The concept “bankruptcy ability” in the Russian legal discourse

Volume 5, Number 2, 2020, P. 199–210

[ JURIDICAL SCIENCES ]

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Abstract:

Based on the generalization of the opinions expressed in the civil doctrine and analysis of Russian and foreign legislation, the article considers the concept bankruptcy ability. It notes that the related problems are on the periphery of scientific knowledge. The use of traditional methods of studying legal phenomena and some elements of discursive analysis allowed us to identify new areas of development of the concept under consideration. It has been established that the term “bankruptcy ability” in Russian legal discourse does not meet the basic requirements for scientific terminology: it does not have sufficient clarity, is ambiguous, and denotes a concept with an unstable volume and content. The concept of bankruptcy ability is interpreted in different ways: as a characteristic of the debtor and as an inherent feature of the claims of only those creditors who have the right to apply to the court with a petition for declaring the debtor bankrupt. The use of “bankruptcy ability of requirements” is critically evaluated. The author examines the main approaches to determining the meaning of the concept “bankruptcy ability” as a legal phenomenon — procedural, substantive, complex ones. The need for specification of the concept of “bankruptcy ability” is justified. This concept should reflect not only the ability of a person to be declared bankrupt on the basis of a court decision, but out of court by operation of law. The content of bankruptcy ability is composed of socially and economically secure opportunities for a person to face up property and organizational limitations imposed on him. It is proposed to consider bankruptcy ability as an element of legal personality. The main issues of concern in the Russian legislation about the definition of the scope of persons as applied to whom a bankruptcy case may be opened are identified.

Keywords:

bankruptcy law, insolvency, debtor, bankruptcy ability, legal personality

Author:

Aleksandr A. Pakharukov, Cand. Sci. (Jurisprudence), Associate Professor of Customs and Law Department, Irkutsk State Transport University, Irkutsk, Russia

For citation:

Pakharukov A.A. (2020) The concept “bankruptcy ability” in the Russian legal discourse. Sotsial’naya kompetentnost’ = Social Competence. Vol. 5. No. 2. Pp. 199–210. (In Russ.)

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