Pages: 6

Insolvency of individuals is a natural phenomenon in the society. Natural persons, similarly to legal entities, may find themselves in a situation where they are unable to pay debts. In such case the state has to step up and establish a collective, effective, and fair debt recovery mechanism which maximises creditors’ returns, protects debtor’s human rights, and provides the possibility for a debtor to start anew.

Pages: 19

This chapter focuses on a fresh start as the main aim of discharge procedure. It presents the historic development of discharge procedure and the emergence of a fresh start. A fresh start means not only the relief from debts, but also the new possibilities for an individual to re-enter into economic relations and start anew. Discharge procedure is a response to insolvency problems of individuals in the society which requires a fair balance between the interests of a debtor and creditors. This chapter also deals with the problems on how deprivation of creditors’ claims (right to property) should be justified when their claims are discharge. Discharge of debt is the intervention into creditor’s right to property which may be justified only when the public interest exists.

Pages: 23

This chapter focuses on the interplay between the right to discharge and other human rights. It seeks to explain how opening of discharge procedure may affect the exercise of right to dignity, right to pursue business, right to privacy, and right to effective remedy and fair trial. The exercise of these rights is affected by the application of various measures during the discharge procedure and requires a careful balancing. It seeks to explain how the proper balance should be established between the effective application of the tools of discharge procedure and the application of fundamental human rights. Also, it deals with the relevant case law of international court in cases where the question regarding the restriction of the application of human rights arose.

Pages: 20

This chapter explains the notion of an entrepreneur. Though modern development of discharge procedure seeks to address the insolvency problems of entrepreneurs, it is difficult to determine who is an entrepreneur and whether such person is different from other natural persons in cases of insolvency proceedings. It aims to determine when a person may be regarded as an entrepreneur since the proposed definitions of an entrepreneur in insolvency law so far are broad and vague. It deals with the possible consolidation of the debts deriving from professional and non-professional activities and how they should be treated. Also, treatment of persons related to an insolvent entrepreneur are analysed, namely, whether they should be involved in the discharge procedure and how they may participate in these insolvency proceedings.

Pages: 47

This chapter focuses on the harmonisation (approximation) of the rules on discharge procedure under EU insolvency law. It explains the legislative initiatives in the European Union law which led to the adoption of the rules on discharge procedure and the social and economic reasons which require the adoption of certain rules on discharge procedure. It analyses the elements of discharge procedure which have been harmonised (approximated) in EU law, namely, the access to discharge procedure and duration of this procedure, prohibition of disqualification after discharge procedure is accomplished, and derogations which allow the Member States to implement the Directive pursuant to their national and economic interests. Also, it deals with the impact of the harmonisation (approximation) of the rules on discharge procedure on the application of the EIR in cross-border insolvency cases.

Pages: 38

This chapter deals with the models and conduct of discharge procedure. Two models of discharge procedure stand out. One model is coupled with the adoption and implementation of a repayment plan, and another does not require such plan (a straight bankruptcy procedure). It deals with the grounds for opening of discharge procedure, namely the requirement of good faith and insolvency. The role and functions of judicial and administrative authorities and insolvency practitioners in discharge procedure are analysed. It explains how the right to a fair trial should be applied in discharge procedure since discharge procedure should be judicial proceedings. Also, it deals with protection from unfair contractual terms when the claims deriving from consumption contracts are lodged in discharge procedure and whether the court hearing the case shall examine the unfair provisions of such contract on its own motion.

Pages: 28

This chapters explains the problems related to the application of the principle of a full discharge and non-dischargeable debts which constitute the exception to this principle. It deals with the elements of a full discharge which is the dominant principle in discharge procedure, meaning that an individual should be relieved from all pre-bankruptcy debts. It explains the competence of the Member States to determine non-dischargeable debts in their national laws and the proposed list of such debts in European Union insolvency law. Also, it deals with the issue of debts deriving from public law, such as taxes. This chapter presents the arguments for why the state should not enjoy a privileged position in discharge procedure and the claim deriving public law may be discharged. This problems of the nature of the claims of a state and other creditors are also addressed.

Pages: 20

This chapter deals with the processing and protection of personal data in discharge procedure and how it may impact effectiveness of a fresh start after discharge procedure is completed. During discharge procedure a lot of personal data about an insolvent entrepreneur is collected and the question arises as to how it should be lawfully processed. It explains the application of rules on the processing of personal data in the discharge procedure and how the fair balance should be found between the openness insolvency proceedings and effective protection of personal data of an insolvent entrepreneur. Also, it deals with the problems of processing of personal data of an insolvent entrepreneur after discharge procedure and the application of the right to be forgotten.

Pages: 7

This chapter presents the main conclusions and suggestions made after the analysis of discharge of debt procedure. It presents the critical approach over the existing regulation of discharge procedure in European Union law and international soft law documents in this area. It also summarises the main critical ideas of the application of human rights in discharge procedure and how the proper balance should be established between the interests of a debtor and creditors. It also presents the main ideas around why a fresh start is the leading goal of discharge procedure and how it should be attained in such insolvency proceedings. The presented conclusions should allow a better understanding not only of how discharge of debt procedure has developed but also of what the future perspectives of this area of law might be.