PRELIMINARY HEARING IN THE INSOLVENCY (BANKRUPTCY) PROCEDURE UNDER THE LAW OF ENGLAND, GERMANY AND FRANCE

Abstract

Abstract. This scientific article is devoted to a comparative legal analysis of the legal regulation of the preliminary hearing under the law of England, France and Germany. The actuality of the topic is due to the fact that the preliminary hearing in the bankruptcy procedure is one of the necessary stages on the way to solving the problem of the debtor’s insolvency. At this stage, the debtor’s passive is mainly formed. However, the procedure for holding a preliminary hearing is not fully prescribed by the legislator, so borrowing the experience of legal regulation of the preliminary hearing under the law of England, France and Germany will make it possible to single out the most successful mechanisms for its conduct with the aim of further implementation into national legislation. The author substantiates that the explanation for the absence of the concept of a preliminary hearing in England in the classical sense is the fact that in this country the competitive process takes place under a different model than in Ukraine. In England, there is no need to form the passive of the debtor twice, as it is done in Ukraine, in this country the court from the very beginning opens either a winding-up procedure or a bankruptcy in the case of natural persons, which is carried out without the possibility of the classical rehabilitation procedure, and therefore, thanks to this model of the competitive process, proving of creditor claims is much less necessary than a similar process in Ukraine. It was revealed that the process of forming of the debtor’s passive in England is so simplified and straightforward in the eyes of the legislator that, in his opinion, there may not even be a need for a separate court hearing on this matter. The fact is that the English legislator transfers the lion’s share of the work to the receiver, leaving the cancellation or reduction of the debt to the court at the request of the receiver or, in the absence of such a request, at the request of the creditors or the debtor. Thus, in this case, according to the intention of the English legislator, the court should be given an appellate and optional, rather than a fullfledged, main function of consideration of creditor claims. The absence of the concept of a preliminary hearing in French insolvency law is revealed and the uniqueness of such a state of affairs is argued, since in general the insolvency procedure under French law also includes rehabilitation procedures (in contrast to England and Germany), however, due to the peculiarity of the implementation of these procedures, namely due to their “linearity”, the need for a preliminary hearing, that is, a hearing that precedes, as in the Ukrainian bankruptcy procedure, the recognition of the debtor as a bankrupt, of course, disappears. It has been established that the French legislator entrusts to the court in the preliminary hearing only the resolution of uncomplicated disputes, which is permissible under the conditions of limited tools and time. If serious issues arise, a more detailed investigation is clearly necessary, will be carried out in a separate proceeding, which is an element of the classical regulation of the competitive process with a well-established historical development. A situation similar to the French insolvency procedure model has been identified in Germany with regard to separate proceedings for disputes arising from creditor claims. It is justified that the court in the preliminary hearing, even in the absence of a challenge to the claim by other participants, i.e. in the case of tacit consent, should still check the primary documents on which the creditor’s claim is based, precisely for the purpose of preventing the occurrence of abuses. It has been proven that the German legislator adheres to the principle of community, or the universality of the competitive process, since there is a component of it, which Salgado de Samoza also derived, – joint judicial proceedings (Judicium universale), because if a case in a separate proceeding falls under the regulation of civil proceedings, then it will be considered in court, where a bankruptcy proceedings are conducted, and the fact that there is a possibility of consideration of such a case regarding a monetary claim in other courts that do not consider bankruptcy cases is in this case only an objective necessity in view of the fact that such cases will be subject to other rules of judicial procedure (for example, administrative). Furthermore, it is suggested that the Ukrainian legislator borrow the model of the regulation of the preliminary hearing in Germany, since it includes both the direct participation of the court in the approval of claims, and the possibility of a full consideration of the case concerning the resolution of the dispute regarding the monetary claim, and also adheres to the principle of community, or the universality of the competitive process, determining the exclusive jurisdiction for implementation of separate proceedings.