| Abstract [eng] |
Introduction Recently, companies’ bankruptcy law in Lithuania is being changed most frequently. The experience in using formal laws is ignored by legislative power while paying no attention toward it as a new source of the law. Nowadays, the legal acts involve only procedure of bankruptcy of companies, there is few theoretical and conceptual basics of the bankruptcy law. Therefore Lithuania has had no research of bankruptcy and insolvency law. Because of the predictable basic changes there are no scientists being able to make precise forecast of some changes. Therefore the need for new law ideas and issues is evidently present. Today it is common to adopt the law of other states, but it is still required to conform it to the European Union’s law standards as well as it is possible to create legal acts that are specifically accommodated to Lithuania. Nevertheless it is confirmed that many problems, which exist today, were also faced and solved in the past. That is why these solutions can be improved and used today. Research problem: Acceptation of legal acts, which have had different experience of the bankruptcy law application and adjustment of the relations between insolvent debtors and their creditors, were influenced by the diversity of law that existed in 1918 – 1940 in the Republic of Lithuania and analysis of the most significant elements that influenced the development of bankruptcy law from 1918 to 2007. During all the research period the problem of bankruptcy, trade process acts that make uniform were not completely solved in Lithuania till 1940. Despite the fact that the inherited model of social relations was not made perfectly, the changes were being made in systematic recepted law acts. During the research period (1918-1940), the disadvantages of legal adjustment concerning the debtors’ insolvency and institutions of bankruptcy were determined, the problems were cleared and ways of solving them were suggested on the scientific level (while paying attention to the research of other states). Moreover, new ideas were offered, the attention was paid to the experience of neighbour states (e.g. Poland), which went through the same stage of development of bankruptcy law. The history of the bankruptcy legal institutes is greatly valuable not only because of the formed different institutes review, but it is rich in the experience in the law field in a variety of states (Germany, Russia, France), which could and should be used as a great source for the law creation. Recent bankruptcy law still has many unsolved issues, which were found out in the law during the researched period. The essence of the paper: it is necessary refer to the knowledge related to the specific law field or history institute in order to get aware of existing law’s occurrences and be able to evaluate it. Since 1992 the legal acts of bankruptcy law are being changed and enlarged rather often. At this time the new insolvency code preparation is being under consideration. This instability means the absence of conceptual basics that are not systematic or the lack of knowledge about the origin of the particular institutes. The analysis of legal acts that existed in the past as well as the research of the main views, taking revealed and solved problems into consideration, could be one of possible sources for new acts of law. The variety of investigated law enables to determine the features that are characteristic to all systems of law and reveal the basic features of bankruptcy law too. Till now, the bankruptcy legal relationships, including acting law, have been analyzed very little in the scientific level; in addition Lithuania’s scientists have never taken it as a research object. This paper does not tend to reveal the influence of invalid law to recent Lithuanian bankruptcy law. The direct link between them has not been analyzed. The object of the research involves bankruptcy law, i.e. a doctrine, legal ideas and norms, applied in Republic of Lithuania from 1918 to 1940 and from 1992 to 2007. The matter of the research includes the development of the bankruptcy law and related institutes. The purpose of the paper: to analyze and compare the existing bankruptcy legal relations, which regulated the rules of the law in Lithuania in 1918 – 1940 and factors that influenced bankruptcy law development in Republic of Lithuania from 1992 to 2007. In order to reveal the determined research purposes, the following tasks have been formulated: 1) To describe the concepts of bankruptcy and competition (as one of bankruptcy elements in 1918-1940), to reveal their interaction and peculiarities of their application. To survey the development of the bankruptcy law principles and the sources of the law since ancient Rome, to discuss the very first law sources in Germany, Russia and France that have influenced the development of Lithuanian bankruptcy law since 1918; 2) To analyze and compare bankruptcy legal acts and particular