No / The paper contains a critical review of the bank crisis management and resolution legal regimes in India and the European Union (EU). The purpose of the review is to use the EU framework as a case study to infer lessons that India could use as it moves to up date its own legal framework in this area. EU was selected because it adopted extensive reforms in its bank crisis management and resolution legal regimes following the global financial crisis (GFC) and the sovereign debt crisis in the eurozone during 2008-12. The two crises resulted insignificant bank failures in EU and caused massive public interventions and costly bank bailouts. The post-crisis EU framework aims to create a special resolution regime for banks in order to improve the process of managing bank failures, while ensuring the avoidance of publicly funded bank bailouts, especially for systemically important banks (SIBs). The EU framework also incorporates the proposals of international standards setters especially of Financial Stability Board (FSB) for the resolution of banks. The EU experience from the implementation of the reforms could be useful to India, which has recently embarked on efforts to update its own legal framework for bank resolution. India is moving in this direction at a slower pace than EU due to the fact that India did not suffer significant bank failures during the GFC. The paper reviews critically the Indian and EU approaches to bank resolution and makes recommendations for improving these frameworks.

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South African company law has provided for the rescue of financially distressed companies since 1926 when the statutory procedure of judicial management was introduced by the Companies Act 46 of 1926. Unfortunately, judicial management has never been regarded as a successful corporate rescue procedure and for most of its existence it has been severely criticised on many grounds. The Companies Act 61 of 1973 that replaced the Companies Act 46 of 1926 did very little to improve this situation and judicial management remained underutilised. As a result, the Companies Act 71 of 2008 now introduces two newly-created corporate rescue procedures in the form of business rescue proceedings and the compromise with creditors. This study analyses judicial management and the new corporate rescue procedures to establish whether the identified weaknesses of judicial management have been adequately and effectively addressed in the new procedures. A comparative study with similar procedures in England and Germany is undertaken to determine whether the South African legislature has delivered on its promise to create a system of corporate rescue that will meet the needs of a modern South African economy. Several weaknesses in the new procedures are identified and a number of recommendations are made to improve the relevant provisions and to assist in providing South African company law with an efficient and acceptable corporate rescue regime. / Mercentile Law / LLD (Mercentile Law)

L’ouverture d’une procédure collective est l’occasion d’un conflit entre protection de l’emploi et survie de l’entreprise. Assurer la pérennité de cette dernière ne peut souvent être réalisé qu’au prix d’une réduction de l’effectif. Ce constat alimente ce qui peut, de prime abord, apparaître quelque peu paradoxale : alors que l’un des objectifs du droit des entreprises en difficulté est d’assurer le maintien de l’emploi, certaines de ses dispositions tendent à accélérer le prononcé de licenciements pour motif économique. Si cette intrusion du droit des entreprises en difficulté, dans un domaine que d’aucuns considèrent comme réservé au droit du travail, peut donner lieu à controverses, elle a une explication : l’inadaptation du second aux contraintes auxquelles est soumise l’entreprise confrontée à une situation de crise susceptible d’emporter l’entité qu’elle frappe et, avec elle, tous les emplois dont elle est porteuse. Trouver les voies d’une conciliation, d’exigences jugées parfois contradictoires, s’impose : assurer la sauvegarde de l’entreprise est le meilleur moyen de préserver les emplois qui y sont attachés. / The opening of insolvency proceedings is the occasion of a conflict between employment protection and survival of the company. Ensuring the sustainability of the latter often needs to be achieved at the cost of workforce reduction. This finding raises an issue which may, prima facie, appear somewhat paradoxical: while one of the objectives of the companies in difficulty is to ensure employment preservation, certain provisions tend to accelerate the delivery of redundancies. If the intrusion of insolvency law in an area that some consider restricted to labor law, may give rise to controversy, it has an explanation: the unsuitability of the second’s constraints the company faces in a crisis situation could lead to the entity’s shut down, and consequently, all the jobs that it carries. Finding ways of conciliation, sometimes considered contradictory, is necessary: ensuring the company’s safeguard is the best way to preserve the jobs attached to it.

