Oduzimanje imovine iz stečajne mase od strane krivičnog suda
Seizure of bankruptcy assets by the criminal court

Summary/Abstract: The recent case law gave the reason for considerations in this paper about seizure of property that already constitute a bankruptcy asset in bankruptcy proceedings before the Court of Economy by the criminal courts in a proceeding of seizure of assets deriving from criminal activities. Courts are doing so by giving primacy to criminal law legislation over bankruptcy laws, primarily by basing that view on the maxim „Lex specialis derogat lege generali“. The paper takes a very critical stance on such practice. To this aim feeble importance and applicability of this principle has been given, particularly in light of the hierarchy of legal norms prescribed by the Constitution. Both from the point of view of substantive provisions in a situation where a whole legal system such as bankruptcy is derogated, and from the point of view of the jurisdiction of the courts in a situation where the practice of criminal courts considers the decisions of the Court of Economy actually non-existent. The consequences of such a practice are not only the stroke on the existing legal system, but also discrimination against numerous legal and natural persons who are the creditors of the bankruptcy estate, which ends in at least one part as the confiscation of their property. In doing so, we note that there are numerous discrepancies, or at least dilemmas about their relationship, in the regulations provided by the Bankruptcy Law and the Law on the Forfeiture of the Proceeds from Crime. However, we can still see that in such a situation, solutions can be found that do not disturb the legal system, or what more the constitutional order, and that such jurisprudence is less a result of conflict of above mentioned laws, and more a consequence of failure to cope in these really complex conditions set by the legislator.

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