Siberian Federal University 
- Issue
- Journal of Siberian Federal University. Humanities & Social Sciences. 2011 4 (2)
- Authors
- Shishmareva, Tatiana P.
- Contact information
- Shishmareva, Tatiana P. : Siberian Federal University , 82 Svobodny, Krasnoyarsk, 660041 Russia , e-mail:
- Keywords
- inability to pay; the termination of payments; the substantiality of a debt; insolvency; a sign; criterion; the ground
- Abstract
The inability to pay concept and signs as one of the basic categories of insolvency institution is the subject matter of the articles research. In Russian legislation on insolvency (bankruptcy) the concept «inability to pay» has comparatively recently being used,hence in this connection it is insufficiently researched in the doctrine Inability to pay in the Russian doctrine, as a rule, is understood as a sign or criterion of insolvency. The article also suggests considering insolvency as the ground for instituting the procedure of supervision, financial improvement and external management. It is in this sense that German legislation uses the concept under analysis. Estimating arbitration practice established in the Russian Federation, the author comes to conclusion about an essentially incorrect approach to an insolvency sign and necessity of the operating law on «Insolvency inconsistency (bankruptcy)» change in this part. The article analyses the meaning of an «inability to pay» concept as a certain property condition of the debtor. The author suggests that insolvency signs should be singled out, namely: the termination of payments, lasting character of the termination of payments, insufficiency of property to meet creditors requirements. The debtors inability to pay condition cannot thus be narrowed exclusively to the termination of payments and to a certain term of delay of civil-law obligations or public duties execution, it is different in content and implies the debtors absence of necessary property to repay the outstanding debts. In this connection the article proposes to differentiate concepts «inability to pay», «the termination of payments», «a delay of payments», «the suspension of payments», the author refers to the German doctrine where the specified concepts are researched more deeply and comprehensively. Criterion of the specified concepts differentiation is, first of all the term, as well as impossibility of obligation execution owing to property insufficiency. Referring to the German doctrine and the established judiciary practice, the author analyzes criteria of differentiation of the researched concepts - term and substantiality of the debt. In addition it is emphasised that the German legislator establishes neither a certain term, nor the amount of a debt in the law. They are determined by judicial practice that allows to institute insolvency procedures over property of really insolvent debtors, and the Russian legislator formalized the specified criteria and allowed thereby the unfair subjects of a civil business practice to use an insolvency procedure over property of actually solvent debtors who have committed the delay of civil-law obligations and (or) public duties execution.
- Pages
- 296-305
- Paper at repository of SibFU
- https://elib.sfu-kras.ru/handle/2311/2218
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License (CC BY-NC 4.0).