İflas idaresi
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Date
2012
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Sosyal Bilimler Enstitüsü
Abstract
In our thesis, we handle the administration of bankruptcy which was chosen by enforcement court from among the candidates proposed by the creditors during the settlement of bankruptcy. In the introductory part, the place of the administration of bankruptcy in the liquidation process is explained and then the concept of bankruptcy is handled in general. The first part handles with the bankruptcy assets consisting of all estates and assets, cash at banks, joint and co-owned equities, legal usufructs, the undivided shares from a legacy, commercial rights on any intellectual property, share of profits belonging to the insolvent regardless of whether at home or abroad following the decree of insolvency issued by the tribunal of commerce. The Bankruptcy Office, after being notified of such a bankruptcy case, by immediately assessing the values of the assets of the bankrupt according to the content of the books in which these values are registered, decides the liquidation to be exercised according to the principles of a simple liquidation, if, it is understood that the values of the assets included in the bankrupt?s estate matches the costs from the simple liquidation or if the creditors, following the declaration of such a simple liquidation, demand a simple liquidation by paying the costs of such a simple liquidation in advance. We encounter with administration of bankruptcy during a simple liquidation. However, the administration of bankruptcy does not take place in all phases of a simple liquidation; in some parts bankruptcy office is also responsible. 120 In the second part of our thesis, through the examination of the concept of administration of bankruptcy in its broader and narrower senses, it is explained that the concept includes both administration of bankruptcy and its official organ of bankruptcy office. Further on, the views on the legal dimension of the administration of bankruptcy were addressed and the view, as accepted by our law too, that ?the administration of bankruptcy is the legal representative of its bankrupt's estate? was examined in detail. After a short look into the current systems about the selection of the Administration of bankruptcy, the cases, in which the administration of bankruptcy can be chosen during the first or second creditors? meeting, as also adopted by our legal system, were discussed separately. The duties of the administration of bankruptcy were regulated under the article 226 of the Enforcement and Bankruptcy Law. According to this, the administration is the legal representative of bankrupt's estate; the administration is responsible for considering the interests and realization of the liquidation of the bankrupt's estate. The Administration of bankruptcy decides against or in favor of the claims of property recovery, makes forced sales, examines the receivables notified to the Bankrupt?s estates; can, in the cases where it arranges the Schedule of sequence and pursues a law suit, decide directly on a reconciliation via arbitrage about the receivables within the limits allowed by the article 226/c.2 of the Enforcement and Bankruptcy Law. On the other hand, the administration, can convert the assets and shares into cash (article 241of the Enforcement and Bankruptcy Law) or allocate the 121 Money obtained to the creditors according to the Schedule of sequence/allocation (article 247 of the Enforcement and Bankruptcy Law). The administration can also prepare certificate of insolvency for the creditors for the rest of their receivables; after the total encashment of the assets and shares in the bankrupt?s estate and after the distribution of this resultant cash to the creditors, for the decision of closing of the bankruptcy (article 251of the Enforcement and Bankruptcy Law) to be effective, it has to prepare a final report to be submitted to the commercial court who took the decision of any such case of bankruptcy; above-cited issues, Within this framework, were examined in deep here in our work. In the latest section, the cases where the responsibilities of the Administaration of bankruptcy end were discussed about. As a principle, this responsibility ends with the completion of the liquidation. After the completion of the liquidation process, the Administration files a report which contains information on the procedure used in the encashment of the assets and shares in the bankrupt?s estate, the amount of cash gained from such an encashment, the method used in the allocation of the cash to the creditors, the amount of debt of the bankrupt?s estate and the origin of this debt. The report also includes the information on the certificate of insolvency given to the creditors whose receivables not covered completely by stating whether the bankrupt is guilty for such a bankruptcy on one hand, telling the commercial court about whether or not the bankrupt can be regarded as a negligent or fraudulent one on the other. Finally all detailed information together with all files and documents in hand related to the liquidation is submitted to the commercial court by the Administration. 122 The commercial court gives the decision of the closing of the bankruptcy if it finds no fault or defect. With the closure of the bankruptcy, the mission of the administration comes to an end. In the same way, the decision to realize the liquidation in the simple way, suspension of the officers of bankruptcy administration or their resignation on their own accord are among the reasons which lead to the termination of the mission of bankruptcy administration. Administration of bankruptcy is inspected through various organs like the bankruptcy office, creditors, enforcement court and the commercial court who gives the decision about the bankruptcy. The natural result of the inspection is responsibility. The bankruptcy Office is also an organ having its own responsibilities. The legal, criminal and disciplinary responsibilities of the Bankruptcy Office were examined in the last part of our thesis.
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İflas, idare