LL.M. (Commercial Law) / Applications for prohibitory injunctions or interdicts against payment under documentary credits are seldom awarded. However, both English and South African law provide alternative forms of relief. These alternative orders focus on how the beneficiary deals with the proceeds of the credit rather than the prevention of payment thereof. One such alternative is the Mareva injunction of English law which, through freezing the beneficiary’s assets, prevents the removal thereof from the area of the court’s jurisdiction once judgment is given. The South African equivalent of the Mareva injunction is known as the anti-dissipation interdict and has yet to be applied to the law of documentary credits by the South African courts. However the South African attachment application has been so applied. Therefore this dissertation seeks to conduct a comparative analysis between South African and English law Marevatype injunctions on the proceeds of documentary credits, focusing especially on the judgments handed down in Intraco Ltd v Notis Shipping Corporation of Liberia and Ex Parte Sapan Trading (Pty) Ltd. Chapters Two, Three and Four will explore the nature, development, requirements and effects of the injunctions and interdicts through local and international case law as well as the prospects of a successful application under each. Finally Chapter Five will critically analyse, comment and draw conclusions from Ex Parte Sapan Trading (Pty) Ltd.

University of Macau / Faculty of Law

Thesis (doctoral)--Heidelberg, Universiẗat, 2005. / Includes bibliographical references (p. 263-276).

Univ., Diss.--Frankfurt (Main), 2004. / Literaturverz. S. 135 - 149.

Zugleich: Diss. Berlin, 2008. / Literaturverz.

The Master's Thesis is focused on the problem of securing an operational cash flow for maintaining entrepreneurship activities of organizations that enter into insolvency proceedings because of their insolvency or excessive indebtedness. This issue is addressed by the insolvency law through a new institute of debtor-in-possession financing which is a part of the main purpose of this law to assist companies that have a certain economic potential to create value added in the future prospect. The issue is with obtaining such post-petition financing because there is not many banking or non-banking institutions that would provide this high-risk financing. From the above-mentioned reason, an idea has been developed with the cooperation of Česká Spořitelna a.s. to create a new credit product provided by the banking institution for the Czech financial market. The assessment of rationality, effectiveness, and recoverability, as well as the proposal of standards and requirements for completion of contracts and their structure about debtor-in-possession financing are compiled in the Master's Thesis.

AFRIKAANSE OPSOMMING: In die praktyk is daar talle situasies waar 'n krediteur wetend of onwetend 'n verwante of nie-verwante debiteur se skuld verminder of aflos. Voor die instelling van kapitaalwinsbelasting het daar reeds talle nadelige inkomstebelastinggevolge bestaan wat uit sodanige vermindering of aflossing kan voortspruit. Die instelling van kapitaalwinsbelasting en meer spesifiek paragraaf 12(5) van die Agtste Bylae tot die Inkomstebelastingwet Nr 58 van 1962, het tot gevolg dat die vermindering of aflossing van skuld ook nadelige kapitaalwinsbelastinggevolge tot gevolg kan he. Die studie sal kortliks na die moontlike inkomstebelastinggevolge van die vermindering of aflossing van skuld verwys aangesien hierdie gevolge in sekere omstandighede die kapitaalwinsbelastinggevolge kan be'invloed. Die inkomstebelastinggevolge wat bespreek sal word is die vermindering van 'n persoon se vasgestelde verlies as gevolg van 'n vergelyk met of konsessie deur skuldeisers, verhalings wat ontstaan by die veIjaring of afstanddoening van skuld, geagte dividende onderhewig aan sekondere belasting op maatskappye, skenkings onderhewig aan skenkingsbelasting en ook byvoordele wat ingesluit word by 'n werknemer se belasbare inkomste. Die fokus van die studie verskuifvervolgens na die uitleg van paragraaf 12(5) van die Agtste Bylae tot die Inkomstebelastingwet. Die uitleg van hierdie paragraaf aan die hand van die normale reels wat geld by die uitleg van belastingwetgewing in die algemeen sal daarop wys dat die belangrikste elemente wat moet bestaan alvorens hierdie bepaling sal geld is dat daar 'n skuld moes bestaan het en dat hierdie skuld verminder of afgelos moes word. Die studie ondersoek daama die regswerking van die terme 'verminder' en 'aflos' om te bepaal watter gebeure daartoe aanleiding gee dat skuld verminder of afgelos word. Na aanleiding van hierdie gebeure wat tot gevolg kan he dat skuld verminder of afgelos word, word 'n aantal praktiese gevallestudies bespreek waardeur die toepasssingsveld van paragraaf 12(5) van die Agtste Bylae tot die Inkomstebelastingwet gei1lustreer kan word. Uit die ondersoek word daar tot die gevolgtrekking gekom dat daar 'n groot aantal situasies bestaan wat moontlik kapitaalwinsbelastinggevolge vir 'n persoon kan inhou wanneer skuld verminder of afgelos word. Die studie bespreek ook moontlike voorkomende maatreels wat die trefwydte van hierdie bepaling kan inperk. / ENGLISH ABSTRACT: It often occurs in practice that a creditor knowingly or un-knowingly reduces or discharges a debt owed to it by a related or unrelated debtor. Prior to the introduction of capital gains tax there already existed many negative income tax implications from such a reduction or discharge. The introduction of capital gains tax, and more specificly paragraph 12(5) of the Eighth Schedule to the Income Tax Act No 58 of 1962, now extends these negative income tax consequences to also include negative capital gains tax implications. This study will briefly look at the potential income tax implications associated with reduction or discharge of debt as these implications will also impact on the potential capital gains implications. The income tax implications that will be discussed are the reduction of a person's assessed loss as a result of a concession granted by or a compromise made with his creditors, recoupments as a result of the prescription or waiver of a debt, deemed dividends subject to secondary tax on companies, donations subject to donations tax and fringe benefits included in the taxable income of an employee. The focus of the study subsequently moves to the interpretation of paragraph 12(5) of the Eighth Schedule to the Income Tax Act. The most important elements that will arise from this interpretation, based on the normal rules of the interpretation of income tax legislation, are that there must be a debt and that the debt must be reduced or discharged. The study then examines the legal implications of the terms 'reduce' and 'discharge' in order to determine what circumstances can have the effect that a debt has been reduced or discharged. These circumstances are then applied on various examples to illustrate the scope of paragraph 12(5) of the Eighth Schedule to the Income Tax Act. From this examination the conclusion is drawn that there are many circumstances that exists that could lead to capital gains tax implications as a result of the reduction or discharge of a debt. The study also discusses possible preventive measures that could be implemented to prevent the application of paragraph 12(5) of the Eighth Schedule to the Act.

