefenthaler Stefan
Keyword(s):  
General Rule ◽  
Civil Code ◽  
Capital Maintenance ◽  
Legal Proceedings ◽  
Cross Border ◽  
General Rules ◽  
The Law ◽  
The Right ◽  
Insolvency Proceedings

This chapter provides an overview of the law of set-off in Austria. The right of set-off in Austria is governed by general rules found in sections 1438–1443 of the Austrian Civil Code. The Austrian Insolvency Code also outlines restrictions on and extensions of the right of set-off and various modifications to the general rules. The chapter first considers set-off between solvent parties, focusing on contractual set-off, capital maintenance and other restrictions, set-off in the context of legal proceedings, and statutory set-off. It then explains set-off against insolvent parties by discussing the extension of the right of set-off in insolvency, restrictions on the right of set-off in insolvency, exceptions to the general rule on set-off, claims arising by reason of the opening of insolvency proceedings, set-off and prohibition of creditor preferences, and avoidance and fraudulent transfers. Finally, it examines issues arising in cross-border set-off.

The Principles Governing Public Authority Liability in Poland

2020 ◽  
pp. 66-68
Author(s):  
Marek Wierzbowski ◽  
Marek Grzywacz ◽  
Joanna Róg Dyrda ◽  
Katarzyna Ziółkowska
Keyword(s):  
General Principle ◽  
Civil Code ◽  
The State ◽  
Public Authority ◽  
Administrative Action ◽  
General Terms ◽  
Administrative Procedures ◽  
Per Se ◽  
Polish Law ◽  
The Right

Before 1989, Polish courts in some cases affirmed the liability of the State on the basis of existing legislative provisions. After 1989, the Constitution admits administrative liability in very general terms, because everyone shall have the right to be awarded damages for any harm done by administrative action contrary to the law. The more detailed provisions of the Civil Code implement such general principle. More generally, the liability of administrative authorities is regarded as being subject to private law standards. However, in some cases illegality per se will not suffice for liability. This is the case, in particular, for administrative acts that are characterized by real discretion. Moreover, administrative procedures are regulated by parliamentary legislation. Another particular feature of Polish law is that, to prove the unlawfulness of the action taken by administrative authorities, on both procedural and substantive grounds, claimants must bring an action before administrative courts.

8 Chile

2018 ◽  
Author(s):  
Armas M Marcelo
Keyword(s):  
Civil Code ◽  
Bankruptcy Law ◽  
Legal Concept ◽  
Contractual Arrangement ◽  
Cross Border ◽  
Before And After ◽  
The Law ◽  
The Right

This chapter examines the law of set-off in Chile, both before and after insolvency, as well as the alternatives for contractual set-off structures that may be agreed among two or more parties. In Chile, set-off was created as a legal concept primarily on the basis of practical considerations rather than juridical principles. The right to set-off may arise due to a contractual arrangement between the parties or by the operation of law, including the Chilean Civil Code. The chapter first considers set-off in Chile outside insolvency, focusing on set-off by operation of law and contractual set-off, before discussing set-off in insolvency. In particular, it explains the implications of a declaration of liquidation under Chilean Bankruptcy Law and its possible consequences for set-off rights. It also analyses issues arising in cross-border set-off.

scholarly journals The Fidejussor’s Early Regression in the Insolvency Proceedings

2018 ◽  
Vol 21 (35) ◽  
pp. 95-103
Author(s):  
Ștefan Ioan Lucaciuc
Keyword(s):  
Voting Rights ◽  
Civil Code ◽  
The Right ◽  
Insolvency Proceedings

Abstract The early regression of the fidejussor implies his ability to "turn" against the debtor even before he pays something to the creditor „To turn against“ in the sense of the new Civil Code, does not mean the right to actually receive a payment before the fidejussor has paid, at least in part, the claim of the creditor in whose favor he has guaranteed. The same principle applies in insolvency proceedings where the fidejussor, who has not paid anything yet, may exercise early regression, but his claim against the debtor will be a potential, conditional one, reason for which it will be included in the debt table under suspensive condition, without voting rights.

scholarly journals Euthanasia as a reason for unworthiness to inherit

2020 ◽  
Vol 59 (89) ◽  
pp. 415-434
Author(s):  
Jovana Milović
Keyword(s):  
Civil Code ◽  
Active Euthanasia ◽  
Legal Systems ◽  
Passive Euthanasia ◽  
Criminal Offense ◽  
General Terms ◽  
The Republic ◽  
The Right ◽  
Preliminary Draft

The provision on the right to a dignified death proposed in the Preliminary Draft Civil Code of the Republic of Serbia has again actualized the discussions on the legalization of euthanasia. Within the framework of inheritance legislation, there are discussions regarding the place of euthanasia among the reasons for unworthiness to inherit. In most legislations, euthanasia is still a criminal offense and, on that basis, the reason for unworthiness to inherit. In the legal systems where euthanasia is allowed, this procedure is completely performed by a doctor. Heirs are not involved in the procedure. Accordingly, euthanasia is not mentioned as a reason for unworthiness of the heir to inherit. The legal solution proposed in the Preliminary Draft of the Civil Code of the Republic of Serbia was discussed in general terms and left for further debate. By the time the proposed solution is adopted in this or a slightly modified form, active euthanasia will be the reason for unworthiness to inherit, while passive euthanasia could be discussed within some other legally prescribed reasons for unworthiness.

