Kai kurios finansinio užstato realizavimo skolininko bankroto procese problemos.
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The adoption of the Collateral Directive 2002/47/EC represents an important progress towards the implementation of a truly harmonized single financial market. The Lithuanian Financial Collateral Arrangements Act (the Law)has implemented the Directive 2002/47/EC in time. The Law establishes special regulation for financial securities given in transactions between „professional market participants“, between market participants and other companies, inclusive small and medium-sized enterprises. The Law applies to certain transactions on the financial markets and aims at stabilizing the financial markets. Essentially, the Directive and the national implementing law ensure the enforceability of financial collateral arrangements and provide for rapid and non-formalistic enforcement of financial collateral procedures in insolvency cases. The realization of financial collaterals is made easier and cheaper. Firstly, the article describes the conception of the financial collateral arrangements and the financial collateral. Secondly, this article analyses the way in which financial collateral is enforced in case of an insolvency of the debtor. The Law prescribes the liberal enforcement regime for the collateral and abolishes essential features of security interest in insolvency, such as the prescribed manner of enforcement and the prohibition of appropriation. The article analyses appropriation as a manner of realization of financial collateral, a protection of which in case of insolvency is a new conception in the Lithuanian Insolvency Law. Appropriation is possible only if it has been agreed upon by the parties and if they have also agreed on the objective evaluation of the financial instruments. The objective evaluation of the assets which are the object of recovery is one of the key issues in security law and in the insolvency law. National law must provide for strict procedures in order to prevent abuse and to guarantee maximum proceeds from such assets. The Law has far reaching consequences for insolvency regulation, which is generally more favorable for creditors – security takers, and more detrimental to security providers and their other creditors. The provisions of the Lithuanian law on financial collateral arrangements create an effective framework for the realization of financial collaterals, but it lacks mechanisms for balancing the interests of the collateral taker and the collateral giver and in this respect has a negative impact on the insolvency regulation in Lithuania. The article attempts to provide an answer on how to protect the interests of the collateral giver and other creditors.
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