Report on bankruptcy and related aspects of insolvency and liquidation : laid before Parliament by the Lord Advocate under section 3(2) of the Law Commissions Act 1965

목차 (Table of Contents)

• CONTENTS
• CHAPTER 1 INTRODUCTION
• CHAPTER 2 PRINCIPAL QUESTIONS OF POLICY
• Earlier proposals for reform = 4
• Current issues = 6
• Non-coercive systems = 7
• Coercive systems = 9
• Problems of substantive law = 9
• Problems of procedure = 11
• Official receivers = 12
• Interim trustees and small assets cases = 16
• The proposals in the Green Paper on Bankruptcy = 18
• Our proposals = 19
• Our objectives = 22
• CHAPTER 3 SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS
• Introduction = 24
• Summary of conclusions = 24
• Summary of recommendations = 26
• CHAPTER 4 ADMINISTRATION OF BANKRUPTCY PROCEDURES
• The Accountant in Bankruptcy = 58
• Interim trustees
• General = 60
• Qualifications of interim trustee = 61
• Appointment of interim trustee = 62
• Caution = 62
• Resignation and replacement of interim trustee = 63
• Outlays and remuneration of the interim trustee = 63
• The permanent trustee
• Introduction = 65
• Election of the trustee = 65
• Qualifications of the trustee = 66
• Caution = 66
• Resignation and removal = 67
• Remuneration and expenses of permanent trustee = 67
• Commissioners
• The present law = 68
• Proposals for reform
• General = 69
• Qualifications of commissioners = 69
• Appointment and removal = 70
• Meetings = 70
• Auditing of the trustee's accounts and fixing his remuneration = 70
• Miscellaneous = 71
• Judicial factors = 71
• The funding of the system = 72
• CHAPTER 5 CONDITIONS(OTHER THAN JURISDICTIONAL CONDITIONS) OF SEQUESTRATION
• Estates which may be sequestrated
• Introduction = 76
• Individual debtors = 76
• Estates of deceased persons = 77
• Trust estates = 77
• Partnerships = 77
• Limited partnerships = 78
• Bodies corporate = 78
• Unincorporated bodies = 79
• Insolvency as a condition of sequestration = 81
• Mandatory nature of award = 84
• Concurrence of creditors in debtors' petitions = 84
• Persons who may present debtors' petitions = 85
• Qualifying debt in petitions for sequestration
• Present law = 86
• Nature of the debt = 86
• Secured debts = 87
• Claims against co-obligants = 87
• Where sequestration proceedings may be instituted = 88
• CHAPTER 6 JURISDICTIONAL CONDITIONS OF SEQUESTRATION
• Grounds of jursidiction
• The present law = 89
• Criticism of present law = 90
• The European Bankruptcy Convention = 92
• Should an assets jurisdiction be introduced? = 94
• Our proposals = 95
• Concurrent proceedings = 98
• CHAPTER 7 ASPECTS OF SEQUESTRATION PROCEDURE
• Form of the petition and associated matters = 102
• Petitioning creditor's oath and further particulars = 103
• Citation on petition = 105
• Award of sequestration = 106
• Appointment of interim trustee and interim preservation of the estate = 107
• Statement of affairs = 108
• Preliminary enquiries = 109
• Duties of interim trustee following upon completion of the statement of affairs = 110
• Small assets procedure = 111
• Meetings and their procedure = 113
• Power to remedy defects in procedure = 114
• CHAPTER 8 RECALL OF AWARD OF SEQUESTRATION
• Termination by recall
• Introduction = 118
• Recall or appeal? = 118
• Forum in petitions for recall = 119
• Who may petition for recall? = 120
• Notice and advertisement = 120
• Grounds of recall = 120
• Time-limits in petitions for recall = 123
• Effect of existing proceedings = 124
• General effects of recall = 124
• Recall and legal expenses = 125
• Actions of reduction = 125
• Occupancy rights = 126
• Termination by deed of arrangement = 126
• CHAPTER 9 THE PERMANENT TRUSTEE : HIS ELECTION, RESIGNATION AND REMOVAL
• Introduction = 129
• Election of the trustee = 129
• Existing election law and procedure = 129
• Proposals for reform = 131
• Finding of caution by the trustee and his confirmation in office = 134
• Resignation and removal of the trustee
• Existing law = 135
• Proposals for reform = 136
• CHAPTER 10 POWERS AND DUTIES OF THE PERMANENT TRUSTEE
• Introduction = 140
• Taking possession of the estate = 140
• Management and realisation of the estate = 142
• Sale of moveables = 143
• Sale of heritage = 145
• Protection of purchasers = 147
• Contractual powers of the trustee = 147
• Investment and banking practice = 149
