2011年-IMF国际货币组织全球_Republic_of_Lithuania_Technical_Assistance_Report_on_Proposals_for_Reforming_the_Insolvency_Regime_38页_605kb

Summary of the Republic of Lithuania: Technical Assistance Report on Proposals for Reforming the Insolvency Regime

Core Content

This report, prepared by the International Monetary Fund (IMF) Legal Department in July 2010, provides technical assistance and recommendations to the Republic of Lithuania on reforming its insolvency regime. The reforms are aimed at introducing a Personal Bankruptcy Act (PBA) and improving the corporate insolvency framework, particularly in the treatment of fraudulent bankruptcies.

The report is based on a mission conducted in Vilnius from May 3–7, 2010, and includes consultations with government officials, judiciary members, members of Parliament, and private sector representatives. It highlights the need for a comprehensive and efficient legal and institutional framework to support the new insolvency regime.

Main Recommendations

1. Personal Bankruptcy Act (PBA)

Overview of the Current System

• Lithuania's current insolvency regime only covers enterprises, not individuals.
• The introduction of a PBA is seen as a necessary step to address over-indebtedness in the private sector, especially following the global financial crisis.

Key Elements to Consider

• Access to the Regime:

  • Determine the types of debtors covered (e.g., consumers vs. sole traders).
  • Set a clear insolvency threshold based on equitable insolvency (inability to pay debts as they fall due), rather than two different tests.
  • Decide on costs for accessing the mechanism and rules for filing petitions.
  • Establish an automatic stay on enforcement actions upon petition approval, with conditions for creditors to request relief.
  • Consider whether the same debtor can file for bankruptcy more than once.

• Payment Plan:

  • Define the model of the payment plan (e.g., based on capacity to repay or exceptional provisions for those with no capacity).
  • Specify rules for preparing, submitting, and approving the plan.
  • Determine if the plan should be binding on all creditors, possibly through court approval.
  • Address debtors with no capacity to repay, including a special regime for such cases.

• Repayment Period:

  • Recommend a maximum repayment period of 3 to 6 years, in line with European practices, rather than the proposed 10 years.

• Discharge and Rehabilitation:

  • Ensure non-discriminatory treatment of discharged debtors in the credit registry.
  • Consider an exit mechanism for debtors with no capacity to implement a plan.
  • Define discharge rules—whether it frees the debtor from all obligations or not.
  • Include rehabilitation procedures post-discharge to ensure the debtor can reintegrate into the economy.

• Institutional Framework:

  • Establish debt counseling services to support individuals in managing financial distress.
  • Consider using the State Consumer Rights Protection Authority for this purpose or setting up a new agency.
  • Define qualification criteria for bankruptcy administrators, including professional background and experience.
  • Determine whether administrators licensed for enterprise bankruptcies should also be allowed to handle personal bankruptcies.

• Consistency with Other Laws:

  • Ensure that other legislation does not hinder the operation of the personal insolvency regime, particularly tax laws that may discourage debt restructuring.

• Pre-Bankruptcy Stage:

  • Consider a two-tiered approach with a pre-bankruptcy debt settlement stage.
  • This stage could be extra-judicial or court-based, with composition agreements as a possible mechanism.
  • Provide incentives for voluntary debt restructuring, such as reduced costs and equal treatment of rights for debtors and creditors.
  • Ensure that settlement agreements are legally binding and include a creditors' voting mechanism.

2. Reforming the Corporate Insolvency Regime

Treatment of Fraudulent Bankruptcies

• There is a perception in Lithuania that many corporate bankruptcies are fraudulent, but data shows few are actually found fraudulent by courts.
• The low rate of prosecution is attributed to several shortcomings in the legal and institutional framework:
  • No clear definition of "fraudulent bankruptcy" in the Bankruptcy Act.
  • Ambiguous definition of "criminal bankruptcy" in the Criminal Code, particularly the term "deliberate mismanagement".
  • Lack of capacity and incentives for bankruptcy administrators and judges to investigate fraudulent cases.
  • Institutional inefficiencies that prevent timely involvement of police and prosecutors in such cases.

Recommendations

• Provide a clear definition of fraudulent bankruptcy in the Bankruptcy Act.
• Clarify the criminal definition to align with civil/commercial standards.
• Enhance the capacity and incentives for bankruptcy administrators and judges to conduct thorough investigations.
• Introduce mechanisms to involve police and prosecutors in the investigation of fraudulent cases.
• Ensure consistency between civil and criminal laws to improve the detection and prosecution of fraudulent bankruptcies.

Key Takeaways

• A Personal Bankruptcy Act is essential to support individuals facing over-indebtedness and to promote credit discipline and economic rehabilitation.
• The reform of corporate insolvency should focus on preventing and prosecuting fraudulent bankruptcies through improved legal definitions, institutional capacity, and cooperation between agencies.
• The report emphasizes the importance of international best practices, particularly from European countries, in shaping the new insolvency regime.
• The introduction of a PBA is unlikely to lead to higher interest rates, as supported by cross-country experiences such as in Sweden.

Conclusion

The report outlines a comprehensive reform agenda for Lithuania's insolvency regime, focusing on personal and corporate insolvency. It recommends a modern, balanced, and effective legal framework that promotes rehabilitation, fair treatment of creditors, and institutional efficiency. The IMF Legal Department encourages the Lithuanian authorities to consider these recommendations as they develop the new Bankruptcy Act and refine the corporate insolvency regime.