czech pavilion at 2010 expo - MZV ÄŒR

CZECH BUSINESS AND TRADE
vency proceedings. Secured creditors are
also deemed to be creditors who do not
have a direct claim towards the debtor, i.e.
creditors of a third person, whose claim
is secured by the assets of the debtor.
Contrary to the former regulation, according
to which secured creditors were
satisfied at a maximum level of up to 70%,
the amount of satisfaction from secured
assets is not limited. If the claim value is
lower than the value of the security, the
claim is for the difference considered as an
unsecured claim. In determining the rank
of secured creditors, what is decisive is the
moment at which the respective security
right was created. A secured creditor is
obligated to exercise its right to the settlement
of its claim from the security in
its registration of the claim and to specify
a particular security right and to prove it
by respective attachments.
� UNSECURED CLAIM
Unsecured creditors are satisfied depending
on the specific form of insolvency pro-
ceeding involved (see above). In the case
of straight bankruptcy proceedings, all of
the assets of the debtor forming the insolvency
assets are sold with the approval
of the creditors‘ council. After settling the
costs of the insolvency proceedings and
claims with priority settlement, the creditors
are satisfied (usually in part) out of
the rest of the sales proceeds. Unsatisfied
claims or parts thereof can be enforced
after termination of the insolvency proceedings.
Practically, there are no assets
of the debtor left after termination of the
insolvency proceedings and the debtor‘s
business activity is wound up. The actual
enforcement of such claims is therefore
rare. If insolvency is solved by restructuring,
debts are transformed according to
the restructuring plan, i.e. into a share of
the company, new debts, etc.
� GENERAL RECOMMENDATIONS
Generally, when entering into a transaction,
security of the claim by a proper
security right (for example a mortgage),
is recommended. In doing so, it has to be
borne in mind that some legal actions can
be declared ineffective and consideration
gained as a result must be handed over
to the insolvency assets. These legal actions
are: legal actions with insufficient
or non-existent consideration, preference
– for example settlement of a debt before
its due date, security of already existing
debt, etc. and fraudulently disadvantaging
transactions, i.e. transactions which
intentionally disadvantage creditors, provided
that the other contracting party
was aware of such intention. In the event
of transactions between companies forming
a holding group, it is assumed that
the respective other party was aware of
the debtor‘s intention. Hence, special diligence
is required.
Markéta Pechová
Petr Syrovátko
Wolf Theiss, Advokáti s. r. o.
e-mail: marketa.pechova@wolftheiss.com,
petr.syrovatko@wolftheiss.com
13 |