The Insolvency Act 24 of 1936 regulates the debtor’s estate when sequestrated for the benefit of creditors. The debtor must prove that sequestration will be to the advantage creditors and as such creates a stumbling block in the way of the debtor when applying for the voluntary surrender of his estate. Sequestration is viewed as a drastic measure due to the consequences attached to it. The sequestration procedure is often used by debtors as a form of debt relief as, subsequent to the sequestration procedure, the debtor may become rehabilitated. The effect of rehabilitation is that it discharges the debtor of all pre-existing debts and disabilities resulting from sequestration. Compulsory sequestration is often used as a debt relief measure by the debtor in the form of the so-called ‘friendly sequestration’. One of the reasons for this is that the onus of proof is much less burdensome as compared to the onus required in voluntary surrender by the debtor of his estate. South African law provides for alternative debt relief measures falling outside the scope of the Insolvency Act, including debt rearrangement in terms of section 86(7)(b) or debt restructuring in terms of section 86(7)(c) as a result of debt review in terms of the National Credit Act 34 of 2005 (NCA). However this procedure does not offer the debtor the opportunity of any discharge from his debts as the order expires only after the administration costs and all of the listed creditors have been paid in full. Further the NCA does not mention the Insolvency Act and this has led to problems in the application of both Acts and inconsistencies between them. An application for debt review by the debtor has been held to constitute an act of insolvency. Thus the creditor can use this very act of the debtor to have the debtor’s estate sequestrated. This is possible as an application for the sequestration of the debtor’s estate is not considered to be an enforcement of a debt by legal proceedings for the purposes of section 88(3) of the NCA and such actions by the creditor are not prohibited by the NCA. This was stated in Investec Bank Ltd v Mutemeri 2010 (1) SA 265 (GSJ) and was subsequently confirmed by Naidoo v ABSA Bank 2010 (4) SA 597. The consequence of this is that a debtor’s estate may be sequestrated even where he has applied for debt review. Currently, as stated by Van Heerden and Boraine, there is no explicit regulation by the legislature of the interaction between the provisions of theInsolvency Act and the NCA. In terms of FirstRand Bank v Evans 2011 (4) SA 597 (KZD) a debtor’s estate may be sequestrated even after a debt rearrangement order has been confirmed by a court in terms of the NCA. This clearly operates to the disadvantage of a debtor. Comparing the position with that in foreign jurisdictions such as the United States of America and England and Wales shows a lack of balance between the interests of the creditor and the debtor. South African insolvency law is not aligned with internationally acceptable standards because it is too creditor orientated and debtors are not provided with effective remedies to deal with their financial difficulties. This research paper will focus on reform in South African law to assist debtors in need of debt relief. There is a need for a system to be put into place to regulate application for debt review by a debtor and the application for the sequestration of the debtor’s estate by the creditor. In addition there is a need for the introduction of new legislation or amendment to the NCA which could be effective in redressing the current situation. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2013.

The purpose of my thesis is to analyze the institute discharge of the debt as the way of solution of bankruptcy according to Act No. 182/2006 Coll., on Bankruptcy and its solution (Insolvency Act). The thesis concerns all the phases of the process of discharge of the debt, from the proposal of permission of the discharge of the debt until its accomplishment. The thesis focuses on relevant legal regulation and case law. I also present the institute of discharge of debt of husband and wife which is quite often used without any legal support. The thesis is divided into five chapters. The Chapter One deals with the proposal of permission of the discharge of the debt. It examines particularly the subjects who are authorized to submit it and possible decisions of the court including the reasons for its dismissal. In the next Chapter I investigate two possible ways of discharge of the debt, the liquidation of the debtor's assets and monthly payment of a specific amount. For each type the affected assets and advantages and drawbacks for the debtor are described. The possibility for creditors to vote about type of discharge of the debt is also discussed. The Chapter Three relates to the decision of approval of discharge of the debt which has specific essentials and effects and means a lot of duties for the...

The aim of the thesis is to analyse the process of debt collection in insolvency proceed-ings, to define the rights and obligations of all parties to the proceedings and to apply in practice. The whole thesis is divided into two parts. The first part deals with the issue of claims enforcement from the theoretical point of view. There is defined the insolvency pro-ceedings and the ways of it is solution, the typology of claims, review and subsequent satisfaction of claims. The conclusion of the theoretical part of the thesis is a brief com-parison of insolvency proceedings in the Czech Republic and Slovakia. The second part of the thesis builds on the previous theoretical knowledge and analyses the process of asserting claims in a real Czech company. The subject of the research is to analyse the methodological processes of the company in the event that the client en-ters into insolvency proceedings. The practical part of the thesis also includes the appli-cation of the claim according to the methodological procedures of the company. Based on the information obtained through application practice in a particular company, the thesis concludes with de lege ferenda proposals with regard to current sources of law.