Lien as a Procedural Security Measure in Insolvency Proceedings in Russia and Germany

Abstract

The legal status of mortgagees and the specifics of meeting their claims in insolvency proceedings are of particular interest for research due to the privileged position of such creditors. However, the issue of bail is little studied in the Russian doctrine. The purpose of the study is to substantiate the legal nature of the right to arrest collateral and its priority in insolvency (bankruptcy) legal relations based on an analysis of legislation, doctrine and established judicial practice in comparison with the legislative model of the right to arrest collateral at the insolvency institute in Germany. The appeal to the legislation and doctrine of Germany predetermined the use of the method of comparative studies in order to understand the doctrine of the right of arrest bail and its consolidation in legislation. The historical and legal method is of no small importance for analyzing the legal structure of the right of arrest bail. The methods of interpretation, synthesis, and teleological method make it possible to identify the legislator’s goal of introducing the right of arrest bond. The German and Russian legal systems are quite close, especially in the field of property rights regulation, therefore, the German legal system is of particular importance for the implementation of successful legislative structures. First of all, the essence of the law of bail is investigated, which is the subject of discussion both in Germany and in Russia. The conclusion is made about the arrest pledge as having a public-legal nature of phenomena, in contrast to the right of pledge regulated in private law. A gap has been identified in the legal regulation of the status of a creditor from private law relations who secured his claims against the debtor by seizing his property in enforcement proceedings. It is recognized the priority established in the Tax Code of the Russian Federation for satisfying the claims of authorized bodies as creditors of an insolvent debtor in bankruptcy proceedings, based on the security function of seizing a taxpayer’s property, leads to a violation of the balance of private and public interests in the absence of the same right for bankruptcy creditors. It is proposed to regulate the grounds for the emergence of the right of arrest collateral, which has a special nature, in the Federal Law On Enforcement Proceedings, assigning priority to the holders of such a right and in bankruptcy proceedings with certain restrictions.