Испитивање могућности финансирања стечајних поступака у случају недовољности имовине стечајног дужника
Delving Into the Possibilities of Funding the Insolvencies of Assetless Estates

Author(s): Irena Radić
Subject(s): Social Sciences, Law, Constitution, Jurisprudence, Law on Economics
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Assetless; Funding mechanisms in insolvency; State funding of assetless estates in insolvency; Public interest in insolvency; Abuse of company; Actio Pauliana;
Summary/Abstract: According to the Insolvency Act of Republika Srpska, the costs of the bankruptcy proceedings are to be paid from the bankruptcy estate before any creditors. However, if debtor's assets are insufficient to cover these costs and the creditors (or other interested parties) do not make an advanced payment for the costs, the bankruptcy court will dismiss the request to open bankruptcy proceedings. Namely, the bankruptcy proceedings are financed primarily from the bankruptcy estate. If the estate cannot cover the proceedings' costs, interested parties, primarily creditors, will be expected to finance the proceedings. However, creditors are often reluctant to prepay the costs, especially when when the debtor's assets are insignificant, as it increases the debt the debtor already owes them with a dubious chance of recovery. This is probably why more than half of the bankruptcy proceedings are terminated due to insufficient bankruptcy estate, meaning no distribution of assets to the creditors. While there may be many reasons why a bankrupt's assets may be little value, it raises suspicions about its lawful and honest business dealings. Therefor, it is crucial to investigate the reasons that led to the bankruptcy and whether there are grounds to challenge the debtor's actions or potentially hold certain individual criminally or civilly liable. This paper compares approaches to this problem in the Netherlands, Australia and Finland and proposes a possible solution compatible with the domestic legal and business environment.

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