South African company law has provided for the rescue of financially distressed companies since 1926 when the statutory procedure of judicial management was introduced by the Companies Act 46 of 1926. Unfortunately, judicial management has never been regarded as a successful corporate rescue procedure and for most of its existence it has been severely criticised on many grounds. The Companies Act 61 of 1973 that replaced the Companies Act 46 of 1926 did very little to improve this situation and judicial management remained underutilised. As a result, the Companies Act 71 of 2008 now introduces two newly-created corporate rescue procedures in the form of business rescue proceedings and the compromise with creditors. This study analyses judicial management and the new corporate rescue procedures to establish whether the identified weaknesses of judicial management have been adequately and effectively addressed in the new procedures. A comparative study with similar procedures in England and Germany is undertaken to determine whether the South African legislature has delivered on its promise to create a system of corporate rescue that will meet the needs of a modern South African economy. Several weaknesses in the new procedures are identified and a number of recommendations are made to improve the relevant provisions and to assist in providing South African company law with an efficient and acceptable corporate rescue regime. / Mercentile Law / LLD (Mercentile Law)

This diploma thesis describes possible options of dealing with bankruptcy of chosen company with wider focus on economic aspects. The theoretical part of the thesis deals with possibilities how to resolve bankruptcy, course of insolvency proceedings, activities of insolvency trustee, status of creditors and registration of creditor’s receivables. The practical part deals with evaluation of economical situation of chosen company with recommendations for creditors, whether it is more advantageous to maintain the company operating, according to financial results (reorganization) or whether it is better to sell all of company’s assets (bankruptcy), and to cease its activities.

En période de crise économique, la question de la garantie de paiement du salaire se pose avec acuité en cas d’insolvabilité de l’employeur. En France, cette protection est assurée par un fonds de garantie géré par l’association pour la gestion du régime de garantie des créances des salariés Depuis sa création en 1974, l’AGS a subi d’importantes mutations : initialement conçue pour pallier les insuffisances d’une protection bâtie sur un système de privilèges, elle est désormais un « amortisseur social » pour les salariés de l’entreprise en difficulté. Paradoxalement, cette évolution est également source d’interrogations sur le devenir du fonds en raison de la différence considérable relevée entre le montant des avances consenties aux salariés et celui des remboursements. Le législateur et le juge ont contribué à la dégradation de sa situation en accréditant l’idée que l’AGS constitue un « employeur de substitution », et en suscitant, chez les salariés, le sentiment qu’elle n’est qu’un simple guichet de paiement des salaires. Assurer la pérennité du système de garantie des créances salariales, technique sui generis participant de l’intérêt général, est nécessaire mais risque, au fil des ans, de se révéler de plus en plus difficile si des mesures énergiques ne sont pas rapidement prises. / In times of economic crises, guaranteeing the payment of wages in the event of insolvency on the part of an employer is a cructical issue. In France, this protection is provided by a national insolvency fund, the Association pour la Gestion du régime des garanties des créances des Salariés. Since its creation in 1974, the AGS has undergone significant changes. While it was originally designed to compensate the deficiencies of a protection built on a system of privileges, it has now become a “social buffer” against a payment default on wages for the employees of a company in difficulty. Paradoxically, this evolution has ushered in further questioning with regards to the future of the fund, due to the considerable disparity between the amounts of the advances granted to the employees and those amounts reimbursed to the fund. The legislator and the courts have both contributed to the degradation of its situation by giving credence to the idea that the AGS is a “substitute employer”, which yielded the impression, for the employees, that it was a mere cash-teller for the payment of salaries. Although it is necessary to ensure the durability of this protective system, as a sui generis contribution to the common good, it might prove more and more difficult, if drastic measures are not taken promptly to fix the system.

