An English statute of 1705 provided for a discharge (release) of all debts owed by the bankrupt and due at the time of bankruptcy provided the bankrupt had faithfully complied with his statutory duties. Since that time, relief of the honest but unfortunate debtor from his provable debts has become one of the main objectives of bankruptcy legislation in countries influenced by the English system. The right to a discharge is not unqualified and may be forfeited by the commission of acts that the particular legislation considers as meriting this sanction. Moreover, certain debts are excepted from the operation of the discharge, as, for example, liabilities for support under the governing family-law provisions or for certain types of personal injury.
In England discharges are automatic after the expiration of specified periods, usually three years, unless the court has suspended or conditioned the running of the period. In the United States a discharge requires a court order, but the debtor is entitled to a discharge unless he has engaged in conduct defined by law that disqualifies him from receiving it and the trustee or a creditor has objected to the discharge. There is no statutory waiting period.
In Australia and New Zealand a debtor is automatically discharged three years after the date of adjudication, unless an objection to the discharge has been entered by the trustee or a creditor. In addition, the bankrupt may obtain an earlier discharge by court order upon application, which may be subject to conditions. Conditional discharges also may be ordered under Canadian law. Provisions for discharge exist in South Africa and in an increasing number of civil-law countries. Japan introduced discharge provisions modeled after U.S. law in 1952. Brazil, Argentina, and France adopted provisions for the extinction of debts to the extent that they remain unsatisfied by dividend payments. In France that rule is absolute; in Argentina and Brazil it is subject to specified conditions and qualifications.
Roles of the court, the administrator, and the creditors in bankruptcy proceedings
Since insolvency proceedings aim at a judicially approved or supervised rehabilitation or liquidation of the estate of an insolvent, the proceedings must be initiated in a court having the necessary judicial powers. The bankruptcy laws of different countries, however, vary considerably with respect to the jurisdiction of the bankruptcy court over the phases of a case and the relative roles assigned to judicial officers, administrators, and creditors in the conduct of a case.
During the formative period of bankruptcy law in the 18th and 19th centuries, the courts developed the doctrine of the âforce of attractionâ of bankruptcy proceedings, resulting in the concentration in the bankruptcy court of all litigation relating to the creditors or the assets of the estate. Modern statutes still adhere to that idea but with considerable variation. The laws of England, the United States, Australia, Canada, and New Zealand contain very broad jurisdictional grants to the bankruptcy courts relating to the collection and administration of the property of the estate and the rights of secured and unsecured creditors. A number of civil-law countries, following French and Spanish models, provide equally extensive powers to the bankruptcy courts. In some of these countries, however, the jurisdiction of special labour courts limits the judicial powers of the bankruptcy courts. In Germany the settlement of individual controversies, such as the determination of contested claims or the rights of third parties to or in property claimed as part of the bankrupt estates, is left to the regular courts. In Austria, however, the bankruptcy court has exclusive or concurrent jurisdiction in disputes of that type.
In most countries many functions of the bankruptcy court are conferred upon special judicial officers who may be either actual members of the judiciary (as in France) or judicial officers without full judicial status. In England registrars of the courts vested with insolvency jurisdiction, especially the bankruptcy registrars of the High Court, have jurisdiction over the initiation of insolvency proceedings and a long catalog of matters not requiring hearing in open court. Similar rules apply in Canada and New Zealand. In the United States special bankruptcy judges may exercise most judicial functions involved in the conduct of a case. Since these judges are not appointed for life and with Senate approval, some functions are reserved to the regular judiciary. Similar reasons limit the delegation of judicial functions in Australia. In Germany, conversely, a wide range of judicial functions in bankruptcy are delegated to court registrars (called Rechtspfleger) who perform judicial functions outside the regular judiciary.
Creditors have traditionally played an important part in the conduct of insolvency cases. In most countries, however, they are no longer the dominant parties. The courts, assisted by official administrators, have emerged as the key figures. Under the 1985 French law even the creditorâs representative is a functionary of the administration of justice, appointed by the court from an approved panel. In England the system of creditorsâ control that existed from 1706 to 1831 and from 1869 to 1883 was replaced in the latter year by a system of joint control, or creditor participation, a scheme that in attenuated form was retained in the Insolvency Act of 1986. The administration of bankruptsâ estates is undertaken by an official receiverâan office established in 1883âunless a general meeting of creditors or the secretary of state for trade and industry, upon reference by the official receiver, appoints another person qualified to act as an insolvency practitioner to the post of trustee. In cases of summary administration (a simplified procedure that may be ordered by the courts if unsecured debts fall below a certain level) the appointment may be made by the court. Official receivers exist also in Australia and Canada. In Australia the official receiver functions as official trustee only when there is no registered trustee. Since 1981 a registered trustee is the initial trustee if he consents to the appointment prior to the adjudication. He may be removed by the court upon petition by a creditor. The official trustee may be replaced by a registered trustee upon resolution by a creditors meeting. In addition the creditors may appoint a committee to advise and superintend the trustee. In Canada official receivers, appointed by the governor in council, are not trustees of the insolvent estate but exercise supervisory authority. The initial trustee is appointed by the court from a list of licensed trustees but is subject to being replaced by another licensed trustee by means of a special resolution adopted at any meeting of the creditors. In New Zealand the administration of insolvent estates is entrusted to official assignees, appointed under the State Services Act. The creditors may appoint a committee to assist the assignee in the exercise of his functions. In the United States the court appoints an interim trustee to serve until the creditors elect another qualified person to serve as trustee in the case; if the creditors fail to act, the interim trustee remains in office. By way of experiment, administrative officers, called U.S. trustees, are appointed for some districts to serve as interim trustees and, if the creditors make no other election, as trustees. In Chile trustees are licensed and supervised by a governmental agency. In the order of adjudication the judge appoints an interim trustee who remains in office if his appointment is ratified in the first meeting of the creditors, though they may appoint another licensed person as definitive trustee. Chileâs bankruptcy act of 1982 restored creditorsâ control to some extent. In Switzerland bankruptcy offices are established for each of the bankruptcy districts created by the individual cantons. The bankruptcy office is in charge of the progress of the proceedings and acts as trustee unless the creditors select one of their choice. In Italy the bankruptcy judge appoints the trustee and selects a committee from among the creditors. The committee has merely advisory and supervisory functions. A meeting of creditors is summoned only for the determination of provable debts.
