The Master's Thesis is focused on reorganization as bankruptcy solution according to Act No. 182/2006 Coll., Bankruptcy and Settlement (Insolvency Act), as amended. With a usage of comparison method, it analyses two specific insolvency proceedings which were solved in past and on the basis of their mutual comparison identify important factors that were crucial to determine different results of the proceedings. The main goal of the thesis is to uncover the factors affecting the insolvency proceeding positively or negatively. In first theoretical part there is the analysis of Insolvency Act. The results and knowledge gained in the first part are applied to a comparison in the second one where various data from financial reports and index IN05 are used. These values together with IN05 model are applied as a reflection of important moments which had underlying influence on reorganization process result. In the end of the thesis there is the summary of all gained facts and also different important negative and positive factors are revealed. The thesis shows that it is very difficult to anticipate the result of reorganization for external subject.

No abstract available. / Thesis (LLD)--University of Pretoria, 2010 / Mercantile Law / Unrestricted

This Thesis describes municipalities in Czech Republic, their authorities, budget system, budget revenues and budget spendings. The Thesis analyses the insolvency of municipalities of all Czech Republic from 1993 and insolvency of three municipalities - České Budějovice, Český Krumlov, Dolní Třebonín.

The thesis focuses on the impacts of the crisis on the firms. In relation with the crisis there is also described Insolvency legislation and new possibility of dealing with bankruptcy which is reorganization. The thesis also contains financial analysis of selected sample of firms. It contains fundamental description of financial indicators that we should use. Further there are described some models for the valuation of efficiency of the firms. The financial analysis is applied to three companies: Kordárna, Baťa and Třinecké Železárny. Company Kordárna came to insolvency in 2009 and the thesis also includes description of the process of reorganization in this company.

The topic of this thesis is to compare the effects of bankruptcy and reorganization. In 2008, the new Insolvency Act come in force, which should facilitate the reorganization of companies i.e., maintaining their operation with the same or similar production program, or range of offered services. The intention of this work is to evaluate the effect of the practice of law in a few specific cases. The aim of analysis of these examples was to determine whether borrowers use this new option of the solution of bankruptcy or why reorganizations do not take place more.

In 2005 the Constitutional Court was faced with a challenge on the infringement of section 26 of the Constitution which provides for the right to housing, in sales in execution. The court had to determine whether selling a debtor's home for a trifling debt would be justifiable. However, the decision of the court brought about many questions if such a similar case was to be brought under insolvency law. The South African system provides little or no protection for debtors who may find themselves in a situation where they are unable to pay their debts and stand to lose their homes. The court provided guidelines that should be taken when a home of the debtor is to be sold thus preventing a blanket ban. The approach taken by the courts ensure that both the debtor and creditors interests are taken into account in order to reach a just and equitable decision. Many factors have to be considered such as interests of children, creditors and any other dependants in the case of one facing sequestration and the possibility of the home being sold. However, South African law does not provide for formal protection of the debtor's home unlike in other jurisdictions such as the United States of America and England. These jurisdictions have either provided for exemption or protection laws through legislation in which such laws provide for a debtor's fresh start. International human rights also have to be taken into account thus the need for updated legislation that conform to the values entrenched in the Constitution. The English system developed its legislation to provide for home protection through case law, a similar approach of which could be taken by South Africa to bring the insolvency law up to date. There is need for our insolvency legislation to provide for clearer guidelines that enable a debtor to have a fresh start in life at the same time ensuring that creditors' rights are not infringed on. The English system aims to provide for such balance as it provides for protection for a limited duration of time unless if the value of the home is of a low value then it is exempt. The South African courts have also considered the creditor's interests were the home is subject to security as there is re luctance on providing that such property be exempt or protected. The sanctity of a contract has to be honoured. / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted

