engleski

Moratorium as legal prohibition of enforcement and settlement in bankruptcy proceedings in light of human rights

Enforcement of payment can occur in two different proceedings. It can occur in both enforcement and bankruptcy proceedings. The distinction between the two proceedings is reflected in the fact whether it is an individual enforcement or a general or complete enforcement. Consequently, such an individual enforcement will be carried out in the enforcement proceedings, while the complete or the general enforcement will be carried out in bankruptcy proceedings. It should be emphasized that one process excludes the other. The enforcement proceedings are terminated by the opening of the bankruptcy proceedings, which for the final and enforcement document has only the consequence of loss of the enforcement power, but not of the validity. By the very start of the bankruptcy proceedings, therefore, from the day of its opening, no enforceable execution can be carried out in order to settle claims for which a writ of execution exists. This is one of the legal consequences of bankruptcy that have been significantly amended and modified by the new Bankruptcy Law of Serbia of 2017, which will be addressed in the paper from a critical point of view. Essentially, the abolition of the moratorium allows the implementation of the enforcement proceedings, which re-establishes the jurisdiction of the public executors for carrying out the execution. A review of the Bankruptcy Law of Croatia will also be given, according to which the very fact that a bankruptcy proceeding has been opened prevents mortgage creditors with separate satisfaction rights from initiating individual enforcement proceedings.

: enforcement, bankruptcy, moratorium, prohibition of enforcement and settlement

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