APOLOGIJA NOVOM HRVATSKOM INSOLVENCIJSKOM PRAVU

Autor: Bodul, Dejan
Jazyk: angličtina
Rok vydání: 2016
Předmět:
Zdroj: FIP: Journal of Finance and Law, Vol 4, Iss 1, Pp 31-58 (2016)
ISSN: 1849-4803
Popis: Bankruptcy Act was first put into service in May 1996. (NN 44/96) and has been changed (supplemented) seven times (NN 44/96, 29/99, 129/00, 123/03, 82/06, 116/10, 25/12 and 45/13 - further BA). The BA was passed on 5. 10. 1994 and it was based on the Germany's Insolvency Act (Insolvenzordnung). (Bundesgesetzblatt, 1994., I, page. 2866; last change Bundesgesetzblatt, 2011., I, page. 2854.) and the end of Force settlement, bankruptcy and liquidation act (NN br. 53/91 and 54/94) has represented a thorough change of the way bankruptcy process was conducted in Croatia. Each of the changes in the law was made in order to fix “acute problems” in practice and to enhance the system of the bankruptcy protection; this was supposed to be achieved through increase functionality, speeding up of the process and decrease of the bankruptcy cost. However since the time after of passing of the BA was time of economic prosperity, consequently there was no awareness of the fact that bankruptcy should have other functions except collections of debt from the debtors which are unable to pay. The whole process just leads to the liquidation of the companies. But, frequent financial crisis have forced a radical change in the bankruptcy legislature, considering that the bankruptcy procedure has not improved and that it was possible to undergo a bankruptcy procedure without a bankruptcy plan. There was a clear need for a new legislative framework, Financial conduct and pre-bankruptcy settlement act FCPS, (NN 108/12, 144/12, 81/13 and 112/13 (71/15 and 78/15)). Although the passing of the FCPS in 2012. has significantly changed the bankruptcy procedure in Croatia, in its two year application a whole set of problems in terms of the meaning of the particular elements of the law which was tried to be solved with the passing of the new Bankruptcy act (NN 71/15). Since the „new“ BA has differently defined the rules and responsibilities of the trustee in bankruptcy, there was a need, according to the legislator, to change and in terms of the Nomo technics appropriately define the compensation for the trustees in bankruptcy with the new regulation based on the BA (Regulation on the criteria and the methodology of compensation for the trustees in bankruptcy published in NN 105/15). Furthermore even if the indicative method of fact-finding does point out how the wanted goals of the functionalization of the bankruptcy procedure have not been met, the legislator is faced with the new/old problem: implementation of the personal bankruptcy through the Personal bankruptcy Act (NN 100/15). Furthermore in order to align the Personal bankruptcy act with the new BA and with the goal of improving the socio-economic position of the people which are most affected by the bankruptcy, those are workers, legislator has in urgent fip / Volume 4 / Number 1 / 2016 58 procedure for the second time changed the Financial conduct and pre-bankruptcy settlement act (NN 86/08, 80/13 and 82/15). Considering the space constraints of this article I am not allowed a full and detailed inquiry into this problem, so I am going to focus, based on the author’s opinion, on most important aspects of the new insolvency legislature. The main purpose author wishes to achieve is to fuller comprehension of the questions which might arise with the new legislature. In order to give a comprehensive answer the whole structure of this paper had to be adjusted. This paper could have been divided into four parts, but that was not done.
Databáze: OpenAIRE
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