Le nantissement de créance a longtemps été délaissé par les acteurs économiques en raison du régime juridique inadapté qui lui était applicable. Les dispositions concernant le nantissement de créance mises en place par l’ordonnance du 23 mars 2006 relative aux sûretés ont permis de rendre cette garantie attractive pour les créanciers grâce à l’élaboration d’un régime adapté, cohérent et souple.La pratique a toutefois révélé certaines incertitudes dues aux imprécisions des dispositions actuellement en vigueur, source d’un important contentieux et d’insécurité juridique pour les parties.Cette insécurité est accrue au moment où les créanciers ont besoin de s’assurer de l’efficacité de leur sûreté, c’est-à-dire en cas d’ouverture d’une procédure collective à l’encontre du constituant.En effet, l'évolution du droit des entreprises en difficulté a conduit à la mise en place d’une protection accrue du débiteur et une recherche de maintien de l'activité de l'entreprise. Afin de parvenir à cet objectif, les droits des créanciers sont considérablement restreints puisqu'ils sont soumis à une discipline collective et ne peuvent notamment plus poursuivre le paiement de leur créance, ni procéder à la réalisation de leur sûreté.Ainsi, l’étude du fonctionnement du nantissement de créance est nécessaire afin de déterminer si cette sûreté peut être efficace pour le créancier nanti si une procédure collective est ouverte à l’encontre du constituant.Il convient de démontrer que l’efficacité du nantissement de créance dépend des droits qu'il confère au créancier, tels que la notification de la sûreté et le droit exclusif au paiement de la créance nantie. Néanmoins, cette garantie ne trouvera réellement sa place parmi les sûretés les plus protectrices que si ces prérogatives lui sont reconnues également en cas de procédure collective.L'examen du fonctionnement du nantissement de créance et des droits qu'il confère permet de mettre en exergue la possibilité pour le créancier nanti d’exercer et de conserver son droit exclusif au paiement même après le jugement d'ouverture, ce qui confirme l'efficacité de cette sûreté. / Pledges over receivables have long been neglected by actors of the economy because of its inadequate legal system. But since the order from March 23rd, 2006 and the new provisions regarding security it implemented, the consistent, appropriate and flexible system has become more attractive for creditors.In practice however, the current provisions are too imprecise to reassure the involved parties who remain uncertain and insecure in their litigations.This uncertainty increases when creditors need to ensure that their security is efficient, i.e. when launching collective insolvency proceedings against the grantor.Indeed, the debtor has become more protected with each alteration of bankruptcy proceedings law which seeks to keep companies active. To that end, creditors’ rights have been greatly restricted: they are subjected to collective discipline and cannot continue paying their receivables.In this context, it appears necessary to study pledges over receivables to ascertain if said security can work for the secured creditor in case of collective insolvency proceedings against the grantor.We shall demonstrate that the efficiency of pledges over receivables depends directly on the rights it gives to the creditor, such as notifying the security and granting exclusive right of payment of the secured receivable. However, this guarantee can only become one of the most protecting securities if these rights are also granted in case of collective proceedings.By examining how pledges over receivables and the right they grant work, we can highlight the possibility for the secured creditor to exercise and keep their exclusive right of payment, even after the opening judgment; thus confirming the efficiency of the pledge over receivables.