This Thesis focuses on Insolvency. The work begins with determination of basic terms relevant to Insolvency. Further it describes the importance of Capital Structure and claims for company assets and the importance of debt financing. Financial analysis is important for the prediction of bankruptcy in the future. There are references to the basic methods of financial analysis, the most significant ratio indicators and some models for the prediciton of bankruptcy (Altman's Z-score, Neumaier's Index IN05, Kralicek's quick test). Theory Approach is an important microeconomic theory connected with insolvency. The next part of the work focuses on Theory Approach problems - relationships between the lender and the borrower (principal and agent), information asymmetry, soft and hard budget constraint. The work is also focused on a Czech bankruptcy legal form. It also references the purpose and goals of the bankruptcy law, rescue culture, development and the new Czech Bankruptcy Act and the insolvency process. The next part of the work investigates trends of insolvency in the USA , Europe and the Czech Republic in context of the world economic crisis. After that a case study follows. The goal of the case study is to describe the bankruptcy of a real Czech company and resume for the issues which were mentioned in the theoretical part of the Thesis. The company which is analysed in this case study is Oděvní podnik, a.s.. During the insolvency process, it used the new bankruptcy act-reorganization. The case study involves analysis of the causes of bankruptcy, financial analysis (the trends in balance sheet and profit and loss report, ratio indicators calculation and application of credibility and bankruptcy models) with the purpose of finding out if it was possible to predict the bankruptcy of Oděvní podnik, a.s.. The next part of the case study describes the insolvency processes which have run till this time with focus on the chosen problems of the Theory Approach.

Abstract: The doctor's dissertation paper addresses the social problem, how business units should use the standard economic tools to prevent crisis. The importance of the problem is supported by the fact, that last year more than eleven thousand economic entities in the Czech Republic became insolvent. The Set of Tools for Corporate Crisis Prevention shall help to better adjust the internal control mechanisms, using which businesses could better prevent crisis. Application of this Set of Tools for Corporate Crisis Prevention is verified based on two completely different companies. The dissertation addresses the question of how use standard tools such as loan and leasing for crisis prevention, possibly secure the recovery of growth opportunities. This support is implemented by using an external financial institution, or the Intercompany bank. In the chapter entitled "intercompany bank", I describe the basic principles of operation and its importance for internal control. This internal organization has been used in many companies, but today is back to support the sales department and help reduce risk associated with the greater indebtedness of the company. I am describing the Intercompany bank in the context of internal processes and forms of cooperation with the sales department. Functionality of the intercompany bank is supplemented with examples from practice. The chapter called "Micro-enterprise approach of the crisis" is complemented by the complexity of internal financial perspective to company's management. This chapter describes three main sources of the company crisis from a microeconomic perspective. It is decreasing demand, the impact of interest rate exchanges on corporate governance and the impact of exchange rate changes on the financial stability of the company. The analytical part of presented dissertation thesis deals with development of insolvency proposal, bankruptcy, and reorganization proposals in The Czech Republic between 2008 and 2013. The main target is finding the causal dependences between insolvency requirements in the Insolvency Register and a few key macroeconomic indicators such as GDP, unemployment rate, industrial production growth and the amount of loans granted to the corporate sector. For a more comprehensive view of insolvency arrangement of The Czech Republic is accompanied by description of the legislative settings in The UK, Germany and France. Keywords: Bankruptcy proposals, Bankrupt, Company crisis, Exchange rate, Industrial production, Insolvency, Insolvency proposals, GDP, Leasing, Reorganization, Unemployment rate.

THE TITLE OF THE DIPLOMA THESIS AND ABSTRACT TITLE: Transaction Avoidance in Insolvency Proceedings Comparison of Czech and British Legislation ABSTRACT: The general goal of transaction avoidance in insolvency proceedings is to prevent the adverse effects of economic entity's collapse that might be multiplied both by an interest of the collapsing entity to dispose the residual property to connected or associated subjects and by a plurality of creditors with conflicting interests and logical motivation not to be subjected to the mandatory rules of the insolvency proceedings. The current attitude and status of Czech legislation and jurisprudence to transaction avoidance is affected by the fact that within the socialism (and the related decadence of jurisprudence) this legislation could not sufficiently evolve which resulted in a situation that Czech legislation is currently dealing with multiple theoretical and practical deficiencies that neighboring legal systems have dealt with many decades ago. The main goal of this theses is to provide thorough analysis of both Czech and (with regards to the content limit of this theses) also the British legislation and to point out the most crucial deficiencies in Czech legislation and possible inspiration in the British legislation. The theses is divided into four...