The key issue addressed is the question of the adequacy of Articles 106 and 107 of the Tax Procedure Act – ZDavP-2 in terms of the legal consequences that the regulation under the above-mentioned articles creates for the former employees of the bankrupt debtor, the former management of the bankrupt debtor, and ultimately also for the Republic of Slovenia, in relation to the (in)possibility of payment of taxes and contributions after the bankruptcy proceeding has been closed. Bankruptcy proceedings are a type of insolvency proceedings and are regulated as such by the Financial Operations, Insolvency Proceedings, and Compulsory Dissolution Act - ZFPPIPP. Insolvency proceedings are terminated by court’s order terminating the bankruptcy proceeding, which may result in either (i) the assets of the bankrupt debtor being distributed to creditors for the purpose of repayment in accordance with the order of repayment, or (ii) there being no distribution at all, as the bankrupt debtor does not have any assets at all. Upon the finalisation of the order closing the bankruptcy proceeding, the bankrupt debtor is deleted from the court record. The bankrupt debtor ceases to exist, and the question arises whether the mere civil death of the bankrupt debtor is sufficient to terminate all the obligations of the bankrupt debtor, including the ancillary rights of creditors attached to the existence of those obligations (for example, the right of a creditor to demand payment of a claim from a guarantor in the case of a suretyship, or the right of a creditor to sell the pledged property in the case of a pledge).
The above-mentioned issue has been considered by the Supreme Court of the Republic of Slovenia in their legal opinion of the General Session of the Supreme Court of the Republic of Slovenia of 21 March 2013. Since no legislation regulates the question of how the cessation of a capital company because of the latter's bankruptcy, after the end of the bankruptcy proceedings, affects the existence of its liabilities, this is a legal lacuna. which the Supreme Court of the Republic of Slovenia in above-mentioned legal opinion, has sought to fill by the application of a legal analogy. In its legal opinion, the Supreme Court of the Republic of Slovenia refers to Article 334 of the Obligations Code - OZ, from which it follows as a general rule that the death (and, by analogy, any cessation) of a debtor does not cease his obligation. In particular, the Supreme Court of the Republic of Slovenia pointed out that Article 9(2) of the Obligations Code - OZ suggests that any ambiguity as to the extinguishment of an obligation should be interpreted narrowly. The question that arises is how the deletion of a bankrupt debtor from the court's register affects the ability to pay workers' claims and, in particular, the corresponding claims of Republic of Slovenia - taxes and contributions.
In the event of insolvency proceedings against an employer, employees are protected as preferential creditors and through the guaranteed institution Public Scholarship, Development, Disability and Maintenance Fund of Republic of Slovenia, but the two-tier protection is not sufficient to ensure that employees' claims are fully paid. By failing to calculate and pay workers' taxes and contributions with their wages, the bankruptcy debtor's manager commits a criminal offence (usually) under Article 196 of the Criminal Code. In addition to the debtor, who is a fulfilment beneficiary and as such entitled to carry out fulfilment action, anyone who has a legal interest in having the other person's obligation fulfilled has the status of a fulfilment beneficiary.
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