Actio Pauliana

Abstract

The fountainhead of civil institute of actio Pauliana derives from Roman law that established the main principles of it. The present thesis deals with the application of actio Pauliana as one of the specific creditors’ measure in the view of developing social relations. Moreover, it presents the main questions that can arise for the creditors in defence of their rights.
The purpose of the thesis is in the light of the national law and practice of the Supreme Court of Lithuania, comparing with the provisions of the Civil Code of the Netherlands to analyze the provisions of actio Pauliana application. The thesis aims to attract attention to certain aspects that are of the paramount importance while interpreting and applying the provisions of actio Pauliana. The creditor can avoid the transaction of debtor if: 1) the debtor has concluded it without being obliged to do so; 2) in concluding the transaction, the debtor and the person with whom the debtor acted knew or should have known that the interests of the creditors would be defeated as a result; 3) the transaction prejudiced the creditor’s rights. Nevertheless, the author of the paper emphasizes that on the basis of actio Pauliana it is allowed to challenge the transactions made by the other persons than debtor; in the case of unilateral transaction it is necessary to proof that the person who was the object of the transaction knew when the transaction was performed that the interests of creditors would thereby be defeated; the injury can evidence in different ways and there is no requirement that due to transaction debtor would become insolvent; the annulment of the transaction has to have subsequences only in respect of creditor and as much as his claim and etc.