LENDING RIGHT AND INSOLVENCY ESTATE

Abstract

The article analyzes the practical aspects of inclusion the lending right into the insolvency estate. Based on the analysis of existing legal regulations and judicial practice of their application, there are existing restrictions on the inclusion of lending rights in the insolvency state. These restrictions are analysed from a balance of interests of the owner, the debtor and his creditors, as well as the correct distribution of economic costs while providing priority protection to each of these entities. Based on the concept of flexible legal regulation, the author formulates possible approaches (de lege ferenda and de lege lata) to solving this problem. The article focuses on the definition of the elements of the theoretical concept of a flexible system of protecting rights in insolvency. This concept includes, for example, the following aspects: firstly, the need to relativize those absolute defenses that can directly negatively affect the general economic well-being (In this case, the insolvency estate), secondly, the enforcement search for the scope of the protection provided should be carried out by judicial weighing and procedural assessment of various relevant factors, as well as the corresponding gradation of legal consequences, which should be identified by legislator or superior court.