THEORETICAL AND PRACTICAL ASPECTS OF PROVIDING THE PROTECTION OF RIGHTFUL EXPECTATIONS DURING BANKRUPTCY PROCEDURE

Abstract

The article deals with general legal principles of providing protection of rightful expectations during bankruptcy procedure. It is established that the conflict of diverse and many-sided interests in cases of insolvency makes the court responsible for fulfilling the state’s obligation of getting clarity in legal relations. It is pointed out that national courts have a duty of interpretation activity based on general principles of law. The degree of admissibility of that interpretation activity depends on the character of legal relations, the type of legal understanding and the type of legal system. It is found out that rightful expectations are aimed at making it easier for people to protect their hopes when they cannot lay foundation for their financial claims and have to defend themselves through securing the right of being heard by the court within fair procedure. The reasonableness of the expectation of a participant in a case of bankruptcy in certain context is a matter of fact and a factor to be established during the court’s interpretation of the norms and principles of law and establishing the procedure of the case solution while taking into account the proportionality of abridgement of rightful expectation protection. The research made it possible to conclude that the object of the legal relations of bankruptcy is the creditor’s right of expectation to get property benefit as understood by article 1 of the First Protocol of the Convention. The procedural aspect of the rightful expectations of the participants of a case of bankruptcy was analysed, keeping to their temporal part was pointed out as well as providing the procedures that are to take into account the diversity of the interests represented in the procedures. The pre-bankruptcy and post-bankruptcy creditors’ rightful expectations of material legal character are hopes to get certain «asset», a debtor’s rightful expectations are hopes to be released from additional obligations, insolvency officers’ rightful expectations are hopes to get proportional repayment etc, and a person’s participation in a creditor committee, which provides influence on organizational relations and public interests, determines justified hopes to get «asset».