Quotation Frössel, Andreas, Troup, Tomáš. 2017. Abuse of Principles of Creditor Autonomy in Insolvency Proceedings. European Review of Private Law 2017 (4), 727-764.


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Abstract

This article comparatively examines the application of the concept of abuse of law to the context of insolvency law, concretely regarding abuses of creditor rights in the insolvency proceedings. Two main areas of application can be identified in this regard, namely abuses of the principle of majority on the one hand, and abuses of the principle of preference on the other hand. After a short discussion of these principles, the authors first discuss how abusive conduct of the creditors may be theoretically demarcated and practically determined. They come to the conclusion that abuses of these principles will, in practice, only be picked up by the insolvency court in the most evident cases. Subsequently, several legislative measures against abusive conduct of the creditors are being discussed. In the following, the authors show how two legal orders, namely the Czech and the Austrian legal order, have tackled abusive conduct of creditors in the course of their legal historic development. It is shown that the implementation of a too extensive creditor autonomy has led to highly undesirable consequences in practice. While this caused a substantial removal of creditor autonomy in Austria by the legislator, substantive creditor rights are present in the current Czech insolvency regime. Based on a tabular comparison of the two legal orders, the authors discuss the practical consequences of the current insolvency regimes. They conclude that the Austrian legal order is able to largely prevent abusive creditor conduct by restricting creditor autonomy, whilst the opposite applies to the Czech case. The Austrian and Czech experiences show that an unrestricted creditor autonomy has considerable negative consequences on the functioning of insolvency proceedings as a whole.

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Publication's profile

Status of publication Published
Affiliation WU
Type of publication Journal article
Journal European Review of Private Law
Language English
Title Abuse of Principles of Creditor Autonomy in Insolvency Proceedings
Volume 2017
Number 4
Year 2017
Page from 727
Page to 764
DOI n.a.

Associations

People
Frössel, Andreas (Details)
External
Troup, Tomáš (Centre for Comparative Law of the Faculty of Law Charles University, Czech Republic)
Organization
Civil Law and Civil Procedure I AB (Details)
Research areas (ÖSTAT Classification 'Statistik Austria')
5209 Liability law (Details)
5220 Private law (Details)
5238 Civil procedure law (Details)
5239 Civil law (Details)
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