The National Credit Act 34 of 2005 introduced measures in an attempt to prevent overspending by consumers and, more importantly measures to prevent credit providers from lending money to consumers who cannot afford either to pay the loan amount or the interest on the loan amount. A debtor who becomes over-indebted may apply for debt review. The NCA also provide for the reorganisation of debt of a person who is overindebted, to afford such person the opportunity to survive the immediate consequences of his financial distress. Its purpose is to inter alia, prevent reckless credit granting and address the problem of over-indebted and in particular to protect the consumer. The sequestration process in terms of the Insolvency Act 24 of 1936 may provide debt relief to individual debtors because following the sequestration order the debtor may be rehabilitated. Rehabilitation has the effect of discharging all pre-sequestration debt and further relieving the debtor of every disability resulting from sequestration. The debtor can apply sequestration by way of voluntary surrender while it is possible for a creditor to sequestrate a debtor's estate by way of compulsory sequestration. The process of compulsory sequestration is often used as a debt relief measure in form of a so-called friendly sequestration. In a friendly sequestration the debtor will arrange with a friend or a family member to whom he owes a debt that he will commit an act of insolvency in terms of section 8(g), that is, where the debtor gives written notice to a creditor that he is unable to pay all or any of his debts. When enacting the NCA, the legislature did not specifically make any mention of the Insolvency Act. The question is whether the NCA impact on the Insolvency Act. However the court in Ex Parte Ford And Two Similar Cases 2009 3 SA 376 (WCC) held that section 85 of the NCA was applicable to proceedings under voluntary surrender. The court further held that an application for voluntary surrender should not be granted where the machinery of the NCA was the appropriate mechanism to be used. In Investec Bank. v Mutemeri 2010 1 SA 265 (GSJ) the court held that section 130(1) do not apply to sequestration because an application for sequestration is not application for enforcement of the sequestrating creditor‟s claim. It is therefore not subject to the requirement of section 130(1) of the NCA. The court also held that an application by a credit provider for the sequestration of a consumer does not constitute litigation or a judicial process in terms of section 88(3). On Appeal in the case of Naidoo v Absa (391/2009)[2010] ZASCA 72 (27 May 2010) the Supreme Court of Appeal confirmed the decision of Mutemeri. The appeal court held that a credit provider need not to comply with section 129(1)(a) before instituting sequestration proceedings against a debtor. The research will be conducted as to whether the NCA impact on the Insolvency Act. / Dissertation (LLM)--University of Pretoria, 2011. / Mercantile Law / unrestricted

L’extension de la procédure collective pour confusion des patrimoines permet de soumettre une pluralité de débiteurs à une unique procédure collective. Les récentes réformes ont profondément modifié la nature de ce mécanisme : longtemps perçu comme une véritable sanction, ce dernier tend de plus en plus à être utilisé comme un simple outil de restructuration, voire de protection. Ses effets autrefois redoutés sont aujourd’hui recherchés. La thèse révèle la complémentarité de ces derniers dans le traitement des situations de confusion des patrimoines et propose plusieurs solutions permettant d’assurer leur prévisibilité. Elle suggère également plusieurs pistes de réflexion permettant de mettre en adéquation les cas de recours au mécanisme à la nature particulièrement originale des effets produits par ce dernier. / Extending a collective insolvency procedure in the case of estate compels a number of debtors to comply with a unique collective procedure. Recent reforms have deeply modified the nature of this mechanism: for a long time perceived as a sanction, it is now used as a simple tool for restructuring, and to an extent a tool for protection. Its consequences were once dreaded, whereas now they are coveted. This thesis enhances the complementarity that exists between the latter when dealing with situations of estate confusion and offers several solutions enabling foreseeability. Furthermore, it opens up to several lines of thoughts that can correlate cases when resorting to this mechanism to the particularly original effects generated by the latter.

Lodging of claims in insolvency proceedings Abstract The goal of this thesis is to analyze legislation and court decisions concerning the lodging of claims in insolvency proceedings, from the lodging itself to the admission of a claim or the termination of creditors participation in the proceedings. Throughout the thesis, the author describes specific institutes that pertain to lodging of claims and at the same time points out, how they cohere. The thesis is divided into six parts, which are further split into chapters and sections. The aim of the first chapter of the thesis is to acquaint a reader not versed in insolvency proceedings with its essence, inasmuch is necessary for their understanding of the more specific topic of the lodging of claims. The second part focuses on the concept of claims and their definition within insolvency law. A large segment of this part deals with differentiating claims based on various criteria, with emphasis on the legal ramifications of such differences. The thirds part deals with the act of lodgement of claims itself. The goal of this part is to define the lodgement of claims as a legal action within a proceedings - especially to describe its necessary form, contents and proper approach for its submission. The fourth part focuses on how the creditor might change or...