• Meetings of the creditors and commissioners = 150
• Investigatory powers and duties = 151
• Duty to maintain records and to account = 151
• CHAPTER 11 VESTING OF THE BANKRUPT'S ESTATE IN THE TRUSTEE
• Introduction = 154
• Vesting of the estate
• Moveable property = 156
• Immoveable property
• Heritable property in Scotland = 157
• Immoveable property outwith Scotland = 158
• Property recoverable under the law relating to gratuitous alienations and unfair preferences = 159
• Rights and powers exercisable by the bankrupt
• Actions for recovery of debts and damages = 159
• Powers and faculties = 160
• Special kinds of property
• Property of the bankrupt's spouse = 160
• Copyright = 161
• After-acquired property and contingent rights to property = 162
• Exclusions from and qualifications of the trustee's right
• The tantum et tale principle = 164
• Rights of superiors = 164
• Landlord's right of hypothec = 164
• Property held in trust = 165
• Property agreed to be sold or sold by the bankrupt = 165
• Exclusions for the maintenance of the bankrupt and his dependants = 166
• The bankrupt's heritable property = 167
• The bankrupt's moveable property = 167
• The bankrupt's income = 167
• Protection of persons transacting with the bankrupt = 169
• CHAPTER 12 GIFTS AND PREFERENCES
• Introduction = 171
• Gifts
• The present law
• Scottish rules = 171
• English rules = 175
• Proposals for reform
• General structure of the law = 175
• Time within which alienations should be open to challenge = 177
• Who may make the statutory challenge? = 178
• Married Women's Property(Scotland) Act 1920 = 179
• Gifts of money = 179
• Prior obligation without consideration = 179
• Protection for certain gifts = 179
• Protection of third parties = 180
• Forum of challenge = 180
• Application of proposals to companies registered under the Companies Acts = 181
• Recall of orders for payment of capital sums on divorce = 181
• Preferences
• Existing law = 183
• English law = 186
• Proposals for reform
• General structure of the law = 187
• Voluntary nature of preference = 188
• Who should be entitled to challenge unfair preferences? = 189
• Protection of third parties = 189
• Forum of challenge = 189
• Application of proposals to companies registered under the Companies Acts = 189
• CHAPTER 13 THE EFFECTS OF INSOLVENCY ON DILIGENCE
• Introduction = 191
• Equalisation of diligence outside sequestration = 191
• Equalisation or reduction of prior diligence on sequestration
• Introduction = 193
• Adjudications = 193
• Arrestments and poindings = 194
• Deceased debtors = 195
• Inhibitions = 196
• Arrestment of a ship = 197
• Poinding of the ground and actions of maills and duties = 198
• Diligence suspended during sequestration = 199
• CHAPTER 14 THE BANKRUPT'S EXAMINATION
• Introduction
• The present law of Scotland = 200
• English law = 203
• Proposals for reform
• The need for a public examination = 205
• Should the public examination be mandatory? = 206
• Should dispensation with the public examination require judicial approval? = 209
• Should the public examination always be held in open court? = 209
• Where should the examination take place? = 209
• Time within which application for the public examination must be made = 209
• Notice of the examination = 210
• Form of the examination = 210
• Who may be examined? = 211
• Who may ask questions? = 211
• What questions may be asked? = 211
• Confidentiality = 211
• Self-incrimination = 212
• Protection of third parties = 213
• Procedural matters
• Apprehension of bankrupt = 214
• When the bankrupt is imprisoned = 214
• Examination on commission = 215
• Record of the examination = 215
• Ancillary provisions = 215
• CHAPTER 15 PREFERRED AND POSTPONED DEBTS
• General background to preferences
• The Scottish setting = 216
• Crown preferences : analysis of justifications = 217
• Crown preferences : countervailing arguments = 219
• Particular preferences
• Income Tax, Capital Gains Tax, and Corporation Tax = 221
• P. A. Y. E. = 222
• Value Added Tax = 222
• Car Tax = 223
• Betting and gaming duties = 223
• Development Land Tax = 224
• Social security contributions = 224
• Occupational pension schemes = 225
• Local rates = 226
• Wages, salaries and other benefits to employees = 227
• Friendly Societies Act 1974 = 229
• Deathbed, funeral and administration expenses = 229
• Application of proposals in liquidation proceedings = 230
