REHABILITATION OF THE DEBTOR BEFORE THE OPENING OF BANKRUPTCY PROCEEDINGS

Economics and Law ◽

10.15407/econlaw.2021.01.096 ◽

2021 ◽

pp. 96-101

Author(s):

V.V. Dutka ◽

Keyword(s):

Case Law ◽

Civil Procedure ◽

Lower Court ◽

Rehabilitation Plan ◽

Procedure Code ◽

Scientific Doctrine

Case Law shows that most bankruptcy cases end in liquidation, and restoring the debtor’s solvency and maintaining it as a business entity is the exception rather than the rule. Such trends clearly do not contribute to the development of the economy, so the development of recovery procedures applicable to the insolvent debtor seems relevant. One such procedure, which has appeared relatively recently in Ukrainian Law, is the pre-trial reorganization procedure. The purpose of the article is to analyze the provisions of current legislation governing the reorganization of the debtor before the opening of bankruptcy proceedings, study current issues that arise in the practice of applying the relevant provisions of the Civil Procedure Code of Ukraine, and set out their views on the effectiveness of pre-trial reorganization. The case law on appealing the approval of the pre-trial rehabilitation plan, namely the appeal of the rehabilitation plan by creditors who did not participate in the voting or who voted against the approval of the pre-trial rehabilitation plan, is analyzed. Bankruptcy cases in the scientific doctrine are divided into two categories: 1) the bankruptcy case itself; 2) related cases, which are considered in the order of claim or declaration proceedings (invalidation of auctions, contracts, etc.). The author argues the possibility of supplementing this division of bankruptcy cases with another, third category — cases of pre-trial reorganization. It is emphasized that the Code of Ukraine on Bankruptcy Procedures provides for two types of reorganization: reorganization prior to the opening of bankruptcy proceedings (pre-trial reorganization) and reorganization as a court procedure applied to an insolvent debtor within a bankruptcy case. Both pre-trial reorganization and "judicial" reorganization pursue a single goal — to restore the debtor’s solvency and preserve it as a business entity. According to the results of the study, the author concludes that pre-trial rehabilitation has a number of advantages, which include: efficiency; profitability for creditors; write-off of a significant portion of tax debt and other mandatory payments: lower court costs in the form of court fees for both the debtor and creditors.

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Besondere Typen der Widerklage

10.5771/9783845299396 ◽

2019 ◽

Author(s):

Annalena Hanke

Keyword(s):

Case Law ◽

Civil Procedure ◽

Third Party ◽

Procedural Law ◽

Procedure Code ◽

The Law

This highly significant work in terms of litigation practice critically examines the case law of Germany’s highest courts with regard to third-party counterclaims. In particular, it discusses the recognition of third-party counterclaims as an independent institution of procedural law. This work solves the problems that arise in this respect, above all the question of local jurisdiction, using the existing legally regulated instruments of procedural law. Due to the actual lack of the presupposed loophole in the regulations, it therefore calls into question both the analogous application of § 33 of Germany’s civil procedure code (Zivilprozessordnung) and the judicial development of the law in this area.

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COURT FEES RELATED TO THE COURT ORDER FOR THE COMPETENT AUTHORITIES OF FOREIGN STATES

Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies ◽

10.17721/1728-2195/2020/1.112-4 ◽

2020 ◽

pp. 23-26

Author(s):

T. Korotenko

Keyword(s):

Competent Authority ◽

Case Law ◽

Civil Procedure ◽

Official Language ◽

Court Order ◽

Interested Party ◽

Foreign State ◽

Procedure Code ◽

Court Orders ◽

The Right

The article explores the court fees related to the execution of court orders, which are addressed to the competent authorities of foreign states in civil cases with a foreign element. The Civil Procedure Code of Ukraine does not state that the costs associated with the execution of court orders, addressed to the competent authorities of foreign states, are court fees. Therefore, the questions on which of the above fees can be attributed to the courts fees and the procedure for their reimbursement are raised. The importance of clarifying these issues requires the application of the uniform approaches to such cases consideration in Ukrainian courts. It is determined as the main purpose of this article. The case-law shows that in most cases where a court needs to apply to a competent authority of a foreign state, the person concerned must pay for the certified translation of the statement of claim and the attached documents into the official language of the requested state and pay for service of documents. In our conclusions, we propose to divide the court fees associated with the execution of court orders addressed to the competent authorities of foreign states, depending on the procedural actions that are being carried out, and to include the fees associated with the execution of court orders addressed to the competent authorities of foreign states, to the fees associated with the case, namely to the fees associated with other procedural acts necessary to the case consideration or to prepare for its consideration, which will ensure the right of the interested party to reimburse such fees in future.

