Remediation activities, and management activities the remedial estate.

Remediation activities, and management activities the remedial estate.

Remediation measures are an important part of the remedial procedure. They have a significant impact on the possibility of achieving the goal of restructuring proceedings, which is to avoid bankruptcy. Taking into account the importance of these activities, it is therefore necessary to determine which activities may be considered as such and to assign them to the activities undertaken by the administrator.

REMEDIATION ACTION

When defining the concept of remediation actions, first of all one should refer to the purpose of the remedial proceedings, within the framework of which the possibility of such actions has been allowed. Pursuant to Article 3(1) of the Restructuring Law (hereinafter referred to as: “p.r.”), the purpose of the proceedings is to avoid the declaration of bankruptcy. This objective is achieved by entering into an arrangement with creditors and the possibility to undertake remediation measures while safeguarding the legitimate interests of creditors.

Next, one should refer to the regulation contained in Article 3(6) p.r., which states that the cure measures are legal and factual actions which aim at improving the debtor’s economic situation and are aimed at restoring the debtor’s ability to perform obligations, while protecting against enforcement. The said regulation does not indicate individual acts which can be considered as remediation measures, but defines them by defining their purpose. As a consequence, the definition covers a wide range of activities.

REMEDIATION ACTIONS COVER A WIDE RANGE OF ACTIVITIES

This regulation does not indicate the individual activities that can be considered as a sanitation measure, but defines them by defining their purpose. This leads to the definition covering a wide range of activities. Therefore, any action, in law or in fact, aimed at improving the economic situation of a debtor, taken with a view to restoring the debtor’s ability to fulfil his obligations, should be considered as a rehabilitation measure.

Remediation mass management actions

Therefore, any legal or factual action aimed at improving the economic situation of the debtor and taken in order to restore the debtor’s capacity to perform his obligations should be considered a cure. Remediation measures are taken by the administrator in the course of the remediation proceedings as part of the remediation mass management actions. Remediation mass management activities, in accordance with Article 294 p.r., are those activities of the management board which include property used to run a business and property belonging to the debtor.

On the other hand, the notion of management, despite its presence in many legal acts, has not been defined in any of them. The definition of the meaning of this concept has been left to literature and judicature. The simplest and fullest approach to this issue indicates that every legal, factual or procedural act which concerns an object should be considered as an act of the management board. Therefore, in practice, any act performed in relation to a specific thing, regardless of its economic justification, will constitute an act of the management board.

PROCESSING ACTIVITIES ARE NOT CONSIDERED AS A REMEDIATION ACTIVITY

The previously adopted division of management board activities into legal, factual and procedural activities turns out to be useful for the allocation of remediation activities. With this approach of the management board it can be noted that process activities do not belong to the sanitation activities, because according to the definition these are only factual and legal activities. Therefore, it should be specified that remediation activities are a narrower concept than management activities, and therefore not every activity undertaken as part of the management board’s remediation mass will at the same time be one of the remediation activities.

Remediation activity

To sum up, recovery actions are only those actions of the management board which constitute legal or factual actions, which at the same time correspond to the specific objective of implementation of recovery actions, which is to restore the debtor’s ability to perform obligations, which due to the regulation of the restructuring law have at the same time gained protection against execution.

 

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