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اشهار افلاس الشركة واثره على الشركاء : دراسة تحليلية == Companies’ Bankruptcy And Its Effect On The Partners
Author name:
سيف رشيد لطيف
Supervisor name:
خالص نافع امين المهداوي
General topic:
Law
Specific topic:
Commercial Law
Degree:
Master
University:
Mustansiriyah University - Faculty Of Law
Language:
Arabic
University location:
Baghdad
First pages:
13T1488 - p.pdf
Abstract:
The main goal of our research is to study and discuss the commercial companies’ bankruptcy because it is a vital topic nowadays, besides its important effect on the partners as they are the essential core of the companies; thus our research will only focus on three stages of bankruptcy, The stage before declaring the bankruptcy, the stage after the bankruptcy and the stage after the bankruptcy over, besides discussing the laws and legal rules that handle the procedures of declaring companies’ bankruptcy after its conditions and reasons are available, and also the effects that bankruptcy leaves whether they concern the company or its creditors. Choosing the title (Companies’ Bankruptcy and Its effect on the Partners) obliges us to discuss this subject within three chapters preceded by an introductory chapter about the meaning of bankruptcy. We divided the introductory chapter into three sections where section one includes the historical development of the bankruptcy into three main points, the first point includes the early stages of bankruptcy as a commercial system the Roman Empire knew to ensure its control on the commercial life and also to protect commercial life from those who may want to mess it up, the second point includes the bankruptcy at the middle ages and how has this system moved from the Romanian law to the other laws like the French law especially after the commercial development that happened in France after its industrial revolution; and the types of difficulties that bankruptcy faced, the third point includes researching the bankruptcy in the Iraqi law and the comparative law and the early stages where it entered to those laws and its development to get to its current level today, then we move to section three which has been specified for studying bankruptcy concept and its criteria which has included two main points. The first point is specialized for defining the bankruptcy. The second point will be outlining the features of the bankruptcy which has distinguished it from another similar system which is the “civilian insolvency”. The third section was specialized for studying the companies’ bankruptcy conditions and its procedures under the title Declaration of bankruptcy where we divided this section into two points; the first point includes the objective and configurable conditions of bankruptcy in order to avoid opposition to the decision to bankruptcy order, whereas the second point includes the bankruptcy procedures which is concerned with the people who are managing the bankruptcy and the process of hiring them, and also studying the nature of their jobs and the results that will come out of their works in whether to continue the bankruptcy or to stop it. A commercial company Bankruptcy declaration goes through several stages. The stage before declaring the bankruptcy which is the period where the company stops paying its commercial debts, although we can’t incline to the stage of not paying the debts or what is known as the suspicion period until the declaration of the company bankruptcy; we have a special chapter for it, which is the first chapter in order to discuss this period in details where we divided that chapter into three sections. The first section includes the concept of the suspicion period which has been divided into two points, where the first point defines the suspicion period and the second point discusses the legal value of this period through discussing the justifications of the Iraqi legislator and the Iraqi comparative to put this period. Then we move to the second section which is specialized for discussing the period where the company stops paying its commercial debts as it is the period where the company becomes under the suspicion of the legislative, and we have divided this section into two main points where the first point focuses on the concept of not paying the debts and the components of this concept, the second point focuses on how to prove the company stopping payment its debts and also the authority of the court in estimating and evaluating the breakdown after its review to the events which will be taking in consideration in determining the breakdown case. The third section is concerned with the company's behavior during the period of not paying the debts and the legal effect on those behaviors, this section includes three main points; the first point discusses the non - expiry possibility of the company behaviors through determining its concept and conditions and also determining the non - through behaviors and the effect of the bankruptcy on those behaviors. Point three discusses the permissible non - judging law to determine its conditions and also the included behaviors, then the effects of the bankruptcy declaration on it; this point ends with discussing non - judging law of the material insurances which the company does during the suspicion period through discussing the conditions of its non - judging laws and also the effects of the non - judging laws on those insurances. Then we move to the second chapter where we discuss the effects of the bankruptcy on the partners whether those effects belong to the company itself or to the creditors. This chapter includes three sections; the first section is specified for studying the effects of the company itself, through the second section we discuss the effects of the bankruptcy on the partners throughout showing the effect of the bankruptcy on the partners despite the company type whether it is a personnel company or funds company, then showing the effects of the partners in the companies that have the special nature which means the companies that gives the partners the merchant title. In section three we discuss the effects of the bankruptcy on the managers and the management council members of the company through studying the responsibility that resulted out of their management especially in those companies which has no limited number of partners, our research in this topic focuses on specifying the kind of responsibility that the managers or the management council members have through studying the conditions of their responsibilities and also determining the sanctions that would lie on those individuals who run this company, also showing the effectiveness of the bankruptcy rules in handling the managers or management council members responsibilities in the Iraqi law or the comparative law. The second section is specified for the company's creditors; in the first point of this section we discuss the ordinary creditors of the company as the law lays certain legal and financial effects on the company's bankruptcy declaration because the company creditors should be organized in one committee called the creditors group represented by the bankruptcy secretary at the very beginning of declaring the bankruptcy. The second point focuses on the effects of the bankruptcy on the creditors who have privileges whom their credits gave the priority to be paid back whether this is a general or special privilege coming from a property or funding. In section three we discuss the effects of the rights which may be held against the group of the creditors, this group is third party group that the company deals with under future paid contracts, and have discussed the rights of this group by Solitary or termination or retrieval. In chapter three we discuss the ending of the company's bankruptcy and its effect on the partners of the commercial company. This chapter includes three sections, the first section focuses on the ending of the benefits of the creditors group and also the necessary conditions for ending the bankruptcy. The second section focuses on the company's reconciliation with the creditors, as we discussed this mater in two points; where the first point focuses on the judicial reconciliation and the second point focuses on the company reconciliation where the company leaves its debts which comes through the judicial reconciliation but it is deferent from it by the, the company will have to undertake that it leaves the debts for the sake of ending its bankruptcy. In section three we discuss the creditors union as a way of ending the company's bankruptcy. This section has two main points; the first point discusses the meaning of the union and the ways of forming it, and the second point discusses the procedures of the union and its ending which has included several activities represented by continuing operating trade and to winding up endings of the company property, then depositing that money in order to distribute it to the creditors in order to end the union