26 Romania

2018 ◽  
Author(s):  
Jardine Bryan W
Keyword(s):  
Civil Code ◽  
Cross Border ◽  
Insolvency Regulation ◽  
The Law ◽  
Insolvency Proceedings

This chapter provides an overview of the law of set-off in Romania, both outside and within the context of insolvency. Under Romanian law, set-off is of two types: legal set-off, which arises by operation of law, and contractual set-off, which arises through a written agreement between parties. The rules for legal set-off are laid down in the Romanian civil code adopted by Law no. 287/2009 (the New Civil Code). The chapter first considers legal and contractual set-off between solvent parties before discussing set-off against insolvent parties. It explains bilateral set-off as well as financial collateral and challenge in insolvency proceedings. It also analyses the provisions of EU Regulations, EU Insolvency Regulation, and the New Civil Code that are relevant to cross-border set-off.

6 Brazil

2018 ◽  
Author(s):  
de Almeida Prado Fernando Ruiz ◽  
Themudo Lessa Tiago Araujo Dias ◽  
Queiroz Gomes Caroline Guazzelli
Keyword(s):  
Civil Code ◽  
Cross Border ◽  
The Law ◽  
Insolvency Proceedings

This chapter provides an overview of the law of set-off in Brazil. The Brazilian Civil Code, enacted on 10 January 2002, contains the necessary provisions for set off regarding credit and debts. Set-off differs from the concept of netting. Netting refers to an indirect discharge of obligations and must meet certain requirements before it can automatically apply, namely: debts must be certain and liquid, matured, and comparable. After discussing the distinction between set-off and netting in Brazil, the chapter considers set-off between solvent parties. In particular, it explains statutory set-off, contractual set-off, and the principle of manifestation of will. It then examines set-off against insolvent parties, focusing on bankruptcy and judicial or out-of-court reorganisation proceedings. It also describes bank insolvency and civil insolvency proceedings before concluding with an analysis of issues arising in cross-border set-off.

19 Japan

2018 ◽  
Author(s):  
Wani Akihiro
Keyword(s):  
Civil Code ◽  
Applicable Law ◽  
Cross Border ◽  
The Law ◽  
Insolvency Proceedings ◽  
Financial Transactions

This chapter provides an overview of the law of set-off in Japan. The Japanese Civil Code classifies set-off (along with performance, release, novation, and merger) as a mechanism for extinguishing an obligation. Set-off is not categorised as a right, altough it possesses certain characteristics that would warrant treating it as a right. The chapter first considers set-off between solvent parties, focusing on statutory and contractual set-off as well as the procedures for the exercise of set-off between solvent parties, before discussing set-off against insolvent parties. It examines legislation relevant to set-off, set-off in relation to the principle of equality among creditors, set-off against attaching creditors and against assignees, triangular set-off, and close-out netting of specified financial transactions. The chapter concludes with an analysis of cross-border issues relating to applicable law on statutory set-off, contractual set-off, and set-off in insolvency proceedings.

scholarly journals Principle of the Closest Relationship in Private International Law

2020 ◽  
Vol 6 (2) ◽  
pp. 268-272
Author(s):  
E. Lomakina ◽  
A. Petrov ◽  
T. Glinshchikova
Keyword(s):  
International Law ◽  
Civil Code ◽  
Private International Law ◽  
Law And Order ◽  
Cross Border ◽  
Contractual Relationship ◽  
Judicial Practice ◽  
Close Relationship ◽  
The Will ◽  
The Right

Russian scientists attach great importance to one of the fundamental principles of private international law – the principle of the closest connection. The concept of the closest connection was developed in England on the basis of case law, the rules of which were created by judges in court decisions on specific cases. The legislator has included the principle of closest connection to the civil code, however, in light of the changes it made in the reforms of 2013, the closest connection principle was assigned a secondary role in relation to the principle of characteristic performance. The main purpose of the principle of the closest connection is to find the law and order that can most effectively regulate cross-border relations. The court will have to determine the will of the parties to the contractual relationship, aimed at choosing the right. Therefore, a close relationship is established based on the court’s assumption of what right the parties would have chosen if they had considered this issue. The principle of the closest connection, in connection with this approach, often loses its independent significance. Article 1187 of the civil code of the Russian Federation does not specify the conditions of its application, as well as the scope of its action. For this reason, the category of closest relationship is universal and applies regardless of the nature of the cross-border civil relationship. Russian legislation does not have clear criteria for determining the closest relationship, which may lead to a subjective decision by the court. In this regard, the study of problems related to the application of the principle of the closest connection in judicial practice is undoubtedly relevant.

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