PIRMENYBĖS VIENAM KREDITORIUI SUTEIKIMAS KAIP ACTIO PAULIANA SĄLYGA: TREČIOJO ASMENS NESĄŽININGUMO AIŠKINIMO NACIONALINIŲ TEISMŲ PRAKTIKOJE PROBLEMATIKA

Abstract

This article addresses controversial aspects of the interpretation of the third person’s, who has entered into a bilateral transaction for consideration with the debtor, dishonesty in rulings of the national case law in the light of preference given to one of the creditors as a condition of the Actio Pauliana. The author examines the Paritas creditorum principle in the national law, recent rulings of the national case law based on the Actio Pauliana, where the debtor, although insolvent or in failing financial circumstances, prefers one of his creditors by paying this person first, and the doctrine of honesty of the third person as one of the debtor’s creditors in Fraudulent conveyance and Preferences institutes, existing in the United States of America. It is observed in the article that in the USA transactions related to the settlement of an earlier debt when a preference is given to one of the debtor’s creditors is generally considered lawful. In the Lithuanian case law, however, a deterrent has been established for businesspeople to seek the satisfaction of their claims and get paid by the debtor under certain circumstances based on the criterion of the third person’s honesty. The author arrives at the conclusion that while applying the Actio Pauliana institute in Lithuania, courts should not require or expect the transferee to be his debtor’s other creditors’ guardian. The third person’s as a businessman’s objective to be paid cannot be equated to his wilful misconduct.