institutes, that existed in 1918 – 1940 in Uznemune, Klaipeda region and in the rest of Lithuania, mentioning primary bankruptcy law sources and the papers related to XIX – XX centuries, to reveal the peculiarities of administration establishment and its interaction with bankruptcy law for the debtor, who has financial problems; to explore the peculiarities of debtor’s responsibility in case of fraudulent bankruptcy, according to all existent legal acts in the Republic of Lithuania in 1918 – 1940, 3) To survey the peculiarities in the recent development of the bankruptcy law in Lithuania since 1992 and to propose some suggestions concerning recent legislative power, to analyze factors that determined the development of the bankruptcy law and particular changes of bankruptcy legal acts from 1992 and in accordance to heritage of the bankruptcy law to formulate legal suggestions to legislator. Paper’s novelty and it’s significance: this paper is the first document in the history of Lithuanian jurisprudence, which analyzes the evolution of bankruptcy and competition (as a bankruptcy element) law institutes, their development, the influence of other states competitive law (in Russia, Germany and France) for the Lithuanian bankruptcy and legal acts related to the competition in 1918 – 1940. Today’s published papers and investigations do not reveal the development of the main principles of bankruptcy law and reasons, why they are as important as they are for nowadays bankruptcy law, the legal regulation of relations between debtors and their creditors (when the debtor is insolvent) are presented pithily. The statements the paper defends: the thesis formulated and maintained in the paper: 1) The bankruptcy law, that was applied in the whole territory of Lithuania in 1918 – 1940, had not one legal theoretical ground, but the main principles were common. 2) Till the Soviet occupation in 1940, the legislative power of the Republic of Lithuania preferred using accepted competition and bankruptcy law to renewing it. 3) The historical experience of the development of bankruptcy law was not used, when Lithuanian legislators accepted new bankruptcy regulating legal acts after the independence was gained in 1990. The survey of the research: The researches are given from the point of view of the development of bankruptcy and competition institutes and determination of the main law principles of the competition (debtor’s insolvency) in the past existed law. At that time, when this law was accepted and applied, it was thoroughly studied by Russian scientists G.F. Šeršenevičius, A. Golmšteinas, N.A. Turas and D.V. Tutkevičius. In Lithuania, during the years of 1918 – 1940 some bankruptcy law researches were carried out by D. Gecas, V. Mačys, and I.M. Tiutriurmov (in the Russian language). Bankruptcy (then so called competition) law, as jurisprudence, was taught in Klaipeda Institute of Trade in 1936 – 1937, but existent M. Braks and K. Salkauskis lectures’ conspectus were based on the earlier mentioned authors’ papers and legal acts. “Historical survey at competition process” written by Russian scientist K.I. Malysevas was rather significant too, but the development of law, that has been analyzed in this paper was till 1871. Nowadays the most significant works about their own bankruptcy law evolution are done by M.V. Teliukina, V. Popondopulo, V. Stepanov (Russia), K. Gratzer (Sweden), D. Skeel (USA) and D. Graham (United Kingdom). In Lithuania some aspects (usually - procedural of bankruptcy law were analyzed in the papers by R. Norkus, V. Višinskis, V. Nekrošius, E. Laužikas, E. Laužikas, V. Mikelėnas. S. Grigaravičius, J. Mackevičius, A. Rakštelienė and S. Silvanavičiūtė working on the bankruptcy prediction matters and financial evaluation of the insolvent debtor. Recently (2005 – 2006), three scientific – practical researches were carried out by the ministry of national economy and the department of bankruptcy control. They tended to determine the disadvantages of now existing law that were caused by the shake-up process, insolvency evaluation and the problems of insolvent persons. Nevertheless, the development of these institutes has not been revealed. The methodology of the paper: this paper is based on the methodological grounds, which have been formulated in the doctrine of the law. Historical, logical, comparative jurisprudence, systematic analysis, pattering, personal experience and other theoretical and empirical methods have been used in order to reveal the development of bankruptcy law. The structure of the paper Firstly, paper contains the definitions of bankruptcy and competition, the development of competition and bankruptcy law, which were taken from other states (Germany, Russia, France) by Lithuania in 1918 – 1940 and the rudiments of this law are given in Lithuanian. The problem of particularism has been revealed as well. The second part of the paper explores the institutes of bankruptcy law in 1918-194. |
