Analysis of the legal nature and significance of liabilities of the bankruptcy estate

Research Problem:

Identification and analysis of the so-called liabilities of the bankruptcy estate as one of the key factors influencing the level of creditor satisfaction in insolvency proceedings conducted against the trader under the provisions of the Law of 28 February 2003. Bankruptcy ("P.U.").

 

Justification for the study:

The outlined problem of research is essential for both law and the science of practice.

The issue in respect of the liabilities of the bankruptcy estate, although already present under the decree of the President of the Republic of Poland of 24 October 1934 - Bankruptcy law (not yet in the form of a legal definition, but as a concept of legal language), has not received thorough analysis in the field of legal science.

The research will, therefore, analyze the legal nature of the so-called liabilities of the bankruptcy  estate, including the criteria for eligibility of individual liabilities to the group "costs of bankruptcy  proceedings" or "other liabilities of the bankruptcy estate".

Empirical studies (the filing method) will allow determining which categories of liabilities create the highest expenditure on the bankrupt estate and consequently affect the level of satisfaction of creditors. The research will also allow insolvency practitioners to determine what kind of liabilities are the main reason for the discontinuation of insolvency proceedings. This in turn will allow for the formulation of possible postulates de lege ferenda (perhaps, the outcome of the studies would lead to a test of the legitimacy of the "transfer" of certain liabilities to one of the categories indicated in article 342 of the Bankruptcy Law).

 

Main scientific objective:

The main scientific objective of the project is to determine the meaning of Liabilities of the bankruptcy estate. One of the most interesting issues related to the subject of this research is the question of the time when the obligation arose (before or after the bankruptcy) as a determinant of the classification of the obligation in the category of "mass claims" or "bankruptcy claims", respectively in either art. 343 P.U. or 342 P.U. It seems that the duration of the commitment should not be of exclusive relevance to the legal qualification of the undertaking concerned; however, this hypothesis requires verification in the course of the research.

Through the use of the empirical method, scientific research will help to determine the extent to which the concept of bankruptcy  obligations is affected by the impact on the level of creditor satisfaction in insolvency proceedings. The results of the filing test will have to:

  • Determine the percentage of the costs of bankruptcy  proceedings in total bankruptcy  liabilities,
  • Determine the percentage of the individual items of costs and liabilities of the bankruptcy  in the total bankruptcy liabilities,
  • Separate individual expenses of the insolvency practitioner and then attempt to categorize them,
  • Determine the relationship between satisfied insolvency debts and the level of satisfaction of bankruptcy creditors,
  • Establish the reasons for the remission of insolvency proceedings.

 

Applied test method/methodology:

The dogmatic method will serve to read the normative scope of art. 230 P.U. The research will follow the commonly used directives for the interpretation of the legal text, taking into account the current acquis in judicial case-law and the literature on the subject. Dogmatic analysis will also be carried out in terms of legal-historical aspects.

The empirical method will, in turn, allow examination of insolvency proceedings initiated against traders on the basis of applications for bankruptcy lodged after 31 December 2015. The analysis will be submitted to the files of all completed and redeemed insolvency proceedings conducted against traders. The subject of the analysis will be the accounts and final accounts of the insolvency practitioner and the provisions on the remission of insolvency proceedings.

Team:

PhD student Bartosz Sierakowski e-mail:bartosz.sierakowski@zimmerman.com.pl

under the direction PhD Anna Hrycaj, Prof. of the Łazarski University

 

Results of the research tasks carried out:

 

  • Scientific article: Hrycaj A., Sierakowski B., The question of costs of insolvency proceedings and other liabilities of the bankruptcy estate, "restructuring adviser" 2016, No. 5;
  • Paper by Bartosza Sierakowski on the legal nature of the property tax in the context of art. 230 Bankruptcy Law (Krakow, 16 September 2016, training organized by the National Chamber of Restructuring Advisers).

 

 

 

Bartosz Sierakowski
legal adviser, restructuring advisor

Attorney-at-Law and licensed restructuring advisor, partner at Zimmerman and Wspólnicy sp. k. and Vice-Chairman of the management company Zimmerman Filipiak Restructuring S.A., member of the higher Disciplinary Court at the National Chamber of Restructuring Advisors. He specializes in bankruptcy and restructuring law and civil and enforcement proceedings. In his professional practice, he has participated in the largest insolvency, remedial, and restructuring proceedings in Poland, advising both creditors and debtors. He conducts training for entrepreneurs and financial institutions in the field of the aforementioned areas of law. He also teaches bankruptcy and restructuring law in postgraduate studies at Łazarski University in Warsaw and at Adam Mickiewicz University in Poznań.

Bartosz Sierakowski is the author and co-author of numerous articles in the field of bankruptcy, restructuring, enforcement, published in the Bank Law Monitor, Trade Law Monitor, Restructuring Adviser, Real Estate and The Economic and Sociological Legal Movement. He is also an expert for the Dziennik Gazeta Prawna (Legal Newspaper) and TVN Biznes and Świat as well as a co-author of the following book publications, including commentary on laws:

  • "Restructuring law. Commentary on the Law" (Warszawa 2017, Infor),
  • "Act on the Bank Guarantee Fund, the deposit guarantee scheme and the forced restructuring. Comment." red. R.Sura, P. Zawadzka, p. Zimmerman (Warszawa 2017, CH Beck),
  • "Designs of procedural and judicial documents in restructuring proceedings." red. A. Hrycaj, P. Filipiak (Warsaw 2016, Wolters Kluwer).

Bartosz Sierakowski also conducts research on the effectiveness of insolvency proceedings, his scientific interest focuses around the issues of the so-called liabilities of the bankruptcy estate. He is also a keynote speaker at many nationwide conferences and training devoted to insolvency issues.