The decision of the Constitutional Court from April 11, which initiates a procedure for assessing the compliance of Article 13, Paragraph 1 of the Act on Amendments to the Bankruptcy Act (NN No. 133/12) based on the proposal of Ingra, once again compels us to speak about the irresponsibility of state officials and employees after three weeks.
In issue 394 of Lider, we wrote about such irresponsibility after the Constitutional Court suspended the legal provision on the taxation of dividends at the proposal of HUP and ordered the Tax Administration to suspend the collection of that tax until a final court decision. And now, once again, the question of responsibility arises due to the obvious mistake of the person who wrote the amendments to the Bankruptcy Act, which the Parliament adopted on November 23, 2012, and which came into force on December 11, 2012.
The provisional nature of Ingra’s leadership has exploited the obvious mistake of the author of that law, as Article 13, Paragraph 1 states: ‘It shall be deemed that the creditor has made the existence of his claim probable if its existence is based on an enforceable or NON-FINAL court or administrative decision.’
Ingra’s legal experts immediately noticed the illogicality and reported it to the Constitutional Court, believing that such a provision prescribes a legal presumption because the creditor proves his claim based on a non-final judgment, which is contrary to the Constitution. Furthermore, they say in Ingra, the goal of litigation is not only decisions in accordance with the law, but they must also be in accordance with the principles of fairness (equality before the law) and justice (correct judgments of the specific case). Therefore, they consider it evident that the stated principles are not realized, ‘but rather only one side in the bankruptcy proceedings is inappropriately favored, while simultaneously significantly worsening the legal status of the opposing side.’ This means that the defeated party in a non-final judgment must be granted the right to appeal, which ‘guarantees that the appellant will not suffer irreparable harm until the higher court renders a final decision.’ Ingra believes that Article 13, Paragraph 1 denies the losing party in the first-instance proceedings the right to an effective appeal, which guarantees regular operations until finality, but also introduces legal uncertainty and unpredictability into the economic life of the country. Thus, it will enable ‘the opening of bankruptcy proceedings against legal entities whose debt has not been definitively established at all.’ The Constitutional Court has decided to suspend Article 13, Paragraph 1 of the Act until its final decision, thus bringing the actors in economic life into uncertainty for the second time in a few weeks, following HUP’s proposal against the taxation of dividends.