• E. E. C. bankruptcy convention = 230
• Postponed debts = 231
• CHAPTER 16 ADMISSIBILITY AND VALUATION OF CLAIMS
• Introduction : General proposals for simplifying the law = 233
• Heads of claim
• Introduction = 236
• Trade discounts = 237
• Debts not yet due = 237
• Contingent debts and annuities = 238
• Debts due under composition contracts = 239
• Secured debts = 239
• Co-obligants = 243
• Partnerships = 244
• Aliment and periodical allowances = 246
• Interest
• Present Scots Law = 249
• English Law = 249
• Proposals for reform = 249
• Balancing of accounts in bankruptcy = 252
• CHAPTER 17 SUBMISSION AND RECORDING AND ADJUDICATION OF CLAIMS
• Introduction = 254
• Form of claims and supporting evidence = 254
• Submission of claims = 258
• Examination and adjudication of claims = 260
• CHAPTER 18 DISTRIBUTION OF THE ESTATE
• Introduction = 263
• Order of distribution of the estate
• The interim trustee's outlays and remuneration = 264
• The permanent trustee's outlays and remuneration = 265
• Deathbed, funeral and administration expenses = 265
• The petitioning creditor's expenses = 266
• The statutory preferred debts = 266
• The ordinary debts = 266
• Post-sequestration interest = 266
• Claims of postponed creditors = 267
• Claims of the bankrupt to any residue of the estate = 267
• Procedure for distribution of the estate
• Accounting periods = 267
• Procedure preparatory to the payment of dividends = 269
• Proposed time-table for adjudication upon claims and payment of dividends = 270
• Subsequent dividends = 271
• Equalising dividends = 272
• Corrected claims = 273
• Special provisions for the ranking and division of claims out of the price of heritage = 273
• Dividends, unclaimed or contingent = 274
• CHAPTER 19 DISCHARGE OF THE BANKRUPT
• Introduction = 275
• Discharge without composition
• Present law = 275
• Issues of policy = 277
• Our proposals
• Principle of automatic discharge = 280
• Deferment of discharge = 281
• Interim summary of proposals = 283
• Accelerated discharge = 283
• Effects of bankrupt's discharge = 284
• Matters of detail = 285
• Discharge on composition
• The present law = 286
• Proposals for reform = 286
• CHAPTER 20 REMUNERATION, ACCOUNTABILITY AND DISCHARGE OF THE TRUSTEE
• Introduction = 291
• Audit of accounts and fixing of remuneration = 291
• Discharge of the trustee
• The present law = 294
• Scottish procedure in summary sequestrations = 295
• Proposals for reform = 295
• CHAPTER 21 DECEASED DEBTORS' ESTATES
• The present law
• Introduction = 299
• Sequestration of a deceased person's estate = 300
• Appointment of a judicial factor under section 163 of the 1913 Act = 301
• Proposals for reform
• Introduction = 301
• Sequestration = 302
• Judicial factories under section 163 of the 1913 Act = 306
• CHAPTER 22 REGISTRATION AND THE PROVISION OF INFORMATION REGARDING INSOLVENCY PROCEEDINGS
• Introduction = 307
• The register of insolvencies = 308
• Registration in the register of inhibitions and adjudications = 311
• CHAPTER 23 BANKRUPTCY OFFENCES
• Introduction = 315
• Statutory offences = 317
• CHAPTER 24 TRUST DEEDS FOR CREDITORS
• The present law
• Nature of the trust deeds = 320
• Disadvantages of trust deeds = 321
• Voluntary bankruptcy : the proposals of our working party = 322
• The case for retaining private trust deeds = 323
• Should private trust deeds be the subject of detailed regulation? = 325
• Our proposals
• Introduction = 325
• Private trust deeds generally = 326
• Protected trust deeds = 328
• Eligibility of persons to act as trustee under a protected trust deed = 328
• Publication of the granting of a trust deed = 329
• Accession to the trust deed = 329
• Registration of a trust deed = 330
• Benefits accruing to protected trust deeds
• (ⅰ) Reduced risk of supersession by sequestration = 330
• (ⅱ) Power to challenge alienations and preferences = 331
• (ⅲ) Protection of the debtor = 331
• (ⅳ) Protection of acceding creditors from preferences acquired by diligence = 332
• APPENDICE 1 List of members of Working Party = 333
• APPENDICE 2 Summary of relevant statistics = 334
• APPENDICE 3 Suggest form of statement of claim = 335
• APPENDICE 4 Suggest form of register of insolvencies = 336
• APPENDICE 5 Summary chart of proceedings in sequestration = 338
• APPENDICE 6 Bankruptcy (Scotland) Bill, and Explanatory Notes = 349