Limits of application of general principles of civil procedure in bankruptcy cases
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Abstract
In theory of law of civil procedure, the origin, content, area of application and limits of general and special principles of the civil procedure have been analyzed in great detail by many authors. Nevertheless, theof Lithuanian authors ve nothas examined or tried to reveal the extent to which the general principles of civil procedure operate inpending bankruptcy cases, although the number of bankruptcy cases in Lithuanian courts is growing rapidly. Hence, the determination of the limits of application of principles of civil procedure and theoretical discussion on this issue might be useful for practical application of legal rules regulating bankruptcy procedure.
isThe article deals with the limits of application of general principles of civil procedure in bankruptcy cases – principle of disposition, principle of competition, principle of judge’s guidance over the procedure, principle of concentration of procedure. The article is not striving to reveal the content of all the general principles of civil procedure which operate in the bankruptcy procedure. Its purpose is to disclose the content of those principles, the limits of application of which differ from the general judicial proceedings, hereby enabling to attribute bankruptcy cases to a particular category. While surveying the limits of application of the principle of disposition in bankruptcy cases the author observes that, irrespective of the fact that in cases where increased public interest determines the outcome of the case, the limits of principle of disposition are narrowed, although this is not the basis to putascribe bankruptcy cases to a non-dispositive category of cases.F,, furthermore bankruptcy cases in fact correspond to the features established for the category of mixed cases, i.e. both private and public interests are combined in bankruptcy cases. Bankruptcy cases feature increased public interest and the abundance of participants, whichesthus providing the character of collectivity to bankruptcy cases and that is why the study of these cases becomes much more complicated.T; his also warrants an increased activity of the judge in bankruptcy proceedings - the judge has the possibility to collect evidence on his or her own initiative, to ascribe expertise, interrogate witnesses, etc.
Summarizing the analysis, the conclusion is made that all general principles of civil procedure regulate trying bankruptcy cases.H,, however some of se general principlesthem, for example, principle of disposition, principle of competition, principle of concentration of procedure, are restricted in particular stages of investigation of suchbankruptcy cases due to the purpose of the bankruptcy procedure (which is to inassure the balance of interests between the creditors of the insolvent enterprise andas the interests of the enterprise itself)The l. Limits of application of principle of disposition as well as the principle of competition in the stage of initiation of bankruptcy case basically depend on the subject performing the right to initiate bankruptcy proceedings. Thus, the limits of principle of disposition in bankruptcy cases initiated by the enterprise itself, its head or owner, are narrower than in those bankruptcy cases which are initiated by the initiative of the creditor. On the contrary, the limits of the principle of competition are narrower in those bankruptcy cases which are initiated by the creditor. In addition, even a substantial aspect of the principle of judge’s guidance over the procedure is operating in the process of investigation of bankruptcy cases, because the court is entitled to collect evidence ex officio, and this basically results in getting the limits of the principle of disposition and principle of competition in the bankruptcy cases narrower.
isThe article deals with the limits of application of general principles of civil procedure in bankruptcy cases – principle of disposition, principle of competition, principle of judge’s guidance over the procedure, principle of concentration of procedure. The article is not striving to reveal the content of all the general principles of civil procedure which operate in the bankruptcy procedure. Its purpose is to disclose the content of those principles, the limits of application of which differ from the general judicial proceedings, hereby enabling to attribute bankruptcy cases to a particular category. While surveying the limits of application of the principle of disposition in bankruptcy cases the author observes that, irrespective of the fact that in cases where increased public interest determines the outcome of the case, the limits of principle of disposition are narrowed, although this is not the basis to putascribe bankruptcy cases to a non-dispositive category of cases.F,, furthermore bankruptcy cases in fact correspond to the features established for the category of mixed cases, i.e. both private and public interests are combined in bankruptcy cases. Bankruptcy cases feature increased public interest and the abundance of participants, whichesthus providing the character of collectivity to bankruptcy cases and that is why the study of these cases becomes much more complicated.T; his also warrants an increased activity of the judge in bankruptcy proceedings - the judge has the possibility to collect evidence on his or her own initiative, to ascribe expertise, interrogate witnesses, etc.
Summarizing the analysis, the conclusion is made that all general principles of civil procedure regulate trying bankruptcy cases.H,, however some of se general principlesthem, for example, principle of disposition, principle of competition, principle of concentration of procedure, are restricted in particular stages of investigation of suchbankruptcy cases due to the purpose of the bankruptcy procedure (which is to inassure the balance of interests between the creditors of the insolvent enterprise andas the interests of the enterprise itself)The l. Limits of application of principle of disposition as well as the principle of competition in the stage of initiation of bankruptcy case basically depend on the subject performing the right to initiate bankruptcy proceedings. Thus, the limits of principle of disposition in bankruptcy cases initiated by the enterprise itself, its head or owner, are narrower than in those bankruptcy cases which are initiated by the initiative of the creditor. On the contrary, the limits of the principle of competition are narrower in those bankruptcy cases which are initiated by the creditor. In addition, even a substantial aspect of the principle of judge’s guidance over the procedure is operating in the process of investigation of bankruptcy cases, because the court is entitled to collect evidence ex officio, and this basically results in getting the limits of the principle of disposition and principle of competition in the bankruptcy cases narrower.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
