Dishonest intent in rehabilitation methods of prevention and resolution of insolvency

Modern bankruptcy law, in addition to the creditors' interest in enforcing their claims, began to take into account the debtor's interest in preserving their economic and social existence. Alongside the traditional liquidation method of resolving bankruptcy, ways of rehabilitation also emerged, targeting both entrepreneurs and non-entrepreneurs. The latest trends go even further, advocating for certain rehabilitation procedures in business relationships before the debtor reaches insolvency. In general, it can be said that the aim of these rehabilitation procedures is to avert the danger of bankruptcy and, if it does occur, to overcome it.

An honesty of intent of the debtor is a necessary legal condition for allowing any rehabilitation form of insolvency procedure. Legal provisions containing the requirement of the debtor's honesty belong to legal norms with a relatively indefinite (abstract) hypothesis – that is, legal norms whose hypothesis is not directly specified by the legal regulation and leave it to the court to define the hypothesis of the legal norm based on its discretion in each individual case, considering a broad, unrestricted range of circumstances. Courts approach the question of a dishonest intent in a casuistic manner and only to a limited extent formulate general conclusions. Although professional literature has touched on the issue in a partial way, comprehensive treatment of the topic is currently lacking.

The project's goal is to fill this gap and systematically define types of actions (typical factual situations) that can be qualified as a dishonest intent and determine the boundaries (from a substantive and temporal perspective) between a dishonest intent and the proper exercise of rights.

Methodologically, the project will be primarily based on a qualitative analysis of judicial precedents, especially decisions of the Supreme Court and both higher courts, possibly including the European Court of Justice.