Банкеръ Weekly

Briefs

DEBTORS WILL BE TAKEN TO TASK ... WHEN THE RIGHT TIME COMES

The idea to tighten legal sanctions against unscrupulous debtors has been circulating the corridors of power for quite a long time. It won't be bad to teach debtors descipline and make them remember that a free lunch might taste quite bitter. The proposed amendments to article 206, item 2 of the Penal Code (PC) at least, are aimed to do that.The proposed changes concern misappropriation when the embezzler faces up to 6-year imprisonment if he/she sells the collateral for the credit, without having ensured the rights of the creditor before that.If the husband has received a bank credit, for instance, placing in pledge the family car, and the wife (co-owner of the same car) has after that sold it, she takes the risk of getting up to 6-year imprisonment if she has not given any other guarantees. If the wife, however, has guaranteed the credit (with the creditor's consent) by securities of sufficient value, she may dispose of the family vehicle, although it has been pointed out as a collateral when receiving the credit.There is also a proposal to amend article 216, item 1 of the PC, adding the text that whoever destroys or damages in violation of the law his/her movable or immovable property, which he/she has mortgaged or placed in pledge, is liable to up to 5-year imprisonment. If the receiver of the credit has mortgaged his home, and after getting the loan has sold the doors and windows, taken out the parquet, or set his/her home on fire, as a result of which the market price of the house has dropped considerably, he/she will face penalty under the article 216, item 1. According to the drafters, the proposed amendments should be voted and enforced on April 1, 2002.Much more proposals have been made for amendments to the Civil Procedures Code (CPC) . The common thing between them all is that they are focused at the Achilles' heel of the CPC - the executive procedures. Thus, one more item will be added to article 237 of the CPC, where the deeds liable to compulsory fulfillment are entered. The excerpts from the Register of special pledges should serve as grounds for the start of executive procedures. Under the Special Pledges Act, this Register is kept with the Ministry of Justice and is public. This means that everyone can ask for information or for a certificate for any circumstance, entered in it.An important amendment has been proposed to article 348 of the CPC, regarding the opportunity for reaching an agreement between the debtor and the creditors before the property has been sold. In the present stipualtions the last term within which the debtor can keep the property, that has been put up for public sale, is the day of the sale itself. If a flat has beҐn offered for public sale, for example, under the currently effective provisions, potential buyers can enter their offers within a month.After this term elapses the one whose bid is the highest has five more days to remit the entire sum and only then becomes owner of the flat. If within that additional term, however, the debtor remits 20% of the amount he owes to his creditors, undertaking in written to pay 10% of the due balance in each of the following three months, he can keep the flat. If the amendments are approved, the debtor may take advantage of the described procedure in case he remits the initial 20% by the day, preceding the deadline of the bidding. This means he would have six days less than presently. Moreover, if the debtor (according to the proposed amendments again) is a commercial company or another person carrying out trade, it/he/she can use the above-described procedure if 50% of the debt is remitted within the set term and 10% is paid every month that follows.Much more detailed proposals have been made for amendments to the CPC, regarding the compulsory execution on securities and companies' shares. Two provisons are to be entered in article 398 of the CPC, which presently includes only one item. A distraint on the available securities will be levied after making an inventory of the paper, taking the securities away and depositing them in a bank by a bailiff.The procedure for levying a distraint on book-entry securities is much more complicated. The proposed new article 398a stipulates that a bailiff will be notifying the Central Depository (in addition to the company), which on its part should notify the respective regulated market about the imposed distraint. If government securities are concerned, a notice shall be sent also to the person, who keeps the Register of government securities. The Central Depository and the person who keeps the Register of government securities should within three days notify the bailiff about any other securities, which the debtor holds and if distraints on them have been imposed.The new article 398b of the CPC concerns distrains on shares of general partnerships, limited partnerships, and single-member limited liability companies. Distraints on such companies will be imposed by sending a notice to the regional court where the respective company has been registered, and entered in the Commercial Register.

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