Actio pauliana adalah full#

Actio Pauliana is facility provided by regulation to each creditor to submit cancelation of not required action that implemented in which the action cause the loss to the creditor in management of bankruptcy properties. is actual knowledge or even fraud required, or is negligence sufficient)? What standards, if any, applied in the context of the actio pauliana can be used to assess whether a transaction gives rise to liability (e.g.Each economic organization in any form or scale always requires the sufficient fund to enable the activities and development can be realized based on its planning. The second sub-objective of the research is to specify the conditions under which a creditor can hold other interested parties in a legal entity (such as directors, shareholders or even other creditors) liable for their involvement in transactions which negatively affect their right of recourse. Particular questions include: Can the level of knowledge of prejudice to creditors required under the actio pauliana be used to specify the level of knowledge required for non-contractual liability for harm to creditors (e.g. goodwill)? If not, should it be? How should psychological conditions like knowledge and intent be applied to legal entities? Should the law require the same level of knowledge for every type of transaction? How should the pauliana deal with a debtor whose identity has changed, e.g. LBO’s) to be qualified as one single challengeable transaction? Can the pauliana be applied to the transfer of intangible assets (e.g. A legal solution is considered adequate if: (i) it is compatible with existing legislation, (ii) it subjects business decisions to less stringent judicial scrutiny than other types of transactions, and (iii) its outcome is predictable at the time of the challenged transaction. Particular questions include: Should the law allow complex transactions (e.g. The first sub-objective of the research is to supplement, and where necessary adjust, the current law in relation to the actio pauliana to make it an adequate tool for creditors against the opportunistic use of the legal personality. Hence, the central research question is: “ How should the actio pauliana be designed as an adequate instrument of creditor protection against the opportunistic use of legal entities?” The central objective of this research is to design a new legal framework in relation to the actio pauliana, in order to make it a more adequate (as defined below) tool to counter the opportunistic use of legal entities. By contrast, Belgian legal doctrine on the pauliana remains the quasi-exclusive domain of private law scholars with an (often implicit) focus on dealings between individuals. In other jurisdictions, legal scholars indeed fully recognize the importance of the pauliana – or functional equivalents thereof – as an instrument of creditor protection in legal entities. The actio pauliana can therefore be an important instrument to minimize opportunistic behavior in legal entities, by enabling creditors to set aside transactions in which the entity's legal personality is used to harm them. On the contrary, he may enrich himself by extracting assets from it, leaving the entity and its creditors empty-handed. If a shareholder impoverishes the legal entity under his control, he does not by definition impoverish himself. This opens the door to opportunistic behavior. Unlike in the case of an individual, the holder of the rights to a legal entity’s assets (the intangible entity itself) by definition differs from the persons actually exercising control over it (such as directors and controlling shareholders). However, that underlying basic trust is hard to reconcile with the particular nature of legal entities (such as most companies).

This principle of autonomy is based on a basic trust that every person will manage his estate in good faith, as he himself will primarily bear the consequences of his mismanagement. The pauliana constitutes an important exception to each person's autonomy over his estate.

Actio pauliana adalah full#

It is a remedy (i) of a creditor (ii) against the beneficiary (iii) of an act committed by his debtor (iv) with the intent or knowledge of (v) preventing full recovery of the creditor’s claim, provided that (vi) either the transaction was gratuitous or the beneficiary acted in bad faith. The pauliana exists under general civil law as well as under bankruptcy law, in which case it is exercised by the bankruptcy trustee. In Continental legal traditions, this legal remedy is known as the (actio) pauliana. Under certain conditions, however, a court can allow the creditor to set aside the transaction by which his debtor caused of exacerbated his own insolvency. by transferring assets to a friend for free. A debtor may elude his creditor by making himself insolvent, e.g.