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Multiple claims and the Principle of double consideration in a Bankruptcy Procedure - Focus on Japan Supreme Court Decision Delivered on May 16, 2010 -

  • DONG-A LAW REVIEW
  • 2012, (57), pp.173-200
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

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ABSTRACT

In cases where multiple debtors are liable to fulfill the total amount of obligations, when all or some of such debtors are declared bankrupt, creditors may exercise their rights as bankruptcy creditors on the total amount of claims they hold when the debtors are declared bankrupt to each bankruptcy foundation under Article 428 of the Debtor Rehabilitation and Bankruptcy Act. It is not until the total amount of the claims are extinguished that persons who hold rights to future claims for reimbursements of the debtors may exercise their rights as bankruptcy creditors on the total amount of such reimbursements on each bankruptcy foundation. Thus, even when persons who are liable to fulfill each individual obligation complete repayment and extinguish their obligations to any creditor after bankruptcy procedure commence, such creditors may exercise their rights on the total amount of claims they hold at the time that the bankruptcy procedure commence, unless the total amount of the claims are extinguished. If jonint guarantor extinguish one of multiple claims, creditor may not exercise his(her) right on the total amount of multiple claims. Because extinction of multiple claims must be treated separately(one by one). If not so, it differentiate between multiple creditor and general creditor. Also it restricts claims for reimbursements of the debtors(jonint guarantors, joint and several debtors). When all or some of such debtors who are liable to fulfill the total amount of obligations are declared bankrupt, performance must be appropriated throughout not designated appropriation of performance by consent but constructive appropriation of performance by law. Because there are fears designated appropriation of performance by consent could make inroads into principle of double consideration(Grundsatz der Doppelberücksichtigung).

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