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Reviewable transactions in insolvency : the recognition of creditors’ interests in "subjective" and "objective" insolvency regimesHorne, Andrew J. 11 1900 (has links)
A person on the eve of bankruptcy may enter into transactions or arrangements that are intended
to, or that have the effect of, preserving its property from being seized and distributed among
creditors. Such transactions may provide a bankrupt with collateral benefits such as the
continued use and enjoyment of property, or they may benefit third parties such as members of
the bankrupt's family, or they may benefit selected creditors to the detriment of others. The
effect of such transactions is to frustrate the legislative scheme which provides for the
distribution of a bankrupt's residual property. This effect may be desired by a bankrupt or by a
recipient of the bankrupt's property, or it may be unintended.
Insolvency legislation confers wide powers upon a trustee in bankruptcy to "review" such
transactions by bringing proceedings to reverse their effect and recover the value lost to the
bankrupt's estate. Reviewable transactions comprise two main categories: dispositions or
unequal transactions in which a debtor parts with property for no or insufficient consideration
(such as a transfer of property to a spouse or a sale in which a bankrupt does not receive a fair
price) and preferential repayments of debts owed to certain creditors to the detriment of others.
Reviewable transaction laws in Canada and England have a subjective basis in that they focus
upon the intent of a debtor to defeat creditors or prefer one creditor over others. In contrast,
relevant Australian and New Zealand laws have an objective focus and provide remedies where
the effect of a transaction, rather than the intent of a debtor, is to defeat the interests of creditors.
This paper conducts a comparative critique of reviewable transaction regimes. It makes the
argument that subjective regimes tend to reflect their historical origins in fraud law and a desire
to punish and frustrate the fraudulent intent of a bankrupt; an inappropriate policy foundation
that fails to address the competing interests and policy considerations which should form the
basis of reviewable transaction law. Objective regimes, which focus upon the effect of
impugned transactions, provide more appropriately for the balancing of creditors' and recipients'
interests and the making of provision for policy considerations. This paper also considers
collateral effects of reviewable transaction regimes upon creditors' interests (such as effects
upon claims to property recovered by a trustee) in a variety of circumstances and concludes that
the results are often inconsistent and undesirable. In this respect the relative positions of secured
and unsecured creditors are described in detail and proposals for reform are ventured. / Law, Peter A. Allard School of / Graduate
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Law and Macro-Finance: The Legal Origins of Credit Booms and BustsBorowicz, Maciej Konrad January 2020 (has links)
Law and Macro-Finance is a theoretical framework explaining the relationship between law and the macro-financial variables of liquidity and leverage. The framework's central theoretical claim is that strong creditor rights exacerbate the procyclicality of liquidity and leverage. Strong creditor rights have that effect because they create different incentives in different parts of the economic cycle. Strong creditor rights encourage creditors to lend in a credit boom, thereby increasing leverage and making the economy vulnerable to shocks through various leveraged-related channels. However, in a credit bust, the enforcement of strong creditors' rights can trigger an economic downturn or make it more difficult for the economy to recover from the shocks. The normative part of the Law and Macro-Finance framework revolves around regulating liquidity primarily through a countercyclical design of the strength of creditors' rights in bankruptcy and collateral law to ensure adequate levels of leverage in different parts of the economic cycle. The key elements of bankruptcy and collateral law that could be used for that purpose are the rules establishing the strength of money market investors' rights, including bankruptcy safe harbors, true sales doctrine, and rules around collateral rehypothecation.
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Cross-border insolvency : a comparative study of recognition and enforcement of foreign insolvency judgments between China and South Africa weighed in light of the progress of the European UnionLotter, Gina 04 June 2014 (has links)
LL.M. (Corporate Law) / Please refer to full text to view abstract.
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Mareva-type injunctions in respect of the proceeds of documentary credits14 July 2015 (has links)
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.
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Cooperation and procedural centralization in insolvency cases for multi-jurisdictional enterprise groups :a proposal for Mainland China and Hong Kong SAR / Proposal for Mainland China and Hong Kong SARLi, Xiao Lin January 2018 (has links)
University of Macau / Faculty of Law
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Der Schutz inlandischer Glaubiger bei Errichtung grenzuberschreitender Niederlassungen /Niemeyer, Carl Michael. January 2006 (has links)
Thesis (doctoral)--Heidelberg, Universiẗat, 2005. / Includes bibliographical references (p. 263-276).
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Die Teilklage im deutschen und türkischen Zivilprozessrecht /Kulaksiz, Cengiz. January 2004 (has links) (PDF)
Univ., Diss.--Frankfurt (Main), 2004. / Literaturverz. S. 135 - 149.
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Die Durchgriffshaftung im deutschen und russischen Recht der Kapitalgesellschaften : eine rechtsvergleichende Untersuchung /Rabensdorf, Renate. January 1900 (has links)
Zugleich: Diss. Berlin, 2008. / Literaturverz.
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Kapitaalwinsbelastinggevolge by die vermindering of aflossing van skuldLouw, Andries Adriaan 04 1900 (has links)
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.
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The interface between the Insolvency Act 24 of 1936 and the National Credit Act 34 of 2005.Rampersad, Kereen. January 2013 (has links)
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.
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