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An approach between the institutional capacity of the Courts of Audit and the regimen of precedents and summulas from the Civil Procedure Code

Seqüência estudos jurídicos e políticos ◽

10.5007/2177-7055.2021.e82984 ◽

2021 ◽

Vol 42 (88) ◽

pp. 1-32

Author(s):

Caroline Müller Bitencourt ◽

Carlos Ignacio Aymerich Cano ◽

Jonas Faveiro Trindade

Keyword(s):

Decision Making ◽

Theoretical Work ◽

Case Law ◽

Civil Procedure ◽

Institutional Capacity ◽

Legal Analysis ◽

Procedure Code ◽

Deductive Method ◽

Interpretive Theory ◽

The Relationship

The institutional capacity of the courts of audit as makers and applicants of precedents and summulas (restatement of case law) is investigated to answer the following: is it possible a mutually beneficial approach to the decision standards regimen from the Civil Procedure Code-CPC, as well as a productive dialogue with the Law of Introduction to the Brazilian Legal Statutes (Lei de Introdução às normas do Direito Brasileiro-LINDB)?. The objective of the work is to analyze, from the abstract and concrete institutional capacities of the audit courts, the aptitude for the formation and application of decision-making standards. To do so, Ronald Dworkin's interpretive theory was chosen, especially because it is believed that precedents are intertwined in a discursive plot, when every single interpreter commits to analyzing past decisions, in a reflexive way, to decide in the present and, at the same time, anticipating the directions for the future of the decision, which is made in the here and now. The hypothesis is that the audit courts have the potential ability to form and apply precedents and summulas, arising from the exercise of their constitutional powers, but that it is also necessary to develop a concrete capacity to form and apply controlling decision patterns. In this way, it allows for a better understanding of the relationship between the decisions of the audit courts and the judicial ones. It is a theoretical work, of legal analysis of the subject, using the deductive method, starting from a general analysis to reach the institutional capacity of audit courts for the formation and application of decision-making standards.

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Part 2 Specific Issues of Arbitration in Brazil, 3 Consolidation of Arbitration by the Brazilian Courts: STF and STJ

International Arbitration: Law and Practice in Brazil ◽

10.1093/law/9780198840114.003.0003 ◽

2020 ◽

Author(s):

Cueva Ministro Ricardo Villas Bôas

Keyword(s):

Public Policy ◽

Dispute Resolution ◽

Case Law ◽

Legal Framework ◽

Civil Procedure ◽

Commercial Arbitration ◽

Procedure Code ◽

New Public ◽

Alternative Means ◽

Federal Supreme

This chapter traces the evolution of case law regarding arbitration in Brazil. Before the enactment of the Brazilian Arbitration Law (BAL), arbitration was not taken seriously in Brazil because the applicable norms of the Civil Code and of the Civil Procedure Code created mounting obstacles, which prevented commercial arbitration from flourishing. The new statute of 1996 changed this completely and introduced an arbitration friendly legal framework. In 2001, the Federal Supreme Court (STF) upheld the constitutionality of the BAL. From then on, the Superior Tribunal of Justice (STJ), the court of third instance, has played a key role in defining clear and predictable rules about arbitration. The success of arbitration in Brazil has had a significant impact on the reform of the Civil Procedure Code, which was enacted in 2015. The new Code embraced arbitration as central part of a new public policy directed to the promotion of alternative means of dispute resolution and the fostering of a multi-door courtroom system. The increasing relevance of arbitration for the resolution of business disputes in Brazil might also explain the adoption of a system of mandatory pre-trial hearing purported to stimulate the parties to use mediation and/or conciliation to solve their conflict.

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Problematical Aspects of Current Legal Regulation of Appellate Review and their Solution in Suggested Amendment of Czech Civil Procedure Code

International and Comparative Law Review ◽

10.1515/iclr-2016-0094 ◽

2011 ◽

Vol 11 (1) ◽

pp. 33-43

Author(s):

Klára Hamuľáková ◽

Jana Křiváčková

Keyword(s):

Decision Making ◽

Case Law ◽

Legal Regulation ◽

Civil Procedure ◽

Procedure Code ◽

Conceptual Problems ◽

Civil Cases

Abstract Th e aim of this article is to point to insufficiencies of the current legal regulation of the appellate review proceeding in civil cases, when the court competent to deal with the appellate reviews is not able to fulfill its function of a unifier of case law and the defender of lawfullness of decision-making any more. Th e proposed amendment of the Civil procedure code which is being prepared by the Ministry of Justice reacts to many of these insufficiencies. In the article we have only focused on crucial conceptual problems of the proposed legal regulation and we have avoided other deficiencies requiring deeper analysis and the knowledge of Czech legal regulation.

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Unification of the Case-law within the Civil Procedure System of Romania

Bratislava Law Review ◽

10.46282/blr.2021.5.2.227 ◽

2021 ◽

Vol 5 (2) ◽

pp. 87-100

Author(s):

Laura Cristina Carcia

Keyword(s):

Supreme Court ◽

National Level ◽

Case Law ◽

Civil Procedure ◽

Legal Practice ◽

Legal Norms ◽

Procedure Code ◽

The Supreme Court ◽

Lower Courts ◽

Extraordinary Means

The present article contains the main legal practice unification mechanisms, as regulated by the Romanian legislator in accordance with the current Civil Procedure Code, as well as those partaking to the Supreme Court jurisprudence in conjuncture with the lower courts by granting a uniform settlement on the legal issues comprised by the litigations referred to. The presentation starts off with the referral in the interest of the law, a traditional instrument within the national civil procedure legal sphere of activity, it continues with the notification of the Supreme Court for settling certain legal matters, a novelty at national level and of whose practical utility has already been recognised, and it ends by making reference to the second appeal, as an extraordinary means of challenge, with a relatively reduced efficiency, at present, in settling the different interpretations of the legal norms.

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