2000 Fiscal Year Final Research Report Summary
Development of finance transactions and related problems on laws of execution and insolvency
| Project/Area Number |
11620036
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Civil law
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| Research Institution | Hitotsubashi University |
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Principal Investigator |
UEHARA Toshio Hitotsubashi University, Graduate School of Law, Professor of Law, 大学院・法学研究科, 教授 (30114937)
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| Project Period (FY) |
1999 – 2000
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| Keywords | garnishment / pledged debt / avoidance / fraudulent conveyance |
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| Research Abstract |
The purpose of this research is to grasp the actual situation of newly developed complicated finance transactions and related law problems and to carry out theoretical examination from the objective stand of view. It is mostly important to harmonize needs of the actual finance transactions and the ideal of execution law and insolvency law, i.e. effective enforcement of the right of creditor and fair treatments of all the interested parties.
As the method of research I have collected many documents (especially for finance contracts and bond issuance) and carried out hearing of some lawyers and other business men.
This report summarizes mainly theoretical analysis of this research. Chapter 1 examines problems on garnishment proceedings of deposit credit that the third party holds in pledge. Chapter 2 and Chapter 3 deal with an important problem on insolvency law, namely avoidance of fraudulent conveyance, that will become one of important themes in the future revision of the insolvency statute. Chapter 2 examines the effect of an avoidance against the creditors of the beneficiary in case of the beneficiary's simultaneous bankruptcy.Despite of much actuality this problem has been completely forgotten in our insolvency law theory. Chapter 3 examines the problem of the burden of proof regarding the relevanat factor of avoidance as a matter of legislation. Chapter 4 and Chapter 5 are to examine problems on the newly legislated law of civil reorganization, especially about the legal position of debtor in possession (Chapter 4) and the new device of elimination of security right (Chapter 5). I plan to publish articles including the analysis of actual financial transactions in the near future.
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