Procesiniai bankroto bylų nagrinėjimo ypatumai

Abstract

The article is dedicated to the analysis of certain procedural peculiarities of bankruptcy cases. First, the article analyses the purpose of bankruptcy proceedings and relation of this procedure to civil procedural law. A conclusion is made that bankruptcy proceedings are closely linked not only to the semi-branch of civil procedural law, which concentrates on the investigation, whether the claim of the creditor is sound (“the investigative procedure”), but to the enforcement of judgments as well. On the other hand, in contrast to the ordinary judgment enforcement procedure, which is in all cases of individual nature, a “principle of general execution” is typical of bankruptcy proceedings. The author discusses the grounds, which determine the procedural specifics of the proceedings of bankruptcy cases, and comes to the conclusion that such specifics are determined by the purpose of the institution of bankruptcy itself.
Considerable attention is paid to the analysis of the relation between the legal acts regulating the bankruptcy proceedings. The author comes to the conclusion that a purely mechanical application of the legal provisions established in Article 1 § 1 of the Code of Civil Procedure and Article 10 § 1 of the Enterprise Bankruptcy Law (which state that proceedings of bankruptcy cases start and such cases are heard according to the course of litigation laid down in the Code of Civil Procedure with the exceptions fixed in the Enterprise Bankruptcy Law) are insufficient when ascertaining which legal act must be followed to institute and hear bankruptcy cases in courts. By giving practical examples an attempt is made to demonstrate that some of the provisions of the Code of Civil Procedure should not be applied even in such instances where the Enterprise Bankruptcy Law does not lay down any exceptions. A possibility of applying some of the new or substantially amended rules of the civil procedural law is discussed: default judgments, the preparatory stage of the proceedings. An opinion stated in the consultation of the Supreme Court of Lithuania, which prohibits friendly settlements in the stage of the institution of bankruptcy cases, is criticized because, according to the author, it was passed without determining the relation between the legal acts regulating bankruptcy proceedings.
The attention is mainly concentrated on the position of the litigating parties in a bankruptcy case and on their entering into the litigation process: an overview of the laws and legal precedents is given, as well as suggestions on how to improve the present situation. The author disagrees with the rule established in the practice of the Supreme Administrative Court of Lithuania, according to which the person, who brings a bankruptcy case before the court is not always considered to be the claimant. A critical opinion is also given of the procedural status of those creditors, which step into the course of the proceedings which had already commenced. In the view of the author, such creditors should not be considered to be the third party without separate claims, but, indeed, they should be held as the third party having separate claims.
The article also analyses some of the most recent amendments of the Enterprise Bankruptcy Law, the legal rules which were formed in judicial practice, as well as such obscurities as, for example, the moment when a creditor enters into the proceedings, the special order according to which the judgments of the courts of first instance concerning the commencement of bankruptcy cases come